Law and Its Limits

The fate of democracy in America will be determined by how far Donald Trump is willing to go in defying the courts

U.S. President Donald Trump gestures to Supreme Court Chief Justice John Roberts after being sworn in at the U.S. Capitol Rotunda on January 20, 2025 in Washington, DC. (Photo by Julia Demaree Nikhinson - Pool/Getty Images)

For the past few days, I’ve been reflecting on Judge J. Harvie Wilkinson’s remarkable opinion for a panel of the 4th Circuit Court of Appeals about the case of Kilmar Abrego Garcia, the man who was wrongly deported from Maryland to a maximum-security prison in El Salvador. That opinion, combined with some related statements by legal scholar Jack Goldsmith in a recent, lengthy interview with the New York Times’ Ross Douthat, shines a clarifying light on our legal and constitutional reality.

Throughout much of the first Trump administration, and then arguably even more so through the four years of the Biden administration, Trump’s most vociferous critics treated him like a criminal deserving of prosecution and conviction in the name of the rule of law. At every step, I was skeptical of this approach, insisting that Trump was foremost a political problem that could only be defeated in the political arena. The effort to defeat him legally was likely to backfire, I insisted. Even if he were convicted and imprisoned, he could run for president from his jail cell and possibly win, thereby politically vindicating his criminality.

Making these arguments was frustrating for me. I felt like I rarely convinced anyone, and I was often accused of putting political expediency ahead of legal truth and justice, and sometimes of outright cowardice before MAGA-inspired lawlessness.

Such responses showed that I’d failed to explain myself with adequate care and precision. But now, thanks to Judge Wilkinson’s opinion and Goldsmith’s comments in conversation with Douthat, I feel like the reality underlying various legal and political moves involving Donald Trump has been clarified in a way that may help me to convey what I have been trying to say all along—which is that law in itself is far less formidable than many of its most passionate defenders like to believe.