American democracy is only as strong as its legal system. The founders of the country created the judiciary as the third branch of the federal government to keep executive power in check and prevent corruption. So it was a cause for deep concern last week when Donald Trump unleashed a verbal tantrum on his Truth Social platform, accusing special counsel Jack Smith of “prosecutorial misconduct” even before he filed four federal criminal counts against the former president over his efforts to overturn the results of the 2020 election in a bid to remain in office.
An identical barrage came last April when a Manhattan grand jury indicted Trump on 34 felony charges for falsifying business records. That time, he also called for defunding the justice department and the FBI, even though the charges did not come from either federal agency. Both reactions were part of a long-running campaign by Trump to undermine the rule of law in the US and dismiss the multiple charges he faces, and has denied, as politically motivated. Even lawyers who once supported Trump have told me that delegitimising the law and the judiciary could destroy the country’s system of government. Yet, even if he is convicted, Trump’s supporters will probably remain loyal to him, convinced that the entire legal system is “rigged” – a favourite Trumpism.
On one level, it is shocking to hear the worries that US lawyers are expressing about the impact of Trump’s outbursts. On another, what we’re witnessing in Washington is part of a trend happening around the world. From Hungary to Pakistan, the power of judges is being reduced and legal systems are being upended. It’s been painful to watch. Since 1980, I’ve spent my journalism career covering the courts. Decades ago, one of my best legal sources, a highly paid partner at one of Washington’s powerhouse law firms, called to tell me he was quitting his job to help the United Nations, as pro bono counsel, to design American-style constitutions for other countries at a time when global autocracies were crumbling. Now, many US voters doubt whether our democracy will survive.
In Pakistan and other countries, judges have been assassinated. In Hungary, according to the Guardian, Viktor Orbán is leading “his government’s assault on judicial checks and balances”. In 2022, Iran arrested at least 44 independent lawyers who were representing demonstrators protesting against the ruling regime’s violent crackdown on dissent.
Legal freedoms previously enjoyed in countries such as India and China are in tatters. In 2020, a column by Washington Post global writer Rana Ayyub carried the headline, “The destruction of India’s judicial independence is almost complete”. Before the British government handed over Hong Kong in 1997, China agreed to a framework known as “one country, two systems”, which granted Hong Kong broad legal freedoms. Beijing has abrogated those freedoms, enforcing a 2020 national security law that gave it broad new authority to silence and punish critics. In May, members of the US Congress urged sanctions against Chinese judges handling national security cases under the new law, which has profoundly changed life in Hong Kong.
Even in Israel, long America’s stalwart democratic ally, the power of independent judges has been curtailed, sparking furious public demonstrations.
Trump’s raging attacks on the US legal system come at a time when the supreme court has the lowest approval ratings in history. The court customarily follows legal precedent but in recent decisions the justices in the conservative majority have reversed past decisions guaranteeing women’s right to an abortion, affirmative action in universities, gun restrictions and other established laws.
The founders intended the judicial branch of the federal government to be insulated from politics, which is why federal judges enjoy lifetime tenure. But in their stinging dissent when the court reversed Roe v Wade in 2022, the three liberal justices wrote: “The court reverses course today for one reason and one reason only: because the composition of this court has changed.” During Trump’s four-year term as president, he added three staunchly conservative, anti-abortion justices to the court. In an act of raw political muscle, Republicans in the Senate refused to act on President Barack Obama’s final supreme court nominee, Merrick Garland, the man who is Joe Biden’s attorney general and whose justice department Trump wants to defenestrate.
Trump is also targeting government lawyers, although his own lawyers are the enablers of his alleged crimes. Five Trump lawyers were named co-conspirators in last week’s indictment for using crackpot legal theories and unlawful ploys to overturn Biden’s election as president. The most famous is the former New York City mayor Rudy Giuliani who, according to the indictment, pressured state election officials to switch their electors from Biden to Trump. The disciplinary committee of the district of Columbia has recommended that Giuliani be disbarred. John Eastman, another accused co-conspirator, joined Trump’s legal team later and convinced him that the vice-president Mike Pence had the legal power to declare Trump the winner on 6 January 2020 when he clearly did not.
According to the New York Times, a federal judge who considered some of the evidence against the lawyer co-conspirators called their plot to overturn the election “a coup in search of a legal theory”. They remain uncharged, probably because Smith is more likely to get a trial before the 2024 presidential election if Trump is the sole defendant. Tanya Chutkan, the judge assigned to the case, has already given stiff jail sentences to several of those convicted for breaking into the Capitol on 6 January 2020.
In polls of Republican voters, the former president holds a huge lead over all his challengers for his party’s nomination. Pandering to the Trump base, some of the other GOP presidential candidates, including the entrepreneur Vivek Ramaswamy and the former South Carolina governor Nikki Haley, have said they would consider pardoning Trump. Fellow Republican candidate Asa Hutchinson, the former governor of Arkansas, has called such promises “offensive”.
What is at stake is not just the outcome and aftermath of the next presidential election in America, fateful though that is. Across the globe, the fragile relationship between the political and judicial spheres is broken or under strain, and what happens in Washington will serve both as a stark warning of the consequences of that rupture and to give licence to other anti-democratic regimes. The US used to be a beacon of good governance. It is in danger of exporting entropy.
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