Trump’s Brand of Law and Order Leaves Leeway on the Law




President Trump spent 18 months as the ultimate law-and-order candidate, promising to rescue an American way of life he said was threatened by terrorists, illegal immigrants and inner-city criminals.

But during seven months as president, many critics and legal scholars say, Mr. Trump has shown a flexible view on the issue, one that favors the police and his own allies over strict application of the rule of law.

Over the past two years, in ways big and small, the critics say, Mr. Trump has signaled that taking the law into one’s own hands is permissible, within the executive branch or in local police departments, or even against a heckler at one of his rallies.

The president’s pardon last week of Joe Arpaio, the former sheriff of Maricopa County, Ariz., and a strong supporter of Mr. Trump’s during the 2016 campaign, illuminated the impulses that shape his opinion.

The case, and the pardon that ended it, involved an assumption that minorities were more likely to commit crimes, a belief in the use of force to keep people in check, and what some of the president’s advisers privately describe as at best a lack of interest in becoming fluent in the legal process.

At a rally in Phoenix last week, where Mr. Trump signaled that a pardon was coming, the president said that Mr. Arpaio, who repeatedly engaged in racial profiling as he defied a court order, had been convicted simply for doing his job.

In his words and acts, critics and experts said, Mr. Trump has sent a permissive message to people in law enforcement that they can bend the law, if not break it.

“Arpaio is a public official accused of racial profiling, and in the pardon statement, he was praised for his actions,” said Michael Waldman, the president of the Brennan Center for Justice at New York University.

Mr. Waldman drew a line from the pardon to Mr. Trump’s statements last month to police officers on Long Island in which he appeared to encourage local law enforcement officials to give suspects rougher treatment. The president made those comments despite years of wrenching debate over a string of cases of police shootings of unarmed black men.

“When the president says, ‘Make sure to hit the heads of people on the door of the police car,’ or pardons a sheriff accused of racial profiling, it redefines the law as just brute force,” Mr. Waldman said.

Officials in the executive branch and in individual agencies have started to speak out with increasing, and surprising, frequency. A senior Justice Department official wrote a memo after Mr. Trump’s Long Island speech, stating strongly that the agency does not condone brutality. So did several police departments across the country.

Mr. Trump, who spent his early adult years in the crime-ravaged, racially volatile crucible of New York City in the 1970s and 1980s, sees life through the prism of strength versus weakness. On Twitter, as Hurricane Harvey ravaged Texas, Mr. Trump said he had unleashed the force of federal aid. On Sunday morning, as the rains continued, the president tweeted an endorsement of a book by another hard-line law enforcement official accused of civil rights violations: Sheriff David A. Clarke of Milwaukee County, Wis., whom he called “a great guy.”

While Mr. Trump has spoken often of the significance of the rule of law, his actions have raised questions about his commitment to hallmarks of the American system like due process, equal protection under the law, independence of judicial proceedings from political considerations, and respect for orders from the courts.

“I don’t think you have to be a champion of it; all you need to do is comply with it,” said Charles Fried, a Harvard Law School professor who was a solicitor general under President Ronald Reagan.

“And he shows himself absolutely unwilling to respect it,” Mr. Fried said, citing the pardon as a particular thumb in the eye of a judge. “It’s a use of authority specifically to undermine the only weapon that a judge has in this kind of ultimate confrontation.”

The White House declined to address the criticisms on the record, but one official said the president’s actions on immigration enforcement, in particular, had re-established the rule of law instead of ignoring it, lifted the morale of the police, and restored the focus on combating illegal immigration to states instead of the federal government.

As a candidate, Mr. Trump enthusiastically endorsed a brutal interrogation technique declared illegal under international law. “Torture works,” Mr. Trump said at a South Carolina event in early 2016, a statement he tried to modify when some of his outside advisers threatened to leave his campaign.

When protests erupted at his rallies, he repeatedly waxed nostalgic about the “good old days” when people could take such matters into their own hands. He endorsed stop-and-frisk policing, and said immigration by Muslims should be banned to protect Americans’ safety. He argued to Bill O’Reilly, then a Fox News host, that immigrants in the country illegally may not be entitled to due process at all.

On the same program, Mr. Trump insisted, despite established law, that the 14th Amendment does not guarantee citizenship to people born in the United States if their parents are here illegally.

After proposing a wall along the southern border, he repeatedly attacked a federal judge of Mexican descent who was overseeing a case involving Mr. Trump’s private company. A “so-called judge,” he called him.

“Those were rhetorical excesses. This is a use of power to disarm and make empty the actions of a judge,” Mr. Fried said. “You come with a certain level of constitutional literacy, and he is totally illiterate in these domains. You think every day it can’t get worse, and then it does.”

https://www.nytimes.com/2017/08/27/us/politics/trump-law-order-police-arpaio.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0