Tuesday, August 08, 2017

What is This Rule of Law Thing Really About?

by Neil H. Buchanan

It seems almost impossible to read about the Trump Administration without coming across yet another author who is worried about Trump's threat to the rule of law.  This threat is very real, and it is a good thing that so many commentators are shining a spotlight on Trump's lawlessness.

In the midst of Trump's maelstrom of misdeeds, however, there is a danger that we will forget exactly what is at stake when we are talking about the rule of law, a term that can all too easily become a vague abstraction (like democracy).  When we say that the rule of law is under assault, what do we mean?  Why does it matter?  What happens if it is eroded or lost?

In a recent column, "The Prime Directive Is to Protect the Rule of Law," I described how Trump's words and actions continually reinforce the suspicion that he has no respect for -- if, indeed, he is even aware of or capable of understanding -- the limits on a president's power.  I ended that column by invoking the famous John Adams formulation of the rule of law as the aspiration that ours should be "a government of laws and not of men."

Again, however, the very familiarity of Adams's turn of phrase threatens to rob it of its power.  "Of course," one might say, "our government is set up by laws, and those laws are enforced and interpreted by men.  How could Trump change that?"

I find it helpful to think about the many ways large and small in which we expect the rule of law to operate in our lives, and then to notice how people react when they find out that our expectations have been subverted by insider deals or special treatment.

Back in 2003, I was at a dinner with some lawyers, almost all of whom were surely earning more money than they would have if they had become even senior lawyers in the Justice Department.  The conversation somehow worked around to the federal government's antitrust case against Microsoft, which had been filed several years before and was ultimately settled.

Although there were plenty of technical legal issues for us to discuss, one person at the table captured something profound: "You know, the thing that amazes me is that you have one of the largest companies in the world being sued by a bunch of civil service lawyers who could be bought and sold by Bill Gates in five minutes."

Others protested that the federal government was certainly as powerful as Microsoft, but the lawyer persisted: "Why is it more powerful?  Because you've got a bunch of guys whose salaries are in the low six-figures who are presumed to be honest, even though Microsoft has more than enough money to make it worth their while to undermine the case."

This really is an amazing concept, especially when one considers the general sweep of human history.  Powerful people and entities have generally been able (even when they are not willing to engage in physical violence and threats) to get their way by corrupting any legal processes that might be arrayed against them.  That Microsoft was not able -- so unable that it probably did not even think about trying -- to buy off the governments' lawyers is a testament to the power of the rule of law.

That is not to say that large amounts of money did not help Microsoft in its legal battle, but there is something very comforting in the idea that they at least had to do something other than simply bribe their way out of a bad situation.

On the other hand, there are countless small ways in which the rule of law is violated every day.  A few years ago, for example, I attended a conference at a think tank in New York State, where an older man was sitting at the table smoking a cigar.  This was a clear violation of state smoking restrictions for public buildings, but he puffed away.

During a break, I asked one of the organizers to do something about it, but he explained that the violator in question was the billionaire who had funded the think tank.  Undaunted, I said, "But he's still subject to the law!"  The organizer just smiled sympathetically and said, "None of us dares to say anything about it."

As it happened, I was familiar with the local government in the area where this was happening, and I knew that the justice system was not going to do any good.  For example, the local magistrate was an employee of the college where the think tank was located.  (Local magistrates in New York State are often non-lawyers who have a disturbing amount of power, not just over civil matters but even over criminal prosecutions as well.)  What is quaintly called "local justice" is often not justice at all.

The point of this story is to note that petty violations of the rule of law happen all the time, but we still know when they are happening because our response will be something along the lines of, "Are you kidding me?"  Even if we are cynics, we still can be shocked and amazed when someone is given special treatment.

Indeed, "special treatment" is exactly what the rule of law is supposed to prevent, not just in dealings with the government but in other areas as well.  We generally think we know what fairness looks like, and when someone is moved to the front of a line or allowed to ignore the rules, people smell a rat.

Back in the 1990's, for example, various media outlets reported the amusing news that Iraq's Olympic soccer team was made up of Saddam Hussein's bodyguards.  For a dictatorship, that was par for the course.  In countries that respect the rule of law, however, that would be unimaginable.

This would be true, moreover, well below the level of the Olympics.  Try to imagine, for example, the public outcry that would follow if, say, it turned out that playing time decisions for Florida State's football players were being influenced by side payments to the coaches.  (The reports of Florida State's efforts to cover up sexual assaults and other crimes committed by football players are far more serious violations of the rule of law than playing time, and they are anything but hypothetical.)

And this is where Trump's attacks on the media become so important, because the presumption is that the press will report "with neither fear nor favor" about government and other powerful entities, yet there is a constant effort by those with power and means to corrupt those who would report on them.

Again, a small anecdote might be helpful.  Years ago, a local Boston TV news program ran a report on the sleazy practices of car dealerships.  The next day, I called the reporter and offered (as a graduate student in economics) to provide some research that might be helpful in followup reporting on what was surely more than a one-off story.

The reporter told me that the local trade group representing car dealerships had called her station manager that morning and threatened to cancel all car advertisements on that station in response to her report.  She had been reassigned.

This is relatively easy to imagine at the local level, unfortunately, but the same basic problem exists all the way up the chain.  During Anthony Scaramucci's short, entertaining stint as White House communications director, a business reporter for The Washington Post wrote about her experiences in covering Wall Street, where the ethos was to fight all potentially negative press at all costs.  She wrote:
"My favorite of their techniques, used by two major investment houses, was to flatly deny a story that I knew was accurate. When I offered to call my sources to reconfirm, the response I received was: 'That’s it? That’s your negotiation?' As a journalist, I didn’t see the truth as subject to negotiation. But Wall Street did; it’s all about what you can get."
These efforts can, in fact, be given the cover of law, such as "ag gag" laws that prevent reporters from covering the horrendous conditions in slaughterhouses.  And it carries over to White House efforts to undermine the credibility of the Congressional Budget Office, where Trump and the Republicans are trying to prevent the independent judgment of experts from thwarting their will.  The CBO could be forced to change its methods (or it could simply be eliminated) by law, but thankfully Republicans in Congress have not (yet) gone there.

That the law itself can be changed to undermine the rule of law, then, is a paradox that actually makes it easier to see what is at stake.  The laws-and-not-men concept goes beyond the idea that the laws will be faithfully applied, as important as that is.  The laws themselves are not supposed to be designed to give special treatment to those who can afford it or who have special influence.

When George W. Bush's administration, in an effort at political payback, revealed the name of the CIA operative Valerie Plame, people were appropriately shocked.  The fallout from that crime offers reasons for both optimism and pessimism.

The good news is that the case was not buried or stopped, even though it aimed at the highest levels of political power.  It is impressive enough that Microsoft cannot buy off or intimidate government lawyers, but it is enough to make a person want to sing "The Star-Spangled Banner" for a full day to think about a system in which civil servants diligently pursue a case against the president's closest advisors wherever it leads.

The bad news is that it still appears that justice was not served in that case.  Not only was Scooter Libby's sentence commuted by the president -- another legal act that nonetheless undermined the rule of law -- but there is plenty of reason to believe that Libby was set up as a fall guy for others, including his former boss, then-Vice President Dick Cheney.

Indeed, George W. Bush became the president under circumstances that raised serious questions about the operation of the rule of law.  The Florida recount in 2000 was halted by what most legal scholars continue to consider a completely bogus misreading of the law by Republican appointees on the Supreme Court.  Even before that, the so-called Brooks Brothers Riot was an attempt by Republican operatives to prevent vote-counters from doing their jobs.

Cataloguing all of the ways in which Trump believes that he is above the law will require the efforts of legions of journalists and historians.  He also makes a habit of encouraging others to violate the law, such as his suggestion (which his spinners later tried to dismiss as a joke) that police presume that suspects are guilty and then punish them with on-the-spot violence.

Notwithstanding all of this, even the most jaded observers have good reason to continue to believe that the rule of law is strong enough to stop Trump from becoming the dictator that he so obviously wants to become.  That we even need to worry about this is a sad commentary on our times, but there are still signs of hope.

Writing about the supposed discipline that Trump's new chief of staff, John F. Kelly, could bring to the White House, never-Trump conservative columnist Jennifer Rubin wrote that "neither Kelly nor Trump can control a fleet of prosecutors, congressional investigators, numerous witnesses and multiple grand juries."

In other words, there is still reason to hope -- with some real confidence -- that we still live under the rule of law.  We have reason to believe that not everyone in a position to stop Trump can be bullied, bribed, threatened, or fired.

People understand that there will be situations in which people receive special treatment, from petty matters like who receives the best parking spaces at work to a rich family making its son's murder charge go away.

We also know that Trump is already cashing in on the "corruption premium" and that there are people who are working hard to allow him to get away with his many impeachable offenses.

But now that some (not enough, but some) Republican politicians are rallying around Robert Mueller's efforts to guarantee that this remains a government of laws and not of men, there are reasons to think that we just might get through this with a lot less damage than seemed possible only weeks ago.

3 comments:

David Ricardo said...

The concept of a nation of laws is not a one of yes or no, but can be evaluated along an analog scale of 1 to 10 where 1 is North Korea and maybe one or two of the former Soviet republics and some countries in Africa and 10 is an unobtainable ideal. At best the United States is a 6 to 6.5 and that’s being generous.

Consider these egregious violations of the concept of a nation of laws.

1. In Missouri and other states public defender offices are so under funded that thousands of indigent defendants go to trial without counsel or have to plead guilty. In many states, particularly southern ones defendants face a capital punishment trial with inadequate representation. Some prosecutors who are more interested in conviction rates than justice seem to routinely withhold evidence that would help the defendant. False testimony and the planting of evidence by police exists although no one knows the scale.

2. In the financial crisis judges routinely rubber stamped foreclosures even though creditors did not have sufficient evidence that the debt was due or how much the debt was or even if they were the legal creditors.

3. The election resources vary by income; wealthy neighborhoods get much greater access to the ballot box than poorer neighborhoods.

4. Law enforcement has created its own criminal statute, DWB, Driving While Black. The statistics on traffic stops show huge variation by race.

5. By overturning the conviction of former Va. Gov. McDonnell despite a jury and appellate courts finding him guilty the Supreme Court has made it very difficult prosecute elected officials who accept bribes.

Look, these are just a few examples that came to mind in just a few minutes. But consider this, the most damning example of all of why this nation is not a nation of laws. Civil forfeiture. Law enforcement may take money and property from an individual who is just arrested and not convicted or in some cases just suspected of committing a crime. The money is then distributed to the same law enforcement agencies. The practice makes a mockery of the Takings Clause of the Constitution and effectively refutes the argument that America is a nation of laws. We ain’t.

Evan said...

Your point that the “laws-and-not-men concept” includes a principle that the “laws themselves are not supposed to be designed to give special treatment” is important but often overlooked. This value – which may be called a value of legislative generality - at one time was an explicitly articulated constitutional principle. Picking up on a long historical tradition, in Hurtado, the Court explained that “a special rule for a particular person or a particular case” simply cannot properly be considered “law.”

I hasten to add that a value of legislative generality is routinely overlooked not only by this Administration, but by all three branches of government. Just last year, in a case called Bank Markazi, the Court permitted Congress to pick the winner in a particular, pending case that was explicitly named in the statute itself. The Court held that, although “legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action.” And the first law enacted by the 115th Congress – on January 20, 2017 – was a special law, providing an exception, for the benefit of James Mattis, to the seven-year minimum period between active duty and appointment as Secretary of Defense.

The problem with enforcing a value of legislative generality is that special laws are often popular: eliminating a legal requirement for one person only, as in the case of the Mattis law, is often done specifically because it is expedient and non-controversial. But, by properly characterizing special legislation as a violation of rule of law principles (even if we are not bothered by the result), we can help slow the erosion of rule of law.

Shag from Brookline said...

Law consists of rules, rules that are made by men/women, rules that can be changed by various means. [I'm ignoring "natural" law for purposes of this comment and await comments from Revengelicals.] The "rule" in rule of law does not refer to such rules; Rather it means governing by means of rules of law made by men/women by various means: common law, statutory law, judge-made law, etc. The rule of law is considered a necessary component of a true democracy. Adams' statement that we are a government of laws not of men/women (as modified by Abigail) fails to emphasize that men/women interpret, apply such laws by various means in the course of governing. But these men/women do not always agree, as witness split decisions of SCOTUS. Some may confuse the concept of "the rule of law" with the actual rules of law, concerning which men/women in governing positions may differ.