Trump vs. International Law: He’s Not Winning

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He returned to Yale in January 2013 after serving for nearly four years as the 22nd Legal Adviser of the U.S. Department of State.]

The editors of the rebooted Opinio Juris 2.0 and the International Commission of Jurists are most gracious to hold this impressive symposium on my new book, The Trump Administration and International Law (Oxford University Press 2018). I especially thank my good friend Kevin Jon Heller, who cheerfully looks past our occasional substantive disagreements to host thoughtful discussions of my work, and to all of the busy friends and colleagues who took time to make such outstanding contributions to this Symposium.

In the days ahead, I will have occasion to respond to the essays that follow.  Here let me simply say what the book is about: the anatomy of a struggle, a counter-strategy of resistance, a recognition of what is at stake, and a call to action.

The Anatomy of a Struggle: With each day’s news regarding Donald Trump’s unprecedented assault on the institutions and regimes of the postwar legal order, it becomes all too easy to lose track of the overall picture. We see a U.S. foreign policy driven by rage and impulse. In dizzying sequence, Trump imposes a Travel Ban, announces his withdrawal from the Trans-Pacific Partnership, the Paris Climate Agreement and the Iran Nuclear Deal, bombs Syria, fights ISIS, threatens then embraces Kim Jong Un, launches a trade war, lectures the United Nations, withdraws from the UN Human Rights Council and (through his National Security Advisor) unleashes a blustery attack on the International Criminal Court. One respected journalist reports Trump screaming: “Just do it. Just do it. Get out of NAFTA. Get out of KORUS. And get out of the WTO. We’re withdrawing from all three.”

Recounting all of this, a worried friend recently asked me to summarize my book’s thesis. My short answer: “He’s not winning.”

My friend, surprised: “And why not?”

“Because international law is much bigger than Donald Trump.”

During his campaign, Trump famously and repeatedly promised his supporters that they would “get tired of winning.” In fact, as I tally at the end of the book, Trump’s last two years have been full of losses.  To chronicle this, my book first tours the horizon of Trump’s sweeping campaign to disrupt international law: immigration and the Travel Ban, human rights, climate change, trade diplomacy, the Iran Nuclear Deal, North Korea, Russia, Ukraine, and America’s wars.  I sketch his apparent strategy, and the motivations for it, and describe how an “outside-inside” counter-strategy of resistance based on transnational legal process has been applied across the board to push back against Trump’s many disjointed initiatives.

A Counter-Strategy of Resistance: As one of Trump’s top aides told Bob Woodward, “It’s not what we did for the country….It’s what we saved him from doing.” But the “we” in that statement is a far bigger group than anyone in Trump’s White House will admit. The book reviews the many creative techniques of resistance that have collectively made up a counter-strategy. That counter-strategy combines many external players “interacting-interpreting-internalizing” from the outside to bring lawsuits and other obstacles to block Trump’s multiple initiatives: nongovernmental organizations, the media, states and localities, allies, and international organizations.  Meanwhile, from the inside, many members of Trump’s bureaucracy have “engaged-translated-leveraged” to blunt Trump’s misguided impulses.  A pattern has emerged whereby Trump announces that he will disrupt a previously settled relationship, the media reacts, the allies and opponents push back, and policy resettles roughly where it was before Trump roiled the waters.  Foreign policy toward lower-profile nations and issues continue to be governed largely by lower political appointees, career bureaucrats, and standard operating procedures, unless and until they rise to the rare level that attracts White House political attention and micromanagement. So outside the headlines, key national security and defense policies continue to be made according to longstanding legal and policy principles, often embodied in established legal and policy frameworks embedded in congressional framework statutes, executive orders, presidential policy guidance, and institutional custom. The net result is that under Trump, the United States has shifted to a default strategy of “resigning without leaving,” less often exiting than staying within existing regimes and underperforming: a suboptimal outcome that has the silver lining of being curable should a new administration take office in 2021.

Today, as a revised NAFTA is announced and the fierce Supreme Court confirmation battle over Judge Brett Kavanaugh rages, fatalists are once again inclined to read the latest snapshot as proof that Trump has gained the upper hand. But my preferred analogy is to the penultimate round of Muhammad Ali’s famous “rope-a-dope” battle against George Foreman. While Foreman flailed away with a seemingly endless barrage of largely ineffective punches, observers thought he was decisively winning. Foreman pummeled Ali wildly, as Ali covered up, absorbed punishment, loudly protested, and strategically counterpunched. In hindsight, we now know that at that moment, it was Ali, not Foreman, who was about to prevail. In the same way, as Trump dances further out on the high-wire, he feels more free, even while he becomes far more vulnerable to being toppled. As I saw as a human rights policymaker watching many political strongmen collapse over the years, when you make everyone happy to see you go, you go quickly. When you attack as overly constraining the very partnerships, processes, and laws that provide your legitimacy and safety net, you plummet without it.

The most telling counterpunches may be just around the corner. Should the November 2018 by-elections go strongly in favor of the Democrats and one or both houses of Congress change hands—and should the Special Counsel issue indictments that put Trump’s political legitimacy into doubt—the Republicans will face a vexing choice. Should they retain Trump as their presidential candidate for 2020, or by using the Twenty-Fifth Amendment of the U.S. Constitution (as Deputy Attorney General Rod Rosenstein and other anonymous officials apparently contemplated) or more conventional political means, simply oust him in favor of someone more traditional—a Mike Pence, Nikki Haley, or Mitt Romney, for example? But if replacing Trump as presidential candidate means alienating Trump’s base and keeping his supporters from the polls, it is an almost certain recipe for Republican electoral defeat in 2020.

What’s at Stake—Kant v. Orwell: But beware the cautionary tale: we also know what a grievous toll the “rope-a-dope” battering took on Ali’s long-term health and well-being.  The message of my book has been that we are witnessing a similar contest now. And as everyone reading this knows, it is happening not just in the United States, but around the world.  The global challenge to human rights and the rule of law have reached crisis proportions. A prominent global rule of justice index reports that fundamental human rights diminished by almost two-thirds of the 113 countries surveyed in 2017; the same index assessed that since 2016, rule of law scores had declined in 38 countries.

How did this happen? My book argues that Trump is not so much a cause as a symptom of a larger global phenomenon. The explosion of democracy in the ‘90s unleashed global economic forces and technological shifts that many believe killed jobs, froze wages, and forced the migration of manufacturing, leaving the middle class feeling abandoned and betrayed. As inequality grew, so too did middle class anger against the globalist forces that had robbed them of their jobs and their future, building a broad nationalist and authoritarian countermovement against such perceived liberal orthodoxies as diversity, inclusion, and multiculturalism. The Syrian refugee crisis overwhelmed local authorities and impelled racism and xenophobia to spike, ending compassion for outsiders.  And so the Trump “reality show” now plays in Hungary, Poland, Turkey, Venezuela, China, Russia, the Philippines, Austria and Italy, just to name the most salient. The new global authoritarians all play by the same playbook. They demonize immigrants, cow legislators, disparage bureaucrats (domestic and multilateral), intimidate the judiciary, reward cronies, intimidate the media, and claim that constitutional checks and balances must give way to the “will of the people.”

So what is really at stake in the tale of Trump Meets World is less the endless political scuffles that we daily watch unfolding on cable television than the much larger, deeply consequential struggle between competing visions of world order: between an admittedly imperfect, but adequately functioning, Kantian vision of a law-governed international society and a more cynical Orwellian vision of global governance dominated by realist great-power spheres of influence. Globally, the example America sets over the next few years will be very closely watched. My book shows how thus far, the resilience of American institutions has largely checked Trump at home. But that resistance may well give way if Trump is re-elected, puts a cohort of his judges on the bench for life, or embeds his nationalist anti-globalist philosophy deeper into the American psyche. And his greatest impact may come abroad: from fueling the further rise of authoritarianism and the unnerving retreat from human rights and the rule of law.

The Call to Action: Unlike some, I do not believe our system “self-corrects,” any more than a doctor believes that a seriously ill patient will cure himself. Just as determined medical professionals fight to save a human body, and to preserve a worthy life, we as committed international lawyers must fight to save our body politic. Yes, we are seeing a torrent of uninformed populism, but the best antidote must be more enlightened populism, combined with carefully chosen, concerted, and persistent legal and political action. It is that enlightened populism and activism that my book describes, and that it calls on us to sustain.

At the end of the day—at the end of all days—I am an incurable optimist, and in the end, mine is a hopeful book. Its broadest message is not simply resistance, but resilience. We can preserve the rules-based global order that we have built, but we have to fight for it, together. We can get by, but we need a little help from our friends. And with luck and perseverance, the shared resilence of our enduring core institutions—the courts, Congress, the media, bureaucracy, subnational entities, civil societies, and our allies and international regimes—will endure and outlive Trump’s deviations and help reknit our society and our alliances when he is gone.