The Fate of Liberal Democracy under Donald Trump

Abstract

The Trump administration directly attacked and indirectly subverted liberal democracy in many ways. This article describes several pivotal attacks and evaluates the efficacy of efforts to defend liberal democracy. It begins by analyzing how the administration continued to wage the US “war on terror,” contrasting its behavior with that of the Bush and Obama administrations with respect to indefinite detention in Guantánamo Bay, torture, electronic surveillance, civilian casualties, criminal prosecutions for terrorism, courts martial, military commissions, habeas corpus petitions, and civil liberties. Judicial decisions in civil liberties cases correlated significantly with the party of the appointing president in all three administrations, most strongly among those by Trump appointees. I then turn to two of Trump’s central preoccupations: immigration and the Russia investigation. Having based his 2016 campaign on demonizing immigrants, President Trump sought to execute his threats through executive orders and other actions. Almost all were struck down by courts in cases where judges divided along political lines, most dramatically in the Supreme Court. Frustrated by his inability to block the Mueller investigation into Russian interference in the 2016 election, Trump sought to intervene in the prosecutions of his underlings that emerged from that inquiry. He attacked the FBI, appointed a compliant Attorney General (who substituted his subordinates for independent prosecutors, changed sentencing recommendations and withdrew successful prosecutions), dangled the prospect of pardons to ensure the silence of the accused, and granted them after conviction. The central lesson of this appalling era of American history is that law is inescapably political. Where politicians appoint judges and government lawyers, the defense of liberal democracy ultimately rests on the ballot box.