by Patricia J. Williams
published in The Nation Magazine, December 1, 2016
onald Trump’s presidential campaign found its footing in a terrifying, Twitter-driven terrain of real and imagined lawlessness—at the border, in the “inner cities,” at the hands of ISIS—and his ascent to the White House was underwritten by many of his supporters’ yearning for extralegal resolution. As we hover on the brink of a period of extended exceptions to and suspensions of the law, it’s worth tracking how we arrived here, and what might lie ahead. There are three forces I believe have been especially effective in titrating this newly toxic brew of anti-law populist culture.
The first is Trump’s talent for modeling a contagious, near-poetic anger that makes due process seem like a luxury we simply can’t afford. While it may seem scattershot at times, such panic-priming ultimately enables predictive models of policing, algorithmic assessments of “likely” behavior, group profiling, segregation based on suspicion rather than conviction, and a predisposition to literally shoot first and ask questions later. This mode of political address is often couched in talk of “law and order,” but it privileges order above all. As a practical matter, we may see the full unregulated potential of Big Data technologies unleashed—a fear to which I alluded in my last column. Nearly all of us can expect to be surveilled coldly, by strangers, and then tagged and followed and graded and boxed.
A second force attending the coming order is a dangerous predilection for punishment as unfettered play. Trump doesn’t just call for payback; he seems to relish the idea. He not only published his wish to execute the now-exonerated Central Park Five, but spoke of wanting to see them suffer too. He responds disproportionately to the slightest of slights to his ego; no matter how petty, he’s “gonna love” suing ’em, bankrupting ’em, sending ’em to jail. Trump styles himself as powerful with a vengeance—unrelenting vengeance. One sees that extra dollop of avenging glee reflected in the postelection exuberance of some of his followers—not just in happiness about his winning, for example, but in the ubiquitously expressed desire to see Hil lary Clinton’s supporters actually cry. As projected by and through Trump’s network of delivery systems, his enthusiastic attacks on the “soft,” “wussy,” “coddled” practitioners of “political correctness” can appear as incoherent acts of random sadism. But Trump is telegraphing something consistent: undoing law in the name of order, using a language of violence and the logistics of the hunt.
Third and finally, there is Trump’s boastful self-presentation not just as a Washington “outsider,” but as an exceptional individual beyond the law or judicial regulation—half-sovereign, half-outlaw. (After all, he’s the one who could “stand in the middle of Fifth Avenue and shoot somebody” and get away with it.) When it comes to clear conflicts of fiduciary responsibility, he believes that “the president can’t have a conflict of interest…because everything a president does in some ways is like a conflict of interest. But I have—I’ve built—a very great company, and it’s a big company, and it’s all over the world.” Trump seems to have cribbed this magical theory of total immunity from Richard Nixon, who once told David Frost that “when the president does it, that means that it is not illegal.” This isn’t quite true, as Nixon discovered, since the statement conflates the individual who serves as president with all the powers of the state. When that distinction is lost, a king is born—or a dictator.
While Trump has sold his lawlessness to the American people as a form of zealous advocacy on their behalf, his disdain for the law will likely serve his own enterprises first. Privately profiting while supposedly acting on behalf of another overlaps substantially with what the law calls graft, bribery, extortion, double-dipping, or just plain stealing-from-grandma. This is true even of billionaires and business magnates: If I’m actively serving as both the president of a nation and the head of a profitable clothing manufacturer, by what rule ought my administration be guided when trying to decide between two companies bidding to fulfill an order for Army uniforms—one of which is owned by me? On the one hand, I have a duty to advance the incorporated self-interests of my shareholders; and so I would be bound to ensure that my enterprise was awarded the contract. On the other hand, my oath of office makes clear the responsibility I have to citizens and taxpayers; this would point in the opposite direction, binding me to accept the lowest bid from an independently vetted contractor. In his interview with The New York Times, Trump seems to merge the interests at stake: his company’s profiting in India = making America great again! Alas, this kind of faulty syllogism is commonly known as commingling.
While a president is exempt from being criminally prosecuted under federal conflict-of-interest laws, this is not a license to use the office for personal profiteering. The emoluments clause of the Constitution specifies that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This clause is more or less the secular instantiation of Matthew 6:24, to wit: “No man can serve two masters…. Ye cannot serve God and mammon.”
The role of president of the United States requires operating as a surrogate for the body politic. To paraphrase Aristotle’s notion of justice, a public servant strives for good not in the individual sense, but in terms of that which will render “someone else’s good.” First, this means respecting human dignity instead of relying on data and surveillance without due process. Second, it means executing the laws with restrained self-mastery, without which one is, according to Aristotle, morally “incontinent.”
Third and finally, the president is our embodied head of state. Heading any other incorporation is one head too many.