The formula is to avoid legal culpability and, at the same time, to activate, deflect or weaponise the law at all levels
There are more than 1.3 million lawyers in the United States, of whom more than 2,50,000 are criminal defense lawyers. Prosecuting attorneys at the State level are about 35,000 in number and about 90 are federal prosecutors. There are more than 4,00,000 law firms in the country, that range from solo practices to large legal firms. The top 30 corporate law firms employ anywhere between 1,000 and 4,000 lawyers each.
What weaves these facts together are some patterns. First, that the top lawyers have large salaries and assets. Second, among this top rank of wealthy attorneys, there is a disproportionate number of revolving door veterans, who have monetized skills and networks gained in one sector (typically, the government) to make enormous sums in another sector (typically, corporate law). Third, many of the most successful beneficiaries of the revolving door are attorneys who are willing to take up controversial criminal defense cases, and to become highly visible in political controversies and causes. These patterns have helped U.S. President Donald Trump to avoid legal culpability repeatedly and at the same time to activate, deflect or weaponize the law at all levels.
All these lawyers are personally wealthy, have moved through numerous revolving doors during their careers, and have monetized their ties to one another and to other influence-brokers, lobbyists and to elected politicians, not least to Mr. Trump. Any sociogram of their public roles in the last decade would make Mr. Trump the nodal figure of their power, and thus the object of their unreserved loyalty.
The unfinished tactical skirmishes between the White House, the Congress, the Department of Justice and the attorneys working on behalf of Ghislaine Maxwell, and the growing chorus of Jeffrey Epstein and Maxwell’s victims and their advocates, are lapping dangerously close to the toes of Donald and Melania Trump, and the whole Trump family.
Integral to the Trump strategy
Mr. Trump’s currently active legal praetorian guard continues a long history in which lawyers have been a vital part of his wealth accumulation and risk mitigation strategies, hired to shield, protect and burnish the vital links between his brand-polishing, his near-fraudulent business tactics, his aversion to taxes, and his obsession with money. The law and lawyers are the medium in which Mr. Trump has been swimming for three decades.
In his career since the 1990s, Mr. Trump, either personally or through one of his companies, has engaged in over 4,000 suits, ranging from defamation to breach of contract, from tax fraud to unmet contractual obligations, from sexual exploitation to inciting mass violence.
The thread that links these hundreds of suits is that they amount to a business strategy for Mr. Trump, which is founded on a mix of bullying, gambling, evading negative court rulings and enforcing settlements. Indeed, Mr. Trump believes in the law as the main means for making adversarial deals out of court. Courts for Mr. Trump are not tools for obtaining equity, justice or compensation. They are a path to Deals. I have argued elsewhere that Mr. Trump’s obsession with deal-making is not about contracts, markets or even about business. It is about winning, either monetarily, reputationally or politically. His completely chaotic approach to tariffs is a clear index of the complete absence of any rational economic calculus in his tariff roller coaster. In the end, tariffs on Brazil and massive extortion from Columbia, Harvard and many other universities belong to the same family of deal-making, which is proudly promoted in the title of Mr. Trump’s 1987 book.
Mr. Trump’s reckless misuse of the Constitution and his open cynicism about the law as the glue of contractual stability and social reciprocity are grounded in his view of his lawyers as his weapons. We do not know how many of Mr. Trump’s 4,000-plus deals he won or lost. But there is ample evidence that many of them were settled “out of court”, with optimal money gains for Mr. Trump and minimum concessions of guilt on his side.
These hired legal revolvers are the tools of Mr. Trump’s assault on most democratic institutions and their liberal foundations, in which the sabotage and subversion of the law have been a consistent feature. American universities have been ravaged by new readings of the laws that govern civil rights, affirmative action and racial discrimination. The Congress has been effectively neutered as an organ for overseeing the powers of the executive. The idea of precedent has been cynically suborned by mining it for obscure justifications of tyrannical policies towards migrants, aliens and tourists. The Constitution has been given renewed vitality in the protection of felons, sex offenders and thieves but has been leashed in matters of academic speech, immigrant rights and press freedom. Impunity in the face of the law is the calling card of the Trump regime.
Beyond letter and spirit
Yet, the law has been the primary recourse of any principled effort to resist Mr. Trump. From Mahmoud Khalil to E. Jean Carroll, from Harvard to The Wall Street Journal, from Maurene Comey to Gavin Newsom, the law is the frontline and the foundation of most efforts to delegitimize Mr. Trump. But it is hard to deny that Mr. Trump’s multiple efforts to subvert the Constitution through its most vulnerable parts appears to be doing vastly better than those of its opponents. How has this been accomplished?
One argument for Mr. Trump’s legal victories in law has pointed to his willingness to sacrifice the spirit of the law in favor of the letter. This theory too is not entirely satisfactory, since it overlooks Mr. Trump’s cherry-picking of the letter of the law to favor his preferred versions of its spirit.
The truth is that Mr. Trump is equally capricious about both the letter and spirit of the law, and typically subordinates them to any goal which serves his interests. Hence, the idea that he values the letter over the spirit of the law gives him too much credit for some sort of principle.
Another tool in Mr. Trump’s subversion of the law to advance his personal pride, prejudice and pocketbook is his success in seducing the Congress, especially The House of Representatives, into his personal dominion. The ruling icon of Congressional subservience to Mr. Trump is MAGA Mike Johnson, the Speaker of the House.
The creation of a complex machinery
As far as the law is concerned, this last factor, the principles of reasonable doubt, the presumption of innocence and the right to avoid self-incrimination have been steadily converted from protections for the innocent into the privileges of scofflaws. The biggest such scofflaw is Mr. Trump himself who has escaped massive indictments by one or other loophole designed for more exalted purposes. But he has set the pace for numerous others to escape the full force of the law by turning the fine points of a legal criminal defense into a complex machinery for minimizing, delaying or eliminating punishment for criminal wrongdoing.
The sobering fact is that 90% of criminal cases in the U.S. are settled by plea bargains, arrangements (often with no public disclosure of their negotiating background) between prosecutors and defense lawyers, blessed by judges, to save time, reduce legal costs and prevent massive logjams in court dockets. This pragmatic motivation combines with the more exalted doctrine of the presumption of innocence, to help someone such as Mr. Trump, who exploits the weaknesses of the judicial system. His commitment to a winning deal, in every aspect of his life, is realized by recruiting lawyers who can get him to a favorable deal as independently of the law as he can manage. The Letter of the Law, for Mr. Trump, is just a springboard to the Spirit of the Deal.
(Arjun Appadurai is Emeritus Professor of Media, Culture and Communication at New York University, and lives in Berlin)
(First published in The Hindu)
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