The guardrails against authoritarianism are not holding

The Hill

09-04-2025

In 1941, as the U.S. headed toward war, President Franklin Roosevelt enunciated the foundational 'Four Freedoms,' the pillars on which he saw our nation built: freedom of speech, freedom of religion, freedom from want and freedom from fear.
In just 90 days since President Trump took office, Americans have seen the Four Freedoms chilled, if not seriously imperiled.
The dispensing of guardrails abounds. It includes appointments of Trump loyalists thin on qualifications for their jobs. It includes the firings of people like Gen. Timothy Hough, head of the National Security Agency and the U.S. Cyber Command, which lawmakers described as a 'chilling' action that would damage America's cyber defenses and 'roll out the red carpet' for attacks by foreign adversaries.
It includes compromising national security with leaks of sensitive data to outsiders and wholesale deportations without a hearing. It includes holding large law firms to ransom out of personal animus, then exacting millions in free services, provided the services aid favored MAGA causes. It includes crashing the Federal Reserve for 'playing politics' and dismantling or neutering the independent agencies. It includes devaluing the work of scientists and defunding research at the universities — all elements constructed to keep us free, safe and healthy.
As for the rule of law, Trump even threatened to seek impeachment of judges that disagreed with him, at least until Chief Justice John Roberts, with an unprecedented rebuke, put a stop to it.
The public is not happy. Last weekend was marked by millions of people across the country who took to the streets to protest the havoc. While the protesters showed anger toward Trump, Elon Musk and the 'Department of Government Efficiency' that has been slashing government agencies and employees, they more generally focused on our freedoms, aiming not to change the status quo but to protect our traditional rights from abridgement.
The protestors carried homemade signs. One said, 'We value: Due Process, Public Health, Science, Our Veterans, Our Diversity, The Friendship & Autonomy of Our Allies.' Another, my favorite, sized it up neatly: 'Hands Off Our Rule of Law.'
So, what can save us from this madness? It might be the federal courts, which have before them more than 170 cases filed against the administration's executive orders, with a number resulting in temporary restraining orders entered against the government. But this will take time, and it is time that we may not have.
Can we count on the Department of Justice? It is supposed to uphold the Constitution and the rule of law. But under Trump and Attorney General Pam Bondi, examples of removing guardrails abound.
Career Justice Department lawyers find it difficult to answer relevant questions put to them by judges, as honest answers might undercut the policy directives of the political appointees at the top. These career lawyers know the dire consequences of an honest answer. A top immigration law prosecutor was just fired for admitting that the deportation of a Maryland man to El Salvador was the result of an 'administrative error.'
One significant guardrail has been the highly respected Office of Legal Counsel. Under Trump and Bondi, the office has been largely dealt out of the game.
The Office of Legal Counsel traces its origins to the Judiciary Act of 1789, which empowers attorneys general to render legal opinions to the president, and a 1962 presidential directive requiring it to review draft executive orders. The office regularly evaluates the legality of executive orders before they are issued, ensuring they are within the president's constitutional and statutory powers. The office issues opinions, the product of meticulous research, that are supposed to bind the executive branch. Its opinions are often cited with approval by the Supreme Court. One of its opinions put a stop to torture of alleged terrorists after 9/11; another dealt with drone strikes on American citizens abroad. Another opinion is that a sitting president cannot be prosecuted while in office for criminal acts.
Attorneys general can overrule Office of Legal Counsel conclusions, and presidents are not bound to follow its advice. But in practice, reversal of the office's judgments is rare.
The Office of Legal Counsel has been led by the preeminent lawyers of their day, three of whom — Byron White, William Rehnquist and Antonin Scalia — went on to become Supreme Court justices.
Trump has curtailed the influence of the Office of Legal Counsel, taking actions that contradict its opinions on topics involving birthright citizenship, impoundment of funds appropriated by Congress, migrants' asylum rights and White House jurisdiction over the Smithsonian Institution.
The Office of Legal Counsel has been startlingly absent from public debates, including administration efforts to revoke visas of foreign students; fire officials without regard to legislated job protections against arbitrary removal; dismantling and defunding agencies such as USAID and NIH; and wholesale deportations without due process, among others. Such moves threaten our health, safety, national security and the very core of democracy. What does the Trump administration have against scientific and medical research that can save our lives? Beats me.
Where have all the guardrails gone? The Office of Legal Counsel, designed to protect the president and the American people from a legal misstep, has been put out to pasture. Those who might have stood up to Trump have been fired or excluded from appointments in the first place. So we are in free fall, living in a needless fear, 'boats against the current,' leaving very little to protect the 'Four Freedoms' from overreaching executive action.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York's Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.