How to restore the Rule of Law—At home and abroad

Trump as a Giant Wrecking Ball Crashing into the Rule of Law

President Donald Trump has been like a giant wrecking ball, swinging back and forth and tearing into the edifice of the Rule of Law in the United States, crashing into and seeking to knock down one building after another. The wreckage is not yet fully appreciated, as Trump the wrecking ball continues to swing and crash into one institution after another.The wrecking ball has also been hard at work tearing down international law and institutions.  There the damage has likewise not been fully or widely appreciated.

As a lawyer, and an international lawyer, the Observer has been noting and is aware of many of the ways in which Trump the wrecking ball has been tearing down both the domestic and the international Rule of Law.

The underlying reasons are clear.  Trump does not understand or accept the concept of law as a constraint on governmental or private behavior.  He embodies “the bad man” in what Oliver Wendell Holmes, Jr. once described as “the bad man theory of the law”.

Holmes believed that the law should be defined as a prediction, most specifically, a prediction of how the courts behave. His rationale was based on an argument regarding the opinion of a “bad man.” Bad men, Holmes argued in his speech “The Path of the Law”,[1] care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding the payment of damages. In Holmes’s mind, therefore, it was most useful to define “the law” as a prediction of what will bring punishment or other consequences from a court.
–Wikipedia, “Prediction Theory of Law”.

Holmes was not encouraging lawlessness, but simply trying to get legal philosophers, judges, and lawyers to look at the phenomena of law through a realistic lens, at law as it actually operated in practice. Reacting against the “conceptual jurisprudence” of the day, which focused on abstract concepts often to the exclusion of the messy realities in which law did or did not produce its effects, he was an early leader of the school of jurisprudence which became known as “legal realism”.

In his actions, Donald Trump has misapplied the concept of the bad man theory of law and himself become “the bad man”.  As the “bad man”, he has pushed the limits of using the law as a sword (e.g., in enforcing Non-Disclosure Agreements (NDA’s) with women who have accused him of sexual assault but reached settlements with him), or as a shield (e.g., in using the bankruptcy laws to defend his assets in cases such as those involving Trump University; or in preventing the disclosure of his tax returns).

Trump learned from his mentor, Roy Cohn, how to use law as a weapon in a field of warfare, e.g., by filing suit as a strategy to defeat an enemy, even without legal grounds, and how to tie up the courts in endless appeals and wear down opponents through attrition in a war of expensive legal resources. Cohn was the acolyte of Joseph McCarthy, who with his Senate Intelligence Committee, of which Cohn was General Counsel, led a witch hunt for alleged communists in the government, which ruined many careers.

At his core, Donald Trump does not believe he should ever be constrained in his freedom of action by law.  That applies both to domestic and U.S. Constitutional law, and to international law.  Just as he does not believe in legal constraints on his private behavior, he does not believe that the United States should be constrained, or he as President should be constrained, by international law. The latter includes the treaties on which alliances such as NATO and international organizations, such as the World Trade Organization (WTO) and the United Nations, are founded.

Given his defiance of international law as a constraint on behavior, it is hardly surprising that he does not understand how international law can be used to constrain the behavior of other states, as in the case of the six-nation nuclear agreement with Iran.    Nor does he understand how treaties and other international agreements can be used to both encourage and constrain the future actions of other states, as in the case of the Paris Climate Accord.

The Challenge of Rebuilding the Rule of Law–At Home and Abroad

When Joe Biden becomes President on January 20, 2021, or some other Rule-of-Law minded person becomes president on January 20, 2024, where can he or she and the new administration begin, in the arduous task of restoring the Rule of Law in the United Staes–and abroad?

Where can he or she, and we, begin?

Domestically, Congress and the new administration will need to reinforce Congressional Oversight over the actions of the Executive.

There will be a need for new laws to guarantee that no future president will be able to subordinate the Attorney General and the Justice Department to his or her will.  It is not clear what exact steps will need to be taken, but it is evident that new laws protecting the independence and tenure of the Inspectors General will need to be passed.

It will also be necessary to anchor the civil service system and the tenure of other non-partisan officials in the law, so that no future president can seek to take away their job security by Executive Decree.

It will probably also be necessary to expand the federal judiciary and the Supreme Court, in order to counteract the Republican efforts to stack the courts with right-wing ideologues who cannot garner Democratic votes for their confirmation.  Some way must be found to ensure that judicial nominees enjoy significant support among both the parties before they are confirmed.

Internationally, the new administration should move quickly to rejoin the Iran nuclear agreement, while it can still be saved.

Similarly, the U.S. should quickly rejoin the Paris climate accord, and work hard to convert its provisions into a treaty which is binding under domestic law.

One of the most urgent early actions of a new administration will be to name its members to the WTO dispute resolution bodies, so they may hold a quorum (which Trump has prevented) and proceed to reach final decisions in important international trade cases, such as those against tariffs imposed by Trump on specious “national secrity” grounds.

The administration should carefully evaluate all such cases in legal terms, and rescind any actions which lack a solid basis, particularly measures adopted on specious “national security” grounds. The abuse of the “national security” exception is a matter of grave concern, because if other countries start to make similar arguments the essence of international trading rules (known as GATT rules) will be gutted.

Finally, an early priority should be to replace ambassadors and other foreign policy officials who are unqualified or who have simply been carrying water fir Trump, at an early date. To the extent possible they should be replaced with qualified and experienced diplomats and foreign policy experts. The position of U.S. Ambassador to the United Nations should be filled with someone of real international stature. The contrast between that person and the current occupant of that position will reveal for all to see the massive challenges the new administration will face not only in the international arena but across the board.

Those who were fired or forced to resign positions at the State Department or elsewhere should be offered a path back into there former careers.

These personnel changes are critically important and should be made at the earliest opportunity. This is no time for the lethargy the Obama administration demonstrated in filling diplomatic and other positions.

To reestablish the Rule of Law in the United States and abroad will not be easy. One or more Presidential task forces might be established to give this issue the prominence and priority which it deserves.

What must be done in the foreign policy area is similar to what must be done across the board, if the Rule of Law is to be restablished and strengthened at an early date.

De-Trumpification

When one compares the impact of Nazi thinking on the German population in 1945 with that of Trump-cult thinking on the American people in 2020, the most obvious difference is that perhaps only 40-45% of the population in America have become believers in or followers of the Trump cult, whereas the percentage of the German people who were thoroughly imbued with Nazi thinking and ideology was probably much higher. In Germany, the Allies determined that it was necessary to establish a process of de-Nazification in order to lay the basis for democracy in the country.

After Trump is removed from office, it will probably be necessary to establish some kind of process of de-Trumpification in order to correct for the aberrations of the last four years, and to reestablish belief in facts and Truth, and science and law, among Trump followers, in order to secure a solid foundation for a democratic future for the country.

The Trenchant Observer

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