I have written this piece for Slate. it begins:
On Sunday, the Washington Post reported on Donald Trump’s plans to turn the Department of Justice into a department of “revenge” targeting perceived adversaries if he retakes the White House in next year’s election, as well as a proposal to invoke the Insurrection Act against any protesting citizenry. Given recent polls showing Trump practically sweeping the key swing states in a hypothetical reelection matchup with President Joe Biden, the Post reporting reads as an ominous premonition.The Post report builds on last week’s chilling reporting in the New York Times about the lawyers who would work for a second Trump administration. All of this portends a new threat against the U.S. legal system. Trump’s potential revenge crew includes lawyers such as Jeffrey Clark, the U.S. Department of Justice official during Trump’s first term who wanted to help Trump overturn his 2020 election loss by getting DOJ to falsely claim there was election fraud in Georgia and who is now under indictment for racketeering along with Trump and 16 others in that same state. The Times reported, however, that Trump World has soured on right-wing Federalist Society lawyers for being “squishes” who showed insufficient fealty to Trump’s personal interests the last time around. The reporting indicated that there would be no place for these non-loyalists next time.
This apparent rejection of FedSoc lawyers is a silver lining that is easy to miss amid justified concern about the rule of the law in January 2025. It gives me a bit more confidence that the legal system could remain steadfast against the most significant forms of illegality by a second Trump administration….
How might that line be held? First, Trump may have trouble confirming some of his nominees for positions including the attorney general, by a United States Senate that is quite conservative but not nearly as Trumpy as the House of Representatives. For those lawyers who get confirmed or don’t need confirmation, it is not clear that they will do so well in the courts. When you rule out elite lawyers and bring in those with less experience and sophistication to play in the big-league federal courts, they often strike out.
While Trump’s lawyers would be sure to find some sympathetic loyalist judges in the lower courts, so far the Supreme Court has not shown itself willing to do Trump’s bidding in a wide variety of cases. Just as the very conservative Supreme Court has found that the United States Court of Appeals for the 5th Circuit sometimes goes too far to the Trumpy right, there’s likely to be plenty of resistance from the right, and not just the left, for Trump’s new attempts to run roughshod over the rule of law….