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.
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