In May last year, while he was not in office, US President Donald Trump was found guilty on all 34 charges in a trial over money paid by his former lawyer to adult film star Stormy Daniels. The then former President was a convicted felon, a first in American history. Mr Trump’s legal problems in the courts included four separate criminal cases and several civil actions, threatening not just his liberty but his whole political and commercial career. A year later, the situation has been completely reversed.
Three major Supreme Court judgments, one giving Presidents and former Presidents broad immunity from prosecution; a second dismissing the ruling that Mr Trump’s attempts to overturn the 2020 election results disqualified him from running for office again; and a third in June curbing district judges’ abilities to stall the President’s agenda have all gone in Mr Trump’s favour. Earlier, in his first term, he had reshaped the Supreme Court with a sympathetic conservative majority.
His current objective is to strip the lower courts of their powers. Federal district judges, who had often delivered rulings on immigration policy that they claimed applied nationwide, now face an assault on their powers from the Trump administration that questions their legitimacy with claims that they flout their authority. The broader question is whether the attacks will reshape the balance of powers even after Donald Trump is no longer President.
The district courts are under unprecedented attack; the President has variously termed judges “crooked”, “deranged”, “USA hating” and “radical left”, and his deputy chief of staff for policy, Stephen Miller, declared that the US is facing a judicial tyranny. He wrote on social media: “Each day, [the judges] change foreign policy, economic, staffing, and national security policies of the administration… It is the gravest assault on democracy. It must and will end.” Mr Trump has called for the impeachment of those judges who he disagrees with, and has also threatened to sue individual judges.
Serving judges have received death threats this year, prompted by their blocking or delaying some of the President’s executive orders. Figures compiled by investigators show that by mid-June, there were more than 400 threats against almost 300 judges. The Trump supporters reject the idea that presidential rhetoric is to blame for raising the temperature, asserting that the Left is more to blame for hostility towards judges: “The highest threat to anyone on the federal courts was when someone tried to assassinate the President”, declared Supreme Court Justice Brett Kavanaugh. “There’s this tendency to try to characterise the Trump administration as being what has facilitated this. The revolutionary notions that we need to take the law in our own hands … tend to [be] from the Left in America.”
While other Presidents have clashed with the courts, Mr Trump’s confrontations are unique in scale, perhaps inevitably given that after he arrived in the White House innumerable executive orders were promulgated with the desire to fast-forward his agenda quickly. On a single day, 26 were signed. There have been another 140 up to the beginning of July — only around 100 fewer than President Barack Obama in his entire eight years in the White House. Although Mr Trump could have asked Congress to legislate these policies, since his Republican Party controls both chambers, legislation takes time, and because Congress has been busy with Mr Trump’s controversial domestic legislation, there was little time for other priorities.
Executive orders are within the President’s prerogative, under Article II of the US Constitution, so Mr Trump is within his powers provided the orders cite legislative authority. What the President cannot do is make new laws, or do things that go contrary to the Constitution. Unless Congress intervenes, the only option to challenge his orders is to go to court. The sweeping nature of the orders he has signed, many touching on constitutional issues such as the right of everyone born in the US to citizenship, has led to dozens of injunctions. Which is why Mr Trump’s victory in the Supreme Court curbing such nationwide injunctions is significant.
The administration has accused the judiciary of overreach and judges of being “activists”. But perhaps the most fundamental and philosophical criticism is that they obstruct the desires of the electorate, though this is disputed. “We are a nation of laws,” explains a judge. “A mandate for the President of the United States does not mean a mandate to disregard the law.”
In a recent interview, Mr Trump denied that he was defying the judiciary; when rulings have gone against him, he has sought remedy through the judicial process, he said. “That’s why I’m winning on appeal.”
After the Watergate scandal in the 1970s, when then President Richard M. Nixon flouted many norms, legislation was passed to curb the executive and make it more accountable, but some of the changes merely adopted norms such as publication of presidential tax returns and avoiding financial conflicts of interest, and Mr Trump has shown little inclination to follow those norms. Mr Trump’s critics claim that he is destroying the system of checks and balances in which the three equal branches of government — the presidency, the legislature and the judiciary — act as a brake on each other. Prof. Laurence Tribe, a constitutional expert, describes the situation as “catastrophic”; saying: “The whole system is completely out of balance.”
When it comes to the relationship between the presidency and the courts, Mr Trump comes close to defiance. In one instance, after being ordered to facilitate the return of a man wrongly deported to El Salvador, the administration delayed by two months complying with the Supreme Court’s decision. There are only two ways a President can be truly held to account: one by removal in an election; the second is by impeachment in Congress, and Mr Trump has already survived two of those in his first term.
The judiciary is, however, not giving in tamely. Even after the Supreme Court ruled in June to curb those nationwide injunctions — and both parties have complained about such injunctions in the past — another judge slapped one on Mr Trump’s asylum policy and a district judge issued a fresh nationwide block on Mr Trump’s executive order restricting the automatic right to citizenship for babies born to undocumented migrants or foreign visitors, drawing furious criticism from Trump followers. This battle is joined, and its consequences for the future are unpredictable.
Krishnan Srinivasan is a former Indian foreign secretary
