Friday, July 21, 2017

The Prime Directive Is to Protect the Rule of Law

by Neil H. Buchanan

The transcript of Donald Trump's recent interview with the editors of The New York Times could simply be titled: "The Case for Dictatorship: A Child-Like Narcissist's Guide to Destroying America."  As soon as Trump started talking, he revealed for the umpteenth time that he is unwilling or unable to understand the limits on the president's power.

And now we learn that Trump has his minions investigating imaginary conflicts of interest that they can use as "leverage" against Special Counsel Robert Mueller and his team of investigators.  Trump even has his people talking about abusing the pardon power, including the possibility of pardoning himself.  He is, at long last, truly Nixonian: When the president does it, that means that it is not illegal.

Trump clearly believes that ethics rules are for suckers and non-presidents, and his claim that his toady of an attorney general, Jefferson Sessions, was "very unfair" for recusing himself from the Russia investigation tells us all we need to know about Trump's version of accountability.

Trump even attacked his own deputy attorney general, Rod Rosenstein -- who has probably done more than anyone else to destroy his reputation by working for Trump -- because Rosenstein is from Baltimore.  Why is that a problem, in Trump's addled mind?  "There are very few Republicans in Baltimore, if any."  As the kids say: WTF?!

[Update: It turns out that Rosenstein is not even from Baltimore -- but that is the least of our worries.]

The responses from those who are not in the tank for Trump has been appropriately negative, to say the least.  Many commentators have noted that Trump clearly does not respect the rule of law, preferring instead to think that everyone owes their loyalty to him, rather than to the constitution and the American people.

As Greg Sargent wrote about Trump in The Washington Post:
"He has no clear sense of why it is even desirable, as a matter of public trust, to demonstrate respect for the norms and procedures that are meant to safeguard against abuses of [the president's] authority. I know that sounds prim and stuffy and perhaps even obvious, given all the madness we’ve already seen from Trump. But it still matters, and to see it displayed so nakedly is more unsettling than usual."
That last phrase, "more unsettling than usual," is key.  It is not that any of this is new.  We knew well before Trump stumbled into his win in the Electoral College that he would be a walking constitutional disaster.

As I wrote a few weeks ago, Trump's detractors have been talking constantly about impeachment not because they hate that he won (although they obviously do, for very good reasons) but because he has made it so obvious for so long that he does not understand constitutional limits.  He attacks the judiciary, Congress, the press, protesters, friendly foreign governments, and anyone else who displeases him.  The only thing that Trump believes in is his own infallibility.

In short, we saw this coming, even if we did not know exactly which constitutional limits Trump would attack first, or how he would do it.  As shocking as the specifics are turning out to be, the writing has been on the wall for years.

We are now seeing what a would-be dictator thinks only because Trump's utter cluelessness causes him to say these shocking things as if they are normal.

This latest round of depressing news has caused me to think once again about a question that I have been asking in different forms for the last decade or so: What do we owe future generations?  Before Trump, I offered a slew of different answers to that question.  Now, I have only one answer: We owe them a society governed by the rule of law.  Everything else is secondary.

Yes, that is a bold, absolutist statement, but I mean it -- and I mean it in ways that I never would have predicted.  It will be helpful to work through the reasoning and the most compelling alternative answers to understand why the rule of law is paramount.

Politicians love to talk about future generations, also known as "our children and grandchildren."  Republicans, in particular, never fail to use future generations as cover for their budget plans, the most recent of which included this bromide: "For too long, the federal government's excessive spending has put future generations at risk."  This continues to be nonsense, and the Republicans' plans would seriously harm future generations, but that has never stopped them from hiding behind the kids-and-grandkids cover story.

But if I have learned one thing from studying questions of intergenerational justice, it is that virtually every policy question can be framed as a question of justice between generations.  For example, former Secretary of State Colin Powell began a recent op-ed by saying:  "At our best, being a great nation has always meant a commitment to building a better, safer world — not just for ourselves, but for our children and grandchildren."

Powell is right, of course.  His specific concern was the Trump Administration's proposal to cut thirty percent of the budget for the State Department and foreign assistance programs, which he accurately described as penny-wise but pound-foolish.  His larger argument was that the U.S. government should guarantee the safety of its citizens, and that we want our progeny to enjoy a world of peace and safety.

The difficulty in discussing intergenerational justice is that all policy goals have a plausible but-for argument for primacy.  Powell is saying, in essence, that we cannot have any of the other things that we want to give our children and grandchildren unless we first give them safety.  Republicans -- as misguided as their economic policy proposals are on the merits -- essentially say that we cannot have safety and security without a strong economy.

There is also a very strong argument that what we most owe future generations is good educations.  One of my favorite ironic moments was when some fiscal conservatives in the U.S. Senate withheld support for the 2009 economic stimulus bill until funding to support education was stripped from the bill.  Why?  Because borrowing money to educate future generations would harm future generations!

As important as universal high-quality education is, however, I eventually came to believe that the better argument, especially from the intergenerational perspective, is that environmental issues should be our primary concern.  But for breathable air, we could not have an economy or national security or an education system at all.

As much as I liked that argument, it turns out that I was wrong.  The Trump presidency has made it clearer than ever that nothing matters more than the rule of law.  Without a political system that respects fair elections and enforces limits on presidential power, our children and grandchildren will never be able to undo any of our other mistakes.

Good environmental policies can be (and have been) undone, economic policies can be (and have been) used to worsen inequality, and schools can be (and have been) hijacked by ideologues who have long hated the "public" part of public schools.  Nonetheless, we persist in hoping that the public will be able to undo those undoings, because we believe that a non-rigged political system will allow the people to speak.

In some sense, this is easy for me to say, because most of what I would currently call "good policy" is also popular.  Notwithstanding the takeover of the government by right-wing ideologues, none of the Republicans' policies are supported by the American people.  The recent Senate fiasco over health care is only one of many examples.

That does not mean that I would expect to win every political battle.  Indeed, the point of a constitutional system governed by the rule of law is not to guarantee outcomes.  When my side loses a pitched battle over, say, workplace safety rules or consumer protections, I at least expect to be able to have the right to convince people to change their minds and try again to change the policies.  In turn, the other side has the same right when my side wins.

So if there is a judgment day, and I am called to account by future generations for my actions on Earth, I want to be able to say that I supported the rule of law.  With the rule of law relatively intact, would-be dictators can be removed.  Without it, all bets are off.

This not only means holding Trump to account for his many transgressions.  It also means defeating his efforts to help his fellow Republicans suppress votes and gerrymander legislative seats.

Again, there are very good reasons to worry about other important issues, and to try to fix the many problems that face the country and the world.  But if we lose the rule of law, fixing any other problem will be futile, because the people who view themselves as being above the law will simply undo the good things that have been done and go back to doing whatever they want.

If we owe future generations anything, we must bequeath to them the ability to oppose would-be tyrants and to truly govern themselves.  In John Adam's timeless phrase, we owe them a government of laws and not of men.


Joe said...

Trump is like one of those Enterprise captains with a loose understanding of just how strict the Prime Directive is.

John Barron said...

"I have only one answer: We owe [our progeny] a society governed by the rule of law."

The rule of law? That quaint provincial concept was interred a century ago. Went the way of the dodo.

Though none are old enough to remember it, the rule of law actually existed in our fair land. The Supreme Court once declared that State can deprive particular persons or classes of persons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the State, the constitutional requisition is satisfied. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.

Caldwell v. Texas, 137 U.S. 692, 697-98 (1891) (citations omitted).

Back in the mists of antiquity, that right was more than theoretical. Everyone had the right to a meaningful appeal: When a lower court got it wrong, you had the right to a meaningful appeal, where judges listened to your complaint from the bench and wrote their own opinions. And when that failed, you had a right to have your grievance heard by the Supreme Court.

Today, appellate judges decide most appeals in ten minutes or less. E.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr), Jan. 16, 2004, at 5 (150 per 2-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings," Des Moines Register, March 26, 1999, at 12 (50 appeals in 2 hrs. per Richard Arnold). Trial judges know this, and have adjusted their practices accordingly. Senior Judge Richard Kopf has publicly admitted that he doesn’t even read many briefs, Richard G. Kopf, Top ten legal writing hints when the audience is a cranky federal trial judge, Hercules and the Umpire (blog), Jun. 20, 2013, and according to retired District Judge Nancy Gertner, judges are quite literally trained on “how you get rid of [pro se civil rights] cases.” Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Hercules and the Umpire, Oct. 22, 2013.

Federal judges are solons of sloth because they can be. Judges literally don’t have to even READ the opinions they “deliver”; I caught ex-Judge Michael McConnell declaring that a case dismissed for lack of jurisdiction could be done so “with prejudice.” And the numbers don’t lie: The proportion of reversals among the total dispositions of the federal courts of appeals has declined markedly. In 1945, there was a reversal rate of 27.9 percent, see Dir. of the Admin. Off. of U.S. Cts., Ann. Report 70 tbl. B1 (1945), but the last figures l’ve seen for the Fourth Circuit has that down to FOUR percent. To put it another way, roughly six out of seven reversible errors are not reversed.

And ever since The Judges' Bill--signed into law on Friday the 13th, in 1926--the right to Supreme Court review became extinct, even in the most egregious circumstances. At common law, certiorari review was mandatory; today, correcting even self-evident error is beneath the dignity of the Gods of One First Street.

I'll ask again: WHAT "rule of law"???

Isn't it time you get about the task of restoring it?

Michael C. Dorf said...

I guess I quibble a bit. I'll still put a habitable planet at the top of my list. Countries have gone from dictatorship to stable democracy in relatively short order (e.g., Germany and Japan post-WWII), whereas it took over a billion years for multicellular life to evolve from single-celled life. So if I'm thinking about reversability, I treat the environmental threat as greater. That is not in any way to disagree with the proposition that Trump is a gigantic threat to our descendants (as well as us) in virtue of his attitude towards the rule of law.

Joe said...

It's useful to have perspective as the regular commenter who is in his 80s and saw a lot of bad stuff over the years notes from time to time.