CNN
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Only three months into his new term, President Donald Trump is escalating a battle against institutions that challenge his strongman instincts, including the courts, the legal profession, elite education and the media.
The administration is projecting presidential authority in a broader and more overt way than any modern White House. Its expansive interpretation of statues and questionable interpretations of judges’ rulings is causing alarm about its impact on the rule of law, freedom of expression and the Constitution.
“There’s something broken,” Trump said in the Oval Office on Monday. “The liberal establishment – but they’re not running things anymore in this country.”
He sat beside President Nayib Bukele of El Salvador, who brands himself as the world’s “coolest dictator” and whose huge popularity is based on a brand of elected authoritarianism Trump admires. The warmth lavished on a leader who’d have been treated as a pariah by a conventional US administration was a ominous window into the 47th president’s future intentions.
Bukele has suspended parts of the Salvadoran constitution and imprisoned tens of thousands of people without due process in a crackdown against crime.
He suggested Trump might try something similar. “Mr. President, you have 350 million people to liberate, you know. But to liberate 350 million people, you have to imprison some. You know, that’s the way it works, right?”
Trump’s own hardline aspirations were revealed in the meeting through the prism of his increasingly ruthless deportation policy, which is raising profound questions about apparent abuses of due process and human rights.
Both presidents relished the chance to publicly refuse to release an undocumented migrant who was seized in Maryland and deported to a notorious mega-prison in his native El Salvador without a court hearing and despite a judge’s order that he should not be sent back to the country.
The White House is refusing to act on another judge’s order that Kilmar Armando Abrego Garcia should be brought back to the US and is walking a fine line on a Supreme Court decision saying it must facilitate his return. It says Abrego Garcia is a gang member and terrorist despite producing no public evidence. It also argues that US courts have no jurisdiction because Abrego Garcia’s fate is bound up in Trump’s power to set foreign policy.
The Supreme Court ruled 9-0 last week that the administration must “facilitate” the return of Abrego Garcia after it admitted expelling him over an administrative error. But the White House is using its rather imprecise language – perhaps motivated by a push for unity or a desire to avoid a direct constitutional showdown – to claim the justices endorsed its position, rather than rebuking it.
“I think the Supreme Court is responsible to some extent because they diced words,” retired judge Shira Scheindlin told CNN’s John Berman on Monday. But Scheindlin warned the administration was entering dangerous ground. “What we have here is a defiance of the Supreme Court order. The Supreme Court said facilitate his return and expedite it.”
Scheindlin added: “It’s defiance which puts us on the edge of a constitutional crisis between the judicial branch and the executive branch.”
Laurence Tribe, a renowned constitutional scholar, told CNN Monday that the administration’s defiance made it likely the case would end up back before the Supreme Court – which would then face a fateful choice. “It is not just immigrants who are subject to this kind of game. It is a deadly game that could be played with any citizen,” Tribe, professor emeritus at Harvard Law told Kaitlan Collins, who had earlier questioned Trump and Bukele in the Oval Office. “The president has already begun to play it. That is not the country that any of us I think grew up in.”
Indeed, Trump is mulling an even more flagrant challenge to the law. He suggested that his scheme to deport those who he says are gang members and terrorists to harsh El Salvadorian prisons could be widened.
“I’d like to go a step further, I mean … I don’t know what the laws are. We always have to obey the laws,” Trump said, looking at Attorney General Pam Bondi on a White House sofa. “But we also have home-grown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters. I’d like to include them in the group of people – to get them out of the country.”
The idea that the administration would ignore constitutional protections available to all Americans, even those who are incarcerated, and deport them to draconian prison camps overseas might strain credulity. But Trump’s words came amid an atmosphere of growing authoritarianism around his White House and an apparent determination to reject constitutional constraints on his behavior.
Elite law and education are in Trump’s sights
The White House’s power moves suggest it does not just want to unilaterally decide who gets deported, based on its own criteria and not those of the courts. It also wants to heavily influence the caseloads of big-time law firms; what is taught in top universities; and the news Americans see on television. These are classic pages from the playbooks of strongman leaders like Hungarian Prime Minister Viktor Orbán, another Trump hero, who established his power by reining in the independence of the law, the media and academia.
In recent days, Trump has increased pressure on top law firms that took cases or employed attorneys he sees as hostile to his political interests, extracting deals for hundreds of millions of dollars of “pro bono” work on cases to be named later.
The White House has also threatened numerous universities with funding cuts if they don’t make changes to school policy and even what they teach. Separately on Sunday, he demanded punishment for CBS’ “60 Minutes” and called on the chairman of the Federal Communications Commission to revoke the network’s license.
A president who campaigned for a second term on a promise to purge the weaponization of the Justice Department last week used his power to order probes into two critics, Chris Krebs and Miles Taylor, who served in his first administration. And Elon Musk’s unilateral decisions on firing officials and shredding federal funding for government agencies already awarded by Congress seems designed to outrace the courts’ capacity to assess their legality.
Secretary of State Marco Rubio, meanwhile, has been wielding vast power to cancel the visas of hundreds of foreign students, some of whom took part in anti-Israel protests. He argues their activities are detrimental to US foreign policy – a sweeping rationale that might be used to curtail almost any speech. Several foreign students have been approached in the street and taken into immigration custody hundreds of miles away or forced to flee the country. On Monday, Palestinian student Mohsen Mahdawi went into a Vermont immigration office hoping to begin the final step to becoming a US citizen. But the Columbia University student, who has been in the US for a decade, was taken away in handcuffs, his lawyer told CNN.
And the cronyism that often afflicts hardline regimes that thwart democratic freedoms seems to be taking root in Washington. Trump, for instance, signaled that he was open to negotiations with top CEOs for opt-outs from his tariffs that have rocked the US and global economies.
Trump won his second term partly on a promise to his supporters to eviscerate an elite establishment that he argues is contemptuous toward many Americans and infected by extreme liberal values on race and gender. This is a popular stance among many voters – especially in Trump’s political base, for whom he mostly seems to govern. A cultural assault on institutions regarded as dominated by elites is also a useful distraction from his trade war chaos and the failure so far of his peace initiative in Ukraine.
Trump’s wild rhetoric and obvious belief that he has limitless power – reinforced by a Supreme Court ruling on presidential immunity – have long caused his critics to warn, sometimes in overly alarmist terms, that he’s a dictator-in-waiting. But his refusal to accept the result of the 2020 election and his fresh efforts to thwart government accountability, legal processes and even the freedom of expression are adding up.
Mammoth political and legal battles are beginning
But some of the institutions are fighting back.
Harvard University on Monday rejected the administration’s demands for policy changes. “The University will not surrender its independence or its constitutional rights,” Harvard President Alan Garber said in a statement. The administration quickly froze several billion dollars in federal funding for the Ivy League school.
The White House had demanded changes to Harvard’s diversity, equity and inclusion programs; a ban on masks at campus protests; and reforms to merit-based hiring and admissions. It wanted to reduce the power held by faculty and administrators.
Harvard’s decision could establish a precedent for other higher education institutions to follow suit. But Columbia University submitted to administration demands for restrictions on demonstrations and new disciplinary procedures, and immediate reviewed its Middle East curriculum.
The pattern of resistance and some submission to Trump policies is also playing out in the legal industry.
Two large firms, Jenner & Block and WilmerHale, which have huge Washington practices, have sued the administration to challenge Trump executive orders targeting them and their clients. They accuse the government of using unconstitutional executive orders to punish or chill speech it doesn’t like.
The administration’s singling out of journalists prompted the Associated Press to take its case to the courts after its journalists were banned from the travel pool on Air Force One and events in the Oval Office over the newswire and photo agency’s refusal to follow Trump’s lead in renaming the Gulf of Mexico in its stylebook. A federal judge last week deemed the White House’s punishment of the AP unconstitutional.
Trump’s next challenge to the rule of law is likely to play out on Tuesday in the latest hearing of the case of Abrego Garcia, who was picked off the streets of suburban Maryland and sent to the El Salvador mega-prison.
The Justice Department has responded to a federal judge’s orders to detail daily efforts to bring him back with challenges to the court’s authority. Joseph Mazzara, an attorney for the Department of Homeland Security, said in a sworn statement Monday that the agency “does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.”
This followed Bukele’s statement a few hours before suggesting cooperation with the White House. “How can I smuggle a terrorist into the United States? I don’t – I don’t have the power to return him to the United States,” the Salvadoran president said.
The administration response shows it is doing nothing to bring Abrego Garcia back. It’s beginning to look like yet another attempt to evade the authority of the judiciary.
On this and many other fronts, the sense of a coming constitutional collision is growing impossible to ignore.
