Trump and further examples of illegitimate rule
Even if we accept the right of authorities to rule, some of their particular orders can be disobeyed.
I wrote earlier about why I felt Trump is losing legitimacy. That was written with a focus on ways we can frame the thinking about when political leaders have the right to rule and we, subjects and citizens, have the duty to obey. Previously, I wrote very generally about the issues that have been chipping away at the legitimacy of his entire administration. What I presented was a normative argument that focused on how we ought to conceptualize and discuss political reality, not a measure of actually existing political power.
Legitimacy is part of political philosophy that has consequences that are both moral and subjective. Moral philosophy tells us what we should value and why. It may also specify appropriate behavior or at least tell us inappropriate behavior. While this may be unequivocal, such philosophy may also introduce more subjective components that change how arguments or events are framed, discussed and understood. This is subjective in the sense that although everyone may agree on a set of objective facts, the meaning, importance and significance may differ depending on both the framework and on judgment.
We don’t often think about it, but political philosophy has a powerful presence in our lives. The most successful political philosophy is so powerful and invisible that it becomes treated as universal “common sense.” Often, when we think we are being guided by simple, natural truism we are actually relying on culturally learned responses based on complex philosophical arguments developed hundreds of years ago. The Harm Principle is a great example of this — at its simplest it claims that governments should only make laws that prevent people from harming other people. As it was fully fleshed out by J.S. Mill, it is more complicated than that, but that basic argument guides innumerable political and personal arguments in American life. It is so much a part of our cultural expectations that it is common for both sides in an argument to use it to make their case. I have seen this used in arguments for and against laws about smoking in public spaces, abortion, drug policy and much, much more. In fact, it was the general framework around opening the economy during the peak infection of the COVID pandemic.
So arguments for legitimacy, like arguments for harm, can be frustrating. Using the Harm Principle, for instance, doesn’t tell you if there is a law, or how it is enforced, it only suggests if there ought to be a law or when we should be able to ignore that law. And even then it can be used for both sides — should vaping be banned if it is harmful or allowed because users only harm themselves? We don’t always get clear answers. Talking about legitimacy is fraught with the same dilemmas, but gives us the power to take a position and make an argument.
The legitimacy of a regime or government can be examined at any level. We can talk about the legitimacy of different forms of government, particular governments in an existing structure or in more discrete terms about specific actions. Today I would like to move from the macro — the Trump administration as a whole — to an individual action that shows how the logic of legitimacy is useful, is more than a dislike of the outcome and can provide us with compelling reasons to take or not take specific actions. I believe more strongly now that President Trump is in danger of losing legitimacy as the president and also that individual actions he takes are going to be revealed to be illegitimate. Here are a couple examples.
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On May 31st, Donald Trump announced on Twitter that he would be declaring antifa a terrorist organization. Shortly thereafter his attorney general, William Barr, announced that the FBI’s anti-terrorism forces would be used against the acts of domestic terrorism caused by antifa. Immediate analysis of the announcements pointed out that this is likely unconstitutional and illegal. As it stands now, all recognized terrorist groups are designated as such by the state department and are only foreign, not domestic, organizations. Similarly, legal experts noted that the president lacks the legal authority to declare groups to be terrorist organizations and they identified that any designation would likely create free speech concerns. These concerns stem from the fact that antifa is a set of practices and not an organization. Antifa is a movement based around identifying and confronting right-wing groups with direct action. Inside the movement are a set of principles, practices and goals that independent groups of activists often adopt, but there is no central authority or even membership. How can antifa be a terrorist group if it isn’t even a group?
Ultimately, what these critiques show us is that such action by the president would be an illegitimate use of power since it goes against the law, against the established process of designation, and goes against existing rights. This doesn’t mean he can’t or won’t do it. Using a metric of legitimacy tells us that if he orders it, subordinates have the right to disobey. There is actually a long history of this happening. Kissenger’s quote about the Watergate burglary, that “[s]ome damn fool went into the Oval Office and did what Nixon told him to do,” is a plea to disobey illegitimate orders. Ignoring direct orders from the president has been a long-standing strategy in the White House for aides dealing with Trump’s illegal or short-sided demands.
Last night, while President Trump was giving an address in the Rose Garden, Washington, D.C. law enforcement officers launched tear gas and flash grenades at peaceful protestors in Lafayette Park across from the White House. This was an attack against law abiding citizens 24 minutes before the 7pm curfew. Although it is still unclear who ordered the attack, it is clear that it was done to facilitate a photo-op for Trump at a nearby church that had been damaged the night before. There is no measure by which this action appears legitimate.
Worse still is the fact that this attack served as a precursor to what Trump promised in his Rose Garden address — using the military force to suppress any dissent. The president claimed that he had “strongly recommended” that governors use “overwhelming” force until they “dominate the streets.”* He added that if states or cities refused to do so he “will deploy the United States military and quickly solve the problem for them.”
It would be legal for President Trump to send troops into cities through the Insurrection Act. He is, after all, the commander in chief of the armed forces. There is also historical precedent for this. State governors may even request it. But if Trump orders the military into US cities it can only be to enforce federal laws and even within that restriction they are beholden to a slew of additional rules and laws. Military forces conducting policing in the US are limited in their use of force and rules of engagement. Within these limits, the use of force may be viewed as legal, and under very specific conditions the use of the military can be understood to be legitimate.
However, anything outside of those narrow bounds, which already seems to be what Trump intends, should be understood to be illegitimate. As such, those given illegitimate orders will have the right and even the duty to disobey. Already, Arlington County, a suburb of D.C. whose police have a mutual aid pact with the city which allows the sharing of police and resources, withdrew their police from the capitol in response to the clearing of Lafayette Park stating that the action was “not worthy of our mutual aid obligations.” This is how illegitimacy works. Furthermore, state governors, both Democrats and Republicans, have rejected Trumps “recommendations” to get attack protestors. Now they reject military action on both legal grounds and on the point that it is not necessary. All of which is to say that political leaders find Trump’s actions and requests to be illegitimate.
If and when the president calls on the military to attack peaceful citizens it needs to be recognized and understood to be an illegitimate use of power, and such orders must be disregarded. Officials in the White House reject and disobey illegitimate orders. State and city officials reject and disobey illegitimate orders. Military officers and soldiers must also do the same. It is just common sense.
*We have to ignore his stated goal of “ending violence” here since it is completely disingenuous. He is, after all, talking about extending state violence. Meanwhile, he made no comment on ending police violence at peaceful protests like driving vans into crowds, shooting bystanders with pepper bullets, and baton attacks. Additionally, from the context of making the announcement while peaceful protestors were being attacked makes it clear what he actually intends.
