Bluff Justice

Trump plans to strip, purge, and defy the courts. Here’s what that demands.

(Photo by Andrew Harnik/Getty Images.)

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“Princes either rule personally or through magistrates. In the latter case their government is weaker and more insecure…. The prince has not the chance amid tumults to exercise absolute authority, because the citizens and subjects, accustomed to receiving orders from magistrates, are not of a mind to obey him.”

—Niccolò Machiavelli

Donald Trump has set up a constitutional showdown with the courts. His administration laid the groundwork in his first week with a flurry of legally unsound executive orders and departmental directives that were destined to be blocked by the courts. Trump and his acolytes have seized on these court orders as a “judicial coup” and threatened to openly defy their injunctions or impeach the judges responsible for issuing them.

Or both.

Or neither.

Trump’s team has now gone to the very edge of defiance by continuing with a deportation flight to El Salvador after a federal judge had issued a temporary restraining order against those flights. But Trump’s most likely path will not be outright defiance of courts; it will be to change the courts in the same way that Vladimir Putin and Viktor Orban have, and as Benjamin Netanyahu would like to–using their nations’ own constitutional process to bring the courts to heel. While he does this, Trump will not back away from his current threat to defy the Supreme Court altogether. The threat itself has already empowered Members of Congress to propose legislation and file impeachment charges that would strip the courts’ jurisdiction, and remove non-loyalist judges. Openly defying a court order would break democracy; but the actions Congress and the Court would take to “avoid” that constitutional crisis may have the same effect.

Here’s the playbook—and here’s what the people and the states need to do right away if they want to prevent it.

How Trump Has Set the Judiciary Up For a Fall

Donald Trump’s experience with courts has not been beautiful. As a private citizen he lost many cases, was sued relentlessly, and suffered multiple bankruptcies. As president the first time, courts enjoined many of his core MAGA initiatives, including his promise to ban travel from six Muslim-majority countries into the United States. After leaving office, one court found him liable for business fraud and another found him liable for sexual assault. Two federal courts indicted him for crimes relating to misuse of classified documents and the January 6th insurrection, respectively. And, just nine months ago, a jury of his peers criminally convicted him of three dozen felonies. With a Congress that will not check Trump’s power, the courts he despises are now the only obstacle to Trump exercising unfettered power as president. To date, they have issued over 40 rulings rejecting or halting his actions. So, for reasons that are likely practical, political, and personal, Trump is determined to gain control over the courts.

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The Trump administration itself has engineered the mountain of federal injunctions that now impede his actions. Nothing else explains Trump’s flagrant defiance of the law on multiple fronts. He issued dozens of executive actions in a matter of days with no legal basis. For example, he signed an order to invalidate the Supreme Court’s 1898 precedent establishing birthright citizenship under the 14th Amendment. A high school student could tell you that he can’t do that. To overturn the Court’s interpretation of a constitutional amendment you need either action by the Supreme Court or another constitutional amendment. Trump’s action was so astonishingly illegal, the judge in that case asked out loud whether Trump’s team had even consulted a lawyer before Trump signed it. But that’s the goal. Either getting away with a lawless power grab or being enjoined serves the administration’s goal – because all those injunctions make courts “the problem.”

If there was any doubt that the administration’s strategy is to create a crisis of “obstructionist” courts, its reaction to these orders proves it. The administration barely addressed specific decisions or their reasoning at all. Instead, it blamed “the courts” collectively for engaging in “judicial tyranny.” It condemned courts for being courts (that is, enforcing the law) and judges for being judges (that is, non-partisan and neutral arbiters). It described them as unaccountable “unelected officials” illegitimately thwarting the will of the people.

The Art of the Bluff

“Alexander the Sixth did nothing else but deceive men, nor ever thought of doing otherwise, and he always found victims; for there never was a man who had greater power in asserting, or who with greater oaths would affirm a thing, yet would observe it less; nevertheless his deceits always succeeded according to his wishes, because he well understood this side of mankind.”

—Machiavelli

Trump has begun from a maximalist position. If courts of law won’t do as he bids, then he must defy the courts based on a higher law. He invoked the Emperor Napoleon on social media, proclaiming “He who saves his Country does not violate any Law.” Senator Mike Lee, a Trump supporter on the Judiciary Committee, condemned the courts’ so-called “judicial coup” and demanded that defiant judges be impeached. Vice President J.D. Vance in 2021 told an interviewer he would advise the president, “When the courts stop you, stand before the country like Andrew Jackson did and say: ‘The Chief Justice has made his ruling. Now let him enforce it.’” Their threat was simple: Stop ruling against Trump, or Trump will treat court rulings like election results. He’ll honor them only if they go his way.

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For now, this thermonuclear option is only a threat, and will likely remain that. The administration—albeit poorly and begrudgingly—has actually complied with court orders, including a recent Supreme Court decision requiring it to disburse $2 billion in USAID relief funds. Rather, Trump has put a warhead on the table but not detonated it, likely because that is his best option. Detonation would, among other things, potentially blow up his presidency. But maintaining the threat helps him get everything he needs from Congress and the Supreme Court to capture the federal courts with lower risk.

No president, not even Andrew Jackson, has ever openly defied a Supreme Court order. This is not because past presidents were cowards or uninterested in expanding their power. They were practical. Even if they were outraged by a Supreme Court decision (as many of them were), they saw that defying it would destroy either American democracy or their presidency. Richard Nixon considered it, but determined he’d be impeached. Theodore Roosevelt flirted with it, but decided it was too dangerous and opted for lesser measures. And Andrew Jackson never said what Vance claimed he said or laid down any gauntlet. In fact, he shifted responsibility to Georgia’s governor and averted a showdown.

These presidents’ fears were not delusional. Some rules are so fundamental to a system that eliminating them destroys the system altogether. If you eliminate the boundaries in football—the sidelines and endzones—it is impossible to play the game. The same is true if you eliminate the constitutional boundary on a president—he no longer presides over a constitutional democracy. If the president is not required to follow laws passed by Congress and upheld by the courts, then he effectively is not bound by any law, including the Constitution itself. The Constitution ceases to serve as the governing document of the nation. In the best case, the nation plunges into a prolonged period of chaos, including mass protests, riots, collapsing financial markets, military stand-offs, and disintegrating support of the leader (See, e.g., Israel, Pakistan). In the worst case (as in post-Putin Russia, and post-Orbán Hungary), American-style democracy is destroyed.

If Trump were simply to declare himself beyond the law and refuse to honor court decisions, it would immediately generate protests and riots, risk defections by members of Congress, cause financial markets to tumble (further), and—if he did not back down—it would culminate in a standoff between blue state militias and the U.S. military. Even if Trump is not aware of how this works, his advisers will be.

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The Five Steps Towards Autocracy

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Most importantly, Trump does not need to press the button to get what he wants. His beef is with the lower courts, not the Supreme Court. The real prize for him would be deploying the Constitution itself—with the help of Congress and the Supreme Court—to tame unruly courts. This spares him a risky constitutional confrontation. It converts courts from liabilities into assets (since a harmless, compliant court gives legitimacy and respectability to a ruler). And, because legislation seems like the lesser of two evils, it will be easier to bring Congress, the Supreme Court, and the public on board.

The Neutron Bomb Approach: Strip and Purge

Trump’s real alternative to the nuclear option will not be deferring to the federal courts. It will be the equivalent of a neutron bomb: a lower yield device that leaves all buildings standing but eliminates their value and purpose because it kills everything else. Trump wants there to be courts—he just doesn’t want the people inside them to be independent or to do anything that limits his authority. For this he needs Congress.

Congress has vast control over federal courts. Article III of the Constitution formally creates only one court—the Supreme Court—and leaves to Congress the power to create all other “inferior” federal courts. That power includes defining the types of cases these courts decide, the rules they apply, the remedies they can order, how many courts exist, and where they are located. Not only can Congress reduce the courts’ budgets, it can close courts altogether, and even define the days they are in session. Congress can also impeach judges, censure them, or craft ethics rules that place them in fear of sanctions. This is the toolkit that Trump truly wants, because it is durable and—effectively deployed—lethal to judicial independence.

Trump’s supporters in Congress are already championing some of these approaches, but these are likely only the first of more proposals to come:

Restrictions on the Jurisdiction of Lower Courts. Congress’ most likely action appears in a bill proposed by Representative Darrell Issa to address “judicial tyranny”—the “No Rogue Rulings Act” (NORRA). This bill would prevent lower courts (including courts of appeal) from issuing nationwide injunctions to stop an executive action. If it were passed, a lower court could find that the president had violated the law or exceeded his constitutional power—but the court then couldn’t order him to stop doing something to anyone other than the plaintiff in that particular court. The president could continue to act in violation of the law against anyone else unless and until the Supreme Court accepted review and issued an injunction itself. The Trump administration has requested precisely this power in its appeal to the Supreme Court in the birthright citizenship case.

This is only one type of restriction on the jurisdiction of lower courts. If Congress wished, it could, for example, try to eliminate the power of lower federal courts to decide matters concerning the scope of the president’s power altogether. Any case challenging President Trump’s action would have to start and end in the Supreme Court—a court that is not structured to conduct full trials, has limited bandwidth, and has discretion to decline to hear cases.

Eliminating Courts and/or Transferring Judges to Courts of Limited Jurisdiction. Since Congress can create lower courts, it follows that Congress can close them as well. Although it has been rare, Congress has in fact closed courts in 1801, 1891, 1913, and 1982 as part of efforts to reorganize the court system.

With this power, Congress could close some federal courts in blue states such as California, Massachusetts, New York, and Illinois. Because of life tenure, this would not necessarily eliminate the power of judges assigned to those courts to continue serving in other courts. But Trump could use this device to drive judges off the bench in various ways.

For example, Trump and Congress might eliminate a federal court and establish a different court of very limited jurisdiction (such as, for instance, maritime law) in a remote location far from the place where the judges live and work. This would force these judges to relocate and focus on a subject matter that they do not know or do not find interesting. Even if they do not quit, they will be neutralized from issuing decisions that would affect Trump’s interests.

Budgets and Calendars. Congress can constrict court budgets (except judges’ salaries), reset courts’ schedules, and make it impossible for courts to do much business at all. Again, there is precedent for this. During a power struggle in 1801, in which the Chief Justice and President Jefferson were wrestling over the scope of the Court’s authority, Congress eliminated the “August Term” of the Supreme Court, so that it did not meet for nearly a year from April 1802 to February 1803.

Censuring and Impeaching Judges. Finally, Congress could use its impeachment power to remove pesky independent judges from the Bench. Congress has impeached and removed only eight judges in all of U.S. history. Although Republicans would likely not be able to secure the 67 votes needed to successfully remove a federal judge, drafting these articles has a chilling effect. The threat of impeachment has been enough to cause several judges, including Supreme Court Justice Abe Fortas, to voluntarily step down from the bench rather than have their reputation stained. Congress also has powers to establish requirements for the performance of judges that expose them to discipline, or to craft fairly narrow ethics rules to condemn judges who do not toe the president’s line with censure or impeachment.

Senator Mike Lee has taken up Musk’s rallying cry that federal judges should be impeached for “undermining the will of the people” (overlooking that ruling against a president is not a “high crime or misdemeanor,” and that courts must follow the law rather than the desires of the majority). He contends that judges’ tenure extends only during periods of “good behavior” and that “it is not good behavior if you . . . abuse your power.” Congress is already in the process of bringing impeachment charges against Judge Paul Engelmayer for temporarily limiting Elon Musk’s DOGE staff from accessing sensitive Treasury data, along with at least two other sitting federal judges.

Even if the judges are prepared to face a trial in the Senate, they can expect to be relentlessly attacked for the remainder of their careers, if not their lives. Since Trump took office, threats against federal judges have spiked nationwide. In dozens of posts calling for the impeachment of federal judges, Elon Musk has called them “corrupt,” “radical,” and “evil.” The rise in violent threats has caused both the U.S. Marshals Service and Chief Justice Roberts to warn about the dangers facing federal judges.

The actual and intended effect of these rules is to make courts more susceptible to political influence and less independent. They are designed to drive out judges who place the rule of law, including constitutional protections of the people, over the president’s will. They would increasingly result in judges who are incompetent loyalists, and courts that merely rubber stamp the position of the president on political matters. This corruption of the bench would lead to corrosion of the rule of law, until eventually courts become the president’s subordinates—functionally no different than if the president acted without courts at all.

These legislative options are even more troubling than Trump’s threat to ignore federal courts because of the real likelihood that Congress will enact them. They already have serious traction with Congress and the Supreme Court. Ultimately, if the choice is between giving the president what he wants and being blamed for the collapse of democracy, even queasy members of Congress or the Court are likely to relent. They can claim they made necessary compromises to save democracy.

The same is true for review of these laws by the Supreme Court. The Court’s only power over the president hangs on the slimmest of threads—the president’s acquiescence to the Court’s 1803 decision establishing judicial review in Marbury v. Madison. Trump has now signaled that he knows where that thread is, and that he, and he alone, holds the scissors. This Court has already concluded once in Trump v. United States that it is better to let a president get away with a crime than to take down democracy to stop him. They may have to do so again now.

What This Would Mean

Americans are so used to having independent courts that it may be hard to imagine what it means when courts lose their independence. If courts are not independent, there is no free speech. Government critics or people with unpopular views are not protected from prosecution or assault. Freedom of religion doesn’t exist either, except for those who worship the religion acceptable to their leader. Corruption is rampant. Whatever people think they own or have is never truly theirs—the government or friends of the government can and do take whatever they want, whenever they want. Everyone outside the leader’s personal protection lives in fear.

This is now life in Hungary and Russia—two countries that briefly had American-style courts before they were purged and stripped by strongman leaders whom Trump admires. Both had judiciaries that once operated much like U.S. courts. In Hungary, that changed when Viktor Orbán returned to power as prime minister, attacking disloyal judges as “traitors” and pushing through amendments to the constitution and reforms that wiped out the force of all prior decisions. Orbán’s “reforms” also allowed his handpicked executive to fill the bench with unqualified loyalists. They uphold all of Orbán’s actions, protect Orbán’s friends, and routinely violate constitutional rights guaranteed by the European Union. Hungary’s judicial system is now so corrupt that the EU has frozen billions of its euros until Hungary addresses its violations.

Likewise, after taking power in Russia, Vladimir Putin eliminated judicial review, civil rights protections, and appeals to the European Court of Human Rights. Putin never defies his courts, because his courts always rule in his favor. Judges are selected based on loyalty to Putin. They accept bribes to protect friends of government officials or punish government enemies. Judges who do not comply face family members being kidnapped or being forced to flee their homes. People who speak out against Putin know they may be imprisoned, have their assets seized, one day disappear, or fall from a tall building.

These examples show the real effect of limiting courts’ independence: slowly ending the rule of law and freedom from persecution, and thus the end of democracy. They are the ghosts of America’s future.

To make clear the magnitude of what is at stake, these are just the outcomes of Trump’s potential compromise position. It could be worse. There is no guarantee that—as long as it is on the table—Donald Trump will not detonate the nuclear option and be done with it. He is close to doing that now with the deportation flight to El Salvador. Despite all the considerations that have kept other presidents from defying the Supreme Court outright, Trump remains unique among presidents in his lack of concern for long-term consequences. Senior members of his first-term cabinet described Trump’s decision-making as “impulsive,” “erratic,” “self-centered,” and “not strategic.” The past two months only confirm this. He has demonstrated that he will cut off promised medical supplies and food to desperate people in need; leave our allies’ troops unarmed and unsupported in the field; cut off funding for critical research over a student protest; and is prepared to defund the entire state of Maine over a spat with its governor. We have seen him launch (and then pause and then relaunch and then re-pause) a self-destructive trade war with Canada and Mexico. As long as the president’s threat to defy the Supreme Court is on the table, it could happen.

What To Do About It

Diplomats know that strongmen never stop; they are stopped. The most important way to stop Trump from weakening and subordinating the courts is to not submit to it. Now that they see this train coming, Americans need to drive it off its tracks. This has been successfully accomplished in other democracies. If nothing else drives Americans to the streets, then it should be this. Without the protection of binding judgments by independent courts, any other protests are futile.

Mobilizing: Americans—Democrats and Republicans alike—have little time. Trump’s attack on the courts is already in full swing, and any organized response requires planning. Israeli and Pakistani leaders were both forced to walk back their attempts to eliminate judicial review in part because of organized protests in which millions rallied in the streets. Those protests succeeded because of their scale, duration, and skill. Over one-fifth of all Israelis participated, and they sustained the protests for months without violence. They also drew participants from all across Israel, and from virtually every sector. These last two points were critical to making “regular people” feel safe participating, and to debunk claims that the protests were “performative” or led by paid actors organized by fringe left wing groups.

Messaging: The ability to scale protests for independent courts depends on clear messaging. Most people are not going to read a long essay like this or get excited about technical matters like the scope of a court’s jurisdiction or the nuances of judicial review. Successful resistance movements have focused on the threat to people’s way of life—the barriers of protection against a government that would have the power to seize their property, harass them, intimidate them, exact political revenge, and take away their freedoms.

Messengers: Messengers are more important than the message. Trump and his allies in Congress will ignore or mock intellectual appeals about rule of law by constitutional scholars, judges, or the American Bar Association. This is not about reason—it is about power. And so the administration and legislators will respond only to forces that have power over them. People with influence in Congress—business leaders, wealthy and celebrated Americans, heads of unions, and major donors—need to draw a red line that Congress must not cross. Influence varies from state to state. In Israel, the voices of reservists in the Israeli Defense Forces were uniquely powerful. The message has to be loud and clear that these are no ordinary protests, and the government will not be able to count on any legitimate group, including members of the military or those who serve in law enforcement, to stop them.

Markets: Apart from voters, donors, military, and media endorsers, the most powerful force to pressure Congress is the markets. Plunging markets mean plunging polls, angrier donors and constituents, and losses in their own savings. Unions have a unique capacity to mobilize strikes that will shut down the national economy, and the president would be reluctant to take direct action against organized labor. The threat of coordinated general strikes that close down departures from busy airports, shutter banks, businesses, restaurants, hospitals, or sporting events, would likely rally fund managers who would understand just how destabilizing these judicial reforms and waves of protests would be for businesses, investors, and international confidence in America’s reserve currency. For markets to fully prevent these actions, they need to be primed to react fast and hard before bills even come to the floor.

Muscle: States also have a unique role to play. Blue state leaders would need to be clear about their plan of action when speaking with federal officials. If the showdown comes, blue state governors would need to commit their state militias to being on the side of the protestors, and red state governors need to understand that this will cost them vast political capital for a result they don’t want.

Motions: Even the president does not have the power to shut down state courts. State courts have independent power to enforce the Constitution of the United States absent an act of Congress. Lawyers therefore need to prepare their own cases and motions for state courts to defend the separation of powers. If Congress tries to limit the authority of those state courts, it will create its own rallying cry.

Members en masse: Even members of Congress who generally support President Trump admit privately that they do not want to gut the courts, because this will eventually boomerang back on them. The last thing they want is for their own legislation to keep them from fighting against a future liberal president. To date, the GOP in Congress has shown whatever the opposite of a spine is called. But that is due, in part, to fear that Trump will punish any member who defies him. The only way to obviate this fear is for members of Congress to act en masse so that any defection is too broad for the president to resist. That is what ultimately forced Nixon to abandon his fight to remain in office. This would be the moment for elders of the party who have been cowed into submission so far to stand together and whip their members to defy the president.

In short, now that the movement to “curb the courts” has gained momentum, the president and his supporters must be convinced in no uncertain terms that this will be war: massive protests, tumbling financial markets, military standoffs, bleeding support, and an ugly self-inflicted wound that will hobble the rest of the president’s tenure.

Trump likes to push to ultimates, and taking down the courts is the ultimate of ultimates. When he pushes this one, he needs to know that he has pushed too far and that he has to step back from the brink. If not, he won’t be ending democracy; he’ll be ending his own presidency.

Ambassador (ret.) Jeff Bleich served as the U.S. Ambassador to Australia, Special Counsel to the President of the United States, and Chair of the Fulbright Foreign Scholarship Board. He is currently Chair of the Centre on Democracy and Disruptive Technologies at Flinders University, and a Visiting Scholar at Stanford’s Center for Advanced Study in the Behavioral Sciences.

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