First, let’s look at some hard realities.
1. President Joe Biden and the Democrats and all small “d” democrats are engaged in an all-out war with Donald Trump and his supporters for the future of democracy in the United States. Anyone who denies that fact has been watching only Fox News and not reading any of the independent newspapers, in the U.S. or abroad.
2. President Vladimir Putin of Russia is preparing and threatening to invade Ukraine. The U.S., NATO members, and all countries which support international law and the U.N. Charter are engaged in an all-out war with Putin over the future of the international legal order, i.e., the survival of the United Nations international peace and security system that has avoided large-scale international conflict and a world war for over 75 years.
In both cases, the Biden Administration has failed to use law as a weapon to mobilize allies and to undertake effective action, whether to win the war for democracy in the United States or the war to preserve an international order based not on the principle of “might makes right”, but rather on international law and the United Nations Charter.
How can Biden expect others to believe in law and the values it represents if he does not employ it in these two existential struggles?
1. In the domestic war for the future of American democracy, Biden and his Attorney General, Merrick Garland, have stubbornly refused to prosecute Donald Trump for his electoral crimes, and his many other crimes of obstruction of justice.
Is it simple cowardice, a fear of taking on Trump and his supporters directly? A fear of the political impact? Or perhaps a fear of fascist violence that might be directed against them and their families and friends?
2. In the international case, what conceivable explanation could there be for Biden and the U.S. not taking Putin’s threatened invasion to the United Nations Security Council, the precise body which, under the U.N. Charter, is charged with handling such crises?
While the U.N. is not perfect and indeed far from it, it is all we’ve got. What is the alternative to using it and trying to make it work better?
In both cases, these questions are particularly poignant because of the extraordinarily strong legal arguments for indicting and convicting Trump, on the one hand, and for condemning Putin’s attempt to overthrow the international legal order and the United Nations Charter by invading Ukraine, on the other.
What can you say of a would-be statesman who refuses to use some of the strongest weapons in his arsenal in a life-and-death struggle to save American democracy, or a life-and-death struggle to maintain the existing international legal order and the prohibition against the use of force across international frontiers?
Domestic law, like international law, depends on the actions of individuals who hold fast to the values that underlie it.
Why is Biden afraid to use law as a weapon in the war to defend American democracy, and in the war to defend the existing international legal order, i.e., international law and the U.N. Charter?
With law, as with many things, the old maxim holds: Use it or lose it.
The Trenchant Observer