A farewell to courts?

How Trump is trying to break the legal system — and how to respond

In a country as lawyered-up as the United States (approximately 1.3 million, according to the American Bar Association), the courts were always going to be one of the biggest obstacles to an autocrat consolidating power.

Trump and the people around him know this. They’ve always known this. So to undercut the judiciary’s ability to check lawless exercises of executive power, the Trump Administration is using four different tactics — (1) incremental disobedience, (2) intimidation, (3) targeting access to counsel, and (4) moving too fast to keep up. We’ve seen all of them deployed to various degrees in recent weeks.

While we don’t know if this four-part plan will be successful (early signs are decidedly mixed), we do know our democracy hinges, at least in part, on what happens to the courts.

Tactic 1: Incremental disobedience

Our checks-and-balances system is based on the idea that the people with guns (law enforcement and the military) should not be the same people passing or interpreting the law.

That’s a good thing. It means that the commander-in-chief doesn’t get to decide whether the actions they take are lawful or constitutional.

But that also means that the legal system, by nature, cannot physically force the executive branch to comply. The Supreme Court has no army. So the rule of law pretty much boils down to the willingness of powerful people to obey legal rulings. As Amanda Taub wrote yesterday, there are usually strong incentives to do so: “leaders typically obey judges’ orders, because of the political costs of flouting them.”

But if those pressures were to no longer exist, suddenly everything — the law, the Constitution, our system of government, all of it — would come into question. It’s hard to overstate how politically, economically, and literally dangerous things could get if that happens.

That’s what makes the Trump Administration’s recent moves in court so concerning. The federal district courts, where most of this is taking place so far, are supposed to do two things: figure out the facts, and decide if the law entitles the parties before it to relief. In case after case in the last few weeks, lawyers for the president tried to wriggle out from under the courts’ attempts to do just that.

Take this week’s theatrics in the case challenging Trump’s invocation of the Alien Enemies Act:

• Early Saturday morning, a federal court issued a temporary restraining order preventing the administration from deporting the five plaintiffs in the case for just 14 days while it considered the plaintiffs’ and the government’s arguments.

• At an emergency hearing that evening, the judge extended the restraining order to anyone being deported under the Act. When the plaintiffs’ lawyers warned that planes were about to depart, the judge ordered the government to turn any flights back that had already taken off. But while the hearing was going on, at least two deportation planes took off for El Salvador.

• On Monday, government lawyers argued at a hearing that because the judge’s order was made verbally at the hearing, it was somehow different from a written one (it’s not) and could be ignored until it was put in writing (it can’t, and anyways, it was put in writing less than one hour later).

• Then on Wednesday, government lawyers put in a filing that they couldn’t answer questions about the flights due to national security concerns and that the judge’s questions were “grave encroachments on core aspects of absolute and unreviewable Executive Branch authority relating to national security, foreign relations and foreign policy.”

• On Thursday, the judge ordered even more briefing on the government’s national security justification and an explanation “showing cause why they did not violate the Court’s Temporary Restraining Orders[.]”

If you’re lost — that’s the point!

This back and forth of the court proceedings is designed to make the public yawn and lose the plot. It’s important to see this for what it is: the administration invoked an antiquated legal authority on dubious legal grounds, deported people (without due process) after a court told them they couldn’t, and now won’t answer questions to either the public or a judge on what actually happened. They’re hoping we get lost in the details, but this looks a lot like ignoring a court order in seven days or less.

At some point, the judge in this case is going to have to call the question of whether the administration violated his restraining order, and what he can do to enforce it. The steady did-they-didn’t-they of this news cycle makes it likely the public imposes less of a political cost if the government is officially found to have defied a court order.

This is all what political scientists call a “salami tactic” — slicing away at the institutions of democracy, sliver by sliver, until they no longer meaningfully constrain the leader. It’s a slow-motion coup without a hard line between democracy and autocracy.

And the problem is, so far it’s working.

The administration is banking that people won’t care whether it deported alleged gang members, and will bless this non-compliance. But it’s not just rulings connected to unpopular targets — we’re seeing this gaslighting tactic being tested in cases firing providers of veterans’ care and deporting a children’s cancer doctor. The more we allow non-compliance to be normalized, the more openly those around Trump can argue that court orders don’t mean anything at all.

In other words, outright defiance might not be necessary to this administration’s goal of an unbridled, unchecked president. Instead, a strategy of incremental defiance aims to get to the same end — the ability to tell courts to “take a hike” with impunity — all while encouraging the public to look away.

How to respond: Most importantly, call it out. Point out the tactic of incremental defiance and its illegality. Civil society leaders, legal practitioners, media, and everyday citizens must resist the attempt to move the goal posts of “what counts as defiance” or “what is really illegal.” Second, as the Trump Administration pushes defiance, the courts must be willing to push back with consequences — such as by holding executive officials in contempt of court, or referring individual lawyers for ethical violations. Finally, stay focused on what the fight is really about (is the president obliged to follow the law) and not the political question (say, immigration) that the Trump Administration would like the fight to be about.

Tactic 2: Intimidation and threats of violence

Second, Trump and his allies quite literally aim to bully the legal system into subservience, into “obeying in advance.” They seek to do so with implicit — and at times, even explicit — threats of violence or retaliation.

Look at Judge Boasberg, the one overseeing the deportation case. He was originally nominated to be a judge by George W. Bush. He just happens to be the person our system asked to evaluate the straightforward legal question: “Can a president deport Venezuelans to El Salvador without due process?”

The White House attacked his wife, Trump allies attacked his daughter and suggested he “should be on a plane to Gitmo,” and Trump and congressional allies said that he should be impeached (the latter leading to a rare rebuke from the Supreme Court). Even the autocratic leader of El Salvador, Nayib Bukele, weighed in, mocking the judge with tweets saying “Oopsie ... Too Late” and that “the U.S. was facing a judicial coup.”

As The New York Times reported Wednesday, the end result of Trump demonizing judges has been an unprecedented barrage of violent threats:

The threats and intimidation may have not become actual violence, but they appear to be mounting, as Mr. Trump, his advisers and his supporters are questioning almost daily the legitimacy of the American legal system. There is no evidence that jurists’ judgment in the high-profile cases before them has been warped by their antagonists. But at the least, public perceptions of judicial decisions could be shaped by the volume of attacks on the courts.

The attempts at intimidation have taken many forms: bomb threats, anonymous calls to dispatch police SWAT teams to home addresses, even the delivery of pizzas, a seemingly innocuous prank but one that carries a message.

“They know where you and your family members live,” said one judge who is overseeing litigation against the Trump administration and has received a pizza delivery. The judge requested anonymity, citing concerns for their own security and that of their family.

The goal here? Likely to make judges think that appeasing Trump — maybe ruling in his favor on a technicality, or even just finding a way to deflect, delay, or kick the case elsewhere — can spare them from the threats.

There’s also a similar dynamic happening on a larger scale. By threatening non-compliance and constitutional crisis, the Trump Administration is trying to get the courts to come to some sort of accommodation — an offramp where the president gets to do what he wants but without provoking a crisis.

Anticipatory obedience. It’s a frightening trap. The only way out is through.

How to respond: In a lot of ways, the practical defense of the legal system has to come from the top. That’s why the statement from Justice Roberts against threatening to impeaching judges was a pretty big deal. It’s likely the Supreme Court will continue to be called on to defend the judiciary as a whole from threats. At the same time, there is also a role for members of Congress, state governors, state attorneys general, and local law enforcement in calling out, investigating, and eventually prosecuting illegal threats of violence and intimidation. Additionally, the American Bar Association and other legal institutions must continue to speak out with one voice to defend the judges and lawyers who define their profession.

Tactic 3: Targeting access to counsel

Third, the Trump Administration understands another core principle of how our justice system works — the courts can’t just stand up and rule against the president out of the blue. There needs to be a case in front of them.

And for there to be a case, there needs to be a plaintiff, a person who has been harmed who is suing. And that plaintiff needs to be represented by legal counsel with the resources to litigate the case.

Because of that, in addition to courts, the administration is also targeting access to counsel. They’re trying to cut off the possibility of legal challenges at the attorney-client level. Most prominently, they’re doing so by targeting three prominent law firms that have, in the past, represented clients Trump sees as political enemies with executive orders seemingly designed to cripple their ability to do business.

This is wildly illegal and unconstitutional — and likely to be quickly struck down in court. But that may not matter. The goal is to intimidate lawyers and law firms into not taking cases that the president disagrees with. Reporting by POLITICO suggests that the retribution may be having its intended chilling effect on the legal profession:

Lawyers at some of the nation’s largest law firms are afraid of President Donald Trump. Not just afraid of what his policies might mean for their clients, but now for their own livelihoods, as his attacks on individual firms have left a shocked industry struggling to respond. …

“Back then nobody believed that there would be retaliation against the institution or them personally for taking these actions,” said a former partner at a major firm granted anonymity to speak candidly. “Nobody was thinking, I’ve got to worry whether it could really hurt my law firm if I took this on. And that’s the huge change we’re in now.”

And if that weren’t enough, just last night we witnessed firsthand evidence of just how successful this bullying tactic can be.

How to respond: Everyone in the legal profession needs to understand that this is a critical moment for their industry. This is a situation, as the Founders would have understood, where “we must, indeed, all hang together, or most assuredly we shall all hang separately.”

But what does that mean? Every major law firm needs to stand up for the firms targeted, vocally and on-the-record. Same thing for clients, who must refuse to abandon counsel if and when they are targeted. Because if Trump can successfully bankrupt or intimidate law firms one-by-one, he’ll continue doing so indefinitely. Sooner or later, any firm could be targeted if they fall outside the president’s good graces. Alternatively, if the legal profession responds by coming together and pushing back as one, Trump will fail and then likely move on.

Tactic 4: Moving so fast the courts can’t keep up

Finally, as we’ve talked about before, Donald Trump and his allies are trying to exploit a key vulnerability in our legal system: It’s not designed to move fast.

They want to do things before courts have an opportunity to stop them — and certainly before the public really understands what’s happening. They want their attacks accepted as fait accompli. They are using the threat of irreparable damage, whether it’s a shuttered department or a plane full of migrants deported, to try to get the courts to accept illegal actions just because they’re already done.

As Georgetown law professor Steve Vladeck wrote this week:

The central problem isn’t that the courts have upheld legally dubious actions or even that the White House is openly defying adverse rulings. Rather, it seems that chaos and disruption are themselves central to President Trump’s objective.

How to respond: Like anticipatory obedience, there’s a bit of a trap here. As Ezra Klein says, focus is the “fundamental substance of democracy,” so there’s an inherent risk to trying to match Trump’s pace. So while, yes, courts and advocates need to learn to move faster to keep up with the blitz, we all also need to do everything we can to simplify the issues and bring them back into focus. In part, we do this by not buying into total irrevocability. Everything Donald Trump and his allies do is, in the short- or long-term, somewhat undoable (even if the damage isn’t). Especially for courts, being willing to punish, undo, or block unconstitutional actions — even when doing so feels too-little-too-late — is critical for defending larger principles of the rule of law.

The courts alone won’t save us — but we also can’t afford to lose them

There is an instinct, not unreasonably, to point out how the Courts won’t save us. How things like the Supreme Court’s rulings on whether Trump was eligible to run or has immunity from criminal charges have paved the way for this moment. How there’s no guarantee that the legal system actually enforces the law.

All of that is unquestionably true. But it’s also true that the rule of law remains a core bulwark against autocratic takeover. That’s why the Trump Administration is targeting the legal system in so many ways.

In other words, courts may not be sufficient to save our democracy. But they are necessary for the task. They can reassert their power to, in the words of Marbury v. Madison, “say what the law is,” as well as the rationale behind our system and the risks of letting either of the other branches decide. They can also expose the truth, even if courts may lack tools to fully enforce compliance — because of standards of proof, and lawyers’ ethical obligations, facts do still matter in court.

And the truth is, most judges and lawyers likely understand (on some level) the existential threat facing their profession. They may vary in how serious or survivable they think the threat is. But we suspect most legal practitioners — from young lawyers just out of law school up to the Chief Justice of the Supreme Court — understand that these are perilous times for an independent judiciary operating on the principle of the rule of law.

This is all still early days, but the uncomfortable truth is: This fight is not going to dissipate or de-escalate. Rather, it seems likely that things will continue to get worse. And so lawyers everywhere need to start considering how they, personally, may be called to stand up for the rule of law in the United States. Whether that’s through their professional capacity, professional associations like the Bar, in their places of employment, or even on the streets.

The idea of judges and lawyers literally protesting on behalf of the rule of law may seem extreme and unlikely, but when push comes to shove in autocratizing countries, that’s exactly what we’ve seen — often with great success in protecting democracy.

For instance, in Poland, when the then-ruling authoritarian faction attempted essentially a hostile coup of the judiciary, lawyers and judges from 14 European countries took to the streets of Warsaw to protest.

It worked.

In recent years, Poland went from a cautionary tale of democratic backsliding to a model of democratic resurgence.

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Fusion voting helped create the GOP. Can it help save it?

In a new essay in National Affairs, Jennifer Dresden and Beau Tremitiere explore the history of the founding of the Republican Party in the mid-1800s. They find a complex coalition strategy that included fusion voting, a longstanding practice that was eventually outlawed in much of the US.

They then ask the obvious question: If fusion helped create the Republican Party, can it help rescue our democracy now that the GOP has been captured by an autocratic faction?

​​What if a new political party was formed not to run third, ideologically pure candidates in competitive races, but rather to fuse with aligned Republicans and Democrats? With a second nomination on the ballot, people could vote for their preferred candidate without incorrectly implying support for the candidate's major party and its agenda. Instead, such votes would amplify the third-party platform, allowing ordinary voters to communicate why a favored candidate earned their backing. . . .

In lieu of informal endorsements and ad hoc signaling from like-minded elites, this approach allows for the systemized accumulation of power, resources, and personnel in a formal party institution oriented around shared political goals. Political isolation can give way to a political community and identity that is distinctive, greater than any individual leader or single election, and durable and adaptive over time. A new party need not mimic today's major parties by focusing on fundraising and coordinated messaging: Drawing again from 19th-century practice, building tight networks at the community level could give the party a more meaningful role as a true association. Anti-slavery leaders learned the hard way that a political cause does not prevail simply because it is morally righteous. Rather, the prudent creation of new parties committed to the righteous cause — the apotheosis being the Republican Party — finally leveled the playing field with the pro-slavery (and acquiescent) interests that had dominated the major parties for decades.

Read the whole essay here.

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What else we’re tracking:

• In a new Protect Democracy white paper, Trapped in a Two-Party System, Professor Steven Taylor looks at how the two party system of the United States is truly exceptional — and not in a good way. No other major democracy has such complete dominance by only two parties.

• Read this excellent statement from 18 legal scholars across the political spectrum on the situation with Columbia University: “The government may not threaten funding cuts as a tool to pressure recipients into suppressing First Amendment–protected speech.”

• In case you missed it, our deep-dive on the historical fiction behind Musk’s spending cuts is definitely worth a read. If there’s one wonky term to understand right now, it’s this: “impoundments.”

• In a significant escalation, Turkey’s autocratic leader arrested his key rival, Istanbul Mayor Ekrem Imamoglu, who is widely expected to be the opposition party’s presidential candidate.

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What you can do:

From Anna Dorman, a recommendation to start making your protest signs:

The pro-democracy movement is coming together for a day of protest on April 5 to protest against the Trump / Elon power grab. There are dozens of events planned in just about every state — find more info here and make a plan to make your voice heard!

A reminder, if you’re looking for more ways to help our democracy, consider our: Citizens guide to protecting democracy.