We knew Trump sought to use the neutral administration of justice as a tool for settling scores with enemies. But the scope of the operation is disturbing
In 1941, the German Jewish lawyer and political scientist Ernst Fraenkel published a slender volume called The Dual State. One of the first scholarly treatments of the Third Reich, Fraenkel understood Hitler’s state to be characterized by an unusual “dual” character. In large measure, the state operated by arbitrary decree – something Fraenkel called rule by “prerogative”. This “prerogative state” essentially functioned as a form of institutionalized lawlessness. At the same time, the Third Reich also maintained elements of a “normative state” – that is, an administration of justice that remained, at least formally, bound by operative law.
Without drawing any false equivalence with the Nazi state, we can say that the Trump administration likewise demonstrated this dual aspect. This emerges with disturbing clarity in recent reports documenting the lengths Donald Trump went toward turning the Department of Justice (DoJ) into a partisan tool. The Department of Justice, we must bear in mind, is a vast agency with more than 100,000 lawyers, many of whom are exceptionally skilled and principled civil servants dedicated to upholding the rule of law. Yet the reports of the past week make clear how loyalists installed in key positions can rather radically deform the administration of justice while remaining within the formal confines of the law.
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