rule of law – Page 3 – Sheila Kennedy

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.

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What Must We Do And How Must We Do. It?

A couple of days ago, Steve Bannon was indicted for defrauding Trump supporters, who had been enticed into sending money to Bannon and three co-conspirators to “build the wall.” The money went into their pockets, not into construction.

It’s tempting to find this sordid little episode of predators taking advantage of bigots a parable for “just deserts,” (as Michelle Goldberg wrote, “In the MAGA movement, you’re either a predator or a mark” and that seems about right) but that isn’t the lesson to be taken from this unsurprising, add-it-to-the-list evidence of moral rot in Trumpworld.

Reuters has a list of those who have been arrested and convicted of criminal behavior so far, and there is ample evidence that–with or without including the ethically-challenged saboteur at the Post Office– the current list is only the tip of a very large iceberg.

And at the center of that iceberg is Donald J. Trump.

Last week, the Republican-led Senate Intelligence Committee released a report on the Trump Campaign’s co-operation with Russia that was far more damning than the Mueller Report. CNN called it the most comprehensive and meticulous examination to date. It explained in detail the ways in which Russia interfered in the 2016 presidential election, confirmed that the Trump campaign welcomed that help, and revealed multiple contacts between Russian officials and Trump associates both during and after the campaign.

Prosecutors with the Southern District of New York look increasingly likely to get Trump’s tax returns, although probably not before the election, and they already have the paperwork he submitted in support of his loans from Deutsch Bank. The results of that ongoing investigation are likely to confirm a history of tax evasion, money laundering and bank fraud.

Michelle Goldberg has explained why America needs accountability for the corruption of this administration–and why genuine accountability can’t be reduced to political slogans like “lock him up.” As she notes, “a president who runs the White House as a criminal syndicate creates a conundrum for liberal democracy.”

Obviously, merely losing an election is not a crime, and it shouldn’t create legal liability.

But you can’t reinforce the rule of law by allowing it to be broken without repercussion. After four years of ever-escalating corruption and abuses of power, the United States cannot simply snap back to being the country it once was if Trump is forced to vacate the White House in January. If Biden is elected, Democrats must force a reckoning over what Trump has done to America.

Of course, a Biden victory is far from assured, and if he loses, there may be no stopping this country’s slide into a permanent state of oligarchic misrule. But right now, while there’s still hope of cauterizing Trumpism, ideas about post-Trump accountability are percolating in Democratic and activist circles.

Those “percolating ideas” come from a number of quarters: the Center for American Progress, a liberal think tank, recently released a report titled, “How a Future President Can Hold the Trump Administration Accountable.” Protect Democracy is a legal group founded by a former associate White House counsel during Obama’s Administration. It has been investigating the experience of countries around the world that have transitioned to democracy from authoritarianism. Sheldon Whitehouse, one of the most thoughtful members of the Senate, has suggested a tribunal modeled on South Africa’s Truth Commission.

America is facing a whole lot of “ifs.” If Biden wins, if the Democrats take the Senate, if there is an orderly transition of power…then, there will need to be a thorough housecleaning. That housecleaning needs to be conducted in a manner that is both transparent and meticulously fair. The. Qanon folks, the Neo-Nazis and Proud Boys and KKK are beyond reason, but the rest of us aren’t, and we desperately need an administration that understands and fairly enforces the rule of law–and holds itself to a high moral, ethical and legal standard.

Voting blue up and down the ballot is only a first step, but it’s an absolutely essential first. step.

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An Important Test For The Court

In the three-plus years that Donald Trump has occupied the Oval Office–I deliberately didn’t say “has been President” because in any rational sense, he has not fulfilled that function–longstanding norms of American governance have been turned upside down.

Nowhere have the deviations from expectations been more worrisome than in the courts.

For years, legal scholars have debated whether this or that issue should be settled through litigation or by electoral politics. But I am aware of no credible argument that the courts should be divested of their independence and turned into supine tools of the executive branch.

Our idiot President recently called upon Supreme Court justices who disagree with him to recuse themselves–displaying not only his trademark contempt for constitutional checks and balances, but his embarrassing ignorance of American constitutionalism. That contempt and ignorance would not ordinarily be worthy of note–every day, the insane tweets and verbal diarrhea bear ample witness to both–except for a case that is making its way to the Supreme Court.

A recent article by Nancy LeTourneau at Washington Monthly pointed to the disquieting reason for Trump’s unprecedented assault on the Supremes. She begins her analysis by pointing to a truly telling statistic:

Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.

As she notes, the Trump administration’s response to these failures has been to appeal directly to the Supreme Court–to ask the Court to expedite emergency relief from the injunctions of the lower courts. Le Tourneau quotes one legal scholar to the effect that Trump has gone to the Supreme Court with such a request 24 times in less than three years– compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined.

Trump has no understanding of the legitimacy concerns raised by such petitions, of course. He actually believes that any criticism of him or his administration should be grounds for recusal, criticism and vilification. And he has other concerns as well.

The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.

In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration. Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.

All of these issues have prompted Trump’s defensive and unPresidential behavior. But even more significant is a case that could require him to release his tax returns.

From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.

Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?

The answer to that question will tell us whether we retain a system based–however insecurely–on the rule of law.

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What Is The Remedy For A McConnell?

An article I read in Vox a month or so ago has continued to bother me. The subject-matter was summed up in the sub-head: “The political system has an answer for a threat like Donald Trump, but none for a threat like Mitch McConnell.”

If Trump often acts like he is above the law, it is only because McConnell lets him. If McConnell decided to lead Senate Republicans in investigating and curbing Trump’s corruption, abuses of power, and obstruction of justice, Trump’s options would be to reform his behavior or be ejected from office.

The article goes on to make a point that is so obvious it is often overlooked. Despite their differences (McConnell is evil, calculating and smart, Trump is mentally disordered, undisciplined and stupid) they do have one thing in common. They are both utterly shameless.

At the core of this is McConnell’s peculiar form of political shamelessness. This is the way McConnell and Trump are more similar than is often appreciated: they have both proven that the range of political action is disciplined less by external constraint than by a politician’s sense of shame — the degree to which they turn back in the face of public criticism, media opprobrium, elite backlash.

It was shamelessness, for instance, that let McConnell refuse to hold a hearing on Merrick Garland and then, grinning, admit that he’d fill a Supreme Court seat if one came up in 2020. McConnell’s predecessors held the same power he did and none of them attempted that maneuver. They weren’t restrained by laws or rules. They were restrained by temperament and a belief that to break the system was to betray the public.

When political scientists talk about “democratic norms,” it is the restraints of temperament and fidelity to tradition and rules that they are referencing. McConnell has demonstrated his rejection of political accountability, and the system has no mechanism for dealing with someone who acts as if the rules simply don’t apply to him.

The Founders designed our form of government with demagogues in mind. That’s why the president is checked by Congress, up to and including the threat of removal. But they believed that Congress would consider itself in competition with the president, that ambition would check ambition. They did not foresee the rise of political parties and the way that would bring parts of Congress into cooperation with the president, that ambition would protect ambition.

The political system has an answer for a threat like Donald Trump but none for a threat like Mitch McConnell.

McConnell isn’t simply ignoring duties imposed by the Constitution; he is– as the Vox article says–shameless. His actions defy our expectations of normal human behavior, not because he is breaking the rules in order to benefit himself (lots of people do that), but because he is publicly flaunting his violations and daring observers to do anything about them.

As Rochefoucauld said, hypocrisy is the tribute that vice pays to virtue. McConnell is withholding that tribute. He doesn’t even pretend to behave honorably; his entire, smug demeanor says “I’m demolishing longstanding norms and traditions because I can and there is nothing any of you can do about it.”

The only remedies available are political: McConnell could lose his Senate race in 2020, or Democrats could take the Senate, removing his authority to do significant damage. Given that he represents Kentucky, the first is unlikely. (Possible, but unlikely.)

The second, I submit, is mandatory. Both he and Trump have to go, and only massive turnout will rid us of both of them.

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The “Best People”

Remember when Trump promised an administration populated by the “best people”?

I thought I’d devote a post to former Secretary of Labor Acosta before his particular scandal is eclipsed by others–most recently, Trump’s effort to appoint a nutcase supporter with absolutely no credentials to the Intelligence post being vacated by Dan Coats.

Gail Collins, as usual, summed up the Acosta situation with pith and vinegar:

On Wednesday, Secretary of Labor Alex Acosta tried to hold back the outrage that’s been building since people learned that, as a federal prosecutor in South Florida, he had brokered a very lenient punishment for Jeffrey Epstein, a rich guy who liked to have sex with underage girls.

Explanation: It was a good deal. You know how this administration feels about good deals.

“The Palm Beach state attorney’s office was ready to let Epstein walk free,” Acosta said in his calm, sort of toneless voice. “Our prosecutors … presented the ultimatum.” Which was that Epstein, who had molested a parade of teenagers, some only 14, had to serve at least a little jail time. The punishment Acosta wrangled with his alleged best possible efforts involved 13 months in prison, during which Epstein was free to spend most days at his office as long as he slept overnight in the clink.

Before the uproar caused Acosta to resign, Trump (of course!) defended him–in terms that, as Collins notes, displayed his total ignorance of what it is the Department of Labor does:

Ever since the Epstein scandal arose, Trump has been defending Acosta, stressing what an “excellent” job he’s doing. After all, the president told reporters, “our economy is so good, our unemployment numbers are at record lows.” You might have thought he was under the impression the secretary of labor had something to do with boosting the economy. As opposed to things like workplace safety and collecting job statistics.

And oh, yeah, human trafficking. Very embarrassing that Acosta is one of the people who’s supposed to protect underage women from being sold as sex slaves.

Hmm. Before this week, what do you think Donald Trump thought the Department of Labor did?

My husband and I recently spent a week with a cousin who lives near Palm Beach, the nexus of this scandal. She recommended a book by James Patterson and two co-authors, written in the wake of the sweetheart deal negotiated by Acosta. (The book was written long before Epstein’s recent arrest.) I downloaded and read it, and it was eye opening–if you can be nauseated and have your eyes opened at the same time.

Titled Filthy Rich: The Billionaire’s Sex Scandal–The Shocking True Story of Jeffrey Epstein, the book offered a view into a lifestyle enjoyed not just by Epstein, but by the obscenely rich milieu in which he traveled–a lifestyle incomprehensible to most Americans. Patterson is known for his fiction, but this book was solid reporting, with sources clearly identified.

Leaving aside the predatory sex (and the inevitable curiosity about which of Epstein’s “pals” participated, or at least were aware of his proclivities), what the book most vividly described is the gigantic gap between the criminal justice system encountered by the rich and that system as applied to the rest of us. The local police detectives who did their jobs and documented Epstein’s abuse–and the incredible extent of that abuse–were no match for Epstein’s high-powered lawyer friends, including Alan Dershowitz.

Donald Trump was a member of Epstein’s milieu for a number of years. Whether or not he participated in the sex (a reasonable question given his history), he clearly and fully accepted the billionaire club’s cultural assumptions, including the belief that the rules that apply to the “little people” don’t apply to them.

One “takeaway” from the book: In Trumpworld, the “best people” are pretty despicable specimens.

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