While Donald Trump and his staff wash their hands of any responsibility for terrorism under their watch, already declaring it to be the fault of the courts, legal experts and others are wondering just what powers Trump and his team might attempt to seize after any such attack. The possibilities are as alarming as you might expect.
“If it is a large and grim attack, he might ask for more surveillance powers inside the U.S. (including fewer restrictions on data mingling and storage and queries), more immigration control power at the border, an exception to Posse Comitatus (which prohibits the military from law enforcement in the homeland), and perhaps more immigration-related detention powers,” Goldsmith wrote in an e-mail. “In the extreme scenario Trump could ask Congress to suspend the writ of habeas corpus, which would cut off the kind of access to courts you are seeing right now for everyone (or for every class of persons for which the writ is suspended).”
Given Trump's behavior so far, that's probably underselling it. Trump's contempt for the courts could very well mean an in-country militarized response that Donald Trump and backing Republicans would not even bother to justify through the judiciary. His tweeted assertions already set the stage for blaming judges directly for the next attack; it seems unlikely that in a true crisis, he would not use that pre-planned blame to justify circumventing laws entirely. We know he is a fan of torture, including the torture of suspected terrorists' families. We know he is a fan of authoritarian leaders and authoritarian acts—he considers them “strong.”
We also know as certainty that Trump and his collection of white nationalist advisers would seek to use any such attack to fear-monger about whichever individual American populations they believed they could get away with scapegoating. Already, Trump is banging on with the Alex Jones-esque notion that "the media" is covering up or downplaying terrorism for their own agenda—a claim the White House sought to back up with a list of well-publicized terrorism incidents. A list that, conspicuously, left out terrorist acts perpetrated by the far-right against minority targets.
Breasseale said that he was most concerned about the potential of Trump using existing D.H.S. tools. “He could create a registry of various religions, sects, and provenance—all within the law—all to amp up fear and suspicion, releasing the information in ways that meet his narrative,” he said.
Note that President Bannon et al have already instructed the government to keep public track of crimes by undocumented residents—such lists being a commonplace white supremacist strategy for stoking fear of immigrants and non-whites. Do we think he would be beneath, say, instructing the government to publicly post the names and addresses of all immigrants from a certain country, or all Muslim Americans in a certain city, declaring that Americans have the right to know of the dangers those individuals may pose?
In practice the United States president is not bound by laws, but by his fellow elected officials. The courts have no army. If a president violates even the most basic of laws—say, a prohibition against profiting off the office written into the very Constitution itself, or ignoring a court order barring him from taking certain acts—then it is incumbent on the legislative branch to force his compliance or remove him entirely.
Could we count on that, in a time of true national crisis?
Could we count on that on any given weekday, for that matter?