Donald Trump’s attacks against the judicial branch continue to escalate, and they may be a sign of what is to come. Trump recently launched a series of tweets criticizing U.S. District Judge James Robart for placing a temporary restraining order on Trump’s travel ban, and continued his criticism of the judiciary after the ban’s defeat in the Ninth Circuit Court. His comments attacking the legitimacy of an individual judge are unprecedented for a sitting president, and create an atmosphere where judges who rule against Trump will face public attacks and widespread death threats online.
Even more concerning than his attacks on Robart’s individual legitimacy have been Trump’s attacks on the power of the judiciary as a whole. On February 5, in the wake of his infamous tweet calling Robart a “so-called judge,” Trump tweeted again, saying, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” Taken at face value, this is a clear statement of Trump’s intention to use a terrorist attack as political capital to consolidate his executive power. Trump seems to believe that the judiciary should not have the power to limit his “national security” actions, regardless of their constitutionality, and appears to be willing to go to extremes to maximize his power.
Some argue that Trump’s tweets are hyperbolic and merely petty rants, and therefore are not representative of his real policy intentions. Admittedly, it would be nice to brush away Trump’s litany of angry tweets against the judiciary as an emotional reaction that has no basis in executive intention. However, the clearly unconstitutional and arguably autocratic-leaning sentiments expressed in Trump’s tweets have been backed up by statements from his administration. Stephen Miller, Trump’s senior policy advisor, appeared on several Sunday news talk shows on February 12, and while on Face the Nation with John Dickerson, he was asked what the White House had learned from its experience with the executive order. Miller responded by asserting that “we have a judiciary that has taken far too much power and become, in many cases, a supreme branch of government.” Miller finished by ominously stating, “The end result of this, though, is that our opponents, the media, and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
Many Americans believe that our hallowed American democratic institutions are simply too deeply established to fall to the whims of one reckless and authoritarian president. However, the power of the presidency is greater than it has ever been before. In many ways, the democratic system of the United States depends on a well-intentioned and moralistic president. The courts cannot enforce their decisions without a cooperative executive branch. It is absolutely possible that in the wake of a national security crisis, Trump could successfully order the Department of Homeland Security, or a different arm of the executive apparatus, to carry out his orders in the face of judicial opposition.
Even if the Trump administration does not reach this level of direct defiance of the judicial branch, the White House may very well engage in both covert and overt tactics to continue to markedly undermine the authority and legitimacy of federal judges. As in the Robart case, decisions against Trump’s orders may be followed by public ridicule of judges, possibly leading to consequences much more serious than Twitter insults. Trump has garnered a vicious online following that attacks and threatens his public opponents, with supporters at times going so far as to release the private information of opponents and journalists online, a practice known as “doxing.” Judges might begin to face the threat of damaging personal leaks if they make a decision against Trump’s wishes, creating an environment in which there is a legitimate deterrent to making judgments against the administration, no matter their validity. These online “troll armies” are an increasingly common tactic used by Russia (both domestically and to influence elections abroad), China, Turkey, and other authoritarian regimes. In many ways, the use of these unofficial but state-sponsored online armies is the ideal circumstance for quasi-authoritarian leaders who exist in states that proclaim democracy – it is essentially an anonymous and relatively untraceable way to intimidate opponents and influence public perception. As this tactic continues to evolve, it is clear just how dangerous it could be in the United States: online intimidation could serve as a potent tool for the Trump administration to erode the effectiveness of the checks and balances of the American democratic system.
Hopefully, the Trump White House’s assault on democracy never amounts to more than a few empty threats and hyperbolic tweets. But in the wake of a tumultuous and disputed election, American democracy is cracking under pressure. As the second month of the Trump presidency begins and the administration continues to attack the judiciary, the press, and others, the American people and the media must remain vigilant.