I’ve struggled a bit these last few months, trying to figure out whether I have anything useful to say as we begin the long, painful journey that is Trump 2.0. I’m still not sure, honestly, but I’m going to try to post a thought here every week. It will be free, and worth every penny.
The thoughts will usually be brief, although today I have something slightly longer—a reflection on the threat of Trump 2.0 and a pep talk for lawyers confronting that threat:
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Many people are stunned by the number of aggressive Trump administration actions that appear to violate the law. Trump’s threatening moves seem everything, everywhere, all at once. It can feel overwhelming.
I’ve dealt with threats much of my adult life. And, not to brag, but I was on the Trump Enemies List™ before it was a thing. I’ve learned that, when dealing with a threat, it’s important to do two seemingly contradictory things: First, be clear-eyed about it and take sensible steps to protect yourself; second, resist the impulse to exaggerate it. That last part is the hardest, because, when someone says they want to get you, the boogeyman looms large in your mind, endowed with singular purpose and frightening capability.
The memoirs of Trump 1.0 veterans offer some help with resisting that exaggeration because they told us we shouldn't imagine him as some Bond villain. The gold curtain, they said, hides only chaos and Trumpian whim. Every day in Trump 1.0, they told us, was a war to keep the president from doing whatever nutty thing popped into his head, especially about people he wanted to hurt. It’s the reason so many Trump 1.0 alums warned America that he should never be allowed near the Oval Office again.
In Trump 2.0, apparently, those battles to deflect or distract the president are no longer being fought. It doesn’t seem as if the Department of Justice is any longer even checking the legality or form of executive orders and the Attorney General has dropped even the pretense of separation from the White House. As a result, we are surely seeing random acts produced by a short attention span and bottomless ill-will.
At the same time, though, Trump 2.0 houses at least some people of ill-will who also possess an ability to focus. So some of what we see is surely actual strategy, sprinkled with the familiar chaotic meanness and revenge. As a result this mixture, the Return of Trump makes it hard to evaluate the threat clearly. But we know a few things for certain:
The Trump administration is constantly pushing executive authority beyond the bounds of the law.
They are using the enforcement authorities of the Department of Justice—and the government more generally—to intimidate and retaliate against those they see as enemies.
The current Congress will do nothing about it. The only possible vindication of the law before January 2027 will come from the judiciary—the sole healthy leg of the constitutional stool.
I believe our courts will pass this stress test, just as they did in the face of the tsunami of lies after the 2020 election. People may not agree with every court decision, but those rulings will be the product of our constitutional design. The rule of law will endure. And I will continue to believe in it up to the moment the Trump administration begins defying clear judgments by the United States Supreme Court. At that point, we are lost and I don't know what we should do. But, in the meantime, lawyers should use the law. And, as they do that, I hope they remember the lessons of childhood basketball:
The Trump administration is not some Dream Team, here to dunk all over you. I coached a lot of youth hoops and there was always a game where the other team was flashy, with loud warm-up music and rowdy fans. My players would look tight before the game started. And after the opening tip, the other squad would go into a full court press and we would fall apart, panicking into bad passes and wild three-point shots.
I would call timeout and gather my squad. "Remember who you are," I would say to these girls or boys. "Remember what we practiced. Take your time, find the open player, play defense, and for heaven's sake, box out. Make them come over your back and foul you if they want a rebound. The referees are here for a reason. So take a breath. You got this."
America’s lawyers just need to play the way they were trained.
And there's one other thing to know about the other team. Sure, the Trump players can look good in the pregame layup line. Their fans are incredibly loud and nasty. But they don't have the talent to run with you for a full game.
Nature's supply of competent legal sycophants is real but, thankfully, finite. Trump dipped into that supply pretty deeply during his first administration. And those bright and experienced but morally flexible attorneys went running for the hills after January 6. For the Trump 2.0 legal appointees, it’s pretty much Four Seasons Total Landscaping all the way down.
The new Trump administration simply doesn't have the talent to litigate well in so many courts at so many levels. I know how hard it is to cover all those places when your administration has good lawyers. During the George W. Bush administration—when, in the wake of 9/11, so many of the government's actions were being challenged—the phrase "awesome resources of the federal government" used to make me laugh as the Justice Department scrambled to find enough talented government lawyers and equip them to litigate against strong opponents in front of demanding judges.
As the Trump team nears the end of its shock and awe phase, be assured that they are going to be exhausted long before halftime.
Those who care about the rule of law need to play the way they know and we'll be okay. Yes, it's awful that they have to do this—and my fondest wish is that next year brings Congress back, just as in 2018—but we don't have time to imagine we are a healthier country right now. We have an independent judiciary with a two-century track record. Let's use it. You got this.
Have a good week.