Outside the Beltway

Some Observations on the Legal, Illegal, and the Extralegal

Part of our current quandary.

Steven L. Taylor · Sunday, February 9, 2025 · 10 comments

I am still trying to wrap my head around the ongoing flurry of activity in Washington by the Trump administration. I am not sure how to properly categorize it all, so here are some thoughts on the question of legality and illegality as well as a dash on the extralegal.

First, just because something is illegal does not mean that it is prevented from happening. It is illegal for someone to smash a window in my house and steal my TV. But its illegality does not create a forcefield around my house to prevent a robbery. The law would lead to an investigation of the break-in and, potentially, the apprehension and punishment of the perpetrator. But the crime still would have happened, with all the commensurate damage that it caused.

I would note that this is but a potentiality, as not all criminals are caught and those who are caught are not always successfully prosecuted.

Further, the illegality of the act does not mean that I don’t have to clean up the mess that was made. Moreover, the criminal will not pay to replace my window and TV. I will have to pay out of pocket to do so, and maybe my insurance (if I have it) will reimburse me. Beyond the actual monetary cost, plenty of time, physical effort, and mental anxiety will have been expended by me and my family as a result. Even an insurance check and a speedy arrest and conviction would restore what was lost (or forestall sleepless nights brought by wondering what that noise was).

All of this applies to what we are watching in the US government right now. There are some things that we know are illegal (like the immediate firing of IGs without providing cause to Congress). However, the illegality of the actions does not stop the action. Nor does it prevent the damage the illegal act creates, even if the illegal act is overturned at some point in the future.

There is another aspect of the legality issue that needs to be remembered. The institution that is charged with enforcing federal law is the Department of Justice. And, of course, the person whose job it is to “Faithfully execute the laws of the United States” is the President.

As such, we have to understand that legality only stops the illegal when law enforcement enforces the law. Further, law enforcement usually means punishing a law-breaker after they have committed their crimes, having done whatever damage those crimes will have created.

There is also recourse to the courts to try and get potentially illegal acts halted so that a situation can be sorted out, but even that does not prevent damage, nor does it mete out punishment.

While it is true that there are a number of things that Trump is doing, most notably at the moment, the tariffs (both real and threatened), that he is legally allowed to do, much of what he is doing may be illegal, but so what? He controls federal law enforcement.

This is why it is best not to elect people who tell you that they will behave lawlessly in office.

For example, it seems pretty obvious to me (and to a lot of people who know the law better than I do) that Trump broke the law in the way in which he took, retained, and shared classified documents. But since the judge overseeing the case was some combination of biased in Trump’s favor and incompetent, the case never made it to trial for a verdict.

So, while I think that what happened was illegal behavior was never adequately recognized and punished, one can also rightly note that he was never found to have broken the law in any official capacity.

Just like if someone throws a rock through my window and steals my stuff we can say that a crime was committed, but that doesn’t mean anyone was held accountable.

The willingness of the Trump administration to engage in a series of actions that are almost certainly illegal, but that require actions by the DoJ to enforce (spoiler: they won’t) or for lawsuits to forestall creates a constitutional crisis. One branch is willing to push boundaries, and in many cases blatantly engage in illegality and then challenge the system to stop them.

Democratic elections are supposed to be a bulwark against all of this, but voters don’t always make good choices. Worse, the US system is, as I have frequently argued, not especially representative (for example, the nature of the Senate, the fact that the House is too small, and the fact that most House races are not competitive) and therefore not especially responsive. The fact the Supreme Court was substantially remade in one presidential term by a president who did not even win the popular vote also fits into this discussion. And while, yes, Trump won the popular vote this time around, it is worth pointing out that a 49.81 to 48.34% win (a difference of 1.47%) is hardly indicative of massive popular support.

But that is a whole other, very lengthy, discussion.

There is also the matter of extralegal action. These are actions that the law itself may not address, so they are neither legal nor illegal. However, when these actions are undertaken by people with power, they are enforced nonetheless. It is frequently the case that in coups/crises/internal upheavals of governments that executives and their agents act in extralegal fashion to accomplish their goals. These acts are frequently clearly in violation of the spirit of the constitution/legal order as well as of long-standing norms, values, and practices, but may not be covered in the literal letter of the law. They tend to be things that if the executive had asked permission to do through normal processes, they would have been told no. However, because they have the coercive power of the state at their disposal, and indeed, the law enforcement mechanisms, they get away with these acts. Trump’s ongoing attempt to just issue dictates and hope they stick fit into this arena.

It is fair to say that all presidents push boundaries. But there is a difference between the usual putting the odd toe in the water from time to time versus doing a cannonball. Further, while it is fair to note that past envelope-pushing was wrong and/or that it helped create openings for Trump in the now, none of that makes what is going on now acceptable. Nor it is okay to just say that we all had it coming because some president in the past did thus and so.

Letting Elon Musk waltz into government offices and access systems is some combination of legal and extralegal (and maybe illegal), as is placing people on administrative leave who get in his way.

Let me be clear: truly knowing what is legal, illegal, and extralegal is very difficult to do at the moment. But it is not difficult to see that, in fact, there are actions that are being undertaken that appear to very much break the law and other actions are being undertaken to cause substantial damage to elements of the federal government in ways that the law likely does not cover.

Without a doubt, the Trump administration’s assault on congressionally appropriated dollars and congressionally created bureaucratic structures is creating a constitutional crisis with the goal of accumulating more power in the hands of the executive. And they are doing so in a way that is violating established practice and the law. Their goal is to reshape what is legal and acceptable without actually changing the law.

Without any doubt, a great deal of what they claim to want to do could be accomplished through legislative action. For example, I might not like what they are doing to USAID, CFPB, and so forth, but if they were doing it through the legislative process, I would not find it alarming the way I find the current attempts to strongarm the changes into existence without formal legislative approval.

This is an attempt to reorder the constitutional order. Maybe the courts stop it, but given recent behavior by SCOTUS, I have serious concerns. The current congressional majority is more than happy to let it all role and the opposition party appears not to know what to do (and, indeed, has few tools at its disposal).