Due process in the federal justice system depends on many players. Some, like judges and lawyers, are more enthusiastic about the concept than others, like law enforcement and the prison system. But each has duties under the law to protect the rights of individuals.
And if some or all of them fail in those duties and an obvious injustice results, the president himself has the power to set offenders free.
Due process has redundancies, in other words. So if you want to get rid of it and fully weaponize the justice system, you need to undermine all of the players involved, not just one or two.
You can make prisons crueler, but your enemies won’t end up there if judges are protecting their rights. You can demagogue judges, but they might rule against you if your enemies are represented by talented lawyers. You can intimidate the lawyers, but your enemies won’t face charges in the first place unless law enforcement is willing to persecute them.
To collapse the structure of American justice and replace it with a proper banana republic, each pillar holding it up needs to be weakened.
The president spent most of his first two months in office focused on a single pillar: law enforcement. He purged officials at the Justice Department and FBI and replaced them with clownish toadies like Pam Bondi, Kash Patel, and Dan Bongino. That was a sensible way for an authoritarian to prioritize: Of the institutional players I’ve mentioned, corrupt cops and prosecutors can do the most damage. As long as the DOJ is willing to behave like a secret police force, Donald Trump doesn’t need to send Liz Cheney or Mark Milley to prison to make their lives miserable. Investigations are punishment enough.
His Castro-esque speech on Friday to Justice Department officials reflected his priorities. The president labeled political enemies like former special counsel Jack Smith “scum,” claimed that CNN and MSNBC are behaving “illegally” somehow, babbled about the supposedly rigged 2020 election, and insisted that the January 6 defendants he pardoned were “grossly mistreated.” The speech ended with the song “YMCA,” as you might hear at one of his political rallies.
Watching it felt like watching a dog mark his territory.
If all Trump wants to do is harass his enemies, weaponizing law enforcement will suffice. But if he’s after something more robustly caudillo-esque, the other pillars of due process will also have to yield. This weekend he began to discredit them more aggressively.
Lawyers and judges.
On Friday night, a few hours after he’d turned the DOJ into a politicized joke, the president resumed his campaign to intimidate the legal profession.
This time it was the law firm Paul Weiss whose security clearances were canceled and whose access to federal buildings was threatened. Paul Weiss attorneys worked with Robert Mueller on the Russiagate probe and the Manhattan district attorney in the Stormy Daniels matter, and had every right to do so. But Trump has never distinguished between his personal interests and the public’s, so Paul Weiss has been stripped of state privileges for the crime of lawyering in a way that the president didn’t like.
This makes three firms that have been penalized by him. It’s blatant retaliation designed to scare other attorneys away from challenging Trump’s administration in court and to scare would-be clients away from hiring those that have already crossed him. But it also aims to discredit and delegitimize the profession writ large: As more firms lose their security clearances—and more will—more Americans will conclude that the entire legal industry is even swampier and more unethical than they’d assumed.
On Saturday the administration turned its attention to one of the pillars of due process it had been reluctant to attack so far. For the first time, it defied a judge—sort of.
Trump signed an executive order the day before invoking the Alien Enemies Act of 1798 (AEA), which empowers the president to summarily deport immigrants “from countries with which the United States is at war, that have invaded the United States, or that have engaged in ‘predatory incursion,’” in the words of the New York Times. That’s why authoritarians are forever comparing immigration to an “invasion” (and elections to terrorist hijackings), of course. As peacetime problems are reimagined as wartime crises, Americans are conditioned to expect fewer legal constraints on a president’s power.
Only three times before in American history had the AEA been invoked—the War of 1812, World War I, and World War II, when it was used to justify sending Japanese Americans to internment camps. Trump has resorted to it now because he wants to deport gang members from foreign countries without the usual nerdy due-process niceties designed to make sure that the deportee actually is in a gang, is subject to removal, and is who the feds think he is.
A hearing was held in a Washington federal district court on Saturday regarding some of the several hundred immigrants targeted for immediate ejection under the AEA. Despite the likelihood that the judge would halt the deportations, the administration loaded the deportees onto planes and prepared for takeoff. Per Politico, two flights departed during a 40-minute break in the hearing; by the time the court was informed, the planes were en route to El Salvador. The judge told the administration’s lawyers that the aircraft should be turned around and issued a written order to that effect. Around 10 minutes after the written order was issued, the Washington Post reported, a third flight took off from Texas.
The White House ignored the court’s order, claiming later that the first two planes were over international waters by the time it was filed and therefore had no legal effect. But that doesn’t explain the timing of the third flight, and it sure doesn’t explain why the administration was in such a hurry. One lawyer alleged that the deportees were removed before Trump had even notified the public that he’d invoked the AEA; a White House official who spoke to Axios claimed that the original plan was to get them out of the country “before a judge could get the case, but this is how it worked out,” he said.
Our friend David French made the point recently that, for all his incompetence in other matters, Trump is shrewd about picking political targets. He’s done it again here. If you want to make Americans skeptical of due process and contemptuous of its judicial guardians, you don’t dive in headfirst by defying a major Supreme Court decision. You start by choosing the least sympathetic defendants you can find—Big Law, campus Hamasniks, now alleged immigrant gang members—and trust that the public will side with you against them on political grounds, the legal merits be damned.
As Trump plays the strongman eager to protect Americans from predators and their enablers in the judiciary, he’ll earn the goodwill he’ll need later to get away with telling the Supreme Court “no.” That’s what the AEA saga is about, I think: Rushing to deport the alleged gang members before a court could intervene was the White House’s way of showing that safety must take precedence over the rights of violent thugs. To quote Tom Homan, Trump’s immigration czar, “We’re not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming.”
Look around online today and you’ll find various populists offering barely veiled fascist apologias for ignoring or punishing the courts when they get in the way of “the common good.” If ruthlessness in pursuit of dominance is the core of Trumpist populism, and if due process is the chief bulwark against ruthlessness by the state, then a confrontation between populist postliberals and the courts is inevitable. The AEA saga is the first breeze in a hurricane that’s already descending.
You can have a system of rules and “norms” that works for the bad guys or you can have a system led by Men of Action who deliver results for the good guys, but you can’t have both. That’s the choice Trump’s apologists are setting up for Americans.
Prisons and pardons.
The kicker to this weekend’s court drama is where the alleged gang members were sent.
It wasn’t back home to Venezuela. It was to El Salvador, where President Nayib Bukele has agreed to warehouse criminals deported from the U.S. regardless of their country of origin in return for a fee. Conditions in Salvadoran prisons are exactly what you’d expect, to the point that Bukele celebrated the arrival of the migrants with an online hype video hinting at how rough they’ll have it. Bukele himself is what you’d expect too: He mocked the federal court order that Team Trump ignored (“oopsie”) and enjoys a MAGA fan following online, which includes Elon Musk, for saying things like “If you don’t impeach the corrupt judges, you CANNOT fix the country.”
Our partner in this deportation effort, in other words, runs an honest-to-goodness banana republic and conducts himself accordingly.
For Team Trump, that’s a feature rather than a bug. American prisons aren’t bastions of humane treatment, but they’re “soft” compared to their third-world counterparts, and the president and his fans detest being “soft” on bad guys. (Or on anyone, really.) They may disdain “sh-thole countries” but they share the belief of many ruthless “sh-thole” governments that there’s no social problem that can’t be solved by ratcheting up the brutality. That’s why Pete Hegseth recently said he would replace top military lawyers: He’s always had a soft spot for accused war criminals and seems to believe that a military that’s less “soft” will be more effective, never mind how that’s gone for the Russians in Ukraine.
Shipping off gang members to Bukele’s prisons or to Guantánamo is Trump’s way of discrediting the modicum of due process that America’s prisons afford to inmates. Our system is too accommodating to such savages; only by moving them beyond the reach of American law—or reforming the justice system to be more brutal—will they receive the punishment they deserve.
Which brings us to pardons, the “break glass in case of emergency” option for presidents to mete out justice in cases where due process has failed to do so. You would think Donald Trump, the great liberator of insurrectionist miscreants, would zealously guard the executive’s power to break that glass. Not so. On Monday morning, he discovered a loophole.
The “Pardons” that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!
Needless to say, the Supreme Court isn’t going to open a legal can of worms by siding with Trump and thereby calling into question the validity of every presidential document signed by Autopen, a practice that dates back many years.
But this is what it looks like when the president, for once, presumes to be a stickler about procedure. Biden issued those pardons because he worried, justifiably, that due process wouldn’t prevent Trump’s administration from trying to persecute members of the January 6 committee. Now here’s Trump making, of all things, a process argument against the pardons because he’s keen to begin that persecution.
It took the pardon power being used to avert an injustice, rather than to facilitate one, for Trump to finally become a skeptic of it.
All in all, it was a busy 72 hours for the White House. Embarrassing federal law enforcement, disparaging the legal profession, flouting the judiciary, avoiding the prison system, and impugning presidential pardons: That’s a full-court press in delegitimizing due process, exactly what we’d expect from a banana Republican eager to convince Americans that he’s the only actor in the justice system who can be trusted to prioritize the country’s best interests.
I think that explains the outsized rage at Amy Coney Barrett among MAGA fanatics after she sided against the White House in a few minor rulings recently. True to the spirit of their leader, populists rationalize all political defeats as products of illegitimate motives—hate, spite, bias, weakness, corruption—in order to discredit the opposition that defeated it. The media is biased; the “deep state” is hateful; moderate Republicans are spiteful; election-rigging Democrats are corrupt; the courts are weak bleeding hearts.
Virtually every Trump antagonist can and will be dismissed on these grounds, up to and including milquetoast “Bush judges” like Chief Justice John Roberts. But Barrett is a hard case. Trump himself appointed her; she replaced Ruth Bader Ginsburg, heralding a conservative judicial revolution; and she’s earned serious right-wing cred already by voting to overturn Roe v. Wade. The grand fascist project to delegitimize rival institutional sources of power over American justice will struggle to discredit Trump’s three SCOTUS appointees if they stand in his way, and Barrett appears to be the one who’s most likely to do that.
So they’re going in on her early, just in case.
Chaos.
Speaking of which, I wonder: Has Trump moved too early in his war on the justice system?
Arguably not. The honeymoon period is when a president should be bold, one might say, as he’s unlikely to ever again be as popular as he is now. His immigration policies are especially popular, which gives him even more political capital to spend on confronting the judiciary over due process on deportations. If he’s going to turn up the heat on America’s boiling frogs by normalizing the idea of flouting court orders, this is the moment.
But then I think of the market correction we just experienced, and of tariff mayhem, and of the ongoing disorientation over which nations are allies and which are enemies. That’s a lot of chaos for Americans to swallow, and much more is coming in a few weeks. Civic degenerates on Twitter with a jones for banana Republicanism might be spoiling for a fight with the judiciary but the average joe could find another destabilizing move so soon too much to take. At that point Trump wouldn’t be gradually inching up the heat on a boiling pot; he’d be turning up the burner all the way.
What if the frogs jump out?
You know me: I think they’re already boiled. But it appears we’re going to find out sooner than we thought.
