Columnist Dana Milbank writes a thorough and alarming account of the Trump initiatives designed to destroy due process, a central tenet of our Constitutional system. T

The Washington Post

Opinion

Dana Milbank

Don’t know much about history? I’m here for you, Elon Musk.

‘Due process’ might sound technical, but it was elemental to our founding.

March 21, 2025

The man President Donald Trump put in charge of taking a chain saw to federal agencies showed once again this week that he lacks even a rudimentary understanding of the government he is dismembering.

“This is a judicial coup,” Elon Musk proclaimed, reacting to the growing list of federal judges who have moved to halt the Trump administration’s headfirst plunge into lawlessness. “We need 60 senators to impeach the judges and restore rule of the people.”

How did this guy pass his citizenship test?

As the framers wrote in the Constitution, it is the House, not the Senate, that has “the sole power of impeachment.” And the Senate needs “the concurrence of two thirds of the members present” — 67, assuming full attendance, not 60 — to convict.

More important, the framers wrote that judges hold their offices for life “during good behavior” — which has been understood to mean they can only be impeached for corruption. That is how it has been since the 1805 impeachment trial of Supreme Court Justice Samuel Chase, when Chief Justice John Marshall, himself a Founding Father, persuaded the Senate to abandon the idea that “a judge giving a legal opinion contrary to the will of the legislature is liable to impeachment.”

Musk, growing up in apartheid-era South Africa, probably wasn’t taught to revere constitutional democracy. But what’s the excuse of his colleagues in the Trump administration?

They have issued scores of executive orders that flatly contradict the Constitution and the laws of the land. Apparently, they are hoping a submissive Supreme Court will reimagine the Constitution to suit Trump’s whims — and federal judges have reacted as they should, by slapping down these lawless power grabs. As such, the administration is on a prodigious losing streak in court. Judges, in preliminary rulings, have already blocked the administration more than 50 times. Over the past week alone, judges:

• Ended Musk’s access to the private Social Security data of millions of Americans for a “fishing expedition.”

• Halted Musk’s continued destruction of the U.S. Agency for International Development.

• Blocked enforcement of Trump’s executive order banning transgender people from military service.

• Stopped the administration from terminating $20 billion in grants from a congressionally approved climate program.

• Ordered the Education Department to restore $600 million in grants to place teachers in struggling schools.

• And, most visibly, required the administration to halt the deportation flights of Venezuelan migrants to a Salvadoran prison without any judicial review — an order the administration evidently defied.

There’s an obvious reason Trump is getting swatted down so often: He’s breaking the law. Instead of changing course, the administration is now trying to discredit the courts — and the rule of law. White House adviser Stephen Miller denounced “insane edicts of radical rogue judges” and declared that a judge had “no authority” to stop Trump. Border czar Tom Homan went full-on authoritarian on Fox News: “We’re not stopping,” he said of the deportation flights a judge had temporarily halted. “I don’t care what the judges think.”

Trump called the U.S. district judge in the case, James Boasberg (appointed to the bench by George W. Bush and elevated by Barack Obama) a “radical left lunatic” who, “like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” This drew a quick rebuke from Chief Justice John Roberts (in case Musk doesn’t know this, he’s also a Bush appointee), who reminded Trump: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” Trump later told Fox News that he “can’t” defy a court order — welcome news, except he apparently had done exactly that in more than one case — while arguing that something had to be done “when you have a rogue judge.”

Someone has gone rogue here, but it isn’t the judge. Boasberg’s actions are squarely within the best tradition of the judiciary, for they are in defense of principle, enshrined in the Bill of Rights, that no person in this country, citizen or alien, may be “deprived of life, liberty, or property, without due process of law.” This is precisely what the Trump administration denied to those it deported and imprisoned.

Violations of due process have been alleged in dozens of the cases against Trump’s executive actions: terminating workers and programs; eliminating grants; violating union contracts; denying care to transgender people; banning the Associated Press from the White House; abolishing civil rights enforcement and everything else the administration calls “DEI”; harassing law firms; and summarily deporting migrants. All of these things were done without notice, without recourse, without adjudication and without clarity about which laws give the president the power to do them.

“Due process” might sound technical, but it was elemental to our founding and remains at the heart of our legal system. Trump’s flagrant denial of due process is so radical that it isn’t only at odds with 200 years of U.S. law — it’s also contrary to another 600 years of English law before that. For the benefit of Musk (who doesn’t seem to know about such things) and his colleagues (who don’t seem to care), perhaps a refresher is in order.

For this, I called Jeffrey Rosen, who runs the nonpartisan National Constitution Center, which finds consensus between conservative and liberal scholars. The concept of due process, he explained, is in the Magna Carta, which in 1215 asserted that “no free man shall be arrested or imprisoned ... except by lawful judgment of his peers or by the law of the land.” Britain’s 1628 Petition of Right, written during Parliament’s struggle against the dictatorial Charles I, holds that “no man ... should be put out of his land or tenement nor taken nor imprisoned nor disherited nor put to death without being brought to answer by due process of law.” The king, who imposed forced loans on his subjects and imprisoned people without trials, was beheaded during the English civil war.

“That example completely inspired the American Revolution,” Rosen explained. “They compared the tyranny of George III to the arbitrary rule of Charles I, saying George III was violating due process of law by insisting that patriots are tried in England rather than in local courts, that they can be put in jail without trial, and their liberty is at the whim of the king.” During the revolution, due-process provisions appeared in the constitutions of Pennsylvania, Virginia, New York, North Carolina and Vermont. Similar language was included in the Fifth Amendment to the Constitution, then eventually repeated in the 14th Amendment to apply to all states.

“The very foundation of constitutionalism, which means a government according to law rather than autocratic whim, is the due process of law,” Rosen told me. “What distinguishes a constitutional officeholder from an absolute monarch or a tyrant is that he is bound by the Constitution and by laws.” Without due process, there is no free market, because private property can be taken without justification or explanation. Without due process, there are no civil liberties, for a person’s freedom can be taken for any reason, or none at all.

Without due process, you have what we see today: a leader using a wartime statute in peacetime to declare certain people to be dangerous gang members without providing any evidence, then imprisoning them without charges and finally denying the authority of the courts and defying a court order requiring the leader to obey the laws as written. It is no exaggeration to say that this is the road to despotism.

The Trump administration’s attempt to upend 800 years of settled law is staggering, but it is easily lost in all the other chaos the president is spreading. The Federal Reserve this week said that it expects slower growth and higher inflation than it did before Trump took office, in large part because of his tariffs, while falling confidence among consumers and businesses has raised the danger of recession.

In foreign affairs, Israel has restarted the war in Gaza, and Trump has launched a military campaign to see the Iran-backed Houthi militants in Yemen “completely annihilated.” Trump failed to get Russian dictator Vladimir Putin to agree to a ceasefire in Ukraine, despite Trump’s bullying of Kyiv and his termination of efforts to document Russian war crimes — including the kidnapping of Ukrainian children. Trump silenced the Voice of America, to the benefit and delight of China, Russia and Iran. Even the annual visit of the Irish prime minister to the White House for St. Patrick’s Day became mired in controversy when MMA fighter Conor McGregor, given the podium in the White House briefing room, proclaimed that “Ireland is at the cusp of potentially losing its Irishness” because illegal migrants are “running ravage on the country.” Responded the prime minister: “Conor McGregor’s remarks are wrong, and do not reflect the spirit of St Patrick’s Day, or the views of the people of Ireland.”

The new administration’s bows to white nationalism continue apace. It removed, at least temporarily, thousands of pages from the Pentagon website and others that celebrated the integration of the armed forces and the contributions of people of color: a Native American who helped hoist the U.S. flag on Iwo Jima, the Navajo code talkers of World War II, the Native American who drafted the Confederacy’s terms of surrender, baseball great Jackie Robinson, and a Black Vietnam veteran, on whose page the URL was changed to “deimedal-of-honor.” Trump, meanwhile, reiterated his offer to give “safe refuge” to White South Africans, while at the same time expelling the South African ambassador. The administration has restored the names of Fort Benning and Fort Bragg, which honored Confederates — getting around a law prohibiting this by technically renaming the bases for other people with the surnames “Benning” and “Bragg.”

The Forward, a Jewish newspaper, reported this week that the head of Trump’s antisemitism task force shared a post on X on March 14 from a white-supremacist leader asserting that “Trump has the ability to revoke someone’s Jew card.” (The aide apparently later unshared the post, whose author led a group that called on Trump supporters to become “racially aware and Jew Wise.”)

The sabotage of the federal government continues, as recklessly as before: dramatically cutting Social Security staff, offices and phone support while simultaneously requiring millions more of the elderly and disabled to apply for benefits in person rather than online; slashing the taxpayer help staff at the IRS and calling off audits; scaling back scientific research at the Environmental Protection Agency and the National Institutes of Health. Paul Dans, the former chief of Project 2025, told Politico that there “is almost no difference between Project 2025 and what Trump was planning all along and is now implementing.”

Trump appointed conspiracy theorist Michael Flynn, Sean Spicer, Steve Bannon’s daughter and the former White House valet to boards overseeing the U.S. military academies. He took time to visit the Kennedy Center, where he has fired the leadership — and used the visit to share “personal stories and anecdotes, including about the first time he saw ‘Cats’ and which members of the cast he found attractive,” as The Post’s Travis Andrews reported. The administration ordered the release of files on the John F. Kennedy assassination before bothering to remove the Social Security numbers of some people who are still alive.

Trump and his cronies continue to use the federal government for personal gain. Following last week’s promotional event for Musk’s Tesla at the White House, the commerce secretary recommended people buy Tesla stock, and the White House has installed Musk’s Starlink service despite security concerns. At the same time, Trump’s crypto project released a second crypto coin, raising $250 million to bring its total to $550 million — and 75 percent of the earnings go into the Trump family’s pockets. All of this is about as on the level as Trump’s golf game. “I just won the Golf Club Championship ... at Trump International Golf Club,” he announced on Sunday, as storms and tornadoes ravaged a swath of the country. “Such a great honor!”

The most ominous development, though, is Trump’s expanding abuse of power to silence critics and disable political opponents. He went to the Justice Department last week and delivered a speech attacking lawyers who opposed him, such as Jack Smith, Andrew Weissmann, Norman Eisen and Marc Elias, as “scum” and “bad people” — and the administration has revoked the security clearances of many such lawyers. After issuing executive orders seeking to destroy three law firms because of their ties to Trump’s opponents, the administration has gone after 20 more law firms over their supposed DEI programs.

After a reporter asked the president whether he would cut off Secret Service protection for former president Joe Biden’s children, Trump did exactly that. Trump’s acting head of the Social Security Administration admitted that he had canceled contracts with the state of Maine because he was “upset” at Maine Gov. Janet Mills, a Democrat, for not being “respectful” of Trump during a public exchange they had. Congressional Republicans, meanwhile, have asked Trump’s FBI to probe the main Democratic fundraising platform, saying it “has advanced the financial interests of terror.”

Trump cut off $175 million of government funds going to the University of Pennsylvania because of its policy on trans athletes, following the White House’s suspension of $400 million of funds to Columbia University over Gaza protests there and its demand that the school change its discipline and admissions policies. More than 50 other universities are under investigation. Trump’s acting U.S. attorney for D.C., Ed Martin, has threatened to punish Georgetown Law School if it doesn’t change its curriculum, calling it “unacceptable” for the school to “teach DEI.”

Trump, in his appearance at DOJ, said negative coverage of him on CNN and MSNBC “has to be illegal.” He proclaimed that Biden’s use of the pardon, a constitutional power, to preemptively protect members of the House Jan. 6 committee from Trump’s harassment was “null and void.” He fired the two Democratic commissioners from the Federal Trade Commission, his latest defiance of federal statutes protecting independent commissions. His administration fired the board of the independent U.S. Institute of Peace and seized control of its building, physically removing its president and threatening prosecution.

Then there are the summary deportations of people Trump finds undesirable. The administration has arrested and is seeking to deport a Columbia graduate student who is a green-card holder with no criminal record because of his role in Gaza protests. It deported a Brown University doctor even though a judge had issued an order requiring 48 hours’ notice before her deportation.

In the case of the alleged Venezuelan gang members, administration officials and allies are celebrating their defiance of the court. President Nayib Bukele of El Salvador, which the Trump administration is paying to jail deported migrants at its infamous 40,000-inmate prison, responded on X to Judge Boasberg’s order by saying “Oopsie ... too late,” with a laugh-cry emoji. Secretary of State Marco Rubio retweeted it, and Musk added his own laughing emoji. And Attorney General Pam Bondi outrageously claimed “a DC trial judge supported Tren de Aragua terrorists over the safety of Americans” — even though the migrants would not have been released under the court order, which only delayed their deportation.

In the House, Trump’s allies raced to obey his instructions, filing impeachment articles against Boasberg on Tuesday. Freshman Rep. Brandon Gill (R-Texas) submitted the articles, joined by five others. House Republicans have also moved to impeach four other federal judges over disagreements with their rulings.

Thus are Trump and his allies ignoring 215 years of precedent, going back to Samuel Chase, that objections to courts’ opinions are to be resolved through the appeals process, not impeachment.

Thus are Trump and his allies turning their backs on 810 years of precedent, going back to the Magna Carta, in which we protect ourselves from tyranny through the due process of law.

But this is where we are. White House press secretary Karoline Leavitt, in a delectable Freudian slip, proclaimed in a briefing this week that “we want to restore the Department of Justice to an institution that focuses on fighting law and order.”

If that is the goal, the Trump administration is to be congratulated on a job well done.

By Dana Milbank

Dana Milbank is an opinion columnist for The Washington Post. He covers the White House, Congress and campaigns -- along with occasional essays about his misadventures in nature. He is a New York Times bestselling author and has written five books on politics, most recently "Fools on the Hill." 

https://www.washingtonpost.com/opinions/2025/03/21/trump-due-process-rule-law-deportations/