I believe in the rule of law. This seems like an unremarkable statement for someone who has dedicated his professional life to reasoned and civilized discourse within an institutional structure of a legal system that values evidence, logic, science, rational analysis, a search for the truth in the face of conflicting evidence and interests, fairness, justice, and a simple belief that might does not make right. But this is a remarkable—and perilous—time for American democracy, reasoned and civilized discourse, evidence, science, logic, rational analysis, a search for the truth in the face of conflicting evidence and interests, fairness, and justice. So let me repeat myself: I believe in the rule of law.
My simple belief that might does not make right is now under threat in ways that were unimaginable just two years ago. The principle that no one is above the law—including the American President—was imprinted clearly on me as the Watergate investigation unfolded and Richard Nixon resigned the Presidency under a bipartisan threat of impeachment. The Supreme Court had made it clear in 1952 in the so-called Steel Seizure cases (Youngstown Sheet & Tube Co. v. Sawyer, 72 S.Ct. 863) that the President does not have any inherent powers that spring up from his position in times of emergency. Instead, the President’s power must come from a specific limited and enumerated authority granted to him through the Constitution itself or delegated to him by Congress under authority that was specifically granted to the Congress by the Constitution. There is no “inherent” executive power. Moreover, the Court made it clear that the courts have the power to review the President’s assertion of power and reach an independent conclusion. The President, in other words, is not the judge of the validity of his own claims. To quote Chief Justice Marshall from Marbury vs. Madison(5 U.S. [1 Cranch] 137, 1803), “It is emphatically the province and duty of the Judicial Department to say what the law is.” Courts get the final word in our system.
The courts therefore play a critical role in avoiding what the founders feared when the Constitution was drafted. By design, the structure of our government is one of divided and diffused powers: the “horizontal” separation of powers between the “co-equal” legislative, executive, and judicial branches and the “vertical” separation of powers through federalism between the federal sovereign and the independent sovereign states that created the Nation. The states established a federal government of limited and enumerated powers. The purpose of this design was to avoid tyranny. As Justice Gorsuch wrote in a concurrence when he was still a judge on the 10thCircuit Court of Appeals, “the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights.” Moreover, he added ominously,“The very idea of self-government would soon be at risk of withering to the point of pointlessness [if power becomes too concentrated in the Executive branch]. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.” (Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016)(Gorsuch, concurring)).
But the Constitution and its protections against tyranny are just words on paper unless those of us who are charged with its implementation and defense act to ensure its survival. I was troubled by then-candidate Trump’s attacks on the press and the judiciary during his campaign, and his promise to jail his opponent would have been condemned by the U.S. if uttered by any candidate in another country. But his election and inauguration followed the rule of law. So I accepted his ascension to the Presidency by seeking refuge and solace in the Constitution itself. I have given a half-dozen public talks since then where I have focused on how the courts have constrained previous Presidents and their attempts to assert unilateral power or to rescind the lawfully-established regulations already on the books. In all of those talks, though, I emphasized that Trump’s success will ultimately hinge on whether the key checks on his power—in particular, the U.S. Senate, would acquiesce.
The Senate has been compliant in its role to offer its “advice and consent” for Trump’s appointments to key agency positions and judgeships, but the press and the courts have responded to the challenge with a firm backbone and fulfillment of their critical civic roles. Trump’s attempts to go around the rule of law have been shut down about half of the time so far by the courts, and I am confident that many of EPA Administrator Scott Pruitt’s and Interior Secretary Ryan Zinke’s policy shifts will also be stopped through litigation. But activist groups now face an unprecedented onslaught of challenges to legitimate laws and regulations, so they are working overtime and having to practice triage in their response. So some collapse of the health, safety, and environmental regulatory state is inevitable.
Yet that retreat of the federal regulatory system is no longer my primary concern. Instead, I am more deeply worried that the core principle underlying our very system of government—belief in the rule of law—will soon be a casualty. The President feels increasingly cornered by Special Prosecutor Robert Mueller’s investigation, and last week’s search of his attorney Michael Cohen’s office and hotel room (by the U.S. Attorney for the Southern District of New York) have increased the Constitutional stakes considerably. Paul Ryan’s decision to leave his House position later in the week, despite all of his protestations that it is simply to spend more time with his family, is a clear indication that he and other Republicans realize that we have now reached the beginning of the end. As the New York Times stated in its lead editorial recently, “The Law is Coming, Mr. Trump.” (https://www.nytimes.com/2018/04/10/opinion/trump-michael-cohen-raid.html)
So Mr. Trump is going to go after the law. Because it isn’t just Robert Mueller who is coming for Mr. Trump—it is belief in the law itself. It is a legal system that values evidence, logic, science, and rational analysis; it is any search for the truth in the face of conflicting evidence and interests; it is a legal system predicated on any concern for fairness and justice. It is the principle that might does not make right. It is the principle that nobody is above the law. All of these principles go against President Trump’s interests, his personality, how he has done business his entire career, and how he was elected. So he must undermine all of these principles and the legal system itself to survive.
Although we must await more evidence to reach firm legal conclusions, it is already clear that Russian interference in the 2016 election helped elect Donald Trump and that key members of his campaign staff welcomed such assistance and may have even sought it out. The only pressing legal questions at this point are the same ones that we asked of Richard Nixon about the Watergate break-in: what did the President know, and when did he know it?Moreover, did the President obstruct justice by firing James Comey, threatening to fire Robert Mueller and key Justice Department officials, signaling through the pardon of Scooter Libby that obstruction of justice will be rewarded, and helping to fabricate false statements (while on Air Force One!) about his family and others’ role in these matters?
The answers are likely to be sufficient cause to press criminal charges against anyone—including the President. There is split opinion among legal scholars as to whether a sitting President can be charged with crimes outside of the impeachment process, but it is worth considering carefully the one truthful statement that Donald Trump made when he was running for President: “”I could stand in the middle of Fifth Avenue and shoot somebody,” he said (at an Iowa rally on January 23, 2016), “and I wouldn’t lose any voters.” (http://www.latimes.com/books/la-et-jc-trump-shoot-somebody-20161214-story.html). And Trump—along with his apologists who believe in an imperial Presidency with no limits on the President’s power short of impeachment (e.g., see John Yoo and Saikrishna Prakash, https://www.nytimes.com/2018/04/13/opinion/trump-fire-mueller.html)—seems to believe that the only remedy for any such action (remember, we’re talking about “shooting somebody”) would be impeachment proceedings rather than the criminal law system.
I’m a law professor, so let’s test that question with some simple hypotheticals. First, what if he really shot someone and was witnessed by a police officer? Could the officer arrest the President, still brandishing his gun in one hand while tweeting away in ALL CAPS with the other? There would be no doubt that a crime had been committed and that he was a continuing threat to public safety. Impeachment—a political mechanism meant to make Presidents and other key senior officials accountable when they otherwise were not dismissible due to life tenure or a fixed term—would take too long and be too uncertain. The continuing threat of the President, gun and Twitter account in hand, would place our entire society in peril. We would have a firm basis to lock him up and prosecute him.
So it is really a question of degree: at what point is the crime one that must be addressed by impeachment rather than the judicial system? What if he shot but missed and promised not to shoot anybody else as long as he could keep his gun? What if he was observed paying somebody else to shoot his political and business enemies, and those shots were on target? What if he just heard that some of his family and friends had arranged for such shots, but he had never formally asked them to do it—while also not informing the authorities of the plot and the impending peril for the targeted victims? At what point is he not culpable?
What if the crimes are collusion with a foreign government to alter the outcome of a U.S. Presidential election, giving comfort to our enemies while negotiating in direct conflict with the official diplomatic position of the United States, and obstructing justice through a combination of intimidation, payoffs, and promises of pardons to potential witnesses?
We’re about to find out. And, while the Constitution and several hundred years of America’s experiment in democracy have established clear checks on the President’s power, the sacred document remains only words on parchment and paper and in bits on our screens. The real checks depend on the choices of living, breathing, human beings—true citizens. All of us are soon going to have to make hard choices to step up when our civic duties as American citizens demand that we sacrifice our partisan loyalties or the particular instrumental, transactional benefits that we may derive from this particular President.
President Trump has lived his life based on a simple idea: that all human interactions are transactional, and everybody with whom he has a transaction has a price that will lead him or her to override any principles he or she may hold. That simple premise has gotten him far; witness the gyrations of evangelical community to abandon its principles of morality in exchange for judicial appointments that will further their causes. Tony Perkins, President of the Family Research Council, revealed this instrumental reality simply when he said “That’s the way the world works,” in relationship to a tax bill change that would allow churches to become more overtly political. “The world is transactional. What can we pursue that is mutually beneficial?” (https://www.nytimes.com/2017/11/26/us/politics/johnson-amendment-churches-taxes-politics.html). Principles be damned—at this point, it is all about the art of the deal.
But we need not accept this pessimistic, principle-free, transaction-based view of the world and we citizens who inhabit it. Instead, can choose to return to the core principles upon which this Nation and our Constitution were founded and act on them when called to do so—even when doing so may conflict with our short-term interests. In the long-term, the survival of our democracy is necessary for every one of us. And the survival of our democracy depends on the rule of law.
That’s why I still believe in the rule of law. For without it, we are back to might makes right.
Let’s hope that the rest of America still believes in it, too. We as citizens and our democracy itself will be tested in the coming days as never before in American history. For this President will tear down the rule of law, a free press, the Constitution, and American democracy if they threaten him as they do now. He will stop at nothing to avoid the law.
I believe in the rule law. Do you? And, when it is threatened, what will you do to save it?