Guardrails Under Siege: The Fight to Preserve the Rule of Law
March 26, 2025 | Can Our Justice System Weather the Storm?
In a recent America at a Crossroads discussion, legal expert Harry Litman—former U.S. Attorney, Deputy Assistant Attorney General, and host of the Talking Feds podcast—offered a bracing look at the legal and constitutional challenges facing the United States. With his deep knowledge of the justice system and a career steeped in constitutional law, Litman unpacked the growing tension between the judiciary and the Trump administration. The purpose of the conversation was clear: to assess whether the American legal system’s foundational guardrails can withstand the pressure of an increasingly defiant executive branch.
Judicial Independence Under Threat
At the heart of the discussion was the Trump administration’s confrontational posture toward the judiciary. Litman focused particularly on the administration’s response to rulings it finds unfavorable—most notably those by Judge James Boasberg, who has been subjected to personal attacks, including threats to his family, for issuing temporary restraining orders against the government’s aggressive deportation tactics.
Litman emphasized that these judicial rulings weren’t radical acts of defiance; they were routine exercises in the rule of law. Yet the administration’s response—public smears, insinuations of bias, and even threats of impeachment—has created what Litman called a “January 6 dynamic,” endangering judges and undermining public trust in the courts.
“National Security” as a Legal Shield
One recurring theme in Litman’s analysis was the administration’s blanket invocation of “national security” as a way to dodge judicial scrutiny. In a recent case involving the Alien Enemies Act—a statute invoked only three times in American history—the administration claimed wartime-level emergency powers to deport migrants, bypassing standard legal processes.
While the courts, including a Republican-appointed judge on the D.C. Circuit, rebuked this interpretation, Litman warned that the administration’s pattern is clear: speak the words “national security” and expect the courts to back off. This misuse of a legitimate legal principle, he argued, not only stretches the law but invites authoritarian abuse.
Legal Intimidation and the Weaponization of Power
Litman also drew attention to the Trump administration’s aggressive efforts to punish law firms perceived as politically hostile. Through executive orders and backchannel pressure, prominent firms like Paul Weiss were forced into Faustian bargains—agreeing to provide millions in pro bono work and abandon DEI efforts to stay in the administration’s good graces.
Other firms, like Perkins Coie, have chosen to fight back, and Litman expressed hope that they would prevail in court. Still, he warned that the damage goes beyond legal rulings. This behavior represents “a shakedown racket,” he said, pointing to its chilling effects on independent legal advocacy and the broader erosion of institutional norms.
The Constitutional Crisis Ahead
Perhaps the most sobering part of the conversation centered on what Litman called the “tripwire” moment: when the judiciary issues an order and the executive branch simply refuses to comply. That moment, he believes, may not be far off.
Should that occur, the last remaining guardrails may be state governments, state attorneys general, and mass public resistance. Litman underscored the importance of recognizing that we may soon face a real constitutional crisis, one in which the survival of democratic norms depends on non-federal actors stepping in to uphold the rule of law.
A Call for Civic Engagement
Despite the alarming trends, Litman ended on a hopeful note. He believes America’s cultural commitment to constitutional democracy runs deep—and that widespread resistance, legal clarity, and public engagement can push back against authoritarian drift.
In his words, “Every democracy that failed thought it couldn’t happen there.” The challenge now is to prove that, in the United States, it still can’t.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.