Why Trump Always Gets Away with Breaking the Law
His administration believes it can pretty much do whatever it wants, and they're right.

Welcome back to What Went Wrong?, a newsletter about the failures, inefficiencies, and screw-ups that define 21st-century American life, written by Harry Cheadle. Above photo of Donald Trump via the White House Flickr.
“Political power grows out of the barrel of a gun.” –Mao
“Blah blah blah… if you’re trying to silence me through the Hatch Act, it's not going to work…. Let me know when the jail sentence starts.” –White House aide Kellyanne Conway, in response to questions about a recommendation she be fired because she broke the law
One of the most popular paranoid fantasies among American liberals is that Donald Trump will refuse to accept the results after losing the 2020 election. There are many ways that contest could go haywire: A deluge of mail-in ballots could slow down states’ abilities to count votes, with both candidates declaring victory on Election Night; in swing states, Democratic governors and Republican legislatures could certify competing results; in a hypothetical from legal scholar Lawrence Douglas, Russian hackers could paralyze Detroit and prevent the city from voting. A group called the Transition Integrity Project recently held “war games” that simulated various election scenarios, and in one, the New Yorker reported, the players representing the Trump administration tried to stop ballots from being counted. In another, Clinton adviser John Podesta, playing as Joe Biden, demanded recounts in key states and eventually called upon California, Washington, and Oregon to secede from the union.
These are extreme situations that we probably don’t need to worry too much about. A more likely outcome is that GOP leaders (who have been privately anticipating a Trump defeat) accept a loss at the presidential level, knowing that they can still wield considerable power through a Senate minority and the many state governments they’ll still control. But imagining an election deteriorating into chaos is a useful thought experiment because it forces you to consider what our government is made of. At bottom, it’s nothing more than a set of rules that we all collectively choose to follow. The problem is that some people in power no longer feel like following them.


The law Trump aides keep ignoring
The latest high-profile example of rule-breaking was last week’s Republican National Convention, which was held at the White House and featured a naturalization ceremony for new US citizens performed by acting Homeland Security Secretary Chad Wolf. As the press pointed out, the Hatch Act prohibits federal officials from engaging in partisan political conduct while they are on the job. That means that Wolf—and Secretary of State Mike Pompeo, who addressed the RNC from Israel—were almost certainly breaking the law, along with any White House staffers who helped organize the event.
The Hatch Act is a New Deal–era law written in response to allegations that the federal Works Progress Administration traded jobs and promotions for votes in congressional elections. The idea was that the government (and government workers) shouldn’t be allowed to use their resources to gain advantage over their political opposition; the potential for abuse of power is obvious.
Though the law has been tweaked a couple times and challenged in court, the basic idea remains the same: Federal workers are not allowed to run for partisan public office or engage in partisan politics while on duty. (Some even have to refrain from making partisan statements while off-duty.) Though it doesn’t make much news, people get in trouble for violating the Hatch Act relatively often. Earlier this year, an Energy Department worker had to resign and was barred from federal work for three years after giving a tour of a radioactive waste treatment plant to a congressional candidate who was going to use information from the tour in their campaign.
Who is letting Trump get away with it?
The Hatch Act is enforced by the federal Office of Special Counsel, but while the OSC can (and does) bring the hammer down on regular employees, high-level Trump officials have evaded consequences for breaking the law. The most egregious example is probably Kellyanne Conway, a senior White House aide who made so many clearly partisan political comments while on TV in her official capacity that the OSC recommended that she be fired.
Conway’s case is revealing, because after that bombshell OSC report… nothing happened. Discipline in a Hatch Act case would come from the violator’s supervisor, but in Conway’s case her supervisor is Trump himself, and he didn’t penalize her at all. The ethics watchdog group CREW sued the OSC for not taking the matter to the Merit Systems Protection Board, a quasi-judicial government organ that’s supposed to make rulings on these sorts of things, but a federal court ruled that CREW did not have standing to bring that suit. Even if the suit had gone forward, the MSPB, which makes decisions on other federal employment matters like whistleblower protections, has zero members because Trump’s nominees have been held up by the Senate, probably due to a Democrat having an objection to them.
In the court’s ruling against CREW, the judges said the group “must seek other avenues to hold Conway accountable for her misdeeds.” But there are no other avenues. The executive branch, which is controlled by Trump, has decided not to police Trump’s associates for engaging in illegal political activity that Trump approves of. White House Social media guy Dan Scavino didn’t face consequences for violating the Hatch Act, and it’s hard to imagine anyone involved with the RNC will either.
Other administrations have run afoul of the Hatch Act—including multiple Obama appointees—but the Trump White House flat-out ignores the law on a remarkable number of fronts. The top two Homeland Security officials are in office in violation of the Vacancies Reform Act according to the Government Accountability Office. Secretary of State Pompeo is ignoring a subpoena request from Congress, which is looking into his “transparently political misuse of department resources.” Jared Kushner got a security clearance despite red flags raised by his background check. While the president and vice president aren’t governed by the Hatch Act, if Trump pressured his subordinates into breaking the law, he could have engaged in criminal activity. And no one is going to be punished for any of this.
“When the president does it, that means it’s not illegal”
This Richard Nixon quote is often held up as an example of his hubris, but he was basically correct.
Laws that can’t be enforced are useless. You pay attention to “no parking” signs because the government will give you a ticket. If you refuse to pay your tickets, your driver’s license will eventually be revoked. If you continue to drive without a license, you could be arrested. All law-breaking, when taken far enough, will lead to a confrontation with armed agents of the state. The executive branch, as powerful it has grown, cannot be punished by anything outside of itself. No law binds the president in any meaningful way because the law can’t threaten him with violence the way it can you or me.
What about impeachment? That built-in constitutional mechanism for reining in presidential misconduct has worked exactly once, when Congress forced Nixon to resign after he was caught on tape breaking the law. But Nixon was only defeated because his own party turned on him. Congress has grown much more partisan since then, and impeachment is no longer a viable remedy. We saw that when Senate Democrats allowed Bill Clinton to remain in office after he perjured himself, and two decades later, when Republicans voted to acquit Trump after he illegally asked Ukraine to investigate his political rival.
During the Trump impeachment proceedings, the savvy thing for pundits to say was something like, “Impeachment is a political act, not a legal act.” By this, it’s meant that Congress doesn’t have to remove a president who has clearly broken the law. You can righteously raise hell about how we should demand Congress hold Trump accountable on behalf of the Constitution blah blah blah, but ultimately those cynical pundits are correct. Did Trump do something illegal? OK, Congress should punish him. If Congress won’t, it must have been legal. If Congress is too gripped by partisan division to impeach a president, laws functionally do not apply to him.
The place where laws end
If everyone disregarded laws that couldn’t be enforced, elections would break down entirely. What if individual states refused to certify the correct ballot counts? What if an incumbent president filed a series of baseless lawsuits asserting that he had been the victim of fraud? Of course, the Supreme Court would eventually weigh in on any disputed election, but what if a repeat of 2000’s Bush v. Gore occurs and the majority of justices, all Republican appointees, rule in favor of the Republicans?
That Bush v. Gore kerfuffle aside, American electoral system has functioned pretty well for a century and a half. (It totally broke down during the 1876 general election, which ended with a compromise that paved the way for Jim Crow in the South.) But the system depends on people following the rules, and if a fairly small number of those people refuse to do so, you end up with the type of nightmare that came up in the Transition Integrity Project’s war games.
If you examine the consequences of Trump’s Well, who’s gonna stop me? logic—so well articulated by Kellyanne Conway—you get to a dark place pretty quickly. What’s to stop Trump from ordering polling places closed and sending in the National Guard to stop voting? What stops Republican governors of swing states from ordering that ballots be destroyed? What stops right-wing militias from taking control of polling stations if the police refuse to intervene?
The mechanism preventing those kinds of breakdowns isn’t the force of law as it’s normally understood, but rather the agreement among political actors to abide by the rules. I’ve seen some knowing commentators on Twitter—the same type of person who reminded us that impeachment is a political act—say that swing voters won’t punish Trump for Hatch Act violations. But while that kind of banal political cynicism is correct as far as it goes, it also gestures at an abyss of legal nihilism opening under our feet. If voters’ concerns are the most important thing, and voters don’t care about the law, what use is the law?
I don’t think the 2020 election will descend into chaos. The basic rules of our democracy will remain in effect because a sufficient number of powerful people still believe in those rules. (If Trump ordered the military to keep him in office, I’m confident it would refuse.) But if and when the rules change, there will be no great rupture announcing the end of our democracy, just a moment of quiet realization that laws can be remarkably weak things. After that, anything will be possible.
If you enjoyed reading this, subscribe and tell a friend! If you want to talk to me about this story or anything else, please email me.
Wow, that was prescient. Thanks for the great article.