Introduction

How did the Trump presidential campaign manage to advance a viable law-and-order politics in 2016 despite media reports of criminal lawbreaking within the orbit of the campaign? How did President Trump sustain these politics over the course of his presidency while persistently condemning the nation’s foremost criminal enforcement institutions?

This Essay proposes a conceptual overlay by which to improve scholarly understanding of the relationship between law-and-order politics and rule-of-law principles. 1Open this footnote Close this footnote 1 The “rule of law” has been described by legal philosophers as the notion that state actors and citizens are “obligated to abide by the regime of legal rules that govern their conduct.” Brian Z. Tamanaha, How an Instrumental View of Law Corrodes the Rule of Law, 56 DePaul L. Rev. 469, 469 (2007). The rule-of-law regime is also, in part, rule by legal norms, “norms whose meaning is not so obscure or contestable as to leave those who are subject to them at the mercy of official discretion.” Jeremy Waldron, The Rule of Law and the Importance of Procedure, 50 Nomos 3, 4 (2011). …Open this footnote Close It argues first that law-and-order politics tends to reduce the notion of order to the violent crime committed by racial minorities. Sociolegal scholars have characterized the law-and-order campaign as, in significant part, a political tactic based on implicit appeals to white racial bias. 2Open this footnote Close this footnote 2 See, e.g., Michael W. Flamm, Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s 2 (2005) (“Law and order thus became the vehicle by which urban whites transmitted their antipathy to neighborhood integration and fear of racial violence from the municipal to the presidential arena”); Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 Stud. Am. Pol. Dev. 230, 247 (2007) (“[Conservatives] attached civil rights to lawlessness by arguing that civil disobedience flouted laws and would inevitably lead to more lawless behavior”); Amy E. Lerman & Vesla M. Weaver, Race and Crime in American Politics: From Law and Order to Willie Horton and Beyond, in Oxford Handbook of Ethnicity, Crime, and Immigration 41 (Sandra Bucerius & Michael Tonry eds., 2014) (discussing how stereotypes regarding black criminality are often used for political gain); Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics 41-42 (1997) (describing 1960s conservative political strategies, including “appealing to racial fears and antagonisms. . . . and the use of coded antiblack campaign rhetoric (e.g., law-and-order rhetoric)”); Naomi Murakawa, The First Civil Right: How Liberals Built Prison America 54 (2014) (“By making black violence (against whites) the barometer of progress, liberals doubly abnegated structural law-and-order—once in the circumscribed definition of violence, and once again in the mismeasure of racial justice”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 50 (10th anniversary ed. 2020) (“The rhetoric of ‘law and order’ was first mobilized in the late 1950s as Southern governors and law enforcement officials attempted to generate and mobilize white opposition to the Civil Rights Movement”); Randall Kennedy, Race, Crime and the Law 4 (1997) (“For some politicians, the law and order slogan has served as a thinly veiled code with which to signal sympathy for and solidarity with whites upset by the social, political, and cultural changed brought about by upheavals of the 1960s particularly the Civil Rights Revolution”). For similar analysis in popular media, see David A. Graham, The Shaky Basis for Trump’s “Law and Order” Campaign, Atlantic (July 12, 2016), https://perma.cc/C8J4-M9RC (discussing law and order as a “potent mantra” for Richard Nixon during his 1968 presidential campaign). “Nixon was skilled at leveraging racial tension and resentment to get white votes. Trump is pursuing a similar strategy.” Id. …Open this footnote Close But the Trump Administration’s deployment of law-and-order politics reveals another important implication of the law-and-order campaign, one that speaks to rule-of-law norms. In narrowing the state of the criminal–legal order (that is, the degree of criminal–legal compliance) to the state of minority violent crime, the law-and-order campaign may, in effect, reduce the salience of various other suborders within the criminal–legal order. 3Open this footnote Close this footnote 3 In this sense, the Trump presidency raises a question yet to be squarely addressed in the sociolegal literature: What sort of criminal mischief happens in the shadow of the law-and-order campaign? …Open this footnote Close Put another way, criminal offending within the Trump presidential campaign and Administration may have been more politically damaging to the Trump Administration had much of the public not been fixated on the allegation of a rising tide of minority violent crime.

This Essay thus considers the relationship between law-and-order politics and regard for rule-of-law principles by way of the Trump presidential campaign and presidency. Part I outlines an apparent paradox of the Trump presidency. It relates the Trump campaign’s reliance on minority-crime narratives (urban violence, 4Open this footnote Close this footnote 4 German Lopez, Donald Trump’s Black-on-Black Crime Tweet is Wrong in So Many Ways, Vox (Nov. 23, 2015, 11:30 AM EST), https://perma.cc/2XKE-8QR4 (to locate, click “View the live page”). …Open this footnote Close immigrant violence, 5Open this footnote Close this footnote 5 Domenico Montarano, Danielle Kurtzleben, Scott Horsley, Sarah McCammon & Richard Gonzales, Fact Check: Donald Trump’s Speech on Immigration, NPR (Aug. 31, 2016, 9:44 PM ET), https://perma.cc/RF8Z-NDLY. …Open this footnote Close and Muslim terrorism 6Open this footnote Close this footnote 6 Jenna Johnson & Abigail Hauslohner, “I Think Islam Hates Us”: A Timeline of Trump’s Comments About Islam and Muslims, Wash. Post (May 20, 2017, 12:16 PM PDT), https://perma.cc/5K9X-XZ7J. …Open this footnote Close chief among them) to the criminal lawbreaking of the Trump White House, Trump Administration efforts to call into question the basic legitimacy of various federal law enforcement agencies, 7Open this footnote Close this footnote 7 See infra Part I.B.4. …Open this footnote Close and President Trump’s own expressions of support for extralegal punishment meted out by police officers. 8Open this footnote Close this footnote 8 On one occasion, President Trump suggested that police officers knock arrestees’ heads against the squad car when taking them into custody. See Mark Berman, Trump Tells Police Not to Worry About Injuring Suspects During Arrests, Wash. Post (July 28, 2017, 5:43 PM PDT), https://perma.cc/U9T9-L54M. …Open this footnote Close Part II attempts to explain this dissonance by modeling law and order as a politics and discourse that implicitly narrows the broad scope of the criminal–legal order to the subject or suborder of minority violent crime.

The Essay closes in Part III by extending its specific modeling of the relationship between law-and-order politics and rule-of-law principles to the Black Lives Matter protests of 2020. It argues that the 2020 protests were subject to the same rule-of-law distortion as the Trump regime—namely, a fixation on minority violent crime—but to opposite effect. While much of the public did not consider criminal offending under the Trump regime as evidence of law and order’s decline, Black Lives Matter was often reduced within Trump’s law-and-order paradigm to the relatively few incidents of criminal violence committed by affiliated protesters. 9Open this footnote Close this footnote 9 See Erica Chenoweth & Jeremy Pressman, This Summer’s Black Lives Matter Protestors Were Overwhelmingly Peaceful, Our Research Finds, Wash. Post (Oct. 16, 2020, 3:00 AM PDT), https://perma.cc/84V7-VXW4 (arguing that “the Black Lives Matter uprisings were remarkably nonviolent”); Demonstrations & Political Violence in America: New Data for Summer 2020, Armed Conflict Location & Event Data Project, https://perma.cc/YA65-7WWE (archived Apr. 17, 2021) (“In more than 93% of all demonstrations connected to the movement, demonstrators have not engaged in violence or destructive activity.”). …Open this footnote Close

I. The Paradox

The Trump presidential campaign began with a promise to the national public: Then-candidate Trump would restore law and order upon entering the White House by, among other things, ending the supposed free rein given violent criminal predators by Democratic Party politicians. 10Open this footnote Close this footnote 10 In a campaign speech in Virginia Beach, Virginia, then-candidate Trump left little to the imagination: “We must maintain law and order at the highest level or we will cease to have a country, 100 percent . . . . I am the law and order candidate.” Louis Nelson, Trump: “I Am the Law and Order Candidate”, Politico (updated July 11, 2016, 3:15 PM EDT), https://perma.cc/EY2H-VDRM; see also Phillip Bump, Trump Keeps Claiming that the Most Dangerous Cities in America Are All Run by Democrats. They Aren’t., Wash. Post (June 5, 2020, 2:28 PM PDT), https://perma.cc/QCG9-XATK (“‘You hear about certain places like Chicago and you hear about what’s going on in Detroit and other—other cities, all Democrat run,’ [Trump] said. ‘Every one of them is Democrat run. Twenty out of 20. The 20 worst, the 20 most dangerous are Democrat run.’”). …Open this footnote Close Yet the Trump White House, time and again, showed open contempt for rule-of-law principles. Concurrent with its law-and-order stance, the Administration exhibited criminal behavior and routinely attacked the legitimacy of the nation’s chief law-enforcement agencies.

As a preliminary matter, this Part argues that despite the deep tension between these two positions, manifest over the course of the Trump presidency, the Administration’s law-and-order politics did not wither and die on the vine. The contradiction inherent to President Trump’s role as law-and-order chieftain never registered in the public consciousness despite recognition that the Trump presidency threatened to erode cherished rule-of-law principles.

A. American Carnage

In an op-ed in MinnPost, Eric Black asked how then-President Donald Trump was able to sell an American “carnage” narrative in his Inaugural Address given that the nation had enjoyed decreasing crime rates over the course of his predecessor’s tenure. 11Open this footnote Close this footnote 11 See Eric Black, Opinion, Trump Looks at America and Sees “Carnage.” Really?, MinnPost (Jan. 20, 2017), https://perma.cc/S99R-YL89. According to the FBI’s Uniform Crime Report, the number of violent crimes fell by an average of about 18,000 per year during Barack Obama’s presidency. 2016: Crime in the United States, FBI: UCR, https://perma.cc/UL28-BHM9; see also Graham, supra note 2. …Open this footnote Close After referring to Trump’s use of the term in his inauguration speech that day, Black cited the dictionary definition of carnage—“the slaughter of a great number of people, as in battle; butchery; massacre”—and registered his objection. 12Open this footnote Close this footnote 12 Black, supra note 11. …Open this footnote Close

Carnage served as a through-line for the Trump campaign. 13Open this footnote Close this footnote 13 See Aaron Blake, Trump Said He Would Stop the “American Carnage.” It Hasn’t Even Slowed Down., Wash. Post (Oct. 3, 2017, 8:35 AM PDT), https://perma.cc/ASP5-LXEH. …Open this footnote Close In his opening press conference, Trump argued that Mexico was “not sending [the U.S.] their best . . . . They’re sending people that have lots of problems and they’re bringing those problems to us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” 14Open this footnote Close this footnote 14 Alexander Burns, Choice Words from Donald Trump, Presidential Candidate, N.Y. Times (June 16, 2015, 2:01 PM EDT), https://perma.cc/ERV8-XM7X. …Open this footnote Close

The association between rape and a disfavored racial element strikes a nerve given the way in which rape has been used in the national discourse to affirm the nation’s racial hierarchy. 15Open this footnote Close this footnote 15 See generally Jennifer Wriggins, Note, Rape, Racism, and the Law, 6 Harv. Women’s L.J. 103 (1983) (detailing the disproportionate impact the legal system’s selective approach to rape law has had on Black men and women); see also Joane Nagel, Race, Ethnicity, and Sexuality: Intimate Intersections, Forbidden Frontiers 99-100 (2003) (discussing race and rape in colonial Virginia, and noting that “[r]ape in early America was a crime whose definition was structured by race”). …Open this footnote Close But for the purposes of this Essay, it’s important to turn from visceral reaction to Trump’s now-famous quote to focus narrowly on his premeditation. Time and again, the Trump campaign plucked the same string, directing the public’s attention to the subject of minority criminal violence. And while it may seem uncharitable to highlight the most provocative of Trump’s references to minority violence, these are the statements that did the heavy lifting. Splashy anecdotes about minority crime and fabricated minority violent crime statistics conveyed to the public the threat posed to law and order as conceived by Trump himself.

The Trump campaign’s narrative about the decline of criminal–legal compliance included a range of minority characters—from the violent immigrant gangster 16Open this footnote Close this footnote 16 In Trump’s narratives regarding immigrant violent crime, he regularly returned to the subject of sanctuary cities. Trump complained of the Latin American gangs “infest[ing]” the country. Ben Zimmer, What Trump Talks About When He Talks About Infestations, Politico Mag. (July 29, 2019), https://perma.cc/7JKQ-UGB9. The theme of minority crime infestation frequently appeared in President Trump’s tweets, prompting New York Times columnist Charles Blow to highlight the danger of President Trump’s language given that the logic of infestation serves as the basis for “exterminations.” Id. (quoting Charles M. Blow, Opinion, The Rot You Smell Is a Racist POTUS, N.Y. Times (July 28, 2019), https://perma.cc/3SAA-P78J). …Open this footnote Close to the Muslim immigrant terrorist 17Open this footnote Close this footnote 17 See Johnson & Hauslohner, supra note 6 (providing a timeline of President Trump’s comments on Muslims, including references to “Islamic terrorism” in America and a 200,000-man army of Syrian refugees in America, which he termed “one of the greatest tactical ploys of all time” that “could make the Trojan horse look like peanuts”). …Open this footnote Close to the predatory black thug. 18Open this footnote Close this footnote 18 Trump has referred to Black Lives Matters protestors as “thugs,” a label known to have racial connotations. See Nicole Chavez & Ray Sanchez, Trump Calls Protestors “Thugs” Despite Peaceful Demonstrations in Tulsa and Much of the US, CNN (updated June 20, 2020, 10:53 PM ET), https://perma.cc/H8QD-AN67; George Floyd Protest: What Do “Thug”, “White Privilege” and “Ally” Mean?, BBC News (June 10, 2020), https://perma.cc/6826-JKJF (suggesting that among political leaders, the word “thug” “has become a loaded term when referring to black people”). …Open this footnote Close In his speech at the Republican National Convention, Trump addressed the victims and witnesses of the derivative “chaos” saying, “I have a message for all of you: the crime and violence that today afflicts our nation will soon come to an end. Beginning on January 20, 2017, safety will be restored.” 19Open this footnote Close this footnote 19 Full Text: Donald Trump 2016 RNC Draft Speech Transcript, Politico (July 21, 2016, 6:21 PM EDT), https://perma.cc/RZR4-7AYR. …Open this footnote Close

Then-candidate Trump presented Chicago, President Barack Obama’s adopted hometown, as the paradigmatic example of the public-safety problem. In an August 2016 tweet that characterizes his trademark misdirection, Trump expressed optimism that African Americans would support his candidacy because “[i]nner-city crime is reaching record levels,” 20Open this footnote Close this footnote 20 Philip Bump, Donald Trump’s Understanding of the Historical Nature of Crime Is Upside Down, Wash. Post (Aug. 29, 2016, 7:44 AM PDT), https://perma.cc/66RU-PF6F. …Open this footnote Close adding that African Americans “know that I will stop the slaughter going on!” 21Open this footnote Close this footnote 21 Id. …Open this footnote Close

Extending the theme in a September debate with Democratic nominee Hillary Clinton, Trump incorporated references to African Americans, Hispanics, Chicago, and hell:

We have a situation where we have our inner cities, African Americans, Hispanics are living in hell because it’s so dangerous. You walk down the street, you get shot. In Chicago, they’ve had thousands of shootings, thousands since January 1st. Thousands of shootings. And I’m saying, where is this? Is this a war-torn country? What are we doing? And we have to stop the violence, we have to bring back law and order in a place like Chicago where thousands of people have been killed, thousands over the last number of years. 22Open this footnote Close this footnote 22 Tara Golshan, First Presidential Debate Transcript: Live Updates from Hillary Clinton and Donald Trump’s Face-off, Vox (Sept. 26, 2016, 7:00 PM EDT), https://perma.cc/UAC4-MSCS. For articles documenting Trump’s use of terms like “hell” and “war-torn” to describe predominantly African-American and Hispanic residential spaces and to establish a premise for the law-and-order campaign see Aaron Blake, The First Trump–Clinton Presidential Debate Transcript, Annotated, Wash. Post (Sept. 26, 2016, 8:59 PM PDT), https://perma.cc/PER7-DC3M; Matthew Nussbaum, Trump at Debate: Minorities in Cities “Are Living in Hell”, Politico (Sept. 26, 2016, 10:05 PM EDT), https://perma.cc/QZF6-AYN5; Jaweed Kaleem & Ann M. Simmons, Trump Says African Americans Are Living in Hell. That Depends on What You Mean by Hell, L.A. Times (Nov. 5, 2016, 6:55 AM PT), https://perma.cc/V4W3-Q7BV; Jonathan Easley, Trump: African-Americans and Hispanics “Are Living in Hell”, The Hill (Sept. 26, 2016, 10:04 PM EDT), https://perma.cc/8SA3-TRH5; and Melissa Chan, Donald Trump Claims Black and Hispanic People Are “Living in Hell”, Fortune (Sept. 26, 2016, 10:11 PM PDT), https://perma.cc/UKJ4-CVH9. …Open this footnote Close

On another occasion, in the early stages of his campaign, Trump linked the trope of the murderous black predator to fake statistics by way of a retweet. 23Open this footnote Close this footnote 23 Philip Bump, Donald Trump Retweeted a Very Wrong Set of Numbers on Race and Murder, Wash. Post (Nov. 22, 2015, 1:46 PM PST), https://perma.cc/2AR8-WD9F. …Open this footnote Close The embedded tweet displayed a figure with dark skin, dressed in dark clothing and a face-masking bandana, extending a handgun. Hovering just below the handgun were several statistics: that 81% of white homicide victims suffered their fate at the hands of a black assailant, that only 16% of white homicide victims are killed by white perpetrators, and that 97% of black homicide victims were killed by other blacks. 24Open this footnote Close this footnote 24 Lopez, supra note 4. …Open this footnote Close

The statistics are plainly inaccurate. For instance, 82% of white murder victims are murdered by white assailants. 25Open this footnote Close this footnote 25 Id. …Open this footnote Close But the tweet itself amounted to a dare: Go ahead, try to un-ring the bell.

B. In the Shadow of Law and Order

Many within and in close proximity to the Trump campaign and presidency violated the federal criminal law, often to further President Trump’s political interests. The following profile describes in broad strokes public corruption by federal law-enforcement officials in the Trump campaign and White House. Within the Essay’s theoretical framework, this corruption should be considered as a suborder within the larger criminal–legal order, one whose decline did not meaningfully alter the arch of Trump’s law-and-order politics.

1. Select criminal charges and convictions

Even the most dedicated political observer would have struggled to track the scope of criminal lawbreaking under the Trump political regime. A full accounting of criminal transgressions by members of the Trump campaign and White House—a virtual crime spree within and around the federal executive—seems an essential first step toward appreciation of the relationship between law-and-order politics and rule-of-law principles under the Trump presidency. This Essay offers just a sample.

Michael Cohen. President Trump’s former personal attorney pled guilty on August 21, 2018 to eight criminal charges relating to campaign finance, tax evasion, and bank fraud. 26Open this footnote Close this footnote 26 Michael Cohen Pleads Guilty in Manhattan Federal Court to Eight Counts, Including Criminal Tax Evasion and Campaign Finance Violations, U.S. Dep’t of Just. (Aug. 21, 2018), https://perma.cc/T56E-FZPB. …Open this footnote Close The campaign finance violations were based in part on money payments to women who had previously had intimate relationships with “Individual-1,” widely understood to be President Trump himself. 27Open this footnote Close this footnote 27 Id.; see also Chuck Rosenberg, Michael Cohen Named Trump as “Individual-1”. Here’s Why Prosecutors Haven’t Identified Him in Court, NBC News (Dec. 12, 2018, 11:51 AM PST), https://perma.cc/52E3-K4WY; Associated Press, What of “Individual-1”? Feds’ Trump Campaign Case Is “Dead”, AP News (Feb. 5, 2021), https://perma.cc/L844-MASP (to locate, click “View the live page”). …Open this footnote Close Cohen was also convicted in November 2018 of lying to the Senate regarding Trump’s pursuit during the 2016 presidential cycle of a real estate project in Moscow. 28Open this footnote Close this footnote 28 Mark Mazzetti, Benjamin Weiser, Ben Protess & Maggie Haberman, Cohen Pleads Guilty and Details Trump’s Involvement in Moscow Tower Project, N.Y. Times (Nov. 29, 2018), https://perma.cc/PE8B-U79W; Transcript of Plea Hearing at 7, 25, United States v. Cohen, No. 1:18-cr-850 (S.D.N.Y. Nov. 29, 2018), https://perma.cc/X7ZL-7MKG. …Open this footnote Close U.S. District Judge William H. Pauley III sentenced Cohen to three years in federal prison and ordered him to pay a $50,000 fine. 29Open this footnote Close this footnote 29 Michael Cohen Sentenced to Three Years in Prison, U.S. Dep’t of Just. (Dec. 12, 2018), https://perma.cc/9JWN-R27V. …Open this footnote Close Cohen was later disbarred. 30Open this footnote Close this footnote 30 Tom Winter, Michael Cohen Has Been Disbarred, NBC News (Feb. 26, 2019, 2:17 PM PST), https://perma.cc/5JU2-PSD4. …Open this footnote Close

Paul Manafort. President Trump’s former campaign chairman plead guilty to two counts of conspiracy to defraud the United States. 31Open this footnote Close this footnote 31 Sharon LaFraniere & Kenneth P. Vogel, Paul Manafort Agrees to Cooperate with Special Counsel; Pleads Guilty to Reduced Charges, N.Y. Times (Sept. 14, 2018), https://perma.cc/JB4P-CAQK. …Open this footnote Close U.S. District Judge Amy Berman Jackson sentenced Manafort to seven-and-a-half years in prison. 32Open this footnote Close this footnote 32 Sharon LaFraniere, Paul Manafort’s Prison Sentence Is Nearly Doubled to 7 ½ Years, N.Y. Times (Mar. 12, 2019), https://perma.cc/97YP-6D9P. …Open this footnote Close At sentencing, Judge Berman Jackson noted the long arc to Manafort’s criminal offending, finding that much of Manafort’s professional career had been spent “gaming the system.” 33Open this footnote Close this footnote 33 Id. …Open this footnote Close President Trump issued Manafort a full pardon on December 23, 2020. 34Open this footnote Close this footnote 34 Amita Kelly, Ryan Lucas & Vanessa Romo, Trump Pardons Roger Stone, Paul Manafort and Charles Kushner, NPR, https://perma.cc/JE6B-VWEC (last updated Dec. 23, 2020, 11:00 PM ET). …Open this footnote Close

Roger Stone. In the months leading up to the 2016 presidential election, Roger Stone coordinated with the website WikiLeaks to obtain stolen emails damaging to the Clinton presidential campaign. 35Open this footnote Close this footnote 35 See Lauren Gambino, Roger Stone: Trump Adviser Found Guilty on All Counts in WikiLeaks Hacking Case, Guardian (Nov. 15, 2019, 1:31 PM EST), https://perma.cc/3MC8-PS95 (to locate, click “View the live page”). …Open this footnote Close (The Justice Department alleged in court filings that Russian hackers obtained the documents and delivered them to WikiLeaks. 36Open this footnote Close this footnote 36 Ellen Nakashima & Shane Harris, How the Russians Hacked the DNC and Passed Its Emails to WikiLeaks, Wash. Post (July 13, 4:26 PM PDT), https://perma.cc/F4DD-M74H. …Open this footnote Close ) While under oath before the House Intelligence Committee, Stone testified that he had not discussed his WikiLeaks contacts with the Trump campaign. 37Open this footnote Close this footnote 37 Gambino, supra note 35. …Open this footnote Close When evidence arose establishing that, in fact, Stone had been in regular contact with the Trump campaign regarding his dealing with WikiLeaks, a federal jury convicted Stone of seven felony counts. 38Open this footnote Close this footnote 38 See id. …Open this footnote Close Judge Amy Berman Jackson sentenced Stone to more than three years in prison. President Trump commuted Stone’s prison sentence on July 10, 2020, and pardoned Stone on December 23, 2020. 39Open this footnote Close this footnote 39 Here Are Some of the People Trump Pardoned, N.Y. Times (Jan. 26, 2021), https://perma.cc/2PE2-Q6R8. …Open this footnote Close

Michael Flynn. Flynn served in the Trump Administration for twenty-three days as National Security Advisor. 40Open this footnote Close this footnote 40 Michael Flynn: Trump’s Pardoned National Security Advisor, BBC (Nov. 25, 2020), https://perma.cc/DE2N-3LF5. …Open this footnote Close He resigned in the face of allegations that he had made false statements to federal investigators regarding communications with the Russian government just prior to President Trump’s inauguration. 41Open this footnote Close this footnote 41 Chad Day, The Mueller Report’s Account of Michael Flynn’s Lies, AP News (Apr. 29, 2019), https://perma.cc/68TQ-CK6Y (to locate, click “View the live page”). …Open this footnote Close Flynn eventually plead guilty to the charge of lying to federal investigators regarding the same communications. 42Open this footnote Close this footnote 42 Statement of the Offense at 1, United States v. Flynn, No. 1:17-cr-00232 (D.D.C. Dec. 1, 2017), https://perma.cc/KC3L-EB2Z. …Open this footnote Close President Trump pardoned Flynn on November 25, 2020. 43Open this footnote Close this footnote 43 Here Are Some of the People Trump Pardoned, supra note 39. …Open this footnote Close

Stephen Bannon. The Justice Department charged former campaign manager and Chief White House Strategist Steve Bannon with fraud in connection with an alleged scheme to use private donations slated for the project of building a wall on the nation’s southern border for personal benefit. 44Open this footnote Close this footnote 44 Alan Feuer, William K. Rashbaum & Maggie Haberman, Steve Bannon is Charged with Fraud in We Build the Wall Campaign, N.Y. Times, https://perma.cc/CF9E-TZMP (last updated Jan. 20, 2021). …Open this footnote Close President Trump pardoned Bannon on January 19, 2021. 45Open this footnote Close this footnote 45 Here Are Some of the People Trump Pardoned, supra note 39. Each of the Trump presidential campaign managers in the 2016 cycle—Corey Lewandowski, Paul Manafort, and Steve Bannon—was subject to criminal charges based on activities related to the campaign. Philip Bump, Each of the Three People Who Led Trump’s 2016 Campaign Has Now Faced Criminal Charges, Wash. Post (Aug. 20, 2020, 7:54 AM PDT), https://perma.cc/NH2V-WZHL; Jemima McEvoy, Bannon Joins Long List of Trump Associates Who Have Been Charged or Imprisoned, Forbes (Aug. 20, 2020, 12:56 PM EDT), https://perma.cc/2KV3-46QB. …Open this footnote Close

2. Pending criminal investigations

As of this writing, the Justice Department continues to investigate irregular financial transactions associated with President Trump’s 2016 inaugural committee, which raised a record $107 million. 46Open this footnote Close this footnote 46 Maggie Haberman & Ben Protess, Trump Inaugural Committee Ordered to Hand over Documents to Federal Investigators, N.Y. Times (Feb. 4, 2019), https://perma.cc/JX8R-JL85; Jefcoate O’Donnell, All the Legal Trouble in Trumpworld, Foreign Pol’y (Mar. 8, 2019, 6:00 AM), https://perma.cc/783L-2VGE. For a more recent report on the investigation, see Mike Ives, Donor to Trump Inauguration Sentenced to 12 Years in Federal Inquiry, N.Y. Times (Feb. 19, 2021), https://perma.cc/57F9-75GE. …Open this footnote Close Among the crimes reported to be of interest are mail fraud, wire fraud, and money laundering. 47Open this footnote Close this footnote 47 O’Donnell, supra note 46. …Open this footnote Close A media firm run and owned by a personal friend of First Lady Melania Trump received $26 million as the event’s highest-paid contractor, most of which is alleged to have been passed on to subcontractors. 48Open this footnote Close this footnote 48 Ilya Marritz & Justin Elliott, Trump’s Inauguration Paid Trump’s Company—With Ivanka in the Middle, ProPublica (Dec. 14, 2018, 1:19 PM EST), https://perma.cc/G5PT-LLXM. …Open this footnote Close There is also an ancillary criminal inquiry into whether foreign entities illegally donated to the committee. 49Open this footnote Close this footnote 49 Haberman & Protess, supra note 46. …Open this footnote Close

Finally, at the time of this writing, the Justice Department is investigating Republican fundraiser Elliott Broidy for operating a “bribery-for-pardon” scheme in conjunction with the Trump White House. 50Open this footnote Close this footnote 50 Michael S. Schmidt, Kenneth P. Vogel, Katie Benner & Adam Goldman, Trump Associates Said to Have Been Scrutinized in Suspected Pardon Scheme, N.Y. Times, https://perma.cc/5AL4-8RJR (updated Dec. 4, 2020); Matt Stieb, DOJ Investigating “Bribery-for-Pardon” Scheme Involving White House, N.Y. Mag. (Dec. 3, 2020), https://perma.cc/Z5HY-C42Y (to locate, click “View the live page”). …Open this footnote Close The alleged scheme is reported to involve Trump son-in-law Jared Kushner’s lawyer, Abbe Lowell. 51Open this footnote Close this footnote 51 Schmidt et al., supra note 50. …Open this footnote Close Broidy had just recently been convicted of conspiracy to violate foreign lobbying laws as part of an effort to sell to foreign entities his influence within the Trump White House. 52Open this footnote Close this footnote 52 Kenneth P. Vogel, Elliott Broidy Pleads Guilty in Foreign Lobbying Case, N.Y. Times (Oct. 20, 2020), https://perma.cc/DA2V-TQHF; Stieb, supra note 50. …Open this footnote Close President Trump pardoned Broidy on January 20, 2020. 53Open this footnote Close this footnote 53 Factbox: Notable Names on Trump’s Pardon List, Reuters (Jan. 20, 2021, 7:53 AM), https://perma.cc/S4NT-5SDH. …Open this footnote Close

3. Uncharged criminal conduct

Volume II of the Justice Department’s Mueller Report details ten acts by President Trump that may have constituted obstruction of justice. 54Open this footnote Close this footnote 54 Robert S. Mueller, III, U.S. Dep’t of Just., Report on the Investigation Into Russian Interference in the 2016 Presidential Election 8 (2019), https://perma.cc/RXK5-P589 (“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”). …Open this footnote Close Legal commenters disagree as to whether criminal liability attached to these acts given uncertainty about the precise scope of presidential authority. 55Open this footnote Close this footnote 55 See, e.g., Quinta Jurecic, Obstruction of Justice in the Mueller Report: A Heat Map, Lawfare (Apr. 21, 2019, 2:32 PM), https://perma.cc/MTB6-6G3A (discussing the multiple actions by Trump that could have served as the basis for obstruction of justice charges). …Open this footnote Close

In an unrelated incident in July 2019, characterized by the House Judiciary Committee as implicating various federal criminal statutes including bribery (18 U.S.C. § 201), wire fraud (18 U.S.C. § 1343), and honest-services fraud (18 U.S.C. § 1346), 56Open this footnote Close this footnote 56 Jonathan Mahler, Can America Restore the Rule of Law Without Prosecuting Trump?, N.Y. Times Mag. (updated Nov. 19, 2020), https://perma.cc/W28X-SM4Z. …Open this footnote Close President Trump pressured the President of Ukraine to investigate Joseph Biden and his son, Hunter Biden. 57Open this footnote Close this footnote 57 Devlin Barrett, Matt Zapotosky, Carol D. Leonnig & Shane Harris, Trump Offered Ukranian President Justice Dept. Help in an Investigation of Biden, Memo Shows, Wash. Post (Sept. 25, 2019, 9:39 PM PDT), https://perma.cc/8U42-8NMH. The call would later serve as the evidentiary basis for the first Trump impeachment. Nicholas Fandos & Michael D. Shear, Trump Impeached for Abuse of Power and Obstruction of Congress, N.Y. Times (last updated Feb. 10, 2021), https://perma.cc/Z6VU-RGTL. …Open this footnote Close At the time of the call, Joseph Biden was viewed by many as the Democratic candidate who posed the greatest threat to Trump’s reelection in 2020. 58Open this footnote Close this footnote 58 See Henry Olsen, Opinion: Trump’s Greatest Threat Has Arrived, Wash. Post (Apr. 25, 2019, 11:51 AM PDT), https://perma.cc/XT9M-P2MG. …Open this footnote Close

4. Attacks on the legitimacy of the FBI and Department of Justice

The challenge the Trump Administration posed to the criminal–legal order extended beyond criminal lawbreaking to broad-based rhetorical attacks on federal law-enforcement agencies and pinpoint attacks on specific federal law-enforcement agents. Trump himself routinely denigrated federal criminal-enforcement institutions and agents by way of rhetorical darts from the national bully pulpit.

Then-candidate Trump initiated such an attack during the 2016 presidential campaign in response to the Justice Department’s investigation of Trump’s opponent in the campaign, Hillary Clinton. At the time, Clinton was suspected of unauthorized use of a private email server in connection with her role as Secretary of State within the Obama Administration. 59Open this footnote Close this footnote 59 . See Tessa Berenson, Donald Trump: Hillary Clinton Email Scandal “Worse than Watergate”, Time (Oct. 17, 2016, 8:35 PM EDT), https://perma.cc/FZ3V-7LRX; US Election 2016: Trump Cries Foul as FBI Clears Clinton, BBC (Nov. 7, 2016), https://perma.cc/ …Open this footnote Close Trump alleged that Clinton was being protected by a “rigged system,” 60Open this footnote Close this footnote 60 . David M. Jackson, Trump: FBI Decision on Clinton Emails Was “Rigged”, USA Today (updated July 5, 2016, 8:57 PM ET), https://perma.cc/SZ69-SCG2; US Election 2016, supra …Open this footnote Close pointing to a brief private meeting between Bill Clinton and Loretta Lynch on an airplane tarmac—a meeting that raised ethical questions across political media. 61Open this footnote Close this footnote 61 See, e.g., Dylan Matthews, Bill Clinton and Loretta Lynch’s Meeting Scandal is Every Clinton Scandal in Miniature, Vox (July 1, 2016, 1:20 PM EDT), https://perma.cc/8Q8Z-D48E; Julian Hattem, Lynch Pressured to Recuse Herself After Clinton Tarmac Meeting, The Hill (July 1, 2016, 6:03 AM EDT), https://perma.cc/Q5T8-B …Open this footnote Close At a campaign stop in Sterling Heights, Michigan, after FBI Director James Comey announced that the FBI had closed the investigation without filing charges against Clinton, Trump again broadly questioned the agency’s integrity: “Hillary Clinton is guilty, she knows it, the FBI knows it, the people know it and now it’s up to the American people to deliver justice at the ballot box.” 62Open this footnote Close this footnote 62 US Election 2016, supra note 59. Trump asserted in public comments that it was impossible for the FBI to complete a review of the server within the given time period. Id. …Open this footnote Close

Many of Trump’s criticisms of federal law enforcement were based on the claim of rank institutional corruption. The quality of these criticisms should be distinguished from criticism of discrete law-enforcement-agency missteps or claims regarding the proverbial “bad apples” of law enforcement. Trump’s verbal assaults instead matched that of anti-establishment, leftist law enforcement rhetoric of the 1960s 63Open this footnote Close this footnote 63 See David Greenberg, Here’s What Happened the Last Time the Left Got Nasty, Politico Mag. (July 5, 2018), https://perma.cc/M3RY-ZAZU (discussing the impact of leftist antiwar and antipolice rhetoric in the 1960s). Notably, Trump concentrated his rhetorical attacks on law-enforcement actors and institutions at the federal level. One could frame this approach as falling in tension with his effusive praise of police officers, but also as an extension of his condemnation of national elites. Maureen Groppe, President Trump Says He’ll Praise Police While Others Won’t, USA Today (May 15, 2017, 2:07 PM ET), https://perma.cc/UH7V-CYM5; Cathleen Decker, Analysis: Trump’s War Against Elites and Expertise, L.A. Times (July 27, 2017, 3:00 AM PT), https://perma.cc/8GTK-MWSN (to locate, click “View the live page”). …Open this footnote Close —seemingly the very antithesis of a pro-law-enforcement position.

Later, in 2019, Trump alleged that the FBI had attempted to “overthrow the presidency.” 64Open this footnote Close this footnote 64 Eric Tucker & Deb Riechmann, FBI Lawyer Suspected of Altering Russia Probe Document, AP News (Nov. 22, 2019), https://perma.cc/YA75-Z7QB. …Open this footnote Close He made this claim after the revelation that an FBI agent had improperly altered a document used to secure the warrant that served as the basis for surveillance of campaign adviser Carter Page. 65Open this footnote Close this footnote 65 Id. …Open this footnote Close On another occasion, Trump broadly disparaged federal law enforcement, alleging (via tweet) “tremendous leaking, lying and corruption at the highest levels of the FBI, Justice & State.” 66Open this footnote Close this footnote 66 Kathryn Watson, Trump Lashes out at FBI, State and Justice Departments for “Leaking, Lying and Corruption”, CBS News (Mar. 17, 2018, 6:24 PM), https://perma.cc/564G-TTEB (the full text of Trump’s tweet, while now deleted on Twitter, is quoted in this article). …Open this footnote Close And in yet another similar instance, Trump described the FBI as “badly broken” after the Justice Department Inspector General Michael Horowitz concluded that the Department’s investigation into Russian interference in the 2016 election had not been politically motivated. 67Open this footnote Close this footnote 67 Allie Malloy, Trump Lashes out at FBI Chief Wray for Embracing Watchdog Report, CNN (updated Dec. 10, 2019, 5:19 PM EST), https://perma.cc/S9BQ-SHP4; see also Off. of the Inspector Gen., U.S. Dep’t of Just., Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation iii-iv (2019), https://perma.cc/Q29E-E88M (concluding that the investigation was “in compliance with Department and FBI policies” and without political bias or improper motivation). …Open this footnote Close

Here, the analytical point is not that these various characterizations of federal law enforcement by Trump were inaccurate, but rather that they were offered by a president whose nascent political identity was predicated on diligent enforcement of the criminal law in service of social order. One would think the tension between Trump’s law-and-order campaign and the Trump regime’s repeated attempts to discredit federal criminal enforcement agencies would have been deeply compromising if not politically suicidal. This was not at all the case.

In a subsequent tweet urging the Justice Department to prosecute Hillary Clinton and Clinton’s aide, Huma Abedin, Trump identified the Department of Justice as subject to the “deep state.” 68Open this footnote Close this footnote 68 Stephen Collinson & Jeremy Diamond, Trump Again at War With “Deep State” Justice Department, CNN (updated Jan. 2, 2018, 3:30 PM EST), https://perma.cc/ZA86-27WD (“Crooked Hillary Clinton’s top aid, Human Abedin, has been accused of disregarding basic security protocols. She put Classified Passwords into the hands of foreign agents. Remember sailors pictures on submarine? Jail! Deep State Justice Dept must finally act? Also on Comey and others.”). …Open this footnote Close He later accused the FBI of being partially responsible for a mass shooting at a Florida high school that left seventeen people dead, arguing that the time the agency had dedicated to investigating Russian interference in the 2016 election had made schools less safe. 69Open this footnote Close this footnote 69 Michelle Price, Trump Says FBI Missed Signs on Florida Shooting Due to Russia Probe, Draws Criticism, Reuters (Feb. 18, 2018, 7:32 AM), https://perma.cc/RP56-4BSD. …Open this footnote Close Trump would later describe the Russian-interference investigation team based in the Justice Department as “highly conflicted” and a “gang of Democratic thugs.” 70Open this footnote Close this footnote 70 Adam Edelman, Trump Rages About Mueller Probe, Claims ‘Total Mess . . . Absolutely Nuts”, NBC News (updated Nov. 15, 2018, 8:38 AM PST), https://perma.cc/M74G-7WK7. …Open this footnote Close His personal attorney, Rudy Giuliani, compared the FBI to Nazi storm-troopers. 71Open this footnote Close this footnote 71 John Wagner & Robert Costa, Comey Takes to Twitter to Knock Giuliani for Calling FBI Agents “Stormtroopers”, Wash. Post (May 3, 2018, 11:03 AM PDT), https://perma.cc/ZU6Y-WTRS. …Open this footnote Close A prominent acolyte, Representative Devin Nunes, used similar rhetoric, tweeting that General Michael Flynn, President Trump’s former National Security Advisor, “was set up by dirty cops at the highest levels of our government.” 72Open this footnote Close this footnote 72 Devin Nunes (@DevinNunes), Twitter (Apr. 29, 2020, 3:51 PM), https://perma.cc/Q8XC-U9SA (to locate, click “View the live page”). …Open this footnote Close

In addition to challenging the credibility of the nation’s foremost law-enforcement agencies, President Trump targeted individual federal law-enforcement agents and their families. He alleged that Acting FBI Director Andrew McCabe had been compromised because his wife had run for political office as a Democrat. 73Open this footnote Close this footnote 73 See Carol E. Lee, Trump’s Gripes Against McCabe Included Wife’s Politics, Comey’s Ride Home, NBC News (updated Jan. 29, 2018, 2:16 PM PST), https://perma.cc/A7RH-U7AG. …Open this footnote Close He tweeted that FBI Director Comey was the “WORST FBI director in history”; 74Open this footnote Close this footnote 74 John Bacon, Trump: “Slippery” Comey Wanted a Job if Clinton Won White House, USA Today (updated Apr. 15, 2018, 6:23 PM ET), https://perma.cc/4RFU-STFZ (stating that, in addition to calling Comey the “WORST FBI director in history, by far!”, Trump claimed that Comey had expected employment in the Clinton Administration in the event that Clinton won the presidential election). …Open this footnote Close and in a closing flourish, suggested that federal law-enforcement agencies may have been involved in the alleged corruption of the 2020 presidential election: “This is total fraud. And how the FBI and Department of Justice—I don’t know—maybe they’re involved, but how people are getting away with this stuff—it’s unbelievable.” 75Open this footnote Close this footnote 75 Jemima McEvoy, Trump Claims FBI and Justice Department May Have Helped Rig Election, Forbes (Nov. 29, 2020, 11:42 AM EST), https://perma.cc/B8FV-RSZ2. …Open this footnote Close

II. Decline of the Criminal–Legal Order

Law-and-order politics are based in part on a promise to restore rule-of-law principles in the field of criminal law. This Part presents a framework by which to consider the dissonance between the Trump Administration’s law-and-order rhetoric, on the one hand, and its criminal offending and attacks on the federal law enforcement institutions on the other. It seeks to answer a fundamental question: How did the Trump Administration retain its standing (among at least a sizable portion of the national polity) as a beacon of law and order under these seemingly incongruous political circumstances?

Law-and-order politics reflect a specific misrepresentation of the criminal–legal order. Within the discursive frame of law-and-order politics, the state of the criminal–legal order is determined through general impressions of the prevalence of minority violent crime rather than through objective assessments of criminal–legal compliance as a general matter. Thus, having established that law-and-order politics are about little more than the amount of minority violent crime in society, the purveyors of law-and-order politics can pose what amount to attacks on law-enforcement agencies and individual personnel without compromising the law-and-order campaign.

To better understand law-and-order politics under the Trump regime, we should first think of the criminal–legal order as containing a broad range of overlapping suborders. Each suborder corresponds to one or more of the criminal offenses articulated in statutory criminal law. In this sense, the reach of the criminal–legal order and its constitutive suborders is determined by the scope of substantive criminal law. For example, one might think of public corruption and domestic terrorism as discrete suborders within the criminal–legal order, created by corresponding criminal offenses outlined in the criminal code.

Sociolegal scholars have long contemplated the benefits conveyed by law-and-order campaigns. Some have argued that law-and-order campaigns serve as a fallback position for white nationalist politics when de jure racial discrimination is no longer politically acceptable. 76Open this footnote Close this footnote 76 See, e.g., Weaver, supra note 2, at 247 (“The new norms of racial equality required that proponents avoid the explicitly racist justifications of its Jim Crow predecessor. Instead, supporters of punitive crime legislation now argued that civil rights strategies promulgated the idea that laws could be obeyed selectively. With the nation engulfed in violent protests, they reopened this argument to legitimize their attacks on the civil rights agenda and initial appeals for heavier handed law enforcement.”). …Open this footnote Close Others have noted that law-and-order politics provide political cover for liberal politicians supportive of minority civil rights, but vulnerable to the public’s tendency to conflate civil-rights activism and minority criminality. 77Open this footnote Close this footnote 77 See, e.g., Murakawa, supra note 2, at 78 (“Johnson’s speech in the immediate aftermath of Watts clarified the logic underlying his earlier Howard speech. ‘A rioter with a Molotov cocktail in his hands is not fighting for civil rights any more than a Klansman with a sheet on his back and a mask on his face.’ . . . [L]iberal Democrats could no longer dismiss southern focus on the threat of black violence as ‘self-serving’ efforts to ‘shift attention away from the terrible problems of the South.’”). …Open this footnote Close There is also the argument that law-and-order politics are motivated by objectively high violent crime rates, and that derivative crime policy is designed in significant part to address such violence. 78Open this footnote Close this footnote 78 See Lisa L. Miller, The Myth of Mob Rule: Violent Crime and Democratic Politics 34 (2016) (“Without attention to how serious violence, political mobilization, and crime agendas may be linked, the repressive interests of the majority are easily overstated, and the political mobilization capacity and demands of the most vulnerable correspondingly understated.”); John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform 185 (2017) (“Any significant reduction in the US prison population is going to require states and counties to rethink how they punish people convicted of violent crimes, where ‘rethink’ means ‘think about how to punish less’”); David Garland, Theoretical Advances and Problems in the Sociology of Punishment, 20 Punishment & Soc’y 8, 24 (2018); David Garland, Penal Power in America: Forms, Functions and Foundations, 5 J. British Acad. 17 (2017) (“[A]fter two decades of declining rates of crime and violence, it is difficult to appreciate the climate of opinion that produced draconian measures such as the Violent Crime Control and Law Enforcement Act of 1994—and politicians associated with these laws are now being made to pay a price. But it is important to recall, along with all the populism, racism, and opportunism of political officials, that homicide levels and public concern about violent crime were, in these years, at an all-time high.”). …Open this footnote Close But none of these theories regarding the incentive structure of law-and-order politics addresses the relationship between such politics and the public’s regard for forms of criminal offending unrelated to racial minorities.

What, then, is the relationship between law-and-order politics and the remainder of the criminal–legal order? In narrowing the criminal–legal order to a single suborder, law-and-order politics may lend political cover to its purveyors, namely, state officials who violate the criminal law, but do so in a manner unrelated to the suborder that the same officials target within law-and-order politics. Thus, the law-and-order political regime can be subject to a wide range of criminal investigations and convictions while continuing to advance a feasible law-and-order politics. It is the narrow conception of the criminal–legal order within law-and-order politics that, to some degree, obscures the parallel criminal involvement of the law-and-order regime.

The notion of discrete suborders within the criminal–legal order helps to clarify the function of law-and-order politics within a Trump Administration embroiled in multiple criminal investigations and at war with the federal government’s principal criminal-enforcement institutions. It may be that the Trump Administration’s own criminal acts and its rhetorical attacks on law-enforcement institutions and individual agents are irrelevant to law-and-order politics, properly understood. The Administration’s criminal involvement fell within suborders that law-and-order politics will never meaningfully address. So long as the criminal–legal order is reduced to minority violent crime, the state’s own threat to the criminal–legal order will not fundamentally compromise the law-and-order campaign. To take the success of Trump’s law-and-order campaign as a paradox is, perhaps, to misunderstand the true meaning of law-and-order politics as it relates to the broader criminal–legal order.

III. The Legibility of Black Lives Matter

How does the Black Lives Matter campaign fit within the suborder framing of law-and-order politics? This Part argues that while the Black Lives Matter campaign has called for an array of policy changes, central among them is an appeal for an application of rule-of-law principles to physically abusive police. The campaign is motivated in significant part by the belief that the criminal–legal order lies in tatters with respect to police accountability for unlawful use of force. Despite its demand for enforcement of the criminal law against extralegal police violence, Black Lives Matter did not register as a movement resonant with basic rule-of-law principles. By the end of the spate of 2020 protests, the campaign was instead subject to the question of whether Black Lives Matter itself posed a threat to law and order.

This Part argues, briefly, that the Black Lives Matter campaign’s mission to restore a specific suborder within the criminal–legal order was illegible in the summer of 2020 within the fog of law-and-order politics. Rather than presenting as a rule-of-law campaign targeting police misconduct, Black Lives Matter protests were often reduced within the law-and-order frame to protest violence. In this sense, law-and-order politics had precisely the opposite effect on the Black Lives Matter campaign that it had on the Trump Administration. While the Trump Administration’s own criminal involvement was never understood as implicating law and order because of law-and-order politics’ implicit focus on minority violent crime, Black Lives Matter, as a campaign for and by racial minorities, was often reduced in public discourse to the protest violence that occurred at its margins.

A. Black Lives Matter as a Rule-of-Law Campaign

Black Lives Matter is now far more than a mantra. It is a national political campaign, both highly visible and fiercely committed to a decentralized organizational structure. 79Open this footnote Close this footnote 79 John Eligon, One Slogan, Many Methods: Black Lives Matter Enters Politics, N.Y. Times (Nov. 18, 2015), https://perma.cc/4HHL-EPN2. …Open this footnote Close Because the campaign is loosely organized, it can be difficult to discern its normative vision and platform. There are organized bodies within the campaign that present a comprehensive policy platform designed to close the resource gap between the African-American community and the racial majority. 80Open this footnote Close this footnote 80 See, e.g., The Preamble, Movement For Black Lives (June 19, 2020), https://perma.cc/X7FV-ENMC; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. Law Rev. 405, 431 (2018) (“Criminal and racial justice are intertwined with economic justice. This holistic view considerably widens the institutions typically suggested as targets within law reform conversations. Prosecutors and police are only the starting point: Schools, health care, and jobs must also be targets for reform. Otherwise, the reforms will not translate into meaningful difference in the lived realities of Black communities.”). …Open this footnote Close But from the first declaration on Twitter, in 2013, that “Black Lives Matter” 81Open this footnote Close this footnote 81 Monica Anderson, The Hashtag #BlackLivesMatter Emerges: Social Activism on Twitter, Pew Rsch. Ctr.: Internet & Tech. (Aug. 15, 2016), https://perma.cc/V27D-LSGD. …Open this footnote Close to the Floyd protests of 2020, the heart of the campaign has been the demand that the public and the state assign equal value to African-American life by holding police officers accountable for unlawful violence committed against African-American citizens. 82Open this footnote Close this footnote 82 See Madison Pauly & Samantha Michaels, BLM Activists Demanded Police Accountability. In City After City, Voters Agreed., Mother Jones (Nov. 6, 2020), https://perma.cc/M9JU-4GED. …Open this footnote Close

Derivative organizations such as Campaign Zero expressly call for legislation that would facilitate prosecutions of police. 83Open this footnote Close this footnote 83 Independent Investigations and Prosecutions, Campaign Zero, https://perma.cc/S4KE-7L8A (archived Apr. 17, 2021). …Open this footnote Close To be sure, there is a tension between the abolitionist inclinations of certain camps within the larger police-reform campaign and the pursuit of police accountability by way of criminal prosecution. 84Open this footnote Close this footnote 84 Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. U. L. Rev. (forthcoming 2021) (manuscript at 12-13, 26-36) (on file with author). …Open this footnote Close Yet police accountability—specifically, the attachment of criminal liability for criminal acts by police officers—is a major plank in the reform platform. 85Open this footnote Close this footnote 85 The tension between the two positions—police abolition and police accountability within the criminal–legal order—is presently the subject of some of the most compelling normative scholarship in the criminal law literature. See, e.g., Kate Levine, Police Suspects, 116 Colum. L. Rev. 1197 (2016) (arguing that the increased visibility of police brutality demands a change in the protections police suspects receive compared to normal criminal suspects). …Open this footnote Close In this sense, BLM and the larger police-reform movement call for the veneration of basic rule-of-law principles. They insist that the long arm of the law extend a bit further so that the policing of African-American individuals and communities no longer falls beyond its reach.

B. Black Lives Matter as a Threat to the Criminal–Legal Order

For those wielding the law-and-order slogan, the rule-of-law question attached to the Black Lives Matter campaign is not about police accountability, but whether BLM affiliates themselves are inclined toward criminal violence. 86Open this footnote Close this footnote 86 Jaclyn Peiser, “Their Tactics Are Fascistic”: Barr Slams Black Lives Matter, Accuses the Left of “Tearing Down the System” (Aug. 10, 2020, 3:01 AM PDT), https://perma.cc/92BU-8P3F. …Open this footnote Close Thus, the ramifications of the rule-of-law rhetoric within law-and-order politics for the BLM campaign are precisely opposite that of the Trump presidency. The Trump Administration, no matter the scale of criminal lawbreaking within its network, could narrow the law-and-order debate to the question of whether minority violent crime threatened to topple the criminal–legal order. In contrast, the Black Lives Matter campaign struggled under this specific framing to maintain legitimacy in the eyes of a large portion of the American public. No matter its fundamental motivations (foremost among them, the pursuit of police accountability under substantive criminal law) the law-and-order frame tended to reduce Black Lives Matter to the violence that occurred at its fringes. 87Open this footnote Close this footnote 87 Daniel Trotta, Despite Trump’s “Law and Order” Rhetoric, Protesters Won’t Back Down, Reuters (Sept. 11, 2020, 3:07 AM), https://perma.cc/Q78N-BXS3. In one of several characterizations of the Black Lives Matter protests of the summer of 2020, President Trump tweeted the following: “The Democrats never even mention the words LAW & ORDER at their National Convention . . . . If I don’t win, America’s Suburbs will be OVERRUN with Low Income Projects, Anarchists, Agitators, Looters and, of course, ‘Friendly Protesters.’” Id. …Open this footnote Close

To be sure, law-and-order discourse under the Trump Administration functioned as it always has, narrowing all of the criminal–legal order to the subject of violent crime, specifically that committed by minority perpetrators. That right-wing domestic terrorism became the Department of Homeland Security’s most concerning security threat over the course of Trump’s presidency without corresponding consideration within law-and-order political discourse reinforces the point. 88Open this footnote Close this footnote 88 See Betsy Woodruff Swan, They Tried to Get Trump to Care About Right-Wing Terrorism. He Ignored Them., Politico (Aug. 26, 2020, 4:30 AM EDT), https://perma.cc/VM72-5YWZ; Adam Goldman, Katie Benner & Zolan Kanno-Youngs, How Trump’s Focus on Antifa Distracted Attention from the Far-Right Threat, N.Y. Times (updated Feb. 1, 2021), https://perma.cc/V58H-LSA4. …Open this footnote Close Law and order as a politics and a discourse is about little more than stoking public anxiety about minority violent crime. And while scholars have long identified the racial valence of law-and-order politics, the Trump political regime has provided an opportunity to put more meat on the bone. It has shown law-and-order politics to be a distortion of the criminal–legal order such that other escalating criminal threats—those coming from predominantly white quarters of the country or from the very purveyors of the politics—will fail to register as relevant to claims regarding law and order’s decline.

Conclusion

Scholars have long been critical of law-and-order campaigns, particularly in regard to the claim that such campaigns are motivated by the desire to restore what this Essay identifies as the criminal–legal order. The Trump campaign and Administration provide a unique opportunity to analyze this claim in greater depth given then-candidate Trump’s solemn promise to restore the criminal–legal order, juxtaposed with rhetoric and actions by his presidential campaign and Administration that repeatedly tore at the fabric of the same order.

This Essay argues that despite law-and-order politics’ promise to broadly restore the criminal–legal order and to venerate rule-of-law principles across the field of criminal administration, the politics reduces the public’s conception of the criminal–legal order to the subject of criminal violence by racial minorities. In addition to directing the public’s attention to racial minorities in anticipation of minority criminal offending, this misrepresentation of the criminal–legal order delivers secondary effects; among them, it tends to obscure criminal offending by the very architects of law-and-politics. Thus, while crimes committed by law-and-order politicians would seem uniquely detrimental to law-and-order politics, such crimes may not ultimately have much of an effect the feasibility of the politics.

* Professor of Law, Washington University in St. Louis School of Law. This Essay was written for the 2021 Policing, Race, and Power Symposium hosted by the Stanford Law Review and the Stanford Black Law Students Association, and for the cross-journal Reckoning and Reformation Symposium. Thanks to Jessica Eaglin, Chad Flanders, Eisha Jain, Andrea Katz, Tracey Meares, Shaun Ossei-Owusu, Brian Tamanaha, Aaron Tang, Guy Uriel-Charles, the Stanford Law Review editorial staff, and the Stanford Black Law Students Association for helpful feedback on various drafts of this Essay, and to Matt Suddarth for research support.

The featured image “Black Lives Matter Zoom Background” by szeke is licensed under CC BY-SA 2.0.