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Scholars Say Donald Trump Could Threaten U.S. Rule Of Law

Republican presidential candidate Donald Trump speaks in New York. Trump is getting increasing attention for his abusive stance toward judges as well as his professed disregard for the rule of law, the Constitution and separation of powers. (AP Photo/Richard Drew, File)

Donald J. Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.

By Adam Liptak
The Associated Press

WASHINGTON — Donald Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.

Even as much of the Republican political establishment lines up behind its presumptive nominee, many conservative and libertarian legal scholars warn that electing Trump is a recipe for a constitutional crisis.

“Who knows what Donald Trump with a pen and phone would do?” asked Ilya Shapiro, a lawyer with the libertarian Cato Institute.

With five months to go before Election Day, Trump has already said he would “ loosen” libel laws to make it easier to sue news organizations. He has threatened to sic federal regulators on his critics. He has encouraged rough treatment of demonstrators.

His proposal to bar Muslims from entry into the country tests the Constitution’s guarantees of religious freedom, due process and equal protection.

And, in what was a tipping point for some, he attacked Judge Gonzalo P. Curiel of U.S. District Court in San Diego, who is overseeing two class actions against Trump University.

Trump accused the judge of bias, falsely said he was Mexican and seemed to issue a threat.

“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” Trump said. “OK? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

David Post, a retired law professor who now writes for the Volokh Conspiracy, a conservative-leaning law blog, said those comments had crossed a line.

“This is how authoritarianism starts, with a president who does not respect the judiciary,” Post said. “You can criticize the judicial system, you can criticize individual cases, you can criticize individual judges. But the president has to be clear that the law is the law and that he enforces the law. That is his constitutional obligation.”

“If he is signaling that that is not his position, that’s a very serious constitutional problem,” Post said.

Beyond the attack on judicial independence is a broader question of Trump’s commitment to the separation of powers and to the principles of federalism enshrined in the Constitution. Randy E. Barnett, a law professor at Georgetown and an architect of the first major challenge to President Barack Obama’s health care law, said he had grave doubts on both fronts.

“You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers,” Barnett said, “and I doubt he has any awareness of such limits.”

Republican leaders say they are confident that Trump would respect the rule of law if elected.

“He’ll have a White House counsel,” Sen. Mitch McConnell of Kentucky, the majority leader, told Hugh Hewitt, the radio host, on Monday. “There will be others who point out there’s certain things you can do and you can’t do.”

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