Why Trump Embraces Lawlessness and Brutality

This article first appeared on Dorf on Law.

My latest Verdict column tries to make sense of Donald Trump's announcement during last week's State of the Union address that he plans to keep open the US prison at Guantánamo Bay.

As I note in the column, the per-prisoner cost in dollars of holding alleged foreign fighters and terrorists at Gitmo is orders of magnitude higher than holding them in a US maximum-security prison, while the moral and PR costs are even higher.

Accordingly, I conclude that Trump's decision--supported broadly by other Republicans and some Democrats--needs to be understood as based on something other than a calculation of costs and benefits. That other something, I suggest, is the value of Gitmo as a symbol.

For President Obama, Gitmo was a symbol of how the US lost its way under President GW Bush, a loss of faith in the rule of law. I argue in the column that Trump doesn't merely place less emphasis on the rule of law than Obama did, but that Gitmo is valuable as a symbol to Trump precisely because it symbolizes tough-guy tactics over the rule of law.

For Trump, lawlessness and brutality are not regrettable costs of an otherwise justifiable policy. Lawlessness and brutality are the point. They are features, not bugs.

Once I came to understand Trump's support for Gitmo that way, I started to wonder where else this framework might have explanatory force. The more I thought about it, the more I realized that the short answer is: just about everywhere.

GettyImages-633538892 Donald Trump at the National Prayer Breakfast February 2, 2017 in Washington, DC. Win McNamee/Getty

Across a range of policy areas, Trump touts as benefits what just about every sane person from the left to the center-right should regard as costs. I can't exactly prove the point, but I think I can give enough examples to make the claim plausible.

Trump frequently touts how his administration is cutting regulations. He presents this fact as an unalloyed good. He doesn't say that many regulations are well intentioned and do some good but impose costs that outweigh their benefits.

Not even with respect to industries--like coal--where the benefit of regulation is obvious. He doesn't say "coal causes localized air pollution and contributes to global warming but we need to absorb those costs to promote economic growth and to protect the jobs of people whose communities are collapsing."

One could then disagree with Trump's cost-benefit analysis (as I would), but at least one would have some sense that he recognizes tradeoffs. But instead one gets the sense that for Trump the very harm that coal inflicts counts as a benefit, because people who don't like Trump are the ones complaining about that harm.

Thus, my claim isn't just that Trump doesn't recognize tradeoffs. It's that he frequently counts the costs on the benefit side of the ledger. He comes to think of countervailing considerations as the enemy, much in the way that he thinks of pundits and politicians who criticize him as the enemy of the people or those who don't applaud him as guilty of treason. Or how he thinks of sharks.

One sees the cost-as-benefit side of Trump most clearly in his racism, which makes sense, as it is his core value and the core of his appeal.

Consider that for most of the period since the Civil Rights movement, mainstream politicians knew enough to code their appeals to racism in ways that were plausibly deniable. The goal was to appeal to whites who harbored racist or quasi-racist views without turning off minority voters and the minority of white voters who would be put off by open racism.

But the key to this strategy working is the plausible deniability. For example, Bill Clinton "triangulated" on crime and welfare--both issues where stereotypes held by racist and quasi-racist white voters would have worked for him but where there was at least a plausible case to be made for the policies on their merits. One could deny the existence of coded appeals by arguing for the policy merits.

Trump sometimes seems to employ this strategy of saying just enough to appease white voters who might be uneasy about supporting an open racist. For example, during the campaign, he gave speeches to pretty close to all-white audiences touting how he cared about and was going to do great things for African Americans.

Perhaps some people at those rallies believed him, but no one who was paying any real attention to "the least racist person you'll ever interview" would think that these performances were anything but a misdirection play.

Why? Because unlike other politicians, Trump doesn't stop at dog whistles. The way he talks about immigrants, Muslims, African American athletes, and neo-Nazis leaves very little doubt that Trump is a racist.

And, as Ta-Nehisi Coates has persuasively argued, explicit racism--previously thought to be a liability in a national politician--mobilizes not only Trump's "base" but the disturbingly large number of white voters for whom racial resentment is a highly salient motivator.

Trump's Muslim travel ban is especially informative. As I noted a couple of weeks ago, there remains a possibility that the Supreme Court will uphold version 3 of the travel ban, because the government did some homework in determining which countries to keep on the list.

However, as I and others have repeatedly noted, all versions of the travel ban are so grossly over (and under) inclusive as to call into question the national security justification.

The addition of North Korea and some government officials from Venezuela to the list in version 3 provides a fig leaf of cover for the argument that the ban is based on screening in the relevant countries rather than Muslim population, but the cover is so thin that one wonders whether the administration meant for it to be taken seriously.

If not, that would nicely fit the theory I'm advancing--as would Trump's occasional expression of regret that his travel ban has gotten slightly less irrational over time.

The point of the travel ban is to make a visible example of Muslim travelers; while that is a cost if one is trying to defend the ban in a court in which religious discrimination is unlawful, it is a benefit for the (non-Muslim mostly white) public that wants to see Trump standing up to Muslims and politically correct liberals.

I'll end with the obvious caveat that while I think the Trumpian jujitisu operates in a great many places, I'm not offering it as a theory of everything. But I am offering it as a theory of nearly everything that makes the appeal of Trump's execrable policies and behavior otherwise inexplicable.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University . He blogs at DorfOnLaw.org .