Eric Posner, a professor at the University of Chicago Law School, is the author of How Antitrust Failed Workers (Oxford University Press, 2021).
CHICAGO – Americans have worried about their presidents becoming dictators (or, in the old days, tyrants) ever since the Unites States was founded. The framers of the US Constitution understood that in classical democracies and republics, leaders often tried to seize power from legislatures and other assemblies. That is why they created a system of checks and balances on government power.
So far, so good. No US president has ever been a dictator. Nonetheless, accusing the other side’s candidate of seeking dictatorial powers has become a quadrennial ritual, one that has started early this time around. In a widely circulated Washington Post commentary last week, Robert Kagan, repeating his earlier prediction that former President Donald Trump would become a fascist leader, warned that he would become a dictator if he is elected again in 2024. Kagan likens a Trump victory to an asteroid crashing into the earth, echoing the widely ridiculed commentary by Michael Anton, who likened a Hillary Clinton victory in 2016 to a suicide attack on an airliner.
Trump was and is many things, most of them bad. But he wasn’t a fascist when he was president, and he won’t be a dictator if he is elected a second time. Far from a strongman, Trump was weak throughout his previous term. His main accomplishments – a tax cut, a stimulus package during the pandemic, and appointments of conservative (but largely mainstream) judges – all went through normal constitutional procedures, with Congress fully involved. Meanwhile, Congress thwarted Trump’s promises to repeal the Affordable Care Act (“Obamacare”) and to build a wall on the border with Mexico.
Likewise, Trump’s most notable attempts to act unilaterally – to end the Deferred Action for Childhood Arrivals immigration program, add a citizenship-status question to the census, and cut environmental regulations – were all blocked by the courts or whittled down in response to judicial challenges. Trump’s own subordinates disobeyed his orders to block investigations of his activities and bring frivolous lawsuits against his opponents. And Trump’s most consequential foreign-policy decisions – withdrawing from the Paris climate agreement and the Iran nuclear deal, for example – were solidly within the tradition of presidential authority in that domain.
Trump was a weak president because most voters disliked him. Every Democrat and even a few Republicans could afford to oppose him. Unable to achieve majority popular support, he could only pretend. Though he tried to bully the judiciary, those efforts failed. “My judges,” as he called them, ruled against him over and over when he challenged the 2020 presidential election results. He couldn’t get the huge federal bureaucracy to do his bidding because he lacked the wisdom and patience to manage it.
Trump attempted to reverse the 2020 election by spreading lies and riling up a mob. But he failed completely, again thwarted by his top subordinates and the courts, as well as by election officials from both parties. Today, Trump and his henchmen have been indicted, his lawyers are facing disciplinary proceedings, and hundreds of his supporters have been sentenced to prison.
Kagan replies that this time is different. The Heritage Foundation, a leading right-wing think tank, is compiling a list of thousands of right-wing radicals who will fill slots in the federal bureaucracy – especially the Department of Justice – that Trump will have freed up by way of a novel legal maneuver. It has also produced a conservative wish list called Project 2025. But the notion that Trump will pay attention to think-tank proposals and white papers is fanciful – has no one learned anything?
Kagan is on stronger ground arguing that Trump will order investigations and trials of his political opponents – a typical move from the dictator’s playbook. Trump has indeed threatened as much, vowing to prosecute his own former attorney general, William Barr, and his former chief of staff, John Kelly, among others.
But if we have learned anything about Trump, it is that we should take his promises with a grain of salt. He never did “lock up” Hillary Clinton, after all, and he already tried to empty the federal bureaucracy with the notorious “Schedule F” executive order toward the end of his term. Nothing came of it except bureaucratic confusion.
The problem for Trump and his inner circle is that there are just not enough competent right-wing lawyers and policymakers who could come into an unfamiliar agency and redirect it effectively. Agency heads, given conflicting orders to implement draconian Trumpian policy and replace thousands of experienced staff with hacks, will most likely accomplish neither, instead finding themselves embroiled in lawsuits from fired employees.
Moreover, Trump has already announced that he doesn’t want Federalist Society lawyers in his government, since too many of them – including his two attorneys general, Jeff Sessions and Barr – turned out to be more loyal to the country than to him. But where, then, will he find legal expertise? With the Federalist Society having established itself as the main source of ambitious conservative lawyers, Trump has committed himself to a vanishingly small pool of talent.
Trump neither knows nor cares that a president cannot simply order the federal bureaucracy around. A president must cajole, compromise, and plead. But even if Trump does that, government investigators and prosecutors will not bring cases against people like Barr and Kelly, who have committed no crimes. If they are somehow forced to, expect mass resignations, leaks, public repudiations, and a field day for the press. Judges will throw out the cases, and juries will not convict. Kagan thinks that if Trump wins his current trials, judges will be afraid to rule against him if he becomes president. This both overstates Trump’s current legal jeopardy and vastly underestimates the integrity of the judiciary.
Make no mistake: a second Trump term won’t be pretty. But expect turmoil (again), not dictatorship.
