The second Trump administration has raised consistent and growing concerns that it will skirt — if not outright defy — the rule of law when it is expedient. Examples of this willingness — critics say propensity — include the administration’s recent deportation of hundreds of alleged Venezuelan gang members against a judge’s order, de facto DOGE chief Elon Musk‘s effectively cancelling numerous congressionally authorized agencies and funds, and ICE leader Tom Homan‘s recent admission that “I don’t care what judges think.”
President Trump offered his own despotic-sounding justification for each of these actions — and infinitely more — with the bold single-sentence declaration on February 15 that “He who saves his Country does not violate any Law.” (The phrase is most often associated with a similar statement issued by the French emperor Napoleon Bonaparte in service of his autocratic fiat.)
He who saves his Country does not violate any Law.
— Donald J. Trump (@realDonaldTrump) February 15, 2025
This past weekend, in a far less succinct post, Trump continued to threaten vengeance on his perceived enemies and to attempt to bend the law in the process by challenging the legitimacy of pardons issued by his Oval Office predecessor, Joe Biden.
“The ‘Pardons’ that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others,” Trump wrote, “are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them.”
Trump went on to say that those involved in the House Select Committee on January 6 Attack on the Capitol — especially former GOP former Congress members Liz Cheney and Adam Kinzinger — remained in danger of prosecution, despite receiving pre-emptive Biden pardons.
[Kinzinger attacked Trump for the assertion, writing on X: “He’s more obsessed with me and Liz Cheney than his freaking golf score. Hey, Trump — bring it on, dude, you weak, whiny, tiny man.”]
Trump is known for bluster tweets as well as deadly serious ones, and there is a sort of art-slash-science used by MAGA officials to discern which is which — the continuation of a nearly decade long game of taking Trump “seriously but not literally.” It’s a game in which the stakes have risen by orders of magnitude with Trump’s re-election and installation of loyalists across the government.
New: Jim Jordan is ramping up his investigation into Biden’s DOJ. Judiciary is requesting David Weiss, the lead Hunter Biden prosecutor, sit for a transcribed interview.
Jordan asked Pam Bondi to make seven other DOJ officials available for interviewshttps://t.co/S2gHJvNNa4
— Reese Gorman (@reesejgorman) March 18, 2025
Interviewed by the independent “non-profit, non-partisan” news outlet NOTUS, the former Harvard Law professor Mark Tushnet — a Yale Law grad who clerked at SCOTUS for Justice Thurgood Marshall — indicated that this particular Trump challenge — trying to reverse a Biden pardon on a technicality — would show the world whether the rule of law still stood in Trump’s way in any meaningful way.
“The way it would be tested is this,” Tushnet told NOTUS: “The government charges one of the people Biden pardoned with a crime covered by the pardon and the defendant asserts the pardon as an affirmative defense. If there’s anything left to the rule of law,” Tushnet said, “that defense would succeed and the prosecution would be dismissed.”
Notably, in a review of Tushnet’s 2010 book Why The Constitution Matters, Aileen Frost asserts the book should have been titled Why The Constitution Doesn’t Matter and reveals that Tushnet anticipated the current moment.
Frost writes that Tushnet “argues that constitutional law is really politics by another name and that the Constitution’s text and judicial doctrine expounding on it have little effect on our lives. The Constitution matters, Tushnet concludes, only to the degree that it provides a ‘structure for our politics’ – though in the end he doesn’t think the Constitution does much of that either.