The Legal System Is Not Reining in Trump. It’s Letting Him Bend Law to His Will.

At a press conference on January 3, President Donald Trump announced that the United States had carried out strikes on Venezuela and captured Venezuelan President Nicolás Maduro and his wife, Cilia Flores. Trump alleged that Maduro oversaw the Cartel de los Soles and had sent members of the Tren de Aragua gang to the United States to terrorize Americans. Unlike previous U.S. presidents, who typically denied ulterior motives behind similarly brazen acts of regime change — such as access and exploitation to natural resources — Trump was explicit about the U.S.’s interest in Venezuelan oil. Notably absent from the press conference, which also featured remarks from Secretary of Defense Pete Hegseth and Chairman of the Joint Chiefs of Staff Dan “Raizin” Caine, was any reference to the law or to what legal authority could possibly justify the strikes on Venezuela or the abduction of Maduro and Flores. Despite this absence of legal justification, Trump asserted that Maduro and his wife would “soon face the full might of American justice and stand trial on American soil.” In this conception of American “justice,” the contradiction of violating the law in order to achieve justice is something that the U.S. need not reckon with.

“Kill everybody” was the command that Hegseth reportedly issued on September 2 to authorize a double-tap strike on a Caribbean boat the U.S. claimed was carrying drug traffickers. As additional strikes followed, controversy escalated over whether the September 2 attack constituted a war crime — prompting both Democrats and some Republicans to call for a formal investigation. However, the discussion about whether or not a war crime had been committed allowed a central myth behind the U.S.’s murderous actions to be ignored — that is, that the U.S. was not at war with Venezuela. Thus, what was committed was a crime — and one that no one in the administration will presumably be held accountable for. This because the Trump administration has demonstrated over and over again that laws often function less as constraints than as optional guidelines for those in power. In an op-ed for The Hill titled “War is hell, but that should never excuse war crimes,” Marine Corps veteran Jos Joseph condemns Trump and Hegseth’s actions and points to past abuses during the “war on terror” — such as the Haditha massacre in Iraq — as stark examples of what happens when legal limits are completely disregarded. Yet war crimes remain meaningful only to the extent that there is a will to enforce accountability and to acknowledge that such violations exist in the first place. When “Meet the Press” recently asked Trump whether the president is obligated to uphold the Constitution, his response — “I don’t know” — laid bare his view of the law not as a binding force, but as something malleable for those who wield state power. Moreover, given the almost near certainty that any government officials could be or will be held accountable for war crimes, the possibility of being held accountable for other crimes is nonexistent.

American Victimhood

In November, the Trump administration released its National Security Strategy. Beyond celebrating and applauding Trump’s leadership and providing a definition of “American strategy,” the document includes a section titled “What should the United States want.” The section starts with the following sentence: “First and foremost, we want the continued survival and safety of the United States as an independent, sovereign republic whose government secures the God-given natural rights of its citizens and prioritizes their well-being and interests.” Strongly rooted in the construction of the United States as a perpetual and unwarranted victim, the section outlines the need for the U.S. to protect its territory, to have full control over its borders, and to have a well-oiled military machine to protect its interests. This victim narrative, particularly utilized in the articulated right of the United States to protect its territory, rings especially violent after Venezuelan sovereignty was completely violated by U.S. strikes on the country and the abduction of Maduro and his wife.

This rhetoric of victimhood is not unique to Trump and his administration. It has been a strategic throughline of the “war on terror” — used to legitimize otherwise indefensible policies and legal interventions. In her article “Legitimizing the ‘War on Terror’: Political Myth in Official-Level Rhetoric,” scholar Joanne Esch explains how narratives of U.S. victimization draw on the myth of American exceptionalism: the belief that the United States is a uniquely aggrieved nation entitled to extraordinary responses. Similarly, scholars Jessie Barton Hronešová and Daniel Kreiss describe this manipulation of grievance by those in power as “hijacked victimhood,” a tactic through which dominant groups frame themselves as under attack in order to justify the expansion of coercive state power.

According to Hronešová and Kreiss, “Hijacked victimhood narratives delegitimize the victimhood of those whom they characterize as threats to the power of dominant groups — refugees, minorities, historically oppressed groups, and those who represent them — and dilute efforts at redress and justice.” Hijacked victimhood narratives have served as a powerful and convenient tool for Trump and his administration to justify state violence under the guise of protecting the United States — or, more specifically, white Americans — from the existential threat that they claim immigration, immigrants, and now so-called “narco-terrorists” pose to the country. Constructing immigration as an existential threat has provided not only an ideological vehicle for violence, but also a license to subvert and break the law.

By positioning itself as the perpetual victim, the United States government rhetorically renders all its violence as defensive, the violation of human and civil rights as necessary, and every legal constraint as an existential obstacle to national survival. In this way, hijacked victimhood becomes the political and moral engine that normalizes state violence.

Trump 2.0

During a recent cabinet meeting at the White House, Pete Hegseth, who was defending himself against allegations that he had committed war crimes, claimed that the boat strikes were a consequence of the “fog of war,” and the uncertainty that comes with combat. In environmental terms, fog eventually lifts and becomes invisible vapor. In the context of war, when the fog clears, the same thing happens: accountability evaporates, leaving those responsible for violence unscathed and armed with narratives that condone their actions. The “fog of war” is not a plausible explanation for U.S. boat strikes on survivors; rather, what seems central here is the fact that Trump and members of his administration feel emboldened to break the law with the certainty that they will face no consequences.

Trump’s new reign of lawlessness began on January 20, 2025, the day of his second inauguration. Immediately wielding his pen to sanction state violence, he fulfilled his promised anti-immigrant agenda by signing multiple executive orders aiming to significantly restrict birthright citizenship, implement travel bans with enhanced vetting, suspend the U.S. Refugee Admissions Program, mandate detention expansion and expanding expedited removal authorities, among others. The executive order titled “Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists” specifically named Tren de Aragua and MS-13 as foreign terrorist organizations. A little over two weeks later, backed by another executive order directing the secretary of defense and the secretary of homeland security to expand migration operations at Guantánamo Bay, Trump sent the first group of migrants to Guantánamo, claiming that they were part of the Tren de Aragua gang.

On December 5, Judge Sparkle L. Sooknanan ruled that the policy of holding migrants at Guantánamo was a violation of their Fifth Amendment due process rights that was decidedly not authorized under the Immigration and Nationality Act. While this decision was a victory, the fact that the Trump administration was able to send migrants to Guantánamo at all is a reminder that the law was not enough to stop the violation of rights in the first place — much less dictate any actual consequences after its infraction. That’s also why the Trump administration resumed its Guantánamo operations after the ruling by sending 22 Cubans to the base. The identities of the migrants are still unknown, and the Department of Homeland Security (DHS) has refused to disclose any information as to whether or how it might facilitate the individuals’ return to the custody of their government.

In his article titled “Citizen in Exception: Omar Khadr and the Performative Gap in the Law,” author Matt Jones writes about how the law gets manipulated, including through legal subjunctives. Jones describes legal subjunctives as situations where “an actor behaves ‘as if’ their actions were legal even if they are aware that their interpretation will not ultimately be recognized as legal. Though a subjunctive claim of this kind may ultimately be struck down, it may nonetheless hold open a temporary gap in the legal system in which an individual or group is, for a time, deprived of their rights.” Though confidence in the U.S. legal system often rests on the belief that the rule of law will ultimately prevail, this belief exists against the reality that the law is treated as something to be bent, circumvented, or openly violated. But the rule of law simply does not and cannot exist without accountability.

In March, Judge James Boasberg ordered planes carrying migrants to El Salvador’s notorious CECOT prison to turn around and return to the United States. Disregarding his order, DHS Secretary Kristi Noem instructed the two flights carrying migrants to continue their journey to El Salvador. In November, Judge Boasberg, who had previously argued in April that there were grounds to hold the government in criminal contempt, resumed his inquiry. But even if Noem and the Trump administration are found to be in criminal contempt, we can hardly imagine any administration officials facing any semblance of accountability. Moreover, accountability for perpetrators is only one side of the equation — victim redress is the other. In other countries, this brand of lawlessness would be called corruption plainly (and could be used to justify sanctions or immigration bans), yet in the United States, the facade of legality is maintained through the mere declaration that actions are lawful. In other instances such as the strikes on Venezuela and the kidnapping of Maduro and his wife, the U.S. government attempts to conflate justice and legality — capitalizing on American ignorance — so that they are constructed as being one in the same.

On December 16, Trump issued a presidential proclamation titled “Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States.” Adding to Trump’s previous proclamation in June — which banned nationals from Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen — the new ban adds Palestine (the ban does not say Palestine or Palestinians, but instead refers to Palestinian Authority documents), Burkina Faso, Mali, Niger, South Sudan, and Syria. In 2018, the Supreme Court upheld Trump’s 2017 travel ban in the case of Trump v. Hawaii, with the majority (5-4) arguing that the president’s ban was based on legitimate national security concerns as opposed to religious discrimination — at least as it pertained to the actual text of the ban and the process of determining the list of countries, not his demonizing and Islamophobic rhetoric. On the heels of his previous win, we can hardly expect the deferential Supreme Court, composed predominantly of Trump loyalists, to stand in his way of accelerating his anti-immigrant agenda and these new set of proclamations banning nationals from countries across the globe — whether rooted in Islamophobia, anti-Blackness, or anti-immigrant sentiment more broadly.

Who Has the Right to Have Rights?

In a postcard dated August 2002 and written to his family, one of the formerly incarcerated Muslim men at Guantánamo, Nizar Sassi, said of the prison: “If you want a definition of this place, you don’t even have the rights to rights.” Of course, what Sassi was describing was a context in which rules and protocols were being constructed specifically to evade the legal norms in place and to render any semblance of rights for those detained nonexistent. As the case of Guantánamo and the ever-expanding post-9/11 national security infrastructure has long revealed, the exercise of human and civil rights is relegated to the whims of those in power, and because they are most often pitted against the rights of the state, the battle for these rights becomes a battle between a canon and a knife — all while the cannon constructs the knife as a threat to its existence.

Trump’s National Security Strategy asserts that “the purpose of the American government is to secure the God-given natural rights of American citizens.” Ironically, this claim rests on a theory of rights that understands them as inherent to human beings rather than granted by the state. Yet the same document justifies empowering government institutions with “fearsome powers” that effectively authorize the suspension and violation of law in the name of protecting those rights. In this formulation, the rule of law is imperiled not only by the state’s abuse of legal authority, but by the explicit authorization to break the law itself.

There is little reason to believe that the legal system will ultimately prevail, as it often fails to — especially in the realm of national security and when it comes to preventing abuses in the first place. We must also remember that Trump did not inherit a clean slate; rather, the administrations of George W. Bush, Barack Obama, and Joe Biden demonstrated that the defining continuity of the “war on terror” has been a persistent lack of accountability, whether they committed war crimes or other crimes.

If states like the United States have taught us anything, it’s that they can easily (and often do) disregard the law altogether or weaponize and manipulate the law to protect their own rights at the expense of human rights. Given this reality, how can the state be an adjudicator of our rights when its interest is fundamentally about protecting its own rights at the expense of human rights? Nevertheless, against the state’s insistence that violence is necessary to secure rights and its corresponding refusal of accountability, we must understand our rights to exist beyond and against the nation-state framework. We do not have rights because of the state; we have rights in spite of it. We must also build our collective power to challenge the state so that what controls its ability to govern is the people united in their inherent rights, dignity, and categorical demands for justice for all. Internalizing our rights in this way challenges the legitimacy of the state and its violence, while continuing to build transnational solidarity and a path toward abolitionist futures.