Restoring The Rule Of Law

In early September, a post to the Lawfare blog considered what it would take to repair the Trumpian assault on the rule of law.

For those unfamiliar with Lawfare, the blog–launched in 2010– is devoted to what it describes as “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions.”

I often talk about the rule of law without bothering to define it, but at this juncture in our shared national experience, I think it would be useful to step back and do so. The American Bar Association definition will do nicely:

The rule of law is a set of principles, or ideals, for ensuring an orderly and just society. Many countries throughout the world strive to uphold the rule of law where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.

The linked post begins by stating the obvious: Trump’s tenure has been a constant, unremitting assault on those principles, and the behavior of his administration has inflicted considerable damage on America’s most fundamental values.

His attacks on the free press, the independent judiciary and the independence of the Department of Justice have all created significant damage. His abuse of executive discretionary authority has made a mockery of the concept of checks and balances. His gaming of the judicial system has revealed weaknesses in our legal process. His attempts to place himself (and his family and his business interests) above the law have called into question foundational national conceptions of equal justice. In short, President Trump has led a wrecking crew (aided and abetted by William Barr and Mitch McConnell) that has severely damaged American legal norms of behavior.

The question, of course, is “what can we do about it?” Assuming a Biden victory in November, what are the remedies available to policymakers to restore respect for and adherence to the fundamental principles of the rule of law?

Because Lawfare’s focus is on foreign policy, the linked post primarily describes specific aspects of Presidential authority and Congressional oversight that are important to the conduct of foreign affairs. But most of the recommendations sweep more widely–for example, tightening the conditions under which Presidents can place “acting” officials in important government positions, and for how long–a process that currently allows a President to avoid having the Senate determine whether that individual is qualified and should be confirmed. As the post reminds us, the Trump administration “has exploited this authority to avoid the Senate confirmation process while placing preferred individuals in key positions.”

Other reforms with broad implications would make disclosure of Presidential tax returns mandatory (this one needs no explanation), and significantly narrow  Presidents’ ability to declare “emergencies” and thus exercise emergency powers. Added protections for Inspectors General would likewise seem obvious–and important.

There are other reforms suggested, and the post is worth reading in its entirety. I hope incominglawmakers take its recommendations seriously.

Assuming–as hopeful people must–a wholesale repudiation of this lawless and dangerous administration and its GOP enablers, Americans can decide to make a silk purse out of the  Trumpian sow’s ear–we can see from the lawless behaviors and the assaults on democratic norms where the legal and structural weaknesses are, and move to strengthen them. We can re-commit this country to the rule of law and to our founding aspirations.

Or, of course, we can lapse further into tribal conflict, and thereby accelerate America’s decline.


  1. Yes, the Trump regime has attacked the law, the spirit of the law and the rules of law. He’s done that his entire LIFE! It’s on the record. His tax records will corroborate all of it and more. The guy is a f***ing crook! Yet, 62 million people, ignorant, greedy or just plain stupid, voted for this wretch in 2016. Meanwhile, 92 million + voters stayed home because they “didn’t like either candidate.” And here we are.

    The Senate rules MUST be changed to eliminate the majority leader having the sole power to decide which legislation comes to the floor. The filibuster must go too. If this doesn’t happen, the Senate will continue to descend into the smoke-filled, mob boss chamber of horrors that McConnell has created.

    If we want to remain a civilized nation, the rule of law must once again become sacrosanct to all governance. That means that places like Wisconsin can’t wield partisan power to undermine the election processes that they are now trying to do. This attack on election laws is, of course, being run by Republicans. Republicans have utterly lost the sense of the law and see it simply as an encumbrance to retaining/gaining power over money. Why? Because their rich donors pay them to do that.

  2. Take heart. There are many more of US than of THEM. Blue ballots are flying and more are coming. Voting in person on Election Day will give me a lift. The overwhelming BLUE turnout will permanently sideline this poisonous “administration” disaster.
    Be patient a little longer. Between now and January you will see the talented Americans Joe Biden will nominate for positions in the Executive branch.
    Then watch for the witnesses, the indictments, the financial records and expect the deluge of pardons, the ultimate cover-ups.
    2021 will usher in the productive years needed by us, the American people.

  3. “The linked post begins by stating the obvious: Trump’s tenure has been a constant, unremitting assault on those principles, and the behavior of his administration has inflicted considerable damage on America’s most fundamental values.”

    It is vital to our nation’s survival in this general election year that we do not forget Trump has not done this alone; without the full support of his administration he would have been stopped by January 21, 2017 when he refused to allow the Muslims to enter this country. It has been a downhill slide since then; and we all know s*+t rolls downhill.

    We now have some of Trump’s victims of his Cambodian-type “killing fields” still waiting in refrigerated trucks to be properly interred by families. He is preparing to begin his second onslaught of infection at a rally in Florida tomorrow; after stopping twice to cough in Sean Hannity’s ear in the on-air interview last night. He has been cleared by the current White House doctor (his job is secure for now) to return to public appearances.

    “There otta’ be a law!” In fact I believe there is a law; but who is there to enforce it to protect us from Trump when his own Senate leader, Mitch McConnell, has not appeared in the White House since August 6th due to the “cavalier way the White House is dealing with coronavirus”. Straight out of the horse’s ass’ mouth!

  4. I’ll keep my comments short after yesterday (I’m surprised I’m not in comment-jail after posting that treatise!). But two things need to be addressed by a formal commission chartered by (hopefully) President Biden: One to address these cracks in the ROL wall discussed by the author and develop recommendations for change.

    But secondly the same commission should investigate potential REAL crimes committed by Trump, his family, his cronies, White House staff, US House and and Senate members and others between January 2017 and January 2021 with recommendations to DOJ for further investigation and action, if warranted.

  5. Patrick,

    In the unlikely event that 45 doesn’t quit and let Pence be President long enough to issue a pardon, we MUST let justice take its course. SDNY can revive some of its investigations. We know Cy Vance isn’t going to drop his state case and the New York AG has several ongoing civil investigations. These latter investigations won’t be impacted by a Pence pardon.

    There is so much that needs to be fixed and in the past week we have another item. The President must be excepted from HIPPA. The people have the right to know whether the President is physically fit for duty. I won’t even go to the mentally fit side, but maybe we do need to require a fitness test prior to the election.

  6. For years, the laws created for society have been done so by a Ruling Class for the proles in this country, but they didn’t apply to the Ruling Class. We’ve witnessed insiders of both political parties abuse their information for their own profits without negative repercussions. The abuse of power has been endless, with zero negative consequences for the Ruling Class and those who serve them.

    Don’t forget that it was under the Obama administration when the phrase was coined, “Too Big To Jail.” The Financial Class was exempted from the laws. However, if you steal $500.00 from your employer, the law will throw the books at you to “set an example.”

    Washington was, in fact, a swamp! So are many statehouses and local halls of justice.

    Religion and order are used to keep the working class (the large majority) in line. What was the number one purpose?

    Trump was supposed to “Drain the Swamp” but created a more repugnant swamp with the slimiest creatures imaginable. He exposed that the “laws and order” weren’t meant for the Ruling Class, which is why he feels so victimized by the press and other politicians who’ve tried to hold him accountable.

    What good are laws if there is no accountability for violating them?

    It will be interesting to see if Biden’s team addresses society’s inequities from top to bottom as opposed to just being reactionary to what Trump’s team encroached upon. Will Biden support the status quo, or will he deliver true equality in this nation?

    That is what I will be watching for instead of a reactionary plan to prevent Fascists from rising to power and abusing those powers.

  7. English judge Sir William Blackstone said: “No human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.”

    Humans were blessed or gifted with a Conscience, it allows our internal guardrails to prevent us from careening off the precipice. Our conscience allows us to use our sense of morals, empathy, compassion, concern, ethics, to govern appropriately.

    Our practices of these things through our conscience dictates our laws!

    If a conscience is damaged, through conditions not particularly appreciated by the receiver, affect the ability to be a compassionate leader. That usually comes through family lineage, and how these traits are passed down through generations in those family lineages.

    These individuals end up becoming Fascistic authoritarian types with a vendetta against humanity. There is no civility, human rights are just in the way, the hammer is better than a helping hand. It creates a mentality of opposites! If everyone wants you to go left, you’re going to go right, if everyone wants you to go up, you’re going to go down, if everyone wants compassion, you’re going to veer towards anarchy! If the majority wants good you’re going to lean towards bad.

    Q anon is a huge example of this very thing, and make no mistake, they are an evil group. There is no reason for their existence, then to destroy our system of government and thereby its laws. And when you have the head of government embracing them and spreading that support to those who want to kidnap and murder government officials with opposite viewpoints, you definitely have a problem!

    But our conscience tells us that this is wrong, our conscience definitely is a gift! Too bad everyone doesn’t recognize that gift and use it for the benefit of all. The law can be an olive branch, or it can be a sword, we see this present administration using it as a sword, while embracing enemies and punishing the least advantaged among us including widows, orphans, and fatherless children, families of veterans and Gold Star families!

    We find is morally abhorrent and it gives us a rotten feeling in the pit of our stomach, it’s because our conscience is functional, those who are psychotic, have no conscience! But even worse, if you have those that stand around and do nothing, who enable, they are even worse than those wracked with psychosis!

    Khizr Khan, a very intellectual man and father of his Goldstar family whose son Humayun died trying to prevent a suicide bomber attack. Said, those individuals who are ” Mute Enablers” are worse than the one tearing everything apart, because they could put a stop to it!

    There needs to be a reckoning, not just on the president but all those mute enablers that Mr Khizr Khan recognized and called out!

  8. Speaking of “mute enablers,” John, how about the British and US governments, along with a few others regarding the handling of Julian Assange?

    Any discussion of “law” and “truth” should include the handling and current trial against Julian Assange and Wikileaks. They exposed the highest crimes possible of two of the most powerful states in the West; their just reward has been persecution and torture.

    Meanwhile, GWB, the war criminal exposed, receives warm embraces by the Obama’s and other former presidents.

    And don’t forget who the “mute enablers” are beside the states — the so-called free press (media). This is the most damning of all enablers since the case is about PRESS FREEDOM:

  9. Todd,

    Absolutely, that Julian Assange thing was ridiculous, and how he could hide out at the Ecuadorian embassy for so long and be out of reach from law enforcement truly boggles my mind.

    And, not only Julian Assange, but let’s look at Jeffrey Epstein and how he conveniently committed suicide in prison taking his secrets to the grave. I’m sure there’s some very influential higher-ups in this administration, previous ones, world leaders and influencers that were involved in a lot of nefarious activity! These are all dangerous folks that Epstein would have rolled over on. Assange somehow went completely insane, and whatever he says is probably going to be useless.

    I mean, let’s face it, if I knew I was going to end up going to prison or worse for the rest of my life, I’d make sure folks like Epstein didn’t talk, or someone like Assange would be neutralized.

    Sometimes you just have to deal with the devil you know ?

    Sorry to end the week on a bummer Todd, lol! Enjoy the weather ?

  10. It seems like many of us were simply unaware of the number of things necessary for order that were not laws at all but traditions that depended on honorable intentions for enforcement rather than law enforcement. This was because we always assumed that we were a democracy and why would we ever hire for office anyone without honorable intentions?

    What changed? I have always maintained that what changed was the ability of entertainment and social media to sell their influence not based on public purpose but solely to make more money for the owners now no matter the consequences to anything else ever.

    So here we are. At a time when much sentiment says too many laws the truth says not enough. Are we strong enough as a people to take that on?

    Stay tuned.

  11. One item other than The Trumpet’s numerous deficiencies is his ability to cause chaos. He was at one time involved in Professional Wrestling and the antics, grandiose preening, strutting and over the top behavior of the wrestlers fits in The Trumpet’s behavior pattern. His numerous tweets are designed to cause chaos.

    A revolutionary in a sense wants to cause chaos in society and promise his style of “Law and Order” to deal with the chaos.

    The old movie The Manchurian Candidate was at it’s time the text book example of brain washing. What we now know is that you do not have to brain wash individuals in some top secret site. You can send the message out and those susceptible to the message will “hear” it. Now, with electronic communications the message can be sent out world wide.

    The recent plot by Reactionary Right Wing Militias in Michigan is a good example.

    In April, armed protesters at the so-called “American Patriot Rally” attempted to enter the legislative chamber in the Michigan Statehouse while lawmakers were debating an extension of Whitmer’s emergency order. In April, amidst ongoing anti-lockdown protests in the state, President Donald Trump declared “Liberate Michigan!” in an all-caps tweet.

    It did not take long for “message” to be acted upon by the Reactionary Right Wing Militias.

    Law enforcement officials announced Thursday they had charged 13 suspects with conspiracy to commit kidnapping and terrorism crimes, after an investigation revealed the right-wing plotters had planned to overthrow the state government of Michigan and take Gov. Gretchen Whitmer hostage.

    Michigan Attorney General Dana Nessel announced Thursday afternoon that while six men—all of whom were arrested by agents on Wednesday night—were being charged in federal court related to the kidnapping plot, another seven men, all linked to a group called Wolverine Watchmen and allegedly planning an attack on the Michigan State Capitol, are being charged in state court.

    “This is a pattern: Trump paints a target. An attack or plot follows,” tweeted Washington Post national security correspondent Greg Miller—one of several observers who connected the president’s rhetoric to the violent plot.

    I think it can be clearly stated The Trumpet has tried to by various means and methods and with the connivance of his appointees and with the blessing of the GOP to undermine and circumvent the laws of land.

    Yet, no matter how much he betrayed the American public about the severity of the Corona Virus – The Trump Cult is not shaken in their blind belief in Him.

  12. How about a limit on the ability of a President to pardon? Or rethinking the impeachment power which has become a joke?

    When the Constitution was adopted there were very few federal crimes. So the ability to pardon for those few crimes was very limited. Now, because of the expansion of the federal criminal code, the ability to pardon someone is a significant power.

    I am not sure giving the Senate the power to try impeachments is every going to work. Perhaps, giving it to the Supreme Court with a supermajority required to remove would be better. At least the Court, unlike the Senate, would have looked at the evidence.

    Not a change, but one thing Congress needs to do is enforce its own subpoenas (via its inherent contempt powers) instead of running off to a court every time the executive branch ignores a congressional subpoena. While Congress can put people in jail for not complying with subpoenas, Congress also has a power to fine executive branch employees who ignore subpoenas. Do it already!

  13. After Jan.20, 2021 sleep won’t come easily for me until I see the ringleaders in Trump’s conspiracy against America in orange suits. This is a close as we’ve ever come to losing our democracy and the Foul Thing from the Swamp would have completed his mission if he had bothered to appeal to anyone other than the witless and the mobsters. We’d be up a creek without a paddle if he had merely shown some sincerity in the fight against Covid-19. Democracy doesn’t just need a few patches. It needs enough of a rework to assure that no single gang of democracy haters can subject it to mortal wounds. We got lucky this time (I’m hoping), but what if a more intelligent Trump comes along having learned the lessons of the past four years’ failure?

    Early on Trump made it known that he would work to defeat democracy. What if the next sociopath is more secretive about his intentions? The country has shown how accommodating it is to demagogues, and unless we can make it demagogue proof, our next psychopathic, self-despising, maniacal troglodyte might form a majority with the Proud Boys, the Boogaloo Boys, the Wolverine Watchmen, QAnon, most South Carolinians, Louisianans and Mississippians, Florida Geezers and the myriad other hate groups who admire them.

    And then there are the decades of work we face simply to undo the wickedness the Trump administration has given the power of law. All of this must go forward in the face of the most conservative, Trump-besotted court system our country has ever confronted.

    So we have our work cut out for us, and the goal is clear: strengthen our system of governance so that it can survive attacks on democracy, even by all or parts of the three branches of government.

  14. i’d like to meet with the Q anon people who started that site,i need a good laugh..i’ve,we’ve been watching how one body,the senate can thwart any action needed,to secure our democracy,and a impeach a treasonous president from starting WW3. how the hell mcconnel can get away without being whipped by the chambers is beyond comprehension. if the rule of law allows this conduct,then somebody was drinking at the table in july 1776.. the people have been led down a rabbit hole,without regard for why,a total lack of leadership from our goverment .we have a democracy,and laws that support it..seems, shoving cake into ones ear is the new norm,and be damn with the results. i find most of the people i speak with here in NoDak, are far from common sense,and deal with what they feel is their immediate need,over anyone else’s need for a democracy. be aware, the trump flags are all over this state. my own ass is
    being quiet.. there is, a armed faction,and as i see it, that rule of law,won’t be supported by law enforcement here.. don’t buy the home town whatever’s,it’s gonna be nasty if trump looses.
    if Biden wins, it’s going to be hell til he’s sworn in, and the first to go should be barr..

  15. Jack,

    Absolutely! There needs to be a reckoning from top to bottom, because not only were our written physical laws violated, the intent of the law was also violated! And above all of that, the law of our conscience or our Superior law has been violated.

    The law of the many has been flouted by dogma of the few. That can’t happen, and it was never meant to happen!

    Look at Mike Lee talking about democracy and how this country was never meant to be a democracy. It was meant to be a republic! Now, I don’t know what fly flew in his cereal bowl, but, he seems to have caught the lunatic bug himself.

  16. I’m going to share your positivity OMG because, quite frankly, I am tired of all this negative BS. Thank you!

  17. Every society needs some order in how they can as individuals accommodate the common good, and I am not sure that capitalism as currently practiced provides the platform from which such accommodations can be reached, not in a society where we are told that the first trillionaires are in view while millions in that same society suffer grinding poverty. One need not be a socialist or a communist to see that this is no way to order a society in which we are told that we are all in this together. That’s propaganda. We are not all in this together. The order of the day is rather I’ve got mine, too bad about you; keep wages low and profits high; moralize poverty etc. Preachers and police officers help enforce this poorly hidden reality and if it seems there’s a plot, that’s because there is.

    The rule of law itself as currently applied can be seen as a white supremacy means of keeping the current brand of capitalism afloat, though, overall, it is the best system available to us at the moment when compared with, for instance, Big Brotherism, no rule at all etc. Todd’s complaint that uneven application of the law raises the issue of why have laws has some validity, and the Blackstone view that all law is based on morality and conscience seems accurate until you comb through the Internal Revenue Code, for instance, where you find that conscience is not involved. (Boeing paid no taxes on 11 billion dollars in profit last year; I paid taxes on an income short of theirs.)

    So, rule of law applied evenly across the board? Yes, but let’s keep our eyes on just what the laws are that we are applying evenly or not and how as applied they contribute to the common good – and let’s keep an especially sharp eye out for how revamped laws and regulations applied to our current brand of capitalism might contribute to a more just and equitable society. It’s doable.

  18. John,
    “Humans were blessed or gifted with a Conscience, it allows our internal guardrails to prevent us from careening off the precipice. Our conscience allows us to use our sense of morals, empathy, compassion, concern, ethics, to govern appropriately.”

    Right. Conscience is enough of a thing to have been given a name. But so is vampires and goblins. Are we blessed or gifted with a conscience? Maybe, but individual conscience, even if it exists, is irrelevant to what government does.

    It (conscience) allows our internal guardrails to prevent us from careening off the precipice? Maybe on an individual basis in an infitessimally small sum but certainly not on grand enough scale to rely on for good government…as we see on a daily basis.

    Makes more sense, of the type that can be trusted, that humans as a group are possessed — not gifted– of an ability, as most animals are, to calculate, maybe intuit, what is good (safe, useful, productive, value added), for the group (family, team, state, nation). We can figure it out. We can establish laws and norms that enhance our group’s ability to be cooperative, strong, and adapt to hostile environments. We have that ability. We even have a first impulse to act on that ability. All without a conscience. Government, you see, is not an invention to perform good deeds. Government is an invention to enhance and systematize cooperation. However, some individuals object to cooperating with others, and some people activily resist cooperating while others plot for individual advantage.

    So, why do the non-cooperators often prevail even in societies which have already agreed to the blueprint for cooperative survival and coded that agreement into law?

    Because our lawyers, who write the codes, fail for whatever reason, including ineptitude, to make them precise or sharp-toothed.

    Because in America the Me-first gene/impulse, disguised as Individual Liberty, has thwarted the writing of clean, precise codes of cooperation as surely as has corporate tampering.

    And because the Me-first dudes have taught us and duped us more skillfully than have the cooperative dudes. I’m refering to the million or so books, articles, seminars, and now sermons, that tell us How-To be successful individuals. Their number one rule is Don’t Cooperate.

    I see the dual myths of the all-powerful Conscience and Individualism being two of the most dangerous flaws in the art of communal living/society/government.

    It is interesting that within the American rural community, where the myth of Individualism thrives, rural co-ops have proven to be fabulously successful…at delivering product and at keeping prices down, most often by outlawing co-op profit.

    If our Constitution and its promise of Representative Democracy is determined to fail, I suggest we invent a new system of Government modelled on the non-profit rural co-op.

  19. There are many good ideas here about what should be done. My worry is: will they do anything?
    Sheila’s closing line:

    “Or, of course, we can lapse further into tribal conflict, and thereby accelerate America’s decline.”

    reminds me of the tired Democrat mantra since Reagan. “Oh, that would look political, we can’t do that”, “We have to prove we represent all of the people, so out proposals must meet Republican approval” “Let’s not overreach”

    Another one is “people are tired and want normalcy, so we should keep the status quo”.

    Democrats have to accept the fact that we got here because the Republican Party has been moving the ball (the Overton window) steadily to the goal line. You can’t just say resume everything from here. You have to restore the center to the center (don’t grade on the curve).

    They should remember that far-right Barry Goldwater would have nothing to do with the John BIrch Society. Trump embraces White supremacists and his Republican enablers make excuses for him.

    I hope that some of these, and other, changes are enacted. I hope that Democrats discover the meaning of SPINE. We shall see.

    (Sorry for the downer post – I guess I am compensating for being too optimistic about the election.)

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