Why Donald Trump’s countless legal scandals don’t stick.

Why Donald Trump’s Countless Legal Scandals Don’t Stick

Why Donald Trump’s Countless Legal Scandals Don’t Stick

The law, lawyers, and the court.
Sept. 15 2016 9:55 PM

How Trump Gets Away With It

Why his countless legal scandals don’t stick.

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Time and again it’s Clinton who is portrayed as the serial criminal, and Trump whose real-life legal troubles go unnoticed.

Eli Christman/Flickr CC

Donald Trump likes to punch the law in the face. He in fact likes this quite a bit and occasionally likes to boast about it.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

A partial list of the legal—as opposed to purely political or merely icky—imbroglios in which Trump has been embroiled over the years was complied this week by the Atlantic’s David A. Graham. It includes, among many others, the recent addition of the Trump Foundation’s gift to a group backing Florida Attorney General Pam Bondi in her election in contravention to laws governing charitable donations. (Trump, who signed that check himself, had to pay a $2,500 fine to the IRS for this violation.) The list also includes the times Trump’s charity allegedly bought gifts for the Trump family—including an oversized portrait of Trump—which appears to be in violation of IRS rules against self-dealing. He has also loudly and consistently boasted about buying favors from public officials.

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Trump has also been sued a good bit, over everything from alleged housing discrimination in the 1970s, to alleged sexual misbehavior, to his notorious Trump University suit. As Cornell University law professor Michael Dorf has written:

Trump so often finds himself a defendant because of his standard business modus operandi: He stiffs contractors, lenders, and others whom he owes money, hoping that they will not have the wherewithal to sue. … the 1,300 lawsuits against him may substantially understate his contempt for his legal obligations.

Hillary Clinton, on the other hand, really hasn’t broken the law. She has been cleared of any illegal activity in her email scandal—the biggest case against her in years—and yet the persistent claim is that she is a shady, corrupt lawbreaker who belongs in prison. One major theme song of the Republican National Convention, indeed, was “lock her up!” As Graham put it: “While many of the Clinton cases involve suspicion and shadowy links, many of Trump’s are fully documented in court cases and legal proceedings.”

And yet, time and again it’s Clinton who is portrayed as the serial scofflaw and Trump whose real-life legal troubles go unnoticed. For all the talk of false equivalency, double standards, and lazy media narratives, what does it mean that a pattern of genuine legal mayhem is treated as adorable when Trump does it, and as felony wrongdoing when Clinton is alleged to be doing it?

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Paul Waldman of the Washington Post, who recently proffered a list of Clinton’s alleged misdeeds versus Trump’s, blames the press for this dynamic. “We may have reached a point where the frames around the candidates are locked in,” he writes. “Trump is supposedly the crazy/bigoted one, and Clinton is supposedly the corrupt one.”

But it seems to be more than that. The disparity in our perception says a good deal about how the rest of us think about the legal system: Like science, or truth, our legal regime has gone from agreed-upon rules of the road to a matter of personal opinion. So when our team bends the law it’s heroic, and when the other side does it—or is even alleged to do it—it’s criminal.

Some of the strange double standard also speaks to an age-old American trope about the lawless guy who sets things “right,” even as he eviscerates the law to do it. Our cultural love affair with the law-busting antihero has been on the upswing in recent years, as we have found our new problem-solvers in Breaking Bad, Dexter, Game of Thrones, and The Sopranos. More and more it seems we just seem to hate the law and the dumb saps who follow it. As CNN’s Julian Zelizer argues, Donald Trump is the perfect candidate for an America that “no longer expects virtuous protagonists.”

Maybe it’s no accident, then, that when Donald Trump brags about his plans to bend the law—as he did when he claimed that as commander in chief he would order soldiers to torture, or as he does when he speaks of buying politicians—it merely sounds like he’s batting away a cumbersome bureaucracy that keeps him from realizing great dreams, or pushing back against onerous international conventions that keep the U.S. from killing all the terrorists. Maybe herein lies the identification with the lawless Vladimir Putins of the world. As Timothy Snyder wrote in the New York Review of Books, Trump’s fantasy bestie is everything Trump the law-weary aspires to be. “Thus far Trump can only verbally abuse his opponents at rallies, whereas Putin’s opponents are assassinated,” Snyder wrote. “Thus far Trump can only have his campaign manager rough up journalists he doesn’t like. In Russia some of the best journalists are in fact murdered.”

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Given Trump’s broad and demonstrable contempt for the rule of law, people who take the breaking of laws seriously are less than charmed by the whole “I’m too cool to be constrained by your stinking regulatory state” bluster. For anyone who still believes that this is a government of laws, not men, the man who persistently signals that the laws are a hassle has proven pretty terrifying. As the Hoover Institution’s Richard A. Epstein put it in the New York Times, when it comes to the rule of law, “Trump doesn’t even think there’s an issue to worry about. He just simply says, whatever I want to do, I will do.” And as UC–Irvine School of Law Dean Erwin Chemerinsky has written, “Donald Trump’s views on the law and the legal system are truly frightening.” And Dorf contends that, given Trump’s stated admiration for one authoritarian dictator after another, “should Trump become president, no one would be safe from his toxic mix of bullying through law and acting above the law. He would replace rule of law with what Chinese scholars call rule by law.”

Perhaps because we’re at a moment when the public trust in institutions has all but disappeared, it’s easy to believe that the legal system is already just one more system that is teeming with partisan hacks and vengeful bad actors. The problem with that worldview is that the legal system—with all its flaws—is also pretty much the only thing keeping the partisan hacks and vengeful bad actors from running completely roughshod over us all. Fomenting doubt about the value and integrity of the law itself is one of the most frightening things the Trump campaign has consistently done, whether it’s through attacks on the judicial branch, or boasts about changing the First Amendment.  

One last thing to note about the persistent American fascination with lawless antiheros: They are very rarely women. Women are expected to abide by the laws. Of course Hillary Clinton is held to a different standard when it comes to claims of lawlessness: Only men get to ride into town with guns a-blazing.

Finally, the whole Hillary-as-criminal narrative is a painfully familiar one: People have been claiming that she and her husband killed a guy and got away with it for decades. She’s been tagged as her husband’s bag-man from the day he took office. Years before the criminal email story, long before the criminal Benghazi witch-hunt, there was Vince Foster. Indeed one paradox of the cavalier way in which Trump speaks of the legal system, is that Clinton (and Obama before her) are unerringly cast as felons, whereas Trump’s dismissal of legal constraint is just more Yosemite Sam–style “second Amendment people” derring-do.

When Richard Nixon broke the law, he tried to hide it. Whereas each time Trump flirts with violating the legal system, it becomes another act of authoritarian performance art. Each time the law comes at him, it’s either because, as he claims, the machinery of judges and prosecutors is “rigged” against him, or because he’s just too important to be constrained by it.

So herein lies the central tragedy to those for whom lawfulness still means something immutable: When President Obama praised Hillary Clinton as “steady and true” this week he didn’t realize that we have perhaps reached a place in our national politics where the last thing we want anymore is a sheriff. We seem to be rooting for the other guy instead.