Tag Archives: rule of law

Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

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L’Etat, Ce Moi

“L’etat, ce moi”–meaning,  “the state, it is me– is a French phrase attributed to King Louis XIV, who probably never said it. Nevertheless, it represents the foundational concept of absolute monarchy, a regime in which the king has total authority over the state. 

I am confident that Donald Trump, the least educated President in history, never encountered the phrase, but its meaning clearly animates his conception of the Presidency. Law–in Trump’s limited and inaccurate view–is whatever he says it is. It certainly doesn’t exist as a separate framework.

In recent articles, the New York Times has outlined how this wholly unAmerican approach to the Presidency is undermining the rule of law, as our would-be monarch decides what rules should be ignored in the corrupt interests of his pocketbook and those of his plutocratic cohorts. 

 The most vicious and far-reaching attempts to thwart the laws of the land have come as part of Trump’s racist efforts to root out D.E.I. and other measures aiming to ameliorate discrimination.  Trump has ordered government offices to simply stop enforcing numerous civil rights provisions. According to a Times  newsletter (link unavailable), the Labor Department will no longer investigate employers who allegedly underpaid women or awarded promotions based on race. The administration has  abandoned hundreds of pending cases under the fair housing law–abandoning efforts to prosecute landlords who keep out gay people or owners who refuse to sell to people of a different faith. Trump has also instructed the government to nix the “disparate-impact” test, which looked at whether minority groups were affected differently by criminal background checks, credit checks, zoning regulations and other facially neutral laws.

And recognizing that direct orders are not the only way to stymie the enforcement of laws on the books, Trump has slashed budgets and head counts, which has a similar effect. As the Times accurately noted, laws work only if people are there to enforce them. So the EPA has been eviscerated under this administration; its ability to enforce environmental measures crippled. Employment at the IRS has been cut, severely limiting the ability of that agency to pursue tax cheats (like the President himself). Etc.

Mainstream media sources routinely describe measures taken by the Trump administration as “authoritarian.” That is, of course, accurate–but it tends to obscure the effects of the measures described above (and the many similar ones)–tends to make the very real harms seem somewhat abstract. (Theoretically, after all, an authoritarian leader could impose measures that advanced the public good–authoritarianism is the process, not the consequence.)

The same problem arises when pundits and bloggers like yours truly bemoan the daily assaults on the rule of law. Rule of law, too, is an abstraction. What isn’t abstract is when ICE thugs ignore the constitutional rights of those they are intimidating and snatching off the streets, or when the administration refuses to comply with the terms of its prior research grants.

A significant body of research confirms that a troubling percentage of the American public actually wants an authoritarian government–a ruler who relieves them of the burden of exercising thoughtful and responsible citizenship. Whether that desire to be ruled rather than governed is a result of inadequate civic education or personal intellectual/emotional deficit is unknown; it is also unknown whether those who prefer a monarchy to a democracy approve of the way the current Mad King and his Congressional enablers/courtiers are conducting–or refusing to conduct– the affairs of state. 

That Times newsletter did readers a favor by discarding the abstractions and pointing out the specifics of an authoritarianism that manifests its contempt for fundamental fairness and the rule of law every day.

MAGA cult members are likely to be surprised when their chosen authoritarian’s “policies” further enrich the plutocrats while tanking the economy, instituting stagflation, closing rural hospitals and throwing grandma off Medicaid. That’s the problem with allowing someone–anyone, but especially this bloated, ignorant and embarrassing buffoon–to believe that he is “the state.”

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Law Versus Power

There’s a tendency to confuse the rule of law with obedience to the rules of a regime.

Within that confusion lies one of the multiple, dangerous threats posed by our current administration–a threat that became manifestly clear when Trump pardoned the January 6th insurrectionists. Autocrats can devise rules; the rule of law, however, is defined as a durable system characterized by four universal principles: accountability, just law, open government, and accessible and impartial justice.

Those elements are entirely foreign to MAGA and Trump. (Let’s face it–Trump wouldn’t even be able to define those terms…)

The chaos of the Trump administration, and the breadth of its attacks on democratic governance, have operated to distract public attention from its ongoing assault on the rule of law, and its persistent substitution of rules benefitting plutocrats and autocrats for laws benefiting society.

A recent issue of the American Prospect addressed that under-appreciated assault.

A functioning economy depends on a basic principle: cheaters shouldn’t win. But Donald Trump has tossed aside that principle, and that has real consequences. When the rules disappear, the worst actors thrive and everyone else pays the price.

In our new print issue, we examine how the collapse of financial enforcement and consumer protection is opening the floodgates to a golden age of scams. Under Trump, the referees have left the field. Civil penalties go unenforced. White-collar fraudsters are rewarded with pardons. Entire arms of the government designed to prevent theft, abuse, and discrimination are being dismantled.

It’s an intentional choice to let exploitation run wild. If there’s a way to game the system, someone’s doing it—and now they’re doing it with the government’s blessing.

The issue documented a variety of scams that have gained new security against government enforcement. One article reported on the multiple ways in which the gutting of the CFPB–the Consumer Financial Protection Bureau–has facilitated a wide variety of rackets and frauds. Another article delved into the failures of the Department of Education under Trump to protect student loan recipients from predatory lenders.

An article titled “Three Coin Monte” described what the magazine calls “the greatest and most brazen tale of corruption in history”– Trump’s crypto project. That article outlined “how Trump is using his ‘shitcoin’ to monetize the presidency and create new avenues for influence peddling.”

There’s also an explanation of a scam involving merchant cash advances. These are transactions in which tycoons sell what are effectively payday loans to small businesses and ruin their livelihoods. (We are told that one of those “tycoons” was on Trump’s pardon list in 2020; he’s back in jail, for now.)

These investigative articles are just a few examples of what happens when government fails in what has always been considered a foundational task: to prevent some citizens from taking advantage of others, to prevent the strong (or unscrupulous) from harming the weak and/or naive.

Donald Trump’s government has corrupted the very concept of law. The evidence is overwhelming: the gutting of the Department of Justice, the indiscriminate labeling of immigrants as “criminals” as justification for masked ICE agents’ thuggish behaviors, the appalling arrests of elected lawmakers on transparently false premises, orders from the administration to the EPA directing the agency not to enforce environmental rules against fossil fuel companies, the Trump family’s failure to even try to mask its monetization of the Presidency…the list goes on.

When the rule of law is replaced with rules favoring the predatory, when people in positions of authority sneer at the very notion of ethics and ethical behavior, when elected members of Congress fail to exercise their constitutional oversight responsibilities, ordinary citizens lose respect for the very concept of law. Corrupt regimes encourage lawbreaking by people who wouldn’t otherwise be scofflaws. Cynicism explodes. The trust on which societies rely evaporates.

The central goal of Project 2025 was to replace the rule of law with rules allowing selected people to exercise unrestrained and arbitrary power–power to give their sycophants and fellow-travelers free reign to plunder, but–more fundamentally– to facilitate the remaking of America into the Lily-White “Christian” nation of Project 2025’s fantasies.

In Henry VI, Shakespeare wrote “First you kill all the lawyers.” The authors of Project 2025 understood why that’s wrong. First you kill the rule of law.

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Economics And The Rule Of Law

One of the multiple failures of the not-very-bright people who are currently running/ruining our government is their inability to connect the dots, to understand that when they set out to undermine X, the consequences of that assault aren’t just limited to X. We live in a complex and interrelated world, and failure to understand those complexities can lead to unanticipated damage.

The Trump administration consistently displays enormous ignorance of the way the world actually works. That ignorance–that disdain for pesky things like expertise and evidence–is particularly evident in Trump’s approach to economic policy. It isn’t just his insane belief in tariffs (a belief shared by no economist, conservative or liberal). It isn’t just his echoing of longstanding Republican insistence that tax cuts for “job creators” will grow the economy–despite ample evidence to the contrary. (Of course, even if those tax cuts don’t lead to economic growth, they do lead to the growth of generous political contributions…)

It isn’t even the GOP’s failure to understand the dire economic and civic consequences of further impoverishing citizens who are already struggling in order to fatten the wallets of the already wealthy, a failure once again demonstrated by Trump’s “Big Beautiful Bill.”

The most dangerous failure to connect the dots is the less-noted but even more consequential failure to understand the economic importance of the rule of law, or to recognize how Trump’s assaults on the law will dramatically and inevitably undermine the nation’s economy.

I’ve previously explained why widespread obedience to the rule of law is an essential underpinning of liberty and civic equality–why it is at the very basis of what I call “the American Idea.” But it is equally important to understand why the nation’s economic health is absolutely dependent upon a government that respects the rule of law.

Trump’s autocratic attacks on–and utter disregard for– the rule of law are a direct threat to the willingness of foreign investors to buy and hold American  stocks and bonds. When those investors see Trump and his administration unilaterally defaulting on contracts, arbitrarily withholding funds that have been properly and legally appropriated, ignoring court decisions and attacking judges, deporting people without even the pretense of due process–while at the same time providing special treatment for donors, favored companies, and White immigrants– those investors re-think the safety of their investments.

Why should we care?

Among other things, foreign investors inject capital for increased production and economic expansion. They create new employment opportunities and facilitate technology transfer. Foreign investors often bring in advanced technologies and expertise, fostering innovation and boosting productivity in local industries. When foreign businesses generate profits, they contribute to U.S. tax revenues, providing American government with resources to fund public services.

That investment is at risk. As one economist put it,

The erosion of the rule of law under Trump can have enormous economic significance for a foreign government, investor, or company with stakes in our economy. They now know that the U.S. government may ignore its contracts with them or decide not to enforce their agreements with others when it serves the political or personal interests of the president. That’s the way the world works in the kleptocratic dictatorships in Russia and Venezuela, and virtually no one invests in their stocks and bonds.

By following their lead, Trump and his apprentices risk devastating capital flight that could leave many of our leading financial institutions insolvent. In addition to his deeply destructive tariffs, Trump’s sweeping campaign against the rule of law in the United States has raised the economic stakes from a rocky business cycle to a potential financial and economic meltdown with terrible consequences.

America’s respect for the rule of law is the reason foreign investors have felt safe parking their money here, and all Americans have benefitted from our role as a safe place in the global economy.

Anyone who has taken Economics 101 understands that the rule of law is fundamental to business and investment. It creates the predictable, stable, and fair environment that economic activity depends upon. Without predictability and stability,
businesses and investors are unable to make long-term plans and commitments. Unless laws governing commerce are clear and consistently enforced– and not subject to arbitrary changes– companies can’t assess risks and returns.

You would think the Republicans who fancy themselves protectors of private property and capital would understand that it is the rule of law that protects that private property from seizure or infringement, and that investors–foreign or domestic– are highly unlikely to put money into an economy where assets can be seized or destroyed without due process.

When the GOP was a party, and not a cult, it understood that.

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The “Naughty” List

Santa Claus isn’t the only one who is keeping a list of “who is naughty and who is nice.” Charlie Sykes recently brought some limited order out of the chaos of Trump’s first months–a real service, since most of us have been beaten down by the daily firehose of assaults on decency, the Constitution and the rule of law–the tactic Steve Bannon has called “flooding the zone with shit.”

Sykes assembled his list in order to criticize Chuck Schumer, who has finally graduated from sending “stern letters” and moved to block Trump appointees. Sykes asks “What took you so long? Why didn’t you act when”…and then he provides his list of Trumpian assaults that should have prompted active blowback when they occurred.

Granted, Sykes’ list isn’t comprehensive, so intensely has the zone been flooded, but here are the acts that he says should have triggered action from Schumer when they occurred:

  •  blanket pardons for Jan. 6 rioters, including those who assaulted police officers.
  • his purge of the FBI, targeting agents who had investigated his own misconduct.
  • suspending enforcement of the foreign bribery ban.
  • calling for the impeachment of a federal judge who ruled against him.
  • firing the head of the Office of Special Counsel who protects whistleblowers.
  • firing the head of the Office of Government Ethics.
  • firing the prosecutors who worked on Capitol riot investigations.
  • slashing the office that prosecutes misconduct by public officials.
  • dropping charges against New York City Mayor Eric Adams in return for Adams agreement to work with ICE — a move that led to the resignation of the acting SDNY U.S. attorney and several other federal prosecutors.
  • Trump’s refusal to bring Kilmar Abrego Garcia back to the U.S. — stating that he could, but wasn’t going to.
  • Trump’s suggestion to the president of El Salvador that he would send “homegrown” criminals — American citizens — to his notorious prison.
  •  Trump’s executive orders targeting individuals who had criticized him — including Chris Krebs, who had challenged his 2020 election lies.
  • stripping the security clearances of law firms who had challenged him. 
  • Trump’s threats to strip licenses from media critics.
  • allowing Elon Musk’s team to access sensitive and protected taxpayer information.
  • when his top aides were caught chatting about military action on Signal.
  • firing six National Security Council officials on advice from far-right conspiracy theorist Laura Loomer.
  • refusing to rule out the use of military force to seize Greenland. 
  • Trump’s purge of top generals, including the chairman of the Joint Chiefs.
  • sending masked agents to seize people on the streets.
  • arresting international students for little more than for writing op-eds.
  • when White House aide Stephen Miller said that administration was considering suspending habeas corpus.

Sykes list–which I would emphasize is far from comprehensive–was generated as Americans learned of Qatar’s offer of a “gift”–a plane described as a “palace in the sky.”  The offer was, as Sykes says, “a very visible symbol of Trump’s susceptibility to corruption.” But–as he also reminds us– we have seen countless other examples.

Sen. Chris Murphy, for example, has been banging the drum about Trump’s potential $TRUMP crypto conflict of interest for months. “My hair has been on fire about the meme coin from day one,” Murphy told The Washington Post. “That is a level of corruption that is just absolutely stunning. It was already the most corrupt thing a president has ever done in the history of the United States.”

What didn’t make Syke’s list is the Trump administration’s effort to neuter the other two branches of government.

Under the Constitution, Congress and the courts are “co-equal” with the Executive branch, but Trump and MAGA have bullied the Republicans in Congress into submission. (Given that the GOP is currently in the majority, Democrats have been left with limited options for resistance–a good reason to put those options to maximum use.)

Unlike Congress, the courts–at least, the lower federal courts–have fulfilled their Constitutional role. They have ruled for the plaintiffs in virtually every case challenging Trump’s illegal and unconstitutional actions–but while Trump has given lip service to obeying those rulings, he continues to ignore a number of them. At the same time, he has increased his threats against judges who dare to rule against him, and MAGA thugs (Trump’s “brownshirts”) have taken to issuing threats against the judiciary and their families.

We the People need to leave a large civic lump of coal in the Trump stocking. Sooner rather than later.

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