Published by The Lawfare Institute
in Cooperation With
Few of the many unexpected intellectual twists and turns of the early post-9/11 years of the Bush administration were quite so unexpected—or quite so twisty and turny—as the sudden return to prominence of the pre-war German jurist and legal theorist Carl Schmitt. Schmitt was, to put it mildly, not a reputable figure. His earlier fame, or infamy, emanated from his opportunistic use of his own scholarship to shore up the legal foundations of the Nazi state.
Faced with an administration responding harshly to perceived security threats under an aggressive view of wartime executive power, many commentators on the left and in the civil liberties community looked at George W. Bush and thought they saw the face of the wolf. And when they looked for the mind of the wolf into whose face they imagined themselves staring, they found Schmitt.
Schmitt is most well-known for his theory of the “state of exception,” under whose aegis the sovereign power can choose to act outside the structure of law. As he wrote presciently in 1922, the “sovereign is he who decides on the exception.”
After September 2001, Schmitt’s terse, almost aphoristic formulation of sovereignty was much passed around by the literati and legal academics as a summary statement of the Bush administration’s perceived shift toward emergency power at the expense of the proper functioning of the rule of law. In 2005, the leftist Italian philosopher Giorgio Agamben further secured Schmitt’s position as the accidental prophet of the post-9/11 age in his book State of Exception, which turned to the Bush administration as an example of how Schmitt’s exception would inevitably expand to swallow law whole. Agamben’s take on Schmitt was widely cited as a call to alarm among commentators concerned about a perceived shift toward a state of exception in American politics.
Schmitt was trendy again—and not just on the left or among critical theorists. His ideas touched on a newly live wire; citations to his work in legal journals soared in the years after 9/11. A decade later, he still spoke for something in the zeitgeist, to the point where Eric Posner and Adrian Vermeule could mischievously declare their intellectual allegiance not to James Madison but to Schmitt in their volume in defense of expansive executive power.
The nightmares of those who thought they saw Schmitt in the form of George W. Bush turned out to be what John Ashcroft might have called “phantoms of lost liberty.” Certainly, the Bush administration saw an intentional turn toward an aggressive view of executive power, and the shape of law in the post-9/11 world has changed from the prelapsarian age. But the fundamental structure of the rule of law itself has remained standing.
Our new President-elect, Donald Trump, now poses an interesting problem for the Schmittian revival: have we now, eight years after Bush left office, elected our first Schmittian President? The lingering concern over Bush’s perceived Schmittian tendencies may make it more challenging to present this question with the rigor it actually merits. The crucial bit of that Aesop fable about the boy who cried wolf, after all, is that the wolf actually does show up at the end.
So is Trump the Schmittian wolf that Bush was not? And by crying Schmitt about Bush, did those in the civil liberties community and aligned with the left inadvertently make it more difficult to take seriously cries of Schmitt about Trump? Having blurred the distinction between behavior that’s truly outside law versus behavior that disrupts or degrades law, it’s now crucially important that we reaffirm that distinction with care and honesty.
The core of Schmitt’s argument is that a political order centered on the rule of law must sooner or later come face to face with the problem of the exception, a situation that is essentially inchoate but can be approximated as one of dire emergency or “extreme peril” to the state. Because the form of the exception can’t be anticipated or defined, Schmitt argued, no law or structure of law can predict what powers will be needed by the government to grapple with the emergency that exception represents. Despite the regimentation of law, he contended, there ultimately must exist a figure whose power it is to determine the existence of the exception and who obtains “principally unlimited authority” after having declared that state.
Whatever the force of law’s attempt to constrain power, Schmitt argued, sooner or later everything will all come down to the moment of individual decision on the part of the Schmittian sovereign—a decision that can’t be anticipated or regulated in any way. And so, if we listen to Schmitt, do we find the potential for absolute dictatorship lurking at the heart of the rule of law.
Agamben and other legal theorists and writers saw President Bush as attempting to fit himself into the mold of Schmitt’s sovereign, declaring the United States as in a state of exception within which the normal rule of law no longer had force and the executive branch gained unilateral authority to take measures that would previously would have been unthinkable. And as the post-9/11 state of exception drew on through the years with no sign of ending, Agamben’s thesis on the state of exception as entirely consuming law and the state maintained its hold.
Here, for example, is Agamben on Guantanamo and military commissions:
What is new about President Bush’s order [of November 13, 2001, authorizing indefinite detention and trial by military commissions in the conflict with the Taliban and al-Qaeda] is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight.
Agamben wrote this in 2005. And in 2006, the Supreme Court proved him wrong—both about the legal status of detainees and about George W. Bush’s Schmittian character. That year, the Court handed down Hamdan v. Rumsfeld, affirming the application of Common Article 3 of the Geneva Conventions to detainees at Guantanamo and rejecting the Bush administration’s argument that military necessity—or as Schmitt might say, the existence of a state of exception—justified Salim Hamdan’s trial by military commission in the absence of clear congressional authorization.
The ruling dealt a blow to a Schmittian reading of the post-9/11 United States as in a state of exception: the Court’s insistence on a limit to military necessity was a declaration both that the state of exception has certain characteristics on the basis of which any given declaration of exception can be judged as accurate or inaccurate, and that the courts are competent to make that judgment. More important for present purposes, however, is how Bush reacted to the ruling. As an administration official quoted in the Washington Post put it:
"We strongly believe that terrorists picked up off the battlefield—who don't represent a nation, revel in killing the innocent, and refuse to wear uniforms—do not qualify for protections under Geneva," White House counselor Dan Bartlett said. "Five members of the Supreme Court disagreed. As the president said, we will comply with the ruling." (emphasis added)
The spokesman for a truly Schmittian ruler would never have added that last pivotal sentence. And Hamdan is only one example among many. While the Bush administration may have contorted law and pushed legal and constitutional interpretations past their reasonable limit, when the courts pushed back, the administration always yielded. And while there might have been doubt as to whether the courts would assert themselves against the executive, there was never doubt that that the executive would accept the authority of the courts if and when they did so.
To say that a President ultimately accepts restraint is, obviously, not high praise. And by arguing that the Bush administration at its highest ebb of fixation on executive power never came close to Schmitt’s vision of the sovereign exception, I don’t mean to offer a defense, let alone an endorsement, of any of the policies of that period. Rather, I’m drawing a distinction between an executive branch that relied on expansive understandings of Article II of the Constitution and one that bears a real risk of paying no attention to the Constitution whatsoever—and, moreover, of denying the authority of any other institution to check it.
Jack Goldsmith, for example, has argued that the Bush administration was not lawless but rather obsessed with law, to the point where “the question ‘What should we do?’ so often collapsed into the question ‘What can we lawfully do?’” In his view, it was exactly this obsession with legal fine print—rather than a desire to act outside law altogether, as a Schmittian President would—that accounted for the administration’s tendency to “act to the edges of the law.”
In contrast, Trump has given us genuine reason for concern that he may actually represent the Schmittian nightmare feared by many on the left and in the civil libertarian community after 9/11. His offhand campaign promise to House Republicans to uphold the Constitution’s nonexistent Article XII raised concern at the time over his lack of textual knowledge of the document, but even this isn’t the important thing. Not every President has had detailed textual knowledge of the Constitution, though most have been better at glossing over that fact than has Trump. What’s key is Trump’s apparent lack of understanding of the document’s significance and power as the bedrock of democracy and the rule of law—an understanding that normally commits the President to behaving in a constitutional fashion by heeding the good-faith advice of legal counsel.
Trump, on the other hand, has displayed precious little respect for these underlying constitutional principles: recall his hedging on whether he would accept the results of the election, and his eventual declaration that he would do so “if I win.” And to paraphrase an astute acquaintance I spoke to in the days after the election, while Trump might want to be a good President for the American people, he has shown no sign of wanting to be a good participant in the American system of governance. Her comments were echoed recently by Representative Justin Amash (R-MI), who criticized Trump for his “extra-constitutional” view of the presidency: “I think he just views the job [of the presidency as] … outside the Constitution,” Amash said. “I don’t think our framework [of law] in this country really comes into play when he’s thinking about how the job should operate.”
Amash’s formulation is apt: think of Trump’s statement to the New York Times that “the president can’t have a conflict of interest,” and therefore can’t be in violation of the Emoluments Clause. As many have noted, it’s hard not to hear the echoes of Nixon’s infamous declaration, “When the President does it, that means it is not illegal.”
“Extra-constitutional” is also a good way of describing Carl Schmitt’s sovereign power, which is not exactly above the law but, rather, outside it. The sovereign determines when law applies and to whom, and the sovereign’s decision is unreviewable by the courts or any other actor because it exists outside the structure of legal review entirely.
So let’s consider the case that Trump might be the real Schmittian. You can see hints of such an extra-constitutional self-understanding not only in Trump’s apparent lack of respect for the Emoluments Clause, but also in his contempt for the work of the courts. Consider his attacks during the campaign on Judge Gonzalo Curiel, the federal judge hearing the Trump University fraud case. Trump described Curiel as a “hater,” saying that the judge’s Mexican heritage made it impossible for him to preside objectively over the case. Even when pushed to apologize, Trump declared instead that “I feel justified in questioning whether I am receiving a fair trial." To put it mildly, this is not the kind of behavior we expect from our leaders toward the courts: American officials, and even those running for public office, don’t usually take it upon themselves to declare whether or not a duly appointed judge is appropriate to hear their cases.
And then there’s Trump’s bizarre disregard for the legal protections of criminal procedure. We saw this most conspicuously in his insistence on Hillary Clinton’s guilt in the matter of her private email server on the simple grounds that “everybody knows she’s guilty” and his unwillingness to admit the legitimacy of an independent FBI investigation which cleared her of wrongdoing. He appears to have abandoned his threats to prosecute Clinton in recent weeks, but without ever acknowledging that forcing the FBI to reopen the investigation would have called integrity of the Bureau’s function as an arm of law enforcement into serious question.
On that note, it’s also worth considering Trump’s stated admiration for Philippine President Rodrigo Duterte’s brutal antidrug campaign, which has resulted in an enormous number of extrajudicial killings by police. There’s no criminal procedure here, just the presumption of guilt and an execution. This is very close to Schmitt, by way of Agamben: the power of the sovereign is to remove the protections of law from the subject while still retaining the use of law as an instrument of brute force. (Agamben calls this “bare life,” stripped of the ability to participate in politics.)
And there’s Trump’s bullshit. In a previous essay, I argued that Trump is a bullshitter in the technical sense as described by philosopher Harry Frankfurt: he tells falsehoods not to obscure the truth, but because he doesn’t care what the truth is. In Frankfurt’s words, Trump is “indifferen[t] to how things really are”; his bullshit denies that “there are indeed facts that are in some way determinable or knowable” and that “there is a difference between getting things wrong and getting them right, and that it is at least occasionally possible to tell the difference.” I argued that, as a bulshitter, Trump will be foundationally incapable of honoring the presidential oath of office and the Take Care Clause of the Constitution, both of which require him to “faithfully execute” the duties of office and the laws of the nation, because he lacks the respect for truth, law, and meaning to which the oath commits him.
Trump’s bullshit is also intimately connected with his possible role as an extra-constitutional, Schmittian President. In the mouth of the President, bullshit represents an approach to meaning that is functionally identical to that of a sovereign unconstrained by law: He makes up his own reality, unconstrained by anybody or anything.
Bullshit places the speaker outside usual systems of evaluating truth and meaning, just like the exception places the sovereign outside the space of law. In both cases, the person in question (let’s call him Donald J. Trump) locates himself beyond the authorities that usually govern human activity in order to determine whether or not those authorities have any power. Bullshit, like the declaration of the state of exception, can’t be verified or constrained: Trump can always simply deny the veracity of the facts used to point out his falsehoods, just as the sovereign can deny the existence of a “normal” versus exceptional state of affairs by fiat. And in its destruction of shared meaning, bullshit, like Schmitt’s theories, is hostile to democracy: absent a mutual language with which to communicate with each other and come to agreement, the only tactic left is to compel agreement through force.
The character of a person who habitually peddles bullshit and the character of a person who lacks a foundational respect for the Constitution and the rule of law to the point of perhaps considering the office of the President as “extra-constitutional” are, if not identical, at least very closely related.
That being said, to raise the question of whether Trump is a Schmittian is not to answer it. And there are at least some reasons to doubt the premise.
First off, while bullshit may be a necessary ingredient for a Schmittian leader, it’s far from sufficient. Dismantling the rule of law is hard work. Schmitt’s sovereign must come equipped not only with a finely tuned ability to bullshit but also with a certain strength of will.
As the clock ticks down to the inauguration, many of our arguments over Donald Trump boil down to whether he has this strength of will or not. To what extent is he acting impulsively or being manipulated, and to what extent is he a canny operator who’s figured out exactly how to game the system? Political scientist Yascha Mounk recently made a similar point, noting that while Trump appears to have similar illiberal instincts as other right-wing populists engaged in systematic anti-democratic efforts around the world (such as Hungary’s Viktor Orbán and Poland’s Jarosław Kaczyński), it’s not yet clear whether Trump is consciously aware of those instincts as contributing to a broader illiberal project.
So maybe Trump is just a bullshitter, rather than a Schmittian bullshitter. In this scenario, we may be headed for something much closer to a Berlusconi than a Putin: four to eight years of cheerful vulgarity and the degradation of political norms in the service of grift, but not a wholesale attack on the rule of law as such. On this view, Trump’s behavior toward Clinton and Judge Curiel, while certainly appalling, is far less sinister—just a lashing-out at those who had upset him. The wolf’s bark is worse than his bite.
And there’s a case for this with Trump. While he yapped about Curiel, after all, he never showed any serious intention of not accepting the legitimacy of Curiel’s rulings as the proceedings went on; indeed, he eventually settled the case. And while he once made noises about reinvestigating Clinton, he’s quieted on this in recent weeks and hasn’t moved to reopen the investigation.
But in my view, much of the anxiety about Trump and the rule of law is really anxiety about how and whether the rule of law can adequately constrain a would-be Schmittian. Faced with a person who genuinely regards himself as outside of the legal system, perhaps the law ultimately is very little. Perhaps it’s everything. Or perhaps it is a major factor, but can only function adequately in conversation with the robust political norms and sense of civic decency over which Trump has so assiduously trod.
The work of Schmitt and those who follow him is necessarily focused on the changing geography of the exception: not only what and who lies inside or outside the structure of law and the realm of permissible force, but also what happens when those boundaries shift. Trump’s transformation of the office of the President into a Schmittian entity may not be a binary question of the executive as either unambiguously inside or outside law; Trump might instead move toward Schmittianism in a process of edge case after edge case, over the course of which legal constraints on the presidency would be weakened, degraded, and eventually entirely destroyed. Indeed, it was fear of exactly this liminal creep that led many onlookers to cry wolf under the Bush administration. We inevitably return to Justice Jackson’s warning of legally validated claims of executive power as a “loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Jackson made his famous warning in his dissent to Korematsu, a case that has lately been on many of our minds. His dissent is an odd creature, hedging its bets in order to finally take the position that the case before the Justice lies, in a sense, outside law: it’s both an argument for deference to the executive in times of emergency and a refusal to tarnish law by granting legal imprimatur to the military’s ugly actions. That imprimatur is the loaded gun, a reminder not only of law’s power but also of its limit.