Atlantisches Forum: Trumpism and the fate of the rule of law under the U.S. Constitution

The upcoming 2024 U.S. presidential elections present a crucial watershed for the future of U.S. democracy. Beginning with his declaration in 2016 that he would accept the results of the presidential election only if he won, the presidency of Donald J. Trump was characterized by continuous attacks on democratic norms and the rule of law. At least in part due to the constant spread of disinformation about election fraud by Trump and his allies in the Republican Party (GOP), on 6 January 2021 Trump supporters attacked the U.S. Capitol to prevent Congress from certifying the 2020 presidential election. What is more, we now know that beyond the attack itself there was a concerted effort by members of Trump’s inner circle to overturn the election by quasi-legal means.

Although hundreds of the January-6th “foot soldiers” have been convicted since, including members of the Proud Boys and Oath Keepers for seditious conspiracy, Trump was only recently indicted in 2023—first by Manhattan DA Alvin Bragg and later by Special Counsel Jack Smith in connection with his retention of classified documents at his Mar-a-Lago, Florida resort, his sharing of possibly classified information at his Bedford, New Jersey residence to individuals lacking security clearances, and his acts of obstruction of justice.

Although astonishing and unprecedented, the indictment of a former president for the first time in U.S. history was likely vital to preserving American democracy itself. Nontheless, even though the ”red wave” failed to materialize in the 2022 midterms, Trump has announced his candidacy for 2024 and is leading not only the Republican field but is also ahead of Joe Biden in the polls, making a GOP election victory in 2024 an all too real possibility. Despite Trump’s indictments, that possibility entails the very real risk of potentially ending U.S. democracy, with significant consequences not just for Americans but also transatlantic cooperation and European security.

Against this background, Kim Wehle walks through the various guardrails of democracy established by the U.S. Constitution and the system of laws, and explains why and how the only mechanism remaining for staving off unaccountable future crimes in the Oval Office is the criminal justice system. Yet for numerous reasons—including trial delays, the absence of constitutional limits on presidential candidates, the intransigent loyalty of the MAGA GOP, and the threat of a pardon (which is the subject of her next book, out in June 2024), the fate of American democracy in all likelihood remains at the behest of the political process. The stakes could not be higher and the uncertainties could not greater—which is why a working understanding of the structure of the legal and political systems that created this crisis is so critical to a favorable outcome at this pivotal point in history.

is an expert in constitutional law and the separation of powers, with particular emphasis on presidential power and administrative agencies. She is a tenured law professor at the University of Baltimore School of Law, where she teaches Constitutional Law, Civil Procedure, Administrative law, and Federal Courts. She is also a legal contributor for ABC News and regularly writes for Politico, The Atlantic, and The Bulwark. Winner of the University of Maryland System Board of Regents Award for excellence in scholarship, she also writes and comments on the Supreme Court, election law and voting rights. She was an Assistant United States Attorney in the Washington D.C. office and Associate Independent Counsel in the Whitewater Investigation. She is author of the books, What You Need to Know about Voting—and Why, How to Read The Constitution— and Why, and How to Think Like a Lawyer—and Why: A Common-Sense Guide to Everyday Dilemmas. Her forthcoming book, How the Pardon Pardon Works—and Why, is due out in June of 2024. Kim is also Of Counsel at the boutique law firm of Levy, Firestone and Muse.