Beware Trump’s two-pronged strategy undermining democracy | David Cole

This month, we learned that, in the course of bombing a boat of suspected drug smugglers, the US military intentionally killed two survivors clinging to the wreckage after its initial air assault. In addition, Donald Trump said it was seditious for Democratic members of Congress to inform members of the military that they can, and indeed, must, resist patently illegal orders, and the FBI and Pentagon are reportedly investigating the members’ speech. Those related developments – the murder of civilians and an attack on free speech – exemplify two of Trump’s principal tactics in his second term. The first involves the assertion of extraordinary emergency powers in the absence of any actual emergency. The second seeks to suppress dissent by punishing those who dare to raise their voices. Both moves have been replicated time and time again since January 2025. How courts and the public respond will determine the future of constitutional democracy in the United States.

Nothing is more essential to a liberal democracy than the rule of law – that is, the notion that a democratic government is guided by laws, not discretionary whims; that the laws respect basic liberties for all; and that independent courts have the authority to hold political officials accountable when they violate those laws. These principles, forged in the United Kingdom, adopted and revised by the United States, are the bedrock of constitutional democracy. But they depend on courts being willing and able to check government abuse, and citizens exercising their rights to speak out in defense of the fundamental values when those values are under attack.

Trump, who evidently prefers “the rule of Trump” to the rule of law, has launched a two-pronged attack on these principles. The campaign against alleged drug smugglers is an example of the first tactic: declare a nonexistent emergency and invoke extraordinary authorities that would be unacceptable in ordinary times. Ordinarily, police can’t simply kill those they think might be distributing drugs; suspects must be arrested, tried and convicted, and even then they can only be sentenced to prison, not executed. (The death penalty is reserved for crimes involving homicide.) But by declaring that the metaphorical war on drugs is an actual “armed conflict”, and declaring that fishers carrying drugs are “narco-terrorists”, Trump has asserted the power to kill in cold blood – premeditated murder without trial.

Using the same rationale, Trump has invoked a 1798 law, the Alien Enemies Act, which allows the government during a war to detain or deport citizens of the country with which the US is at war. The last time it was used was the second world war, to detain people of Japanese, German and Italian heritage. The US is not at war today. But Trump has asserted that a Venezuelan drug gang few Americans had even heard of, Tren de Aragua, is at war with us, and used that claim to deport more than 1oo Venezuelans to a notorious prison in El Salvador without hearings of any kind – and in defiance of a court order.

Emergency powers have long posed a threat to the rule of law. “Necessity knows no law”, after all. But it’s one thing to invoke emergency powers in a real emergency. It’s another to do so in a trumped-up one. What we are seeing today is the latter. And it remains to be seen whether the supreme court will call Trump’s bluff.

The second prong of Trump’s strategy is to neutralize the opposition. The rule of law cannot rely on courts alone. It depends as well on citizens standing up and speaking out, through the institutions of civil society – from non-profit advocacy groups like the ACLU to universities, the media and the professions. Trump has systematically targeted them all. He’s issued orders penalizing law firms for filing lawsuits or hiring associates that he doesn’t like. He’s pressured universities to clamp down on students’ and professors’ speech. He’s penalized press outlets that don’t parrot his messages, as when he expelled the Associated Press from the Oval Office press pool for refusing to call the Gulf of Mexico the “Gulf of America”, Trump’s preferred rebranding. And he’s threatened to designate non-profit groups and foundations as “domestic terrorists”.

The United States has a robust civil society. The ACLU, for example, the American version of the UK’s Liberty, has about 2,000 staff members nationwide. American universities are among the best in the world; American media is read across the globe. And US foundations support essential democracy, health and development work throughout the nation. But these institutions are as strong as they are in part because the government has subsidized them – through grants for research, tax subsidies, access to public airwaves and the like. Trump, however, has shown that that support is simultaneously a source of strength and a critical vulnerability. Trump has repeatedly used threats to withdraw government funding or approval as a means to chill dissent. And it has worked, as universities, law firms and corporations that seek to do business with the government have complied with Trump’s wishes – even where it would be illegal for Trump to compel them to act.

Universities, businesses and non-profits have eliminated diversity, equity and inclusion training that was perfectly legal, indeed constitutionally protected. They have reduced their engagement in challenges to the administration, hoping that their silence might stave off Trump’s wrath. Universities have agreed to reforms of their internal institutional structures that Trump could not have imposed directly. Nine law firms that settled with Trump agreed to provide, collectively, almost $1bn of pro bono assistance to causes that Trump supports. Media institutions have also done the president’s bidding, as when ABC suspended the late-night talkshow host Jimmy Kimmel, and Paramount, the parent of CBS, paid Trump $16m to settle a frivolous lawsuit he filed objecting to how its public affairs program, 60 Minutes, had edited an interview with Democratic presidential candidate Kamala Harris.

Those who have reached agreements with the administration have done so not because they were obligated to do so, but because they feared the pain the government could inflict by denying funding, withholding approval of mergers or otherwise not providing government support. But if civil society institutions are to perform the essential function allotted to them in a constitutional democracy, they must stand up for their rights, fight for their principles and maintain a bright light on the wrongs of the administration.

Courts need to do their part as well. And as difficult as it can be to second-guess the president on questions of “emergency” power, many have. A federal judge in Massachusetts ruled unlawful Trump’s freeze of $2.2bn from Harvard University in retaliation for its political views, and several judges have invalidated Trump’s executive orders punishing his disfavored law firms. Courts have blocked his efforts to send national guard troops to cities like Chicago and Portland, Oregon, and have invalidated many of his cruel immigration enforcement measures. In all, according to a litigation tracker maintained by Just Security, federal courts have issued more than 120 injunctions against Trump initiatives already, and we’re not even through the first year of his second term.

But courts can’t act alone. And if citizens duck and cover in the face of Trump’s assault, the courts will not be able to save us. Civil society institutions have been buoyed over the years by federal government support. Now that the government has turned against them, they can stand for freedom and the rule of law, or capitulate to illegal pressure. The choice should be clear.

• David Cole is the Honorable George J Mitchell professor in law and public policy at Georgetown University and former national legal director of the American Civil Liberties Union. This essay is adapted from his international rule of law lecture sponsored by the Bar Council.