Last month, when our government blasted tear gas at women and children seeking refuge at our Southern border, ostensibly in service of law and order, a very different picture emerged of other parts of the Trump administration. Even leaving aside the regular revelations about criminal activity by top Trump associates, the administration itself has shown its law and order mantra to be completely hollow in another crucial area: enforcement of white-collar laws.
Last week, the Financial Times reported that antitrust enforcement dropped to its lowest rate since Nixon’s presidency. At the same time, Senate Democrats put out a report on the Consumer Financial Protection Bureau’s implosion, and a blog post from a Beltway employment law firm surfaced: “Trump [Department of Labor] Focusing More on Employer Compliance Than Crackdowns.” This was all in one day. Just a month earlier, the New York Times had reported on the steep decline in corporate prosecutions and penalties by the Trump Justice Department and Securities and Exchange Commission.
Together, these reports of feeble enforcement against corporations belie the oft-repeated myth that the Trump administration and his Republican enablers have a commitment to law and order. Even on those terms, he’s a complete fraud. It’s worth considering the Trump administration’s refusal to enforce corporate law in the context of its brutal immigration and criminal justice policies.
Firstly, the notion that migrants who have been so vilified by Trump are doing something illegal is wrong as a matter of law. Trump has made a series of end-runs around asylum protections, at one point attempting to unilaterally declare that migrants could not claim asylum outside of a port of entry. There is an entire section of our immigration law called “Asylum”; it starts like this: “Any alien … who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum in accordance with this section.” That’s pretty clear! (A judge has temporarily halted Trump’s executive action on ports of entry asylum, but it remains to be litigated by the courts.)
The Trump administration is also terrifying immigrant communities through its no-holds-barred approach to enforcement, with arrests at courthouses, school drop-offs, and routine check-ins at immigration offices. Of course, frightening people doesn’t ultimately lead to more law and order. It actually leads to greater lawlessness, as immigrant communities, afraid to seek help, hesitate to report domestic violence, sexual assault, workplace abuses, and other attacks.
The Trump administration also uses its “tough on crime” pose as a justification for various criminal justice policy changes to make the system harsher for some. For example, former Attorney General Jeff Sessions rescinded an Obama-era sentencing memorandum instructing prosecutors to focus on serious, high-level, or violent drug traffickers. Instead Sessions directed these prosecutors to charge the most serious offense and seek the highest possible sentence in all of these types of cases—regardless of mitigating circumstances like a lack of prior record or a nonviolent crime. This change was instituted despite sentencing guidelines that are widely viewed, even by some federal judges, as draconian and often unjust.
Meanwhile, we see a different story in relation to a different set of players. No highest possible sentence. No charging the most serious offense. No tear gas. Instead, a white glove. A gentle touch, if any. Often, not even a slap on the wrist.
According to the Financial Times, the Department of Justice filed fewer than 20 criminal antitrust cases in the most recent fiscal year, the lowest level since 1972, and less than half the cases filed during President George W. Bush’s first year. Penalties and fines have also plummeted.
The Senate minority’s report on the Consumer Financial Protection Bureau describes colossal backpedaling in the past two years. This has included the dissolution of the office that oversaw the student loan market, a decision to stop proactively reviewing potential violations of the law protecting members of the military service from financial fraud and predatory loans, and the stripping of powers from the office responsible for enforcing fair lending laws.
As for the Securities and Exchange Commission, the New York Times compared the first 20 months of the Obama and Trump administrations, and found a more than 60 percent drop in penalties imposed and illicit profits ordered returned by the SEC. Also, during this period, the Justice Department brought only 17 cases against banks under Trump, compared with 71 under Obama. Even George W. Bush SEC Chairman Harvey Pitt, not famed for harsh penalties against corporate violators, noted that the Trump administration’s current posture “could embolden some to keep breaking the law.”
The Department of Labor, meanwhile, implemented a new program that offers amnesty for wage law violators who self-report. And the Trump administration rescinded an Obama-era executive order that required large companies to disclose labor violations when applying for federal contracts.
Trump and his team strike military postures when dealing with immigrants, the poor, or people of color. They’re pliant as a pussycat, though, when dealing with businesses that swindle consumers, defraud veterans, exploit workers, or cheat investors.
This administration, indeed, demonstrates the classic pose of a bully: beat up on those who don’t have power, accommodate those who do.
Believing in law and order means that the crimes of large companies and their owners are treated with at least the same seriousness as the wrongdoings of everyone else. It means creating a culture of compliance. It also means taking steps that actually lead to more law-abiding and safe communities for everyone, not play-acting like a sheriff who’s just entered the O.K. Corral. A true commitment to law and order means that everyone is subject to the law—the powerful and the powerless alike.