First 100 Days

Making an Enemy of the Press

President Trump is at “war” with the press. On the campaign trail and in his first 100 days in office, he and his administration have overtly labeled the mainstream press “the enemy of the American People,” barred major news organizations from attending daily White House briefings, and excoriated the press almost daily in the most inflammatory of terms. The Trump administration’s attacks on the press have set off a firestorm of criticism from defenders of the institutional press. That pushback is unquestionably correct. But, even these Trump critics have mostly failed to appreciate the wider ramifications of the president’s narrative choice.

In earlier work, we describe the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead is an illegitimate “enemy” triggering a state of exceptionalism and justifying the compromise of ordinarily recognized liberties.2 The Trump administration—in word and in deed—has engaged in enemy construction of the press, and the risks that accompany that characterization are grave. This pattern is particularly alarming because it subverts the democracy-enhancing functions of the press and empowers the administration to delegitimize other institutions and construct other enemies—including the judiciary, the intelligence community, and certain races or religions.

In framing our consideration of enemy construction, we focus on the arguments of German political theorist Carl Schmitt, not because we find them persuasive on their own terms nor because we believe that Trump and his administration are necessarily students of Schmitt’s writings. Whether purposefully or unwittingly, they seem to be taking a page from Schmitt’s playbook and conceptualizing governance in fundamentally Schmittian terms. Schmitt’s fundamental project is a challenge to liberalism and attendant notions of legality and the rule of law. That challenge is centered around his claim that the sovereign possesses (and must possess) two interrelated powers: the power to choose and declare enemies of the state and the power, in times of emergency, to invoke a “state of exception”—a realm outside of the constraints of law and ordinary norms. In the state of exception, the sovereign has essentially unlimited power to do as it pleases to neutralize threats to the political community’s “way of life.”3

In the Schmittian worldview, the essence of politics—its defining activity—is the “struggle against the enemy.”4 So understood, politics is the division of the world into friend and enemy, where the enemy is “the other, the stranger.” This enemy is not a “private adversary whom one hates,” but rather “the public enemy.”5

Schmitt recognizes the possibility not only of external enemies, but also of domestic, internal enemies. These “declared enemies of state” are those who threaten the political unity of the state in a variety of ways, including by aiding and abetting an external enemy whom the state has decided constitutes an “existential threat” to the political community’s “own way of life.”6

An examination of Trump’s rhetorical framing of the press, his delegitimizing treatment of the press, and his anticipatory undercutting of the press suggests that Trump is unquestionably constructing the press as an enemy in the Schmittian sense. That is, in the things he says, the things he does, and the things he forecasts, Trump is consistently and unrelentingly delineating the press as an “other” that threatens the political unity of the state and that ought to be distrusted, countered, and perhaps, ultimately, stripped of ordinarily observed rights and liberties because of this exceptional status.

During the campaign—before Trump explicitly labeled the press the “enemy of the people”—he engaged in a steady drumbeat of anti-press rhetoric—characterizing the press as “dishonest,” “lying,” “failing,” “disgusting,” “third-rate,” “bad,” and “scum.” Once elected, he escalated his rhetoric. In his first post-inaugural speech, he declared, “I have a running war with the media. They are among the most dishonest human beings on earth.” Within days, his chief strategist would speak of the press as “the opposition party,” and his press secretary would threaten to “hold the press accountable” for contradicting the president’s narrative about the size of inauguration crowds and for unfavorable coverage of his travel ban.

By mid-February, when the president held his first solo press conference in office, he made this war against the enemy press the predominant theme. He called the media “fake” nearly twenty times in roughly seventy minutes. He reinforced his “enemy of the people” tweet at a speech at which he asserted that the press “make up sources,” are “very dishonest people” and “do a tremendous disservice to our country.” Using explicit “other” characterizations, he repeatedly stated that the media “doesn’t represent the people,” and “[has its] own agenda and it’s not your agenda and it’s not the country’s agenda.” We “have to fight it,” he said.

The combined force of these depictions is categorical and scathing, creating an unprecedented state of affairs in the United States. The American people are told, nearly every time their president speaks, that they are a part of an “us” to which the media does not belong.

In addition to adversarial rhetoric, Trump’s actions toward the press signal its enemy outsider status. Trump has revoked the press credentials of some news organizations, refused to take their questions, abandoned traditions and norms of accommodating reporters, and suggested that more aggressive libel laws are necessary to reign in the threat the press poses to the public.

Perhaps most significantly, Trump casts the press as an enemy by explicitly anticipating its role as an internal enemy that will inevitably aid external enemies. One of the Trump administration’s most potent tools for anticipatorily undercutting the press is the accusation that the mainstream media—the “very, very dishonest press”—is downplaying the threat that “radical Islamic terrorism” poses by failing to report some terrorist attacks. This narrative implies that the media is somehow aligned, or even complicit, with the external enemy. It recalls Schmitt’s description of internal enemies as those who implicitly aid external enemies by refusing to recognize them as an “existential threat” to the community’s “way of life.”

To be sure, many presidents have had serious conflicts with the press. But, Trump crosses the line from traditional rivalry to full Schmittian enemy construction in two ways that other presidents have not. First, other presidents’ critiques of the press have largely been isolated and incidental—rather than sweeping and categorical—and those presidents have continued to treat the press as a legitimate, if bothersome (or even infuriating), institution. Even Nixon, whose conflicts with the press were both extensive and shockingly parallel to some of Trump’s, experienced those conflicts episodically over the course of an entire troubled presidency.

Second, other presidents’ critiques of, and challenges to, the press were largely private, rather than public. Schmitt’s core “struggle against the enemy” is a public struggle, and the enemy with which he is concerned is expressly not a “private adversary.”7 In this way, Trump stands in stark contrast to Nixon, whose rivalry with the press—although it played out on an important national stage—was self-defined as personal. Moreover, we know about Nixon’s rhetoric and understand the nature of Nixon’s ire against the press primarily from memoranda, audio recordings, and Nixon’s own memoirs released well after he left the presidency. In contrast, Trump is a current president, speaking directly to the public in his capacity as chief executive, and delivering to it a clear narrative about a public enemy.

Indeed, although some past presidents, including Nixon, likely shared many of President Trump’s inclinations to vilify the press, a sustained and unrelenting attempt by a U.S. president to construct the mainstream media as an enemy of the American people would have been virtually unthinkable just a generation ago. Today, however, the media is far more vulnerable to enemy construction, because both its financial resources and its public reputation are substantially diminished. Moreover, the president can now, more than at any other time in history, speak directly to the American people; accordingly, he is no longer compelled to preserve some relationship with the press—or some modicum of press credibility—so that the press can serve as an effective intermediary for the president’s own public message.

What might be motivating Trump to make this bold move? One of the most troubling explanations is that this enemy construction can pave the way for the invocation of Schmittian exceptionalism that justifies limitations on press freedoms. Taken to its logical conclusion in the press context, the Schmittian notion of the state of exception suggests that the president could reduce recognized press liberties on the grounds that he must neutralize the threat posed by the press and ensure the safety of the American people. Thus, if President Trump’s campaign to establish the press as an “enemy of the American people” proves persuasive, that success may open the door to arguments in both legal and political forums that the security of the country justifies—or even requires—scaling back press freedoms and press access.

Even if courts stand firm against any executive invocation of exceptionalism to justify limits on constitutional protections for the press, the president can reduce traditional press protections that are quite clearly within executive control. The president has wide discretion to affect the press’ capacity to do its job by influencing everything from accessibility and transparency to prosecutorial discretion about the application of the Espionage Act against journalists to Justice Department policies regarding when reporters can be subpoenaed to reveal their sources or when their phones can be wiretapped. All told, President Trump will have substantial power to control how much freedom the press is accorded, and his construction of the press as enemy suggests both his potential intent to limit traditional protections and the public justification he will offer for doing so.

The wider consequences of this pattern are grave. Limitations on press freedoms and access would threaten to undermine the press’ role as a watchdog, educator, and proxy. Subverting its ability to investigate, gather, and disseminate information of public importance directly damages our democracy. Moreover, there is an overarching risk that this enemy construction and the attendant exceptionalism will so undermine the press’ capacity to discover, synthesize, and publicize critical counter-narratives that the government will be all the more empowered to construct enemies out of other institutions at which the president has already taken aim, such as the judiciary and the intelligence community, and out of vulnerable groups—including Mexican immigrants and Muslims.

The trend is clear. In his first 100 days in office, President Trump has not engaged in mere bombastic rhetoric about the press, but rather in classic Schmittian enemy construction. This pattern should not be discounted as puffery, but should be recognized for the dire risks that it poses—to working journalists, to our other critical institutions, to the most vulnerable among us, and to our democracy as a whole.

* Lee E. Teitelbaum Chair & Professor of Law, S.J. Quinney College of Law, University of Utah Law School.

** Associate professor, Brigham Young University Law School.

1 This essay is a shortened version of a fuller article exploring these themes, which is forthcoming in the Arizona State Law Journal.

2 Lisa Grow Sun & RonNell Andersen Jones, Disaggregating Disasters, 60 UCLA L. Rev. 884, 924 (2013).

3 Carl Schmitt, The Concept of the Political 49 (George Schwab trans., 1932).

4 George Kateb, Political Action: Its Nature and Advantages, in The Cambridge Companion to Hannah Arendt 129, 131 (Dana R. Villa ed., 2000).

5 Schmitt, supra note 3, at 26–28.

6 Id. at 46–49.

7 Id. at 28.