Must A Leader Not Be Above the Law?

My Dear Allies in the Opposition to What Trump Represents,

Having spent some years studying and teaching about the structure and functioning of Nazi ideology, and having written books on the Christian-Jewish relationship in German culture, as well as German Orientalism, I would like to apply some of what I may have learned about extreme right-wing ideologies to the current situation by commenting on the limited efficacy of the “no one is above the law” argument against Trumpism.

While you are obviously correct in constitutional terms to argue that “no one is above the law,” if you want to reach your opponents where they are, it may be necessary to recognize that, with them, this argument is impotent (and it is especially so when its foundations beyond constitutional legality have not been made both transparent and palpable). It has no persuasive force, although your opponents are not always prepared to admit this either to themselves or to others. Some of them think (or feel) that they still believe in this principle. Others are simply not quite courageous enough to say out loud: “No, I don’t believe in that.” Hence, the weird phenomenon, confusing to liberals, of people justifying Trump’s outrages again and again, saying: “he’s allowed to do that,” or “it’s not so bad,” or “it’s okay because he does other good things,” whereas actually what they mean and feel is: “these outrages are precisely what proves his superiority and his exceptional legitimacy as our Leader and as our Representative on the World Stage.”

But what exactly is the (ideo)logic according to which the argument that no one is above the law has no effect on the Trumpists? As their endless condoning of his transgressions against law indicates, the argument remains without effect for the simple reason that these people believe, at least implicitly, that if no one is above the law, there is no Leader: in order to Lead, the Leader has to be above the law. Moreover, this Leader figure — above and outside the law, and thus able to determine the law from without, and in effect to “give” the law and/or to “enforce” it, but also to “take it away” or “remove” it [“you’re fired”!] — represents for his supporters that part of themselves that does not adhere to (or disappear into) the law, their inherent lawlessness. Such lawlessness is in fact a universally human aspect, part of all of us, and we all need to acknowledge and to account for this aspect, while explaining to ourselves and others how this aspect relates to the role and rule of law. This remains a desideratum of political discourse.

The Trumpists thus feel represented by Trump not just in their racism and sexism, their nostalgia, their “American” identifications, their “Christian” identifications, their xenophobia, their desire to deny impending human-caused climate disaster, their regret that the US is no longer the center of the universe (of course, it never was, but it felt like it for awhile if you were one of “us,” I suppose) — not just in all of this but specifically and more importantly in their lawlessness, as the most cherished part of themselves. In fact, the particular ideological commitments just enumerated are examples of such lawlessness, in their manifest irrationality and arbitrariness and in their particularism, which contradicts the universality of law.

The Leader has to be outside the law in order to lead by representing the extra-legal aspect of the represented, which they tacitly recognize as their core. For if he represents their extra-legal core, then their subjection to him disappears, and whatever he may dictate or decree by executive order, twitter, or otherwise, whatever law may emerge from him as expression of his lawless sublimity and sovereignty, his defiant “attitude,” stands for their own. His leadership is their own: neo-authoritarian imaginary-identity politics in action. But why is this lawlessness imagined to be their core, or essence? Evidently, it’s a question of a certain notion of freedom.

For — and this is the second crucial part of the ideology — not only can one not lead if one is not above the law, but one cannot be free if one is not above the law, or outside of it. Our (impoverished and deluded) common notion of freedom as the freedom of lawless inclination assures that this is the case. Of course, such an impoverished and deluded notion is not the only concept of freedom that exists or might be considered. And just to take one example — but it is not just any example — for Enlightenment figures such as Immanuel Kant, freedom is only freedom insofar as it is subject to a law that it paradoxically gives to itself by recognizing a universality that exceeds and expands the ego’s purview, the law of auto-nomy, i.e. a law in the proper sense of the word, rather than an arbitrary command of the senseless ego.

We still need, in many ways, to rethink this thought, in communication with many other concepts of freedom both in history and all around us in other cultures and languages, so as to question our own naive sense of freedom as emancipation from any law (or thing, or other, seen as giving us a law) whatsoever. For insofar as we remain tethered to our current concept, we will continue to have to struggle against its most simplistic right-wing manifestation. According to this version: the representation of our freedom in our Leader has to be the representation of our lawlessness in Him. That is why Trump’s self-dealing, his cheating, his sexual profligacy and perversity, his lack of a plan, his lack of a rationally coherent foreign policy strategy, his unpredictability, and in fact his pure incoherence and chaos serve to demonstrate that he is a free Leader — the free Leader who represents our freedom, the Leader of our freedom, our emancipator, the realization of our own lawless truth.

However, since law is not entirely escapable, the feeling that the “others” are not following the law that “I” (or “we”) have to follow always manifests the resentment arising out of the compromise of living in society. The right-wing call for “law and order” is thus the paradoxical flip-side of the hatred of law. It demands that the “others” be constrained, so that “I” — here, essentially the white male Christian American — can be free, since now “my” free Leader is (finally!) imposing on all the “others” the law that represents my free power. Trump’s call for “law and order” goes hand in hand with his manifest lawlessness.

It seems patently clear, moreover, that the followers of Trump understand this coherence, even if they can’t quite articulate it clearly. Indeed, articulating it in emotional — and hence, again, antirational or lawless — terms does the job for them, since such a mode of articulation participates in the lawlessness it not only approves but embraces, in fact, as its highest value.

The belief in lawless freedom as condition of leadership coheres — and here’s the third aspect of Trumpist ideology I want to highlight — with the belief in lawless freedom as condition of belief tout court. This explains why Trump appeals to American Christian voters (which is so baffling to good liberals everywhere, including religious ones), even where he is manifestly indifferent to religion and to morals. Here, the nationalism of “American” both mimics and distorts the “Christian” term it supplements and supplants. In his ostensibly or apparently free lawlessness Trump appeals to the adherents of a certain discourse of American Christianity because, for a fundamentalist line of argument, which draws in this point on orthodox Pauline Lutheranism, the law (always from this Protestant perspective a “Jewish” — or, since the 19th century, more broadly a Semitic — law) is opposed to freedom as spirit, as mercy, as faith, and so on. Christian spiritual freedom, for this discourse, is not just contradicted but precisely proven by the Leader’s lawlessness.

The results of his lawless dictates are not mere laws, because they are the pure expression of his faith in “America” and in himself (in himself as America and America as himself) as divinely justified will to power. It’s uncannily appropriate, in this regard, that Adam Schiff, Jerry Nadler, and Nancy Pelosi (two Jews and a Catholic) led the charge against Trump in the House of Representatives. At the same time, this misleadingly makes it seem as if the conflict were really one between non-Protestants and Protestants. To the contrary, it is a question of whether faith is seen as strictly opposed to law or as maintaining a complex interdependence with law, as Mitt Romney maintained on February 6th, demonstrating that this most simple-minded, binary version of Christian “faith” — versus law — is not inevitable within Protestant traditions or subjects.

The illusion that religious “identities” are essentially at stake in turn blends into the impression that the conflict is one of non-whites against whites, women against men, foreigners against Americans. The rhetoric of the right wing connects its phobic relation to law with racist and masculinist xenophobia by associating all non-white-male “minorities” implicitly with the law and regulatory constraint, since rights to equal participation are not only guaranteed by law but represent the principle of law as the principle of justice.

Trump’s reference to “manifest destiny” in his State of the Union address on February 4, 2020 confirms this, in the address to his “base,” effacing the properly fundamental stakes, which concern the equation between leadership, lawlessness, freedom, and spirit as American, white, and male. “America” supplements Christianity here as the “Aryan race” supplemented Christianity in National Socialism: in each case, a national spirit replaces the infinitely interpretive legal text of the Jewish faith as foundation for Christianity, which means replacing the idea of a hermeneutics of justice with the idea of the will (the “free will” as such) of a national identity conceived as a race, a place, and a sex. Law, which is always open to interpretation, implies mediation, representation, deferral of presence, uncertainty, and the partial disruption of actions. These aspects of law induce panic in a populace wanting the immediate certainty of their self-presence, which their national religion and the cult of free Personality seem to guarantee them.

My point, then, is simply that, in light of these three interlocking, right-wing ideological principles — that Leadership presupposes lawlessness, that lawlessness is the condition of freedom itself, and that lawless freedom is the condition of spirituality in the American Christian sense — one cannot argue effectively against Trumpism by arguing that the Leader is not above the law. The predictable and predicted failure of the impeachment in the Senate — although it can be attributed to many particular causes — proves this, by which I don’t mean to argue that the impeachment in the House was not necessary and good. I mean rather to contribute to a sharpening of our understanding of why it had to fail in the Senate, with the Republicans in general, and with Trump’s base especially, by whom evidently almost all other Republicans have been terrorized or otherwise seduced into submission. The right-wing answer (albeit somewhat silent) is: “to the contrary, no real Leader is subordinate to the law, and anyone who is subordinate to the law cannot be a Leader! No so-called ‘leader’ who claims to be within the law is either free or an American Christian. No such fake ‘leader’ can be our Leader, for we are the American Leaders of the free, Christian world!” Indeed, this ideological complex undergirds many of the particular positions for the protection and support of which many Republicans who might find some aspects of Trump’s chaotic transgressiveness repellent continue to support him. It will thus be necessary to render comprehensible to the American public why lawfulness is necessary to leadership, why freedom cannot be lawless and remain freedom, and why lawfulness maximizes freedom by ensuring equality. No small task.

Jeffrey S. Librett is Professor of German at the University of Oregon