WHEN THE RULE-OF-LAW TURNS INTO THE RULE-BY-LAW

 

Down amidst the mud and weeds of a contentious presidential election there is a positive factor to point out.  Unlike 2016, there are few candidate unknowns to confuse voters as they go to the polls.  The choice is between two contenders with diametrically opposed, established records that could not be clearer.  Indeed, one could argue that Trump has been the most open president in history when it comes to disclosing his thoughts on both domestic and foreign policy. Vice President Biden has a long Senate record as well as eight years serving in the Obama administration.

However, hiding in plain sight, above the mud and weeds, there remains one important issue that deserves the attention of voters before they cast their ballots.  This development will have a significant impact on the course of American democracy if Trump remains in office for another four years.  I am referring to a concerted effort by the Trump Justice Department under William Barr to turn the democratic principle of the “rule-of-law” into the illiberal concept of an ideologically driven “rule-by-law.”

The “rule-of-law” is a basic democratic ideal, among a host of values that dominate political morality. These values include liberty, human rights, social justice and some degree of shared public benefits.  The rule-of law refers to the ascendency of law in a system of government through the institutions of a just and readily available legal system. A society governed by the rule-of-law has clear precepts to follow that most importantly apply equally to all citizens.  On the other hand “rule-by-law” connotes the enforcement of laws that have been adopted to govern society.

Unfortunately, an arbitrary illiberal government that ignores both the “rule-of law” and its emphasis on applied equally to all can use the “rule-by-law” to shape society in its own image.  It does this by imposing laws that are not decided by the elected legislature, but instead are imposed from the top through edicts and regulations.  An illiberal government also uses the rule-by-law as an instrument of the state to achieve its objectives to control those institutions with which it disagrees and to attack its enemies. Such a government goes to great lengths to avoid the constraints of equal justice envisioned in the “rule-of-law” to achieve these illiberal goals.

Over the past four years, the “rule-by-law” has become a dangerous, expanding tool of the Trump administration. Much of this has been accomplished by using the Department of Justice to administer highly selective deployment of laws and procedures to accomplish political objectives.  The following are recent examples:

·       The Justice Department attempted to prevent former National Security Advisor, John Bolton, from publishing his book detailing his time inside of Trump world.  After the book was published, a criminal investigation with grand jury proceedings and a civil lawsuit were filed against Bolton. These actions were taken despite Bolton and his publisher carefully following procedures established by the administration for such publications.

·      The Justice Department intervened in a defamation lawsuit against the President ten months after it was filed.  This was done at the last possible moment before Trump was compelled to produce DNA evidence and to sit for a deposition.  The White House’s direct request for intervention was an extreme and unacceptable use of Barr’s powers.

·       William Barr intervened into the Justice Department’s own prosecutions of two felons, Michael Flynn who pled guilty and Roger Stone who was convicted.  Both individuals are close advisors to the president.  Both interventions, arguing for leniency, violated long established norms and precedents to treat all criminals the same.

·      The Justice Department announced that it issued requests for information concerning the outbreak of coronavirus in nursing homes, only in those states that are currently run by Democratic governors.

·      The Justice Department accelerated the prosecution of a complex antitrust investigation against Google, a supporter of Democratic candidates. At the same time a three-year-old action for fraud against Boeing, whose executives support Trump, was permitted to languish.

·      Attorney General Barr has pursued sedition charges in Portland, Seattle and other Democratic jurisdictions in response to recent protests.  Armed right-wing militias, with a pro Trump anti-lockdown agenda, who showed up at the Michigan statehouse did not receive the same treatment.

·      There has been a remarkable conservative reshaping of the American federal judiciary under the president’s watch.  Some of the appointees are clearly political hacks and others are extreme ideologues.  At best, they do not represent a diverse pluralistic cross section of American values.

If Trump is reelected, there is nothing to hold him back from his quest for a fuller realization of the “rule-by-law.”  For example, it is not difficult to envision a more concerted use of the criminal justice system against opponents of his administration. 

An analysis of Poland and Hungary reveals how quickly the “rule-by-law” can become a weapon for democratically elected illiberal leaders against any opposition.  In both countries, limitations on free speech have resulted in a media controlled by the government and the leaders of opposing political parties subjected to constant legal harassment.

Throughout history, there has been no exact formula to determine when a rule-by-law state deteriorates into an authoritarian regime. This presidential election can guarantee that we will not be forced to test the limits of our democracy.  A Biden victory will guarantee the recovery of our legal institutions and a reestablishment of the rule-of-law.

 

COVID-19 GOES TO THE WHITE HOUSE

Early Friday, October 3, 2020, the President and his wife announced that they were two of 50,000 Americans that day who tested positive for the COVIID-19 virus. The White House decided that “out of an abundance of caution” the President would recuperate at Walter Reed Medical Center.  This was prudent given the President’s age and health history, placing him in the high-risk category to contract the life threatening disease. Given the fact that the election is less than a month from now, these developments were unprecedented.

Before the President contracted COVID-19, the Trump re-election game plan was to shift focus away from the pandemic. The aim was to place the attention of the media and voters on: 1) law and order issues and 2) voter fraud resulting from mail-in ballots.  The coronavirus outbreak in the White House assured the opposite would happen.

Now there are questions that must be investigated in light of the President’s condition and the many others within his orbit who tested positive. After months of research, we know a great deal about the virus and how to be shielded from its effects. The White House should be among the safest environments on earth, not a COVID hot zone.  Many parents will now question how their children can remain safe in a public school with limited resources and minimal access to testing when the White House is unable to protect its occupants.

Why did so many participants at a White House ceremony the previous Saturday test positive?  When the President’s close advisor, Hope Hicks, tested positive, what prevented the White House from following the guidelines of its own Task Force to immediately quarantine all who came into contact with her, including the President?  Why would the President and his campaign entourage, knowing of their exposures,  insist on attending election events in several states on Thursday October 2? Why have the medical updates on the President’s illness been confusing and contradictory? Is the spread of COVID-19 in the White House the result of Republican hubris or of a disease that can bypass all defenses?

In connection with the health and welfare of the American People, the more important question is how will the President’s contraction of the virus affect national pandemic policy? How will it affect the election?  I am not in the camp who believe Trump’s illness will result in a sudden epiphany and push to develop a more comprehensive national plan for the pandemic. There may be some benefit to examining the paths taken in Great Britain and Brazil after their respective heads of state contracted the virus.

Prime Minister, Boris Johnson, tested positive for coronavirus on March 27.  His condition quickly worsened, he ended up in intensive care, which prompted an outpouring of public support.  The Prime Minister took the disease more seriously after his discharge from the hospital and cooperated in shutting down the country.  Presently Johnson’s approval ratings are low, but unlike Trump, his election is not until 2024.

When President Jair Bolsonaro of Brazil tested positive in July, he was not severely affected and did not require hospitalization.  This permitted him to boast that the virus was “like the flu” and that “herd immunity” is a viable option in responding to the pandemic. For months he continued to hold the position that only the elderly and infirm should participate in the lockdown.  Like Trump, he attacked regional governors who imposed broader measures. Bolsonaro’s approval ratings among his ardent followers have remained constant, signaling there is political life after getting coronavirus.

Trump was released from the hospital on Monday, October 5.  He is adapting the approach of the Brazilian leader by continuing to minimize the medical impact of the virus. It is my view that if the President quickly recovers that his illness will have marginal influence on the election results. 2020 has been a year when every week has brought new unexpected shocks and revelations to the American people.  These final weeks of the campaign will no doubt accelerate this trend, as was the case before the election in October 2016.

What are some possibilities? Attorney General William Barr may release the results of the 15-month probe into the FBI’s investigation of the Trump campaign when he believes it will most helpful to the President.  Yet another former senior Trump official may come forward with new revelations about the President’s abhorrent conduct. A pharmaceutical company may announce a major vaccine breakthrough.  There are numerous other surprises beyond the scope of now knowing what is possible.

It is easy to get caught up in the explosive news cycle and the superficial details of what was said/done by political actors in our fast-paced environment.  For those of us dedicated to bringing sanity back to Washington, it is time to stop formulating theories on what is wrong with the presidency. Rather, it is time to plan for and perform simple tasks that will make a difference, including the following efforts.

Make sure voters receive their ballots by mail or have transportation to the polls.  Help first-time mail-in voters to understand the procedures involved, and encourage them to return the ballot as soon as possible.  Call and email everyone who has communicated a desire to be on the right side of history and encourage them to vote. 

October is not the season for political analysis, emotion or criticism.  It is the occasion to take action in order to right the many wrongs of the past four years.

 

 

 

 

 

THE PRESIDENT IS NO BOY SCOUT

 

The Boy Scouts of America is one of the largest youth organizations in the United States.  In July of 2017, President Trump was asked to speak before a gathering of 40,000 scouts at the summer Jamboree in West Virginia. 

Mr. Trump began his remarks by saying:  “Who the hell wants to speak about politics?”  He then went off on a rambling address to deliver highly politicized remarks that were more appropriate for a MAGA campaign rally than an assembly of bipartisan young men and scout leaders. 

President Trump never joined the Scouts. This is unfortunate because were he a member, he would have recited the Boy Scout Law prior to each meeting of his troop.  I can think of no better standard than the Scout Law to both fact check and review the President’s performance during his first term in office. The Scout Law has 12 points. A Scout always tries to be:

TRUSTWORTHY. Tell the truth and keep promises.  On July 9, 2020, the President crossed the 20,000 mark in making false and misleading claims — an average of 23 claims a day over a 14-month period.  When the Washington Post “Fact Checker” first began keeping track, Trump averaged fewer than five claims a day. The tsunami of untruths just keeps multiplying.

LOYAL. Show that you care about your family, friends, school and country. The President needs and expects loyalty from all those around him. The Mueller investigation began when Trump demanded loyalty from FBI Director James Comey who refused to comply.  Trump seeks revenge against any present or former administration official who speaks truth to the media. On the other hand, Trump shows little loyalty to those closest to him. Michael Cohen, Trump’s former lawyer as well as Mary Trump, his niece, recount numerous examples in their respective new books of his disloyalty to his wife, children and close associates. Trump’s own loyalties are to himself, his profits and his next political campaign—and perhaps to Vladimir Putin.

HELPFUL. Volunteer to help others without expecting a reward. The President behaves in transactional terms, taking no action without a reciprocal payoff for his own interests.  His charitable foundation was forced to shut down after the N.Y. State Attorney General uncovered that Trump utilized the charity to benefit himself.

FRIENDLY. Be a friend to everyone, even people who are very different from you. The President cultivates a disrespectful, pompous, defiant and bullying demeanor. He openly favors “winners” (dictators, cutthroat capitalists) over “losers” (Western leaders with empathy, killed or captured soldiers). He offers support to white Christian nationalists and admirers of confederate treason, while attacking diverse ethnicities and religions.

COURTEOUS. Be polite to everyone and always use good manners. See “Friendly” above.

KIND. Treat others as you want to be treated. See “Friendly” above.

OBEDIENT.  Obey the laws of your community and country. No prior administration has pushed the envelope of the law to the same degree as the Trump White House.  He believes he is above the law. He has sought to undermine and halt investigations into his alleged illegal acts. He has ordered his Attorney General to prosecute political opponents. Lastly, Trump as President, has attacked the independence of the judiciary.

CHEERFUL. Look for the bright side of life.   Trump has almost no humor, even when the moment calls for it. Humor humanizes and puts people at ease. Trump’s method is the opposite. He wants people ill at ease. Doing so, preserves his capacity to wound, enhancing his sense of superiority.

THRIFTY.  Use time, food, supplies and natural resources wisely.  The President has few time management skills and makes decisions impulsively without setting measurable goals or creating strategies to achieve them.  He is extravagant with the public purse and has increased the national debt to 27 trillion dollars. In direct violation of the Emoluments Clause of the Constitution, millions in taxpayer dollars have found their way into the coffers of the Trump Organization.  

BRAVE.  Do what you think is right despite what others might be doing or saying.  According to journalist Bob Woodward who was granted an unprecedented 18 recorded interviews with President Trump, his handling of the ongoing pandemic was “a monumental, catastrophic leadership failure.”  Woodward concluded in his recent book that the President lied or misrepresented facts to the American people in an effort to improve his chances of reelection with little regard for public health and welfare.

CLEAN. Keep your body and mind fit.  The president is a self-described germophobe. According to a former top adviser to Vice President Mike Pence, Trump once said Covid-19 might be a “good thing” because it would stop him from having to shake hands with disgusting people.

REVERENT. Be reverent toward God and respect the beliefs of others.  Trump's attempts at public religion have been awkward at best. He said he does not ask for forgiveness and "does not bring God into that picture" when he makes mistakes. President Trump identifies as Presbyterian, but does not regularly attend any church.  He is openly hostile toward Muslims.

The President’s followers will argue that none of the above disqualifies him from serving a second term.  My response would be: Under what circumstances would an individual who in every respect, fails to live up to the Scout Law, make an acceptable candidate for the highest office in our nation?