Analysis: Will the rule of law survive President Trump?

Will a president Trump make good on threats which virtually no past officials in key defense positions have endorsed?

November 10, 2016 22:55
3 minute read.

Donald Trump wins US presidential elections 2016

Donald Trump wins US presidential elections 2016


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Candidate Trump made statements that brought down the fury of top military, national security and legal experts – both Democrat and Republican – who viewed them as undermining the rule of law in the US.

Soon the candidate will be president, and that has those experts worried.

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Their worries can be roughly divided into fears of Trump’s views on: national security, human rights, independence of the judiciary, nonpartisan aspects of law enforcement, and free speech rights of the media and other opponents who criticize him.

On national security and human rights issues, Trump was condemned by former CIA director-general, Michael Hayden, for endorsing the bombing of potentially innocent family members and neighbors of terrorists.

Hayden and other military experts said that military personnel would refuse such orders if they contravened international law.

They do not necessarily oppose collateral damage to civilians if an attack meets requirements of proportionality under international law, but they reject the president-elect’s readiness to endorse attacks on potential innocents without qualification, as long as he gets terrorists, too.

Around the same time, Trump was widely slammed for endorsing not just torture of terrorist detainees, but for his readiness to use techniques worse than waterboarding. No one is sure what that means – some imagine “the rack” of the Spanish Inquisition.

Will a president Trump make good on threats of implementing a policy that virtually no official who ever held a key defense position – Democrat or Republican – has endorsed? That may not be easy, as the US Congress passed a law during Obama’s presidency which bars interrogation techniques beyond those prescribed in the US Army Manual.

Would Congress change its mind under pressure from Trump, or would the new president be ready to make exceptions to the law for the CIA, as former president George W. Bush did in some cases? That might please those who feel lawyers take too much control of policy decisions for key challenges, such as the use of torture to fight radical Islamist groups like ISIS. According to that view, “taking the gloves off” for such goals does not mean and end to the rule of law.

Another concern about a Trump presidency is whether he will respect the independence of the judiciary and law enforcement.

During the presidential race, any time Trump did not like a decision made by an FBI official or judge, he accused them of bias because of their ethnicity or said the system was rigged. But that was when he had no formal power over those he accused.

Will he use the president’s bully pulpit as a tool to bully government officials into making decisions he wants, and punish them for ones he does not?

The FBI and the Justice Department are huge issues, as the president can hire or fire top officials at will, without much explanation.

He has less direct control over the judiciary, but other democracies have shown that when a lead executive presses judges publicly and hard enough, those judges often blink.

Or were all those statements just a campaign tactic, a way to flirt with ideas that he will not carry out as president? Trump threatened to sue media outlets several times for publishing stories he did not like.

Will he use law enforcement to pressure the media in the way some authoritarian executives do where the rule of law is weaker? Will he threaten legal action, or make other public threats to chill media criticism, even if he does not actually follow through on those threats? Will he block media access or evade government officials he does not like in broader ways than he did during the campaign? If he does, how will the public know if he is challenging the rule of law?

The media are probably weakest of the sectors that criticized Trump during the campaign.

On one hand, the media are not formally dependent on him for any power. On the other hand, they have no formal defense from the kinds of attacks a president can launch. Many in the media are already worried about survival in an age where social media has hurt their chances of staying alive. Others say the media need to change and feel those who report the news treated Trump and his supporters unfairly.

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