Our new book is The Comeback: The 2024 Elections and American Politics. The first year of the second Trump administration has been full of ominous developments, such as the extrajudicial killing of people allegedly running drugs on the high seas.
Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer in the George W. Bush administration, said Mr. Trump’s actions demonstrated an indifference to law that threatened to hollow it out.
“Nixon tried to keep his criminality secret, and the Bush administration tried to keep the torture secret, and that secrecy acknowledged the norm that these things were wrong,” Professor Goldsmith said. “Trump, as he often does when he is breaking law or norms, is acting publicly and without shame or unease. This is a very successful way to destroy the efficacy of law and norms.”
...
Even if the Justice Department memo that somehow blesses the killings lacks much actual legal analysis and even if a future administration rescinds it, its existence essentially forecloses any prospect of future prosecutions. It is hard to prove someone intentionally committed a crime when the Justice Department itself said at the time that the action was lawful.
Two decades ago, Professor Goldsmith took over the Office of Legal Counsel and withdrew memos issued under the Bush administration that blessed the C.I.A.’s torture program. Reflecting on that period in a memoir, he called such memos get-out-of-jail-free cards.
...
The administration has found a two-part hack to the system in which executive branch lawyers are supposed to independently determine the legal boundaries within which policymakers may act.
The first is that Mr. Trump has told executive branch lawyers that they may not question any legal judgment that he — or Attorney General Pam Bondi, subject to his “supervision and control” — already decided. “The president and the attorney general’s opinions on questions of law are controlling on all employees in the conduct of their official duties,” Mr. Trump declared in a February executive order.
The second is that Mr. Trump has been declaring that as president, he has determined that the factual and legal scenarios exist that are necessary for him to exercise various extraordinary powers.
The two tactics combined create a gigantic loophole. Mr. Trump is able to dictate his own factual and legal realities, and executive branch lawyers who want to keep their jobs must treat them as settled. The result is that Mr. Trump can order agencies to take actions to which independent-minded lawyers might have raised legal objections.
In August, Trump said:" I have the right to do anything I want to do. I'm the president of the United States."
In February, he posted an apocryphal quotation from Napoleon: "He who saves his Country does not violate any Law."
In 2019, he said: "Then I have an Article 2, where I have the right to do whatever I want as President."
