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Constitutional Law

Jun. 12, 2020

President Trump and the Rule of Law

It’s a funny thing about the Rule of Law: It’s not a rule, and it’s not a law. It is, rather, a set of principles, a body of norms that undergird our civil society. It can’t be found in any statute, court decision, or constitution, though all of these have a bearing on its content.

Joseph R. Grodin

Distinguished Emeritus Professor, Hastings College of the Law

Yale Law School

Joseph was appointed to the California Court of Appeal, and then to the California Supreme Court, by Gov. Jerry Brown. In 1986 he was rejected by voters in a retention election, along with Chief Justice Rose Bird and Justice Cruz Reynoso. Since then he has been teaching at Hastings College of the Law, where he is now distinguished emeritus professor. He is founder of Lawyers Allied to Uphold the Rule of Law (LAUROL).

O! it is excellent To have a giant’s strength, but it is tyrannous To use it like a giant.

—Shakespeare, “Measure for Measure”

It’s a funny thing about the Rule of Law: It’s not a rule, and it’s not a law. It is, rather, a set of principles, a body of norms that undergird our civil society. It can’t be found in any statute, court decision, or constitution, though all of these have a bearing on its content.

At its most basic, it stands for familiar truths: Ours is a government of laws, not of men; the law, not arbitrary whim or naked self-interest, is what we expect to govern elected officials’ conduct; and no one is above the law.

Under our constitutional system, the Rule of Law also includes the principle that power is divided among three branches of government, and that each is bound to respect and accommodate the powers and prerogatives of the other. So when a president disregards Congress’ oversight powers, or denigrates the authority of judges with whom he disagrees, he violates the Rule of Law.

But the Rule of Law also has a broader meaning. No legislature or constitution can frame laws that govern every situation. All societies cohere and depend upon unwritten norms. In our republic, one such norm is that public officials treat the authority granted them as a public trust; their policies and actions are expected to be aimed at advancing the common good, not solely or primarily for maintaining power or self-aggrandizement.

This notion that power ought not be abused is difficult to translate into legally enforceable rules. Courts are justifiably reluctant to question motivations behind official action, especially when they may overlap. In deciding upon policy, elected officials properly take public opinion and their own electability into account; inquiry into elected leaders’ good faith may be a slippery enterprise. But that inquiry is surely appropriate for voters, especially when evidence of bad faith is abundant. With the current president, this is often the case.

When questioned about a particular action, President Donald Trump typically responds: “I have the power to do it.” In a general sense, that may be true. But ignoring motivation and norms means ignoring the Rule of Law.

Thus, it may be that Trump had the legal authority to withhold funds designated by Congress for the defense of Ukraine in order to achieve some national security interest; but he may not, consistent with principled governance in a constitutional democracy, exercise that authority for the purpose of damaging his political rival.

Absent legislative constraint, he clearly has the authority to fire an inspector general whose job it is to investigate and report on abuses within the executive branch, but not for the purpose of covering up the president’s own transgressions or those of his appointee. As a legal matter, a president may have the power to grant a pardon to any person accused of federal crime, but to do so for no reason other than that the crime was committed for the president’s own benefit degrades the Rule of Law.

Trump’s authority as chief executive may include the power to establish general policies for the Department of Justice, but not to dictate the prosecution or release of an individual for the purpose of rewarding friends or punishing political enemies.

The president may properly withhold federal funds from a state for legitimate reasons, but not because the state is encouraging mail-in voting, because that would mean, according to Trump, that Republicans would lose. Trump may not have a legal obligation to support testing for the coronavirus, but limiting public awareness of the extent of infection in order to reduce political opposition is patently inconsistent with his obligations to safeguard the public trust.

In such cases and others, based on the president’s own words or surrounding circumstances, the inference is compelling of his motive to serve self and not country, either because the president openly declares his improper motive, or fails to provide any plausible explanation for his action. And while in close cases we might be inclined to give officials the benefit of doubt, this president’s pattern of deception and his continuing display of disregard for anyone’s interests but his own should eliminate that presumption for all but the non-objective or naïve.

Which brings us to President Trump’s most recent abuse of power: his use of armed forces to remove peaceful protestors outside the White House in order to clear the way for him to march across the street and engage in a piece of obvious theater in order to enhance his image as a person of power; his enlistment of cabinet and military officials to assist in that self-serving project; and, worst of all, his threat to invoke the 1807 Insurrection Act as a basis for injecting federal troops into states which do not want them.

Regrettably, courts can seldom remedy abuses such as these. Some public officials even argue that, absent illegality, abuses of power should not be the subject of impeachment. But at the very least, we as citizens are entitled to conclude that this president has no regard for the Rule of Law, and take that into consideration when we vote. 


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