When the Rule of Law Turns into Rule by Law
Ankush Khardori
The threat that faces the country is of an increasingly dominant rule by law that could include a more comprehensive deployment of the criminal justice system against perceived opponents of the administration.
Johnny Louis/Getty Images
Trump ally Roger Stone celebrating outside his Florida home after the president commuted his sentence, Fort Lauderdale, July 12, 2020
Last week, Attorney General William Barr gave a speech at the conservative Hillsdale College, in Michigan, in which he warned of the "criminalization of politics" and complained that prosecutors have "too often inserted themselves into the political process based on the flimsiest of legal theories" using "hyper-aggressive extensions of the criminal law." The next day, the Justice Department confirmed that it had looked into whether it could criminally prosecute city officials in Portland, and we learned that Barr had encouraged federal prosecutors to use sedition charges against protesters.
This hypocrisy aside, his speech was absurd in other ways. Styled as a broadside against a straw-man argument that the decisions of career prosecutors should be exempt from review by political appointees at the department, it was chiefly a thinly veiled attack on Robert Mueller's investigation of President Trump's campaign in the run-up to the 2016 election.
Barr argued that the rule of law "is the lynchpin of American freedom," that its "essence" is that "whatever rule you apply in one case must be the same rule you would apply to similar cases," and that it "requires that the law be clear, that it be communicated to the public, and that we respect its limits." Here, too, rhetoric did not match reality. Under Trump and Barr, the rule of law has corroded into a corrupted version of the ideal that has proven remarkably effective as a vehicle for exercising and maintaining political power.
The concept of the rule of law, developed over centuries, encompasses a variety of principles. Some are formal in nature, like the requirement that the law be publicly available, so that people know what is and is not lawful and can manage their affairs accordingly, while others are procedural, like the right to have legal disputes decided by an independent judiciary. At the risk of oversimplification, Barr had this right: a society governed by the rule of law has general, clear, and accessible rules that apply to everyone, as opposed to one governed by an arbitrary, oppressive power.
In recent years, another, intermediate notion has emerged in academic accounts: rule by law. Jeremy Waldron, a political and legal philosopher at New York University, has summed up the term as referring to "a debased version of the rule of law," in which a government uses the law as an instrument of the state to achieve its objectives and to control the public, but without being subject itself to legal constraints in the same way. This is not the same exercise of power that an authoritarian regime uses. As Waldron puts it, an authoritarian regime does not really "use law at all," while a government that rules by law accepts the formal rigor of legality "even if it remains instrumental to the purposes of the law-maker."
As members of the public, we still have laws we can use to guide our actions and set expectations for how the government will evaluate our conduct, and there remain some legal constraints on what the government can do to us and how it can go about doing it. There is significant value to that, even if we cannot hold the government and its officials accountable as we could in a rule-of-law society.
This has considerable appeal as a description of the way the US legal system is increasingly operating today, and it is particularly useful for understanding the actions of the Department of Justice. We have seen plenty of examples of rule by law in the past few months.
Last week, for instance, Trump's recent former national security adviser, John Bolton, came under criminal investigation for whether he improperly disclosed classified information in his memoir. Bolton's book had been cleared for publication early this year after a months-long prepublication review process conducted by a senior career official at the National Security Council; shortly thereafter, though, political appointees reversed that determination. When Bolton went ahead with publication anyway, the department went to court to try, unsuccessfully, to stop the book from being sold. With that effort's failure, it seems the department is now weighing a punitive prosecution—this from an administration that has demonstrated a decidedly lax approach to information security protocols, including Trump's own use of a personal cell phone that is being surveilled by foreign adversaries.
Then there was the department's recent decision to intervene in the defamation lawsuit brought by E. Jean Carroll against Trump, based on what she claims are false denials of a sexual assault he allegedly committed against her. The department's legal argument is not in itself frivolous, as some commentators have claimed, but the DOJ did not get involved until ten months into the case and at the last possible moment—on the day that Trump would have had to appeal a significant ruling against him in New York state court, and when he would very soon have been forced to provide Carroll with a DNA sample and sit for a deposition. The department's intervention at that particular juncture—undertaken at the direct request of the White House—was far from "a normal application of the law," despite that claim of Barr's.
The Justice Department's earlier interventions in the prosecutions against a previous national security adviser, Gen. Michael Flynn, and Trump ally Roger Stone followed a similar pattern, with selective deployments of legal principles to suit Trump and his partisans. In Flynn's case, after he sought to withdraw his guilty plea to a charge of lying to the FBI while waiting for sentencing, the department moved to dismiss its own case against him—according to a rationale that is extremely questionable. That may, however, prove to be beside the point, as the judge may conclude he is bound to take the DOJ's assertion at face value and dismiss the case.
In the case of Stone, who had been convicted of witness tampering and lying to Congress, Barr argued that Stone's advanced age justified his decision to overrule the sentencing recommendation of career prosecutors and seek a more lenient prison term. Sentencing guidelines that prosecutors and the courts use are often too harsh, yet Barr has not intervened on these grounds in any other case. (Even this leniency turned out not to be enough for Trump, who later commuted Stone's sentence entirely.)
No such remedy was available for Kevin Clinesmith, the first prosecution to result from the investigation undertaken at Barr's direction by John Durham, the US attorney for Connecticut, into the conduct of government officials during the Russia investigation. Clinesmith is a former FBI lawyer who, during the early stages of the agency's Russia investigation, altered an email from another government official that was used as evidence to obtain a warrant under the Foreign Intelligence Surveillance Act to surveil a sometime foreign policy adviser to the Trump campaign, Carter Page.
Clinesmith pled guilty to a false statement charge, but the department's approach was glaringly inconsistent with its view of the same law involved in the Flynn prosecution, in which, contrary to the Clinesmith case, the department had taken an unprecedentedly narrow view of whether a false statement could have influenced (been "material" to) the person on the receiving end of it. The most obvious explanation is that both Trump and Barr have been eager for political and legal retribution for the Russia investigation, which they believe almost took Trump down.
Barr has reportedly been pressing Durham to produce something more before the election—perhaps an interim report that can be released with a fanfare. The political motivation of Durham's investigation was apparent from the start, but it became harder to deny after a senior prosecutor working on the investigation recently resigned from the department over pressure to rush the team's work ahead of November.
In all of these cases, the government found colorable arguments to support its positions, but it was their highly selective deployment that was revealing. That selectivity has also been on display in broader Justice Department initiatives under Barr.
A congressional chamber prepared for a session of the House Judiciary Committee, before which Attorney General Barr Testified, Washington, D.C., July 28, 2020
Late last month, for instance, the department announced that it had issued requests for information to New York, New Jersey, Pennsylvania, and Michigan—all states run by Democratic governors—concerning their handling of the coronavirus in nursing homes. The nominal basis is a civil rights law that applies to group living facilities, but the department has evinced no interest in the rights of nursing home residents in Republican-run states, let alone inmates in jails and prisons throughout the country—where the same law applies, and where the spread of the virus has been a significant problem.
In March, while appearing at one of Trump's coronavirus briefings, Barr announced the creation of a task force to combat the supposed hoarding of medical supplies and personal protective equipment during the pandemic. Beside the fact that the effort has thus far yielded only a handful of prosecutions, its focus on PPE hoarding as a source of criminal misconduct is unduly narrow. The White House itself created a slapdash process of PPE distribution to the states that included taking "leads" from Jared Kushner's college roommate (among others) and that, as The New York Times put it, "granted extraordinary access and deference" to "private interests"—including private-sector contacts of administration officials—but there is no indication that the department is looking into this obvious area of potential fraud.
The Justice Department has also given highly favorable treatment to politically connected corporations, yet is reportedly rushing to complete a complex antitrust investigation against Google. Such a trust-busting operation might have merit under normal circumstances, but it appears to have drawn particular interest for partisan reasons, because conservatives—including Barr and Trump themselves—believe that the company has censored views like theirs. According to The Wall Street Journal, "dozens" of Justice Department lawyers are working on this investigation, while a lean-staffed investigation into misconduct at Boeing over possible regulatory fraud in the development of the 737 MAX—implicated in hundreds of deaths resulting from crashes of the aircraft—is entering its third year with nothing yet to show.
Most recently, the department's pursuit of potential sedition charges in response to recent protests—in Portland, Seattle, and elsewhere—would be easier to take seriously if the department had brought the same level of scrutiny to bear when armed anti-lockdown protesters repeatedly showed up at the Michigan statehouse in May. Never mind the foolishness of the department labeling New York, Portland, and Seattle "anarchist jurisdictions," given Trump's own unhinged tweets telling his supporters to "LIBERATE" themselves from their Democratic state governments so that they could "save" their "great 2nd amendment."
There has been no shortage of claims that the country under Trump and Barr is headed toward fascism and dictatorship. Although those claims are worth taking seriously, they can seem overwrought. The rule-by-law theory may better reflect the political situation than such overheated diction.
At the other end of the rhetorical scale, some commentators have concluded simply that the Justice Department has become too "politicized," but the phrase is not helpful; it has no analytical value. Federal law enforcement necessarily involves political decision-making; the Justice Department does belong to the executive branch of government, and the attorney general is a political appointee of the president. And if Joe Biden wins in November, a reverse "politicization" to address the degradation of the department and the worst excesses of the Trump administration should be expected.
Important to note, also, is that the vast majority of the federal government's law enforcement work remains predictable and intelligible. Moreover, even if the Justice Department's ad hoc deployment and invocation of various legal principles and rules to justify its work are specious and transparently partisan, the adherence to the forms of law is not nothing, particularly since, to the extent that these disputes are played out in the courts, citizens and judges retain significant power. (It appears, for instance, that former FBI Deputy Director Andrew McCabe escaped criminal prosecution because a grand jury refused to rubber-stamp a politically motivated indictment.)
Still, a country governed through rule by law—especially the US, given its military power and global influence—is not remotely a desirable state of affairs. The system largely represents the interests of a plutocratic ruling class, and it exploits the public's faith in institutionalism—a hallmark of liberal democracy—to justify this arrangement, one that predated the Trump administration even as it has markedly deviated from rule-of-law norms.
And those liberal-democratic institutions of justice and law enforcement are mutable and vulnerable, open to tampering by other tools in the political system than the fiat of the attorney general. Most notably, Trump and Senate Republicans have engineered a remarkable reshaping of the federal courts through the appointment of hundreds of conservative judges—some of them clearly political hacks and ideologues unfit for the bench. They may now also permanently alter the balance of the Supreme Court if they confirm a replacement to Ruth Bader Ginsburg before the election. That would dramatically affect what sorts of actions do and do not satisfy "the law," at least as the justices interpret it. In that case, the nominal procedural integrity of the legal path to a Supreme Court ruling will be of diminishing solace.
The threat that faces the country, then, is of an increasingly dominant rule by law that could include a more comprehensive deployment of the criminal justice system against perceived opponents of the administration. This selective, skewed use of the law is dangerous precisely because it has the veneer of legal legitimacy that covers a corruption deeply corrosive to the political order. We are seeing versions of this playing out in countries like Poland and Hungary. At best, these may be temporary retreats from the rule of law, but there is no guarantee that these "illiberal democratic" arrangements, as they have been called, are stable over a long period. They are not without historical precedent, depending on how one views, for instance, Bonapartist France or Weimar Germany; but there is no preordained pattern for whether a rule-by-law state decays into outright authoritarianism or recovers to a fuller realization of the rule of law.
Which way it goes remains for the country's citizens and voters to determine—at least, through November.
More by Ankush Khardori
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Ankush Khardori is an attorney and former federal prosecutor who specialized in financial fraud. He has written for The Washington Post, The Wall Street Journal, the Financial Times, TIME, New York Magazine, The Atlantic, The New Republic, Politico, Slate, The American Prospect, and the Columbia Journalism Review.
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