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 Donald Trump has been the most open president in history when it comes to disclosing his thoughts on both domestic and foreign policy. Vice President Joe 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 adviser 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 10 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 advisers 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 3-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.
Gary Stout is a Washington attorney.