The Daily Dose: Criminal Law

In Trump's America, it is a crime to follow the law.

Yesterday, a New York City high school student was arrested by ICE agents upon exiting his asylum hearing. From a legal standpoint, he had done everything correctly. Upon entering the country, he applied for asylum and was granted it. He showed up to a court hearing as the law required him to do. Despite that, he was detained and is now slated for deportation.

He was punished, in other words, not for committing a crime but for following the law. Had he broken the law by not showing up to his hearing, he might have been arrested anyway. But at least he would have had a chance.

His case illustrates a dynamic that lies at the core of Trump's regime. Over and over again, people are being punished for not committing crimes.

Civil servants who perform their legally-mandated duties are being dismissed for defying DOGE’s illegal incursions into their agencies. A Justice Department lawyer was fired after truthfully conceding to a federal judge that Kilmar Armando Abrego Garcia, a Salvadoran immigrant with legal status, was deported by mistake. Had he perjured himself before the court, he would have kept his job.

This pattern is typical of authoritarian regimes. Those who enjoy the leader’s support are free to crime to their heart’s content. In fact, they are often encouraged to do so because it allows the leader to hold the threat of prosecution over their heads and thereby blackmail them into compliance.

At the same time, those who follow the law often find themselves in the regime’s crosshairs. This is a problem inherent to authoritarian rule.

Almost all authoritarian countries today have formal constitutions which guarantee individual rights and set down constraints on the exercise of power by top officeholders. But autocrats necessarily violate these rules and protections in the course of their day-to-day conduct. The very nature of their rule requires it.

To stay in power, they must attack civil society, seize the powers of courts and legislatures, prosecute and jail opponents arbitrarily, and reward subordinates by providing them with opportunities to line their pockets.

Some authoritarians are able to change the constitution by virtue of holding parliamentary supermajorities. In this way, they legalize their abuses. Victor Orbán of Hungary is the prototypical example of such a leader. But even he ends up breaking the law routinely.

As I have repeatedly stressed in this newsletter, the rule of law in America is effectively finished. Trump destroyed it. The legal rights and prerogatives set forth by law, while largely unchanged as written, no longer have the authority they once did. If we wish to restore that authority, we will have to take it back from the criminals who rule over us.