Opinion

Trump blatantly bends the rule of law to suit his whims

It seems what is lawful and what isn't in America has become dependent on the president's personal preferences

No, Andrew McCabe didn't try to lead a coup against President Trump.

It's true that McCabe, the former deputy director of the FBI, is giving interviews this week suggesting he and other senior Justice Department officials considered recruiting members of the president's Cabinet in an effort to invoke the Constitution's 25th Amendment to remove Trump from office. And it's true that such an effort, if successful, would have amounted to an unprecedented challenge to a U.S. president's authority and legitimacy.

But it wouldn't have been a coup.

Coups are, by definition, illegal seizures of power from duly constituted authorities. The 25th Amendment, on the other hand, is part of the Constitution — it is the highest law in the land, and it contains provisions for carefully replacing a president who is no longer fit to serve. So careful, in fact, that it requires Congress' veto-proof stamp of approval to make the removal final and permanent. It exists precisely to reduce the likelihood of a coup in extreme situations.

Trump and his enablers, on the other hand, are promoting the "coup" narrative.

"Discussions on how, or whether, to attempt to exercise the 25th Amendment in this way is truly indicative of a coup mentality by career bureaucrats," Francey Hakes wrote at The Hill. Sen. Lindsey Graham (R-S.C.) promised to investigate the "attempted bureaucratic coup." "Clearly an attempted coup d'etat," added Alan Dershowitz.

Each of these three critics is a lawyer, so presumably each understands the distinction between lawful and unlawful acts. That they are now muddying the waters offers insight into one of the Trump administration's most distinctive features: Its utter contempt for the rule of law.

When we talk about Trump and the rule of law, mostly we talk about how he's flouting and evading the constraint of laws he doesn't like: His newly-declared state of emergency to circumvent Congress' refusal to appropriate funds for a Mexican border wall is just the best recent example, but it also applies to his preference for appointing "acting" Cabinet members instead of getting Senate approval, as well as his apparent disregard for the emoluments clause of the Constitution.

But Trump doesn't just try to evade the law. He also makes a routine effort to delegitimize it.

The "coup" language is a notable example of this tendency, but it's far from the only one. Consider Trump's weekend tweet labeling Saturday Night Live's satire of him as "collusion." He's using the language of crime to make a simple, lawful act — mocking the president, which is protected by the First Amendment — into something pernicious. Or, perhaps most consequentially, his attempt to lump migrant asylum seekers — people who are seeking to legally enter the U.S. and receive its protections — in with undocumented migrants.

The result of all these efforts is to generate public confusion about what is actually lawful and what isn't. Trump may genuinely not know the difference, but that scenario is still extremely problematic: The Constitution requires the president to "take care that the laws be faithfully executed." The worst-case possibility is that Trump is deliberately trying to disorient the public.

In both cases, though, what is lawful and what isn't becomes dependent on just one thing: Trump's preferences. The rule of law is replaced by the rule of whim.

This isn't to say that laws are beyond criticism. Even in a democracy, it's often the case that bad laws end up on the books. But there are mechanisms for replacing bad laws with better laws, and for overturning laws whose legitimacy is Constitutionally suspect. It seems unlikely at this point that Trump has the patience or know-how to properly navigate those processes.

Instead, we're left with this rubric: The only legitimate outcomes in American life are those that work to Trump's benefit — all anti-Trump outcomes are not just bad, but illegitimate. Trump wishes to shrug off all legal constraints, but impose them upon others, regardless of what the law actually says. Thus, the mere consideration of invoking the 25th Amendment becomes a "coup." It's not. Trump's rhetoric is an attempt to rig the game. And if the president is the only possible winner, that can mean only one thing: The rest of us are the losers.

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