Why the Trump Administration Doesn’t Just Break the Law
In response to his sentencing following his conviction on 34 felonies in May 2024, President Trump stated that he had “won the election in a massive landslide, and the people of this country understand what’s gone on. This has been a weaponization of government.”
Despite his conviction, Judge Juan Merchan sentenced him to an unconditional discharge with no consequences like prison, probation, or even fines. The judge determined that this was the “only lawful sentence” that avoided infringing on the authority of the presidency. Had that been Donald Trump’s first encounter with the law (which, of course, it wasn’t), it would have been a stark lesson in impunity.
It’s no surprise then that, in an interview last year with Kristen Welker on Meet the Press, when asked about his obligation to uphold the Constitution, Trump responded, “I don’t know.” In his conversation with Welker, he also defied a Supreme Court decision that ordered the return of immigrant Kilmar Armando Ábrego García from El Salvador, where he had been deported thanks to what the Trump administration termed “an administrative error.” Blaming the deferral of that decision on Attorney General Pam Bondi, the president stated that he was “not involved in the legality or illegality” of the case.
Despite his seemingly ambivalent feelings in that interview, he has emphatically asserted his position with respect to the law elsewhere, especially when it came to him. For example, on February 16, 2025, he wrote on X, “He who saves his Country does not violate any Law.” Nonetheless, outright violations of the law have been a signature characteristic of his administration writ large. For example, last March, when Judge James Boasberg ordered the return of planes carrying migrants being deported from the United States to El Salvador’s CECOT prison (known for its brutality), Department of Homeland Security Secretary Kristi Noem instructed the two flights to continue in clear violation of the court order. The Justice Department would subsequently argue in a court filing that the administration hadn’t violated the judge’s order because the flights carrying the migrants were no longer over U.S. territory when the ruling was issued.
In short, although the attitudes of President Trump and his administration toward legality have been guided by the belief that their power is in no way meaningfully constrained by the law, it would be a mistake to assume that they’ve governed through lawlessness alone. To focus solely on lawlessness would be to minimize the way the president and his administration have simultaneously relied on and weaponized the law itself to legitimize their violence and their violations. They have pursued an America First strategy that has centered on the expansion of executive power and the protection of narrowly defined national interests, while tossing aside both human rights and international legal norms. To fully grasp the depths of the Trump administration’s violence, lawlessness must be examined alongside the strategic use of the law to manufacture a sense of legality and a facade of legal legitimation.
Legalizing Boat Strikes to “Save Americans”
On Tuesday, September 2, 2025, on President Trump’s order, U.S. military forces conducted an airstrike against a boat that the administration claimed belonged to the Latin American gang Tren de Aragua, which he had previously designated a terrorist organization and described as “narcoterrorists.” Since that first strike conducted in the waters of the Caribbean Sea, there have been 46 subsequent boat strikes in both the Caribbean and the eastern Pacific Ocean that have killed 147 people to date. Despite the view of legal experts that such strikes are illegal extrajudicial killings, the Trump administration has insisted on their legality. In late November, for example, Secretary of War Pete Hegseth stated on X that “our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in compliance with the law of armed conflict — and approved by the best military and civilian lawyers, up and down the chain of command.”
The approval Hegseth referred to came in the form of a memorandum from the Justice Department’s Office of Legal Counsel. Although that memo has not been made public, sources familiar with its contents report that it frames the strikes as acts of collective self-defense undertaken in the interests of the United States and several Latin American countries. The memo also argues that, because the U.S. is in an armed conflict with the drug cartels, the strikes don’t require Congressional approval, being both in the national interest and sufficiently limited in scope, nature, and duration not to qualify as war-making. That memo has been criticized in numerous ways, with some experts insisting that the legal arguments are not only flawed, but were put together to legitimize a political decision already made by the White House.
In the last quarter-century of the War on Terror, weaponizing the label of terrorism has been repeatedly invoked to justify repressive interventions. As law professor Sirine Sinnar notes, “Through invoking terrorism, the Trump administration targets its political enemies, pushes an openly racist and xenophobic agenda, and flouts international law more brazenly than its predecessors. But it can do all this so easily because the concept of terrorism has long been selective, political, and racialized, and because Congress and the Supreme Court have largely shielded counterterrorism from accountability.” The designation of individuals as “narcoterrorists” reflects the enduring currency of this post-9/11 framework, demonstrating how the language of terrorism can be redeployed in new contexts through strategically constructed threat narratives.
The Spectacle of “American [In]Justice”
In a speech on January 3rd, President Trump announced the capture of Venezuelan President Nicolás Maduro and his wife Cilia Flores de Maduro, accusing them of conducting a “campaign of deadly narco-terrorism against the United States and its citizens,” and insisting that “hundreds of thousands — over the years — of Americans died because of him.” Further justifying his capture, Trump also claimed that the Venezuelan leader had been sending members of the Tren de Aragua gang to the United States to spread drugs and terror. As it happens, though, not only was there a lack of evidence of that, but the claim wasn’t even mentioned in the Justice Department’s indictment of the Venezuelan president. The Maduros, Trump asserted, would “soon face the full might of American justice and stand trial on American soil.” Despite such a projection of power and the assumed superiority of “American justice,” the Trump administration’s entire governing strategy has proven that just as legality is malleable, so, too, is justice.
Many have described the Trump administration’s capture of the Maduros as simply lawless, but the administration’s officials didn’t act without considering the law (in their own lawless fashion). They even requested that the Office of Legal Counsel produce an opinion on whether the president could legally direct U.S. military forces to support law enforcement in seizing Maduro and bringing him to the United States for prosecution (without, of course, any congressional action).
A heavily redacted version of the memo responding to that, dated December 23, 2025, was released on January 13th, 2026. It frames the sending of U.S. special forces and air power into Caracas, the Venezuelan capital, to capture the Maduros as a law-enforcement action to arrest a fugitive, not a military invasion (despite all the Venezuelans who died). It argues that, because of the limited duration and narrow scope of the operation, the action falls under the president’s constitutional authority and isn’t an act of war that would require congressional authorization. Although the memo did avoid making a definitive argument that the operation didn’t violate international law, it essentially tried to make that determination inconsequential by deeming the actions legal under domestic law.
Performing Legality, Producing Impunity
While the contents of the memo are certainly important, it’s no less critical to understand the purpose and function of such memos to begin with. Like other such “legal” documents, memos from the Office of Legal Counsel are designed to offer a version of “legality” that minimizes scrutiny, enables repetition, and contributes to normalizing state violence in its many forms.
Some have compared the boat-strike memos to the torture memos drafted under the Bush administration. John Yoo, one of the infamous authors of those memos, argued that, for abuse to rise to the level of torture, the result had to be nothing less than organ failure or death. So, consider it ironic that he actually criticized those boat-strike memos, despite their similarity to the torture memos’ form of impunity. In fact, when asked if he regretted the decisions he had made, Yoo said, “The only thing I regret was just the pressure of time that we had to act under.” But he also added that he “would probably do the same things again.”
Yoo nevertheless expressed skepticism about the Trump administration’s rationale for the boat strikes, saying about those supposed drug boats, “They’re not attacking us because of our foreign policy and our political system…They’re just selling us something that people in America want. We’re just trying to stop them from selling it. That’s traditionally, to me, crime. It’s something that we could never eradicate or end.”
Yoo, of course, neglected to mention that, while justifying the most brutal forms of torture at the Bush administration’s prison in Guantanamo Bay, Cuba, and in CIA “black sites” globally, the torture memos provided impunity for anyone involved in creating that torture regime in the wake of the 9/11 attacks of 2001. And no court ever formally ruled those memos illegal, while Yoo, like all the other Bush administration officials involved in sanctioning the torture apparatus, never faced the slightest accountability. Even when a report on those memos was released by the Department of Justice’s Office of Professional Responsibility in 2009, recommending that Yoo and an associate of his be disciplined, it was vetoed by Associate Deputy Attorney General David Margolis, who viewed the memos as resulting from poor decision-making rather than unethical behavior. Like the torture memos, then, the boat-strike memos are meant to offer a facade of legality, while ensuring impunity.
What Yoo’s critique also conveniently overlooks is that legal memoranda like the torture memos don’t just interpret the law. Instead, they offer a threatening “legal” reality to justify certain all-too-grim interventions. Under the Bush administration, this included the denial of Geneva Convention protections based on the argument that the United States was fighting a new kind of war with non-state actors who don’t abide by the laws of war. According to their logic, if the enemy does not follow the laws of war, the United States is not required to extend full protection. This discursive rationale was used to disregard the fact that adherence to Geneva protections is non-reciprocal.
Those memos also exploit perceived gaps in existing legal frameworks to manufacture ambiguity, while, above all, staging a performance of legality. Like the torture memos, the memo authorizing the capture of President Maduro was designed to be a buffer against legal, political, or diplomatic challenges, minimizing the vulnerability of the Trump administration to judicial scrutiny and congressional action.
In his article “Citizen in Exception: Omar Khadr and the Performative Gap in the Law,” Matt Jones has written about the consequences of such performances of legality. He argues that “the law’s reliance on continual performance interventions means that gaps in the law may in fact become enshrined in law if a given authority, such as a judge, recognizes them as legitimate within the jurisprudential history of past performances.” In other words, challenging state actions as illegal, whether the conduct occurred as a result of sheer lawlessness or unsound legal rationales, can actually end up rendering the behavior legal.
Legal rationales like those provided in the torture memos also offer an administration the opportunity to act as if its behavior were legal. As Jones points out, when it came to Guantanamo, for example, “the Bush administration’s creative interpretation of the law allowed them to operate ‘as if’ their behavior were legal, knowing that, by the time the law’s reality caught up, the strategic tasks they wanted accomplished in Guantanamo would have long been completed.”
To this day, Guantanamo remains open and there has never been the slightest accountability for anyone involved in past crimes there or the indefinite institutionalization of that infrastructure of state violence.
The Architecture of Hyper-Legality and the Law’s Double-Edged Sword
To understand why the Trump administration has not always chosen to completely violate or disregard the law, it’s useful to consider the concept of hyper-legalism. In “International Refugee Law, ‘Hyper-Legalism’ and Migration Management: The Pacific Solution,” author Claire Inder, special assistant to the U.N. High Commissioner for Human Rights, suggests that hyper-legalism “implies a commitment to lawfulness and rule-following, with an underlying disingenuousness in the understanding of ‘legality.’ It suggests that the applicability of the rules themselves is infinitely malleable by the actor purporting to comply.”
Although Inder focuses on refugee law, hyper-legalism’s relevance to a broader spectrum of governing policies is clear when it comes to Donald Trump and his administration, where a performance of legality has all too often been considered sufficient to allow them to pursue their ultimate objective of justifying whatever intervention they may deem necessary. However, that doesn’t mean that Trump and members of his administration don’t understand the limits of hyper-legalism. As Daniel Ghezelbash, director of the Kaldor Center for International Refugee Law, has argued, some actions are so egregious under international law that no amount of formalistic sophistry can legitimize them. And when that’s the case, states can resort to obfuscation as a tactic. “Obfuscation,” as he puts it, “is achieved through secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications.”
The Trump administration’s refusal to release the Office of Legal Counsel memo that has provided it with supposed legal cover for those boat strikes in the Caribbean and the Pacific is emblematic of hyper-legalism and its limits. More broadly, the fact that its officials are using the law to justify egregious conduct while rejecting any semblance of transparency makes such legal arguments difficult, if not impossible, to challenge in the immediate moment. That, in turn, risks the further institutionalization of sanctioned violence, while, of course, providing legal rationales for future acts of state violence.
In his article “Hyperlegality,” legal scholar Nasser Hussain questions common assumptions about the operation of emergency laws and the idea that the measures implemented are just temporary deviations from the norm. Although he focuses on the United Kingdom, his analysis is distinctly relevant to Donald Trump’s America. He argues that antiterrorism legislation in Great Britain hasn’t just functioned as a short-term, reactive response to crisis, but has produced structural and enduring transformations in the legal order. And that’s just what’s now happening in the United States, where the latest “emergency laws” and defenses of exceptional interventions are helping to create legal frameworks and blueprints that will, in the future, only strengthen and entrench the ability of the state to enact egregious violence. In short, while the violence of the Trump administration may seem exceptional, the historical trajectory of the War on Terror should be a reminder that what we are witnessing isn’t new and isn’t likely to disappear in the future.
In analyzing the Trump administration’s governing strategy, it’s important to remember that, as Hussain argues, “the rule of law is and has always been capable of accommodating a range of repressive but legal measures.” In other words, even as the Trump administration’s remarkable disregard for the law in so many cases poses urgent challenges, the malleability of the law, as demonstrated throughout the history of the United States, should offer a warning against the seemingly commonsensical response of simply instituting more rules, regulations, conventions, and laws. After all, the law’s primary function is to preserve the state, not to deliver justice.
All too often, the law operates as a double-edged sword: it can secure rights and constrain power, but it can also legitimize repression, exclusion, and harm. Our task, then, is to understand how to wield the law strategically to challenge the violence and power of the state and to demand justice and accountability.
Whether the Trump administration cloaks its actions in legal rationales or disregards legality altogether, communities at home and abroad continue to resist. Recognizing that the law alone will not save us is not a call to despair but a call to organize and build our power. Because nothing has ever altered the course of injustice except the organized power of the people — and nothing else ever will.
