I helped run the DOJ. Trump is breaking it.

What a lifetime of service inside Republican administrations taught me about the current assault on rule of law.

By Donald Ayer

Just following the news today can feel like being cast out to sea without a life jacket. You’re hit with wave after wave of bad news, all of it at breakneck pace, until it feels impossible to keep afloat. Much of that is by design.

Since January 20, we have seen an unprecedented array of initiatives, mostly by executive orders, to implement radical changes, many with immediate consequences for certain groups of people. Birthright citizenship has been declared to be invalid, extreme actions have been taken against those suspected of being unlawfully present in the country, and the military has been utilized on American streets ostensibly to maintain order. Agencies have been shut down and funding and staffing have been cut.

Other sudden changes—like the imposition and modification of tariffs applicable to most of the countries of the world—seem likely to have broader, perhaps severe consequences for our whole economy, but those effects are not yet being strongly felt. And other massive changes have been made through legislation without sufficient deliberation or a proper assessment of the downstream economic and societal effects. The drumbeat continues, and we all know there is more to come.

Preoccupation with the present effects of these major policy changes—which may be targeted at others or whose consequences will be greater in the long run—is a natural reaction to the chaos of information overload. So is the limited sense of relief that many may feel that they at least have yet to suffer any great harm—indeed some have gotten tax cuts and see their investments rising in value. But this is wishful thinking in the extreme. When one abandons the myopic focus on how we individually are faring, and looks at the forest instead of the trees, a most ominous picture emerges.

Prior presidents have brought with them a firm commitment to the framework of democratically elected government, in which the president wields power within a system of checks and balances created by our constitutional structure. Until our modern era, the limited exception, Richard Nixon, proved the rule. Discovery of his several surreptitious misuses of official power to help secure his re-election in 1972 led to repudiation by his own party and removal from office. It also led to major reforms that served to bolster—for a time—public trust against misuses of government power.

By contrast, Donald Trump has pursued a concerted and unconcealed campaign to undermine and dismantle the democratic form of government that was created by the Constitution 238 years ago, which is defined by limited powers. Nearly everything he has done so far this term is aimed at upsetting established limitations and avoiding, eliminating, or overriding any force or principle, constitutional or otherwise, that might interfere with him acting in a completely unchecked manner. And he wears that defiance of our system as a badge of honor.

Most fundamentally, Trump is working to defeat the fair functioning of our democratic elections, in order to secure his power in spite of public disapproval. While the conduct of elections is mainly the province of the states, following his efforts to overturn the outcome of the 2020 election, Trump continues to interfere in ways intended to help his electoral prospects. His successful insistence that Texas severely gerrymander its House districts at mid-decade to further deny Democrats fair representation, his parallel appeals to other states, and his calls for an end to mail-in ballots and voting machines, are the latest in a long string of such efforts.

Within the government, Trump's many initiatives this year have flatly defied the basic structures of our system by usurping powers delegated to others. He has dismantled agencies that Congress created and has never repealed, and refused to spend money that Congress appropriated for certain purposes. He is now in the process of actively attacking the independence of the Federal Reserve, which has long been a cornerstone of our economic prosperity. More such attacks and usurpations are sure to follow.

To prevent any effective opposition to his exercises of power, Trump has repeatedly acted to neutralize people with the experience, knowledge, or legal authority, who might otherwise stand in his way. He has threatened to raise a primary challenge against Republican Congressmen who defy his directions, and thus created a legislative branch in a state of paralysis, utterly unable to oppose the president on anything. He has fired many experienced government officials, with decades of expertise, putting in their place unqualified individuals selected for their total personal loyalty and willingness to prostrate themselves publicly before the president.

In recent months, one area of government wreckage has become the tip of the spear in Trump’s all-out war on the administrative state: destroying all limits on the exercise of coercive power by the Department of Justice, where I worked for 10 years. As the agency of government that brings the full power of the state to bear on individuals, the DOJ since Watergate has been scrupulously governed by procedures and norms that protect against political or personal interference in investigative and charging decisions.

Trump has swept those protections away, and has placed people at the top of the Department and FBI who are willing to do his bidding, whatever it may be. He has also fired a great many experienced senior lawyers and January 6 prosecutors dedicated to pursuing evenhanded justice, wherever the facts and the law may lead. And his mass pardoning of January 6 rioters, while technically within his constitutional power, reflects an utter lack of respect for our judicial processes for determining truth.

At the same time, Trump also continues making many personal threats to use the law to punish his enemies, and has issued executive orders that certain former officials be investigated. His wild talk and recurring threats over many years, including against former President Barack Obama and Special Counsel Jack Smith, and the recent search of John Bolton’s house, show that the Department’s powers can now be used against anyone, regardless of the facts, just to intimidate the opposition and make political hay in furtherance of the president’s MAGA agenda.

Most appallingly, Trump has repeatedly used such threats to impair the functioning of the judicial process itself. Through executive orders directed at law firms, on the stated ground of their hiring decisions, client associations, or specific advocacy, he has withdrawn certain privileges and demanded that the firms provide millions of dollars in pro bono legal services at Trump’s request. Many have, disappointingly, obliged. The notion that lawyers can have their livelihoods threatened by a president who disapproves of their proper conduct has no precedent and directly attacks the functioning of a legal system where the executive does not directly control the outcome.

Lastly, it is noteworthy, and totally unprecedented in our history, that Trump declines to be constrained by any facts, choosing instead to simply make them up and deny those that are inconvenient. Somehow we have, over many years, adapted to this feature of his personality, which barely receives mention any more. During his first term, there was much discussion about the deep perniciousness of “alternative facts,” “fake news,” and “post-truthiness”—now we’ve simply come to accept that the president lies constantly and shamelessly. The recent firing of Erika McEntarfer, the Commissioner of Labor Statistics, for publishing unwelcome facts was a shocking but unsurprising development in this long, sad slide.

So, as we lurch through the murky waters of our current political landscape—castaways on a journey that none of us asked for—here is the state of play: Our current president is in the process of substituting his own will and desires for our centuries-old democratic system of checks and balances and the rule of law. And that predictable pattern of abuse will not end until Trump is forced to end it.

It is up to us—all of us—to get over the shell shock and reassume the role of active citizenship in a democracy where citizens have the final say. If you are horrified by what you see, you are far from alone. Stand up, speak out, and tell people about the active harm that this administration is doing daily to our constitutional order, our system of liberty under law, and our shared social fabric. It can be tempting to assume that people have heard it all already, and choose not to care; but this isn’t the case. Every new outrage is a new opportunity to show someone that we as a citizenry and a nation deserve better. People are waiting to hear from you.

Give your vocal support to the parts of the system that are working. The courts are doing their job and entering appropriate orders in dozens of cases challenging Trump’s abuses. And, thanks to the efforts of many to protect it, we still have a functioning electoral process, and a chance next year to restore some measure of Congress’ ability to play the role the founders intended. Those who are still showing the courage to oppose Trump need your active support.

I swore an oath to defend the Constitution when I entered public service in 1981. That was at the beginning of Ronald Reagan’s first term, and I went on to serve as Principal Deputy Solicitor General during his administration, and Deputy Attorney General under his successor, George H. W. Bush. Back then, we could take for granted that the rule of law was still in force in America because successive generations had done the hard, plodding work of building up our institutions to fortify it and ensure its survival. Today we no longer have such assurances.

Express yourself. You have more power than you think. Now is the time to exercise it.

Donald Ayer served as Deputy Attorney General under President George H. W. Bush, and as the Principal Deputy Solicitor General and a United States Attorney in the Reagan administration. He is currently a member of the board of the Society for the Rule of Law.