For my friends, everything. For my enemies, the law.
This quotation is often attributed to strongman Oscar R. Benavides, who rose from Field Marshal to President (1933-1939) of Peru. We North Americans (in the United States) are seeing a version of this in the second presidential administration of Donald Trump, but it’s not exactly a law and order regime that we’re watching.
Conservative jurist J. Michael Luttig recently wrote:
President Trump has wasted no time in his second term in declaring war on the nation’s federal judiciary, the country’s legal profession and the rule of law. He has provoked a constitutional crisis with his stunning frontal assault on the third branch of government and the American system of justice. The casualty could well be the constitutional democracy Americans fought for in the Revolutionary War against the British monarchy 250 years ago.
Obviously, the law reserved for Trump’s enemies veers sharply from the rule of law envisaged in a constitutional democracy. A recent discussion by Aziz Huq of The Dual State: A Contribution to the Theory of Dictatorship, written by Ernst Fraenkel more than eighty years ago, suggests a critical distinction.
Fraenkel observed firsthand the erosion of constitutional and legal foundations of Germany and the rise of strongman rule under Hitler. But, in Huq’s words, “the Nazi regime managed to keep on track a capitalist economy governed by stable laws—and maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of lawlessness and state violence in order to realize its terrible vision of ethno-nationalism.”
As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply.
Trump and his administration, prominently including his DOJ, have created the prerogative state right before our eyes. It is a lawless zone where resentment and grievance rule, retribution is directed at enemies, while friends and family are rewarded and corruptly acquired payoffs buy immunity from the feds.
This is a perversion of a democratic America. For most folks, life can go on more or less as normal (though we have lost an ample measure of our freedom and security) — unless we attract the ire of the strongman or his lieutenants. Then, we may find ourselves subject to unlimited arbitrariness (and in some cases violence) — as thousands of people (civil servants, university and medical researchers, students receiving financial aid, demonstrators whose viewpoints offend MAGA, Democratic law firms, families with transgender kids, legal immigrants, et al.) have experienced in the first two months of rule by the Trump 2 administration.
This (hardly exhaustive) list will keep getting longer.