Obama weighs in on Trump’s departure from the rule of law

Kyle Kulinski has as worthwhile commentary on Barack Obama’s recent public comments on Trump’s erratic and extremist current Presidency: (1)

Obligatory contextualizing observation: Barack Obama was a better President than Trump ever was, is, or ever will be.

In an appearance on MeidasTouch News on which Kyle comments there, Obama used the obvious “imagine if I had done any of this” comparison to Trump’s 2.0 term so far. Which a good way to remind the audience that Trump is often judged by media reports and writers by a different and much lower standard than Obama was.

He goes on to list a number of ways in which Trump’s actions trample the rule of law. He thinks that “people did start to take basic liberal values for granted right and this is what it looks like when you don't have it.” He cites Trump’s defiance of the courts on deportations, using the lawless deportation of a couple of hundred alleged Venezuelan gang members to a gulag in El Salvador.

Kyle describes the criminal nature of Trump’s foreign policy this way: [6:31]

[Trump’s new administration] kidnapped over 200 people. And illegally sent them to a Salvadoran slave labor camp. When Trump came out the other day and said, even if they're American citizens, yeah, we're going to send them to El Salvador. That is wildly illegal, wildly unconstitutional.

And he doesn't care. And he's got the sycophants and the gangsters in place to just carry out his orders. And, yes, in that moment people go, "Oh well those things - I like it the old way. Like, I like it the old way.” And we were never perfect on these things but certainly domestically we were way better than we are now, right?

With American empire, it's almost always been the case since we became the world empire. Oh my god, if it's overseas, they bomb whoever they want. They put in puppet governments. They violate international laws. And all that stuff is horrible and totally indefensible. Domestically, though, there was always more seriousness to the system, where … if any court said to any previous President, like, "Hey you can't illegally ship people to an El Salvador slave labor camp," they'd be like, "Okay." Right with Trump it's just like, "Wrong! I'm going to do it. I'm going to do it."

Before proceeding, I’ll refer back again to my contextualizing qualification above.

But we also need to be realistic about Obama’s definitely uplifting messaging about liberal democracy here. While it’s obvious that a Constitutional scholar like Obama would invoke liberal democracy and the rule of law to criticize Trump 2.0 now, President Obama had a serious responsibility when he became President in 2009 to conduct substantive legal investigations of the Cheney-Bush Administration’s launching of what was a criminal war of aggression against Iraq on the basis of deliberately phony claims. And especially to investigate the torture crimes in Guantanamo and elsewhere under that often-lawless administration. He didn’t. He even pretended he was acting on the noble sentiment of “look forward, not backwards.” (2) Which meant in practice shirking his own legal duty and granting retroactive immunity to the senior Cheney-Bush officials who broke the law and disgraced themselves with the torture program.

The concept “rule of law” does not just mean having laws. It is a key element of the notion of liberal democracy that developed over the last few centuries, meaning that for laws to be legitimate they require the consent of the governed. It also means that laws have to apply to everyone equally, including government officials. Failure to enforce the laws against political and economic elites is also an abandonment of the rule of law. As the political scientist Maximilian Pichl puts it, “the rule of law is not a mere negligible add-on to democracy, but rather its foundation.” (3)

Kyle also refers to the lack of prosecutions of financial bigwigs who violated the law massively in the real-estate bubble that eventually produced the 2008 financial crisis. Even the Cheney-Bush administration was far more aggressive in prosecuting corporate crimes involving Enron, WorldCom, and even some major accounting firms in the early 2000s (4), which collectively are sometimes referred to as the “Enron scandals,” than the Obama Administration was after the 2008 financial crisis. Having worked once upon a time in finance in Bank of America’s real estate division, it was an is mind-boggling to me how outrageously and brazenly illegal some of the real-estate and mortgage fraud were that produced that crisis.

It seems like eons ago now. But President Gerald Ford actually issued an Executive Order that:

... prohibited Executive Branch personnel from engaging in, or conspiring to engage in, political assassination. Subsequent administrations continued the ban. Four years later, President Regan issued Executive Order 12,333, which, as amended, remains in effect today. It contains the same prohibition, although it limits application to individuals “acting on behalf of” the U.S. government. (5)

How seriously that was taken by even Dick Cheney in 1991:

The issue of assassination surfaced again in 1989 as the Judge Advocate General’s International Affairs Division was rewriting the 1956 Field Manual 27-10, The Law of Land Warfare, a project completed in 2019. As part of that effort, Hays Parks, who was then the Chief of the Division’s International Law Branch, wrote a memo of law examining the E.O.’s assassination prohibition from the perspective of both peacetime law and the law of war (Hays’s preferred term for the latter body of law).

His memo, published in the Army Lawyer, became a classic in the field, in part because of its timing. In just over a year, the United States would be at war with Iraq, a conflict during which the issue of assassination occupied center stage. Once the war began in January 1991, the United States launched over 250 missions against sites where Saddam Hussein was believed to be hiding. Yet, when Air Force Chief of Staff, General Michal Dugan had suggested in September 1990 that because Saddam is “a one-man show” in Iraq, “he ought to be at the focus of our efforts,” Secretary of Defense Dick Cheney promptly fired him. [my emphasis]

President Obama, on the other hand, was proud of his wide program of targeted drone assassinations. By the time he became President, he was able to take advantage of the, uh, progress Cheney was able to make as Shrub Bush’s Vice President in clearing away scruples about criminal actions on the part of what Cheney regarded as the “unitary” [i.e., lawless] Executive:

Less than two weeks ago [early January 2017], the United States conducted a drone strike over central Yemen, killing one al-Qaeda operative. The strike was the last under Obama (that we know of). The 542 drone strikes that Obama authorized killed an estimated 3,797 people, including 324 civilians. As he reportedly told senior aides in 2011: “Turns out I’m really good at killing people. Didn’t know that was gonna be a strong suit of mine.” [my emphasis] (6)

That ugly quip is a great example of promoting what sociologist Wilhem Heitmeyer calls rohe Bürgerlichkeit (“respectable callousness”). His Secretary of State Hillary Clinton provided another when a reporter asked her about the death of Libyan dictator Muammar Qaddafi, after being overthrown by a US-backed revolt by forces that weren’t particularly democratic, leaving Libya something like a “failed state” since then. Qaddafi was killed by a mob who first anally raped him with a bayonet. This was the Secretary of State’s reaction: (7)

Obama and Clinton were happy to back coups against democratic governments in Honduras (8) and Paraguay (9). The latter was notable in overthrowing a democratic, center-left government that was part of the Latin American so-called “Pink Tide” of the moment. The Honduras coup in particular had a significant effect in destabilizing Central America more generally, including Guatemala, and therefore significantly boosted the refugee flow to the United States.

Kyle Kulinski: a more disruptive policy by Obama could have helped a lot

Which is a good pivot to the fact that Barack Obama’s immigration and refugee policies were far better than Trump’s – and Biden’s for that matter – they were generally bad. The proposal that the Cheney-Bush administration at least nominally supported but was rejected by Congressional Republicans was more human and liberal than anything the Obama and Biden Administrations proposed. (10)

Kyle’s criticism in the video focuses on ways that Obama could have rocked the boat in very helpful and progressive ways, but didn’t. Referring to the Obama’s “imagine if I had done any of this” comment, he makes the criticism that Obama should not have violated laws but he should have violated the “civility” posture on issues like prosecuting criminal bankers in the subprime crisis of 2008, bailing out the victims of those crimes and not just the banks that committed them, and getting a more substantive health-care reform than the Affordable Care Act (ACA) actually was. He speculates that those three major differences would have meant that we would not have had “a Trump era.”

He has a real point. It gets back to the “asymmetric polarization” than has been happening for the last three decades, in which the Republicans have polarized to more and more rightwing extremes that we now have Trump 2.0, while the Democrats have clung to chimeras as moderation and “bipartisanship” in response. Thomas Mann and Norman Ornstein describing this process well in their 2012 book, It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politic of Extremism.

Joe Biden campaigned for the President in 2019 predicting that once Donald Trump was out of the Presidency, “You will see an epiphany occur among many of my Republican friends” that would turn them against Trumpism. (11) Obviously, that never happened.

The Democrats need to restore the elements of rule of law that have deteriorated so badly in many ways in the US. They won’t do it by counting on some epiphany from people like J.D. Vance and Elon Musk.

Notes:

(1) Obama BREAKS HIS SILENCE On Trump’s Fascism. Secular Talk YouTube channel 04/08/2025. <https://youtu.be/lA5duXLdQI8?si=tq_HvYWUSO53tbnL> (Accessed: 08-04-2025).

(2) Froomkin, Dan (2018): Obama Wanted to ‘Look Forward, Not Backward’ on Torture, But He Failed to Look Either Way. Medium 03/13/2018. <https://medium.com/@DanFroomkin/obama-wanted-to-look-forward-not-backward-on-torture-but-he-failed-to-look-either-way-c1b258ac3258> (Accessed: 08-04-2025). This is a reprint of a column Froomkin originally published in 2011.

Huffington, Adriana (2009): Memo to Obama: Moving Forward Doesn't Mean You Can't Also Look Back. Huffington Post 02/13/2009. <https://www.huffpost.com/entry/memo-to-obama-moving-forw_b_157563> (Accessed: 08-04-2025).

Hussein, Martaza (2014): Report to U.N. Calls Bullshit on Obama’s “Look Forward, Not Backwards” Approach to Torture. The Intercept 10/30/2014. <https://theintercept.com/2014/10/30/un-report-slams-obama-protecting-u-s-officials-torture-charges/> (Accessed: 08-04-2025).

(3) “[D]er Rechtsstaat ist kein bloßes vernachlässigbares Add-on zur Demokratie, sondern ihre Grundlage.“ Pichl, Maximilian (2024): Law statt Order.Der Kampf um den Rechtsstaat, 226. Berlin: Suhrkamp. My translation from German.

(4) Remarks of Attorney General John Ashcroft. WorldCom Press Conference August 1, 2002. Justice Department website. <https://www.justice.gov/archive/ag/speeches/2002/080102agworldcom.htm> (Accessed: 08-04-2025).

(5) Schmidt, Michael (2021): Assassination in the Law of War. Lieber Institute West Point 10/15/2021. <https://lieber.westpoint.edu/assassination-law-of-war/> (Accessed: 08-04-2025).

(6) Zenko, Micah (2017): Obama’s Final Drone Strike Data. Council on Foreign Relations 01/20/2017. <https://www.cfr.org/blog/obamas-final-drone-strike-data> (Accessed: 08-04-2025).

(7) Clinton on Qaddafi: We came, we saw, he died. CBS News YouTube channel 10/20/2011. <https://youtu.be/6DXDU48RHLU?si=ZzbH6hLsjXG8VLxS> (Accessed: 08-04-2025).

(8) Main, Alexander (2015): Hillary Clinton’s Emails and the Honduras Coup. Center for Economic and Policy Research 09/23/2015. <https://cepr.net/publications/hillary-clintons-emails-and-the-honduras-coup/> (Accessed: 08-04-2025).

Beckman, Daniel (2017): A Labyrinth of Deception: Secretary Clinton and the Honduran Coup. Council on Hemispheric Affairs 04/12/2017. <https://coha.org/a-labyrinth-of-deception-secretary-clinton-and-the-honduran-coup/> (Accessed: 08-04-2025).

(9) Nickson, Andrew (2012): Paraguay's presidential coup: the inside story. OpenDemocracy 07/10/2012. <https://www.opendemocracy.net/en/paraguays-presidential-coup-inside-story/> (Accessed: 08-04-2025).

(10) Galson, William (2024): The collapse of bipartisan immigration reform: A guide for the perplexed. Brookings Institute 02/08/2024. <https://www.brookings.edu/articles/the-collapse-of-bipartisan-immigration-reform-a-guide-for-the-perplexed/> (Accessed: 08-04-2025).

(11) Bradner, Eric & Krieg, Gregory (2019): Joe Biden predicts a post-Trump ‘epiphany’ for Republicans. CNN Politics 05/14/2019. <https://edition.cnn.com/2019/05/14/politics/joe-biden-republicans-trump-epiphany/index.html> (Accessed: 08-04-2025).