If you fight the law, Mr Trump, the law wins. Take on Iran and sharia instead

‘Breaking rocks in the hot sun / I fought the law and the law won.” As a teenage punk rocker with a Thatcherite enthusiasm for the rule of law and harsh penal codes, I first heard those lines from the hoarse larynx of the Clash’s Joe Strummer. I found out only later that the song had been written by the guy who replaced Buddy Holly as frontman of the Crickets. No, I don’t remember his name either.

It’s a great number but not one that should be sung by presidents of the United States. Unfortunately for Donald Trump, I Fought the Law was last week’s theme tune. On Thursday the federal court of appeals for the ninth circuit ruled against his executive order banning refugees, immigrants and visitors from seven mostly Muslim countries. As a result the order is a dead letter, pending further litigation or a complete rewrite by Team Trump.

To everyone who had spent the past three months wildly predicting the death of the republic at the hands of the tyrant Trump, this must come as something of a let-down. The time-honoured response of a dictator to a judicial rebuff is to have his party pass emergency legislation that suspends the constitution and gives his edicts the force of law. There is also the option of arresting and/or shooting the offending judges. Tweeting “See you in court” does not get you to Il Duce status, much less full Führer.

As I have repeatedly argued, Trump is not a fascist but a populist, much more post-1873 America than post-1933 Germany. The liberal media have been lured into drawing the latter misleading analogy because a) they are historically ignorant, b) they still cannot process how wrong they were last year and c) Trump’s chief strategist, Steve Bannon, has intentionally provoked them. The theory is that the more hysterical The New York Times and CNN are, the more confident the Trumpist base feels that their man really is shaking things up.

Focus on what Trump is actually doing — as opposed to the plot of It Can’t Happen Here — and it’s standard populism: restrict immigration (“the Chinese must go” was the 1870s version, today it’s “ban the Muslims”), threaten protectionism, promise jobs for American workers, heap scorn on liberal elites. But because Trump is a populist president governing with a Republican Congress, the rest of the programme is the usual Grand Old Party fare: tax cuts (let’s hope not just for the top 1%), deregulation (Goldman Sachs edition) and repeal of Barack Obama’s unloved but hard-to-abolish system of compulsory universal health insurance.

Thus far, then, the republic seems in much less danger than the “OMG, he’s Hitler” gang had led us to believe. Actually, the biggest threat to it right now is Trump flopping so badly that the country swings back to a Democratic Party increasingly mesmerised by the insufferable senator for Massachusetts Elizabeth Warren, whose secret ambition is to replace the constitution with Harvard’s Little Red Book of Diversity Awareness and Social Justice.

Trump’s biggest mistake so far has been to pick a fight with the law. Not many groups are more powerful in America than lawyers and verbally abusing judges touches a nerve. Even Neil Gorsuch, whom Trump has just nominated for elevation to the Supreme Court, couldn’t bite his lip, injudiciously telling Richard Blumenthal, a Connecticut senator, that Trump’s judge-bashing tweets were “disheartening” and “demoralising”.

The lesson is that a would-be transformative leader — who is bound to face shrill opposition — needs to pick fights he can win. In taking on the courts Trump has picked the wrong kind of fight. If he does go to the Supreme Court and loses again, he’ll have to choose between folding ignominiously and tweeting indignantly. Memo to the president: one of Franklin Roose–velt’s biggest mistakes was to cast aspersions on the Supreme Court.

Think back to the first year of Margaret Thatcher’s government. She did not start off as a popular prime minister and her anti- inflationary policies for a time made matters worse. Many (including senior Tories) thought she would not survive to fight another election. But she was vindicated on inflation, which proved to be a beatable foe; she broke the siege of the Iranian embassy, sending the SAS in against the Iranian Arab group that had occupied the building; she resisted the blackmail of the IRA hunger strikers, refusing their demand to have the status of political prisoners; and, of course, she kicked the Argentinians out of the Falklands. Four wins. Four beatable adversaries.

Trump’s presidency could go into freefall if he does not secure some comparable victories in the coming year. Populist voters are fickle. Conversely, however, if he does get some points on the scoreboard, his popularity could soar as Thatcher’s did in time for her to win the 1983 election.

That’s why Trump would be much smarter to start fighting a different kind of law: sharia. There are Islamist enemies within (the Muslim Brotherhood) and without (Iran) who look eminently beatable. I see a much more credible strategy of resisting Islamic extremism than the inept “Muslim ban”, which has driven liberals into the camp of the Islamists. Better to clamp down on the numerous Islamist organisations inside the United States that are busily targeting the Muslims already in America while Trump expends energy on fruitless litigation.

I also see a strategic opportunity to isolate Iran over its missile tests and military interventions in Syria and Yemen. I hope James Mattis, the defence secretary, has been settling nerves in the Far East in order to get serious about the Middle East. The president’s decision to revert to the “one China” policy in his exchange with Xi Jinping is evidence of a new realism in the White House, because that was another fight he would surely have lost.

Of course, wins on these fronts won’t suffice if Trump fails to deliver on his economic promises. The overwhelming majority of economists see growth coming in below 2.5% this year. But economists are not esteemed the way judges are and if Trump fights economics he might just be the one who wins. His promise on Thursday of a “phenomenal” tax reform plan sent a thrill through both Wall Street and Main Street.

According to the latest available survey, 80% of business owners and executives expect US business conditions to improve this year, nearly twice as many as at this time last year. If that translates into a surge in investment, Trump could start looking like Tom Brady, the New England Patriots quarterback, who led one of the most spectacular comebacks in all of sport at last Sunday’s Super Bowl.

I Fought the Law is a song of resignation, an admission of defeat. “I left my baby and it feels so bad, / Guess my race is run.” By contrast, Brady’s favourite pre-game tune is What’s Up? which goes like this: “I try, oh my God do I try / I try all the time, in this institution / And I pray, oh my God do I pray / I pray every single day, for a revolution.” Could that be the theme tune of the Trump comeback? Don’t rule it out.

Niall Ferguson is a senior fellow of the Hoover Institution, Stanford.

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