The Space Between the Bars

Is the legal system capable of reining in Trump's brand of hybrid warfare?

“It’s the space between the bars that holds the tiger.” — Zen koan

A Zen koan is a phrase that doesn’t have a single interpretation, but is meant to be contemplated. The one above is one of my favorites, and one that I have been thinking about in light of the two recent gag orders put in place against Trump: The first by Judge Arthur Engoran, who oversees his civil case in New York, which was recently reinstated after being temporarily paused, and the other by Judge Tanya Chutkan, who presides over his federal criminal case in D.C., which was affirmed with some modifications by the D.C. Circuit just last week.

Like the other legal restrictions of varying degrees he faces — including a protective order in his Manhattan hush money case and the bond agreement in in his Fulton County and Mar-a-Lago cases — Trump has, over the last year, found himself in new territory. Until now, Trump has been used to violating the implicit, agreed-upon ground rules that govern a rule of law society with impunity. As I have written previously, Trump has often taken advantage of information asymmetries — the vacuum where institutions can’t respond, because of norms or rules preventing them from doing so — to manipulate narratives, foment violence, and generally gain the upper hand. We have seen him do this in numerous contexts: The Mueller investigation, during the 2020 election, the aftermath of the FBI search of Mar-a-Lago, and in the lead up to his New York indictment.

In all of these instances, Trump took advantage of features that are designed to protect democratic values — things like prosecutors’ reluctance to comment on ongoing cases, or news networks’ restraint in calling elections before votes have been counted, or the FBI’s shielding search warrant affidavits before formally charging someone. In exploiting these values to his benefit, Trump has managed to turn them on their heads and expose them as a democratic Achilles’ heel, rather than as a strength. He has, in short, waged a form of hybrid warfare in our political and legal system.

In this regard, it’s useful to draw some parallels between Trump’s conduct domestically and the conduct of his pal Vladimir Putin (or as I like to call him, Trump’s Vladdy Daddy) on the international stage. Those who are enrolled in my Substack course, “Democracy in the (Dis)Information Age,” are familiar with the concept of hybrid warfare. Specifically, hybrid warfare is a asymmetrical strategy where a weaker actor subverts the expectations of their ostensibly stronger adversary — ones usually based on some shared framework of norms or rules, like, say, the laws of war — to put them off balance and leave them unable to effectively respond. In Class 10, I discussed asymmetrical threats and quoted a RAND study as follows:

Asymmetric strategies attack vulnerabilities not appreciated by the target or capitalize on limited preparation against the threat

1) They rely primarily on concepts of operations fundamentally different from those of the target and/or from those of recent history—often employing different weapons—and/or

2) Can serve political or strategic objectives substantively different from those the target pursues

In Putin’s case, we have seen this play out through things like invasions using personnel not wearing military insignia, assassinations using biological weapons, and electoral interference using disinformation. I think of it as the “Who does that??!?” approach to war: It’s difficult to find the appropriate and proportional response to an action that lies so far outside the ground rules — at least without breaking our own norms and rules in the process. As a result, any “normal” response will typically seem pretty underwhelming (e.g., dismissing diplomatic personnel from the U.S., as we did in response to the assassinations and electoral interference, or nothing, in the case of Crimea). Predictably, this emboldens the bad actor and encourages them to push the boundaries even further. Like Vladdy Daddy, like son.

Of course, Putin pushed the boundaries a bit too far in invading Ukraine. He made a colossal mistake not only because he miscalculated his military advantage, but because by using military force he placed himself squarely within the framework of international law — allowing the U.S. to respond on equal terms. That is to say, he is now on a playing field where America, and the West, has the tools (if they are willing to use them) to directly counter Putin’s actions. And the parallel here extends to Trump, too: Unlike his adversaries in the past — investigators, prosecutors, the media, ordinary voters — judges have the authority and the means to respond directly, and forcefully, to Trump. Indeed, since being formally charged and coming under the jurisdiction of the judicial system, Trump has (finally!) landed on a playing field where he can no longer break norms without facing some consequences.

Which brings me back to the Zen koan. Both Putin and Trump find themselves in rules-based systems that should, theoretically, create some “bars” around them…at least more so than before. The question is really how much space these systems are willing to impose between those bars. As I write this, President Zelensky is speaking to the U.S. Senate, asking them to close that gap by providing additional military aid to Ukraine, because the current funding is set to expire by the end of this year. As for Trump, his gag orders remain in place, but we don’t need a tarot card deck to predict that he will violate their terms by the end of the year, too. A failure on either of these fronts to meaningfully constrain the aggressors’ actions has implications for democracy: One will reveal the impotence of the international legal order, and the other the impotence of our judicial system. We can expect more norm- and rule-breaking in both arenas if we are unwilling to hold these rogue actors accountable.

It’s the space between the bars that holds the tiger. My take: Rules are only as effective as our willingness to enforce them. Let’s hope our legal system is up to the task.