Unchecked & Unbalanced
America Stands at the Threshold of Lawlessness
The United States prides itself on being a nation of laws. Imperfect as our implementation and pursuit of equitable justice has been, the United States has largely lived up the reputation it has established among its own citizens and internationally.
Since the nation’s founding, we have lurched forward in fits and starts, slowly inviting progress, applying the law more equitably, and improving policies and jurisprudence to enhance both the rule of law and the lives of the individuals the law protects.
There is no doubt that the United States — like any nation — still suffers from shortcomings and imperfections in our legal system. Corruption is still real, legal protections still more applicable to some than to others, accountability often still lacking. And yet for nearly 250 years we have struggled successfully to strengthen the rule of law and enshrine important values and freedoms.
In less than three years, Donald Trump has undone much of that progress, and stands poised to deliver the death blow to the concept of the rule of law, depending on how hearings and court cases are decided. Trump’s behavior and rhetoric are daily assaults on our legal and political system, but in particular his impending impeachment and the court case on the legality of releasing his tax transcripts will determine whether or not the core value at the heart of the American ideal can survive.
That core value is that no one is above the law. No one has the power or authority to break the law or use it for their own purposes. No one can — or at least should — be able to wield the law as a weapon, subscribing as many autocrats do to the concept of rule by law, rather than rule of law.
The president is foremost among those who is not above the law, since, after all, that individual — by virtue of the power they wield — is most able to circumvent or ignore it. But Trump is determined to test that principle, indeed he must if he is to avoid being subjected to the rule of law and the consequences connected to violating it.
The two Trumpian misdeeds at the root of the respective cases against him are federal campaign finance violations — for which Michael Cohn is imprisoned, having lied about to Congress about his role in that fraud — and bribery, or specifically for attempting to withhold Congressionally approved funding for Ukraine — a nation reliant upon that funding to combat an invading power, Russia, which is also almost certainly linked to Trump both financially and politically — until that nation agreed to publicly announce an investigation into Joe Biden, seen by many as the candidate most likely to be Trump’s opponent in the 2020 election. While there is a litany of other sins and misdeeds that make Trump unfit to serve and fit the pattern of his assault on the American ideal, how these two issues unfold will determine the future of the rule of law in America.
On the one hand, Trump is defying a subpoena for his tax returns in a case involving tax evasion and fraud. Trump is fighting this subpoena on the grounds that a president cannot be investigated while in office. Of course, this has happened to multiple former presidents, and is happening to Trump currently, so it is quite obvious that presidents can be investigated while in office, but Trump’s lawyers have gone so far as to argue that even if Trump did indeed murder someone on 5th Avenue, he would be immune from investigation as long as he were president. This is ludicrous on the surface and upon deeper investigation, but it is the argument Trump’s lawyers are making, because it is the only one they can reasonably make to shield Trump from further exposure to even more criminal behavior.
On the other hand, the impeachment proceedings have clearly demonstrated that Trump was leveraging foreign policy and foreign aid for his personal political benefit, an act made even more galling in light of his argument that the presidency should shield him from any oversight or accountability. Trump is imagining a Catch-22 that benefits him and warps America into an autocracy. I can’t be investigated because I’m the president, but I will use the powers of the presidency to remain president so that I will never be investigated. This is Trump’s vision, and one that is within his grasp.
It is almost certain that Trump will be impeached by the House of Representatives and nearly as certain that he will be acquitted by the Senate. The overwhelming evidence of his nefarious actions in Ukraine — actions that perhaps hastened the deaths of Ukrainian soldiers — will not sway Republican politicians whose partisan instincts are stronger than their sense of objectivity or love of country.
Despite being grossly unfit and transparently criminal, Donald Trump will not be removed from office. This outcome amounts to an endorsement by the legislative branch of criminal behavior by the executive branch.
What then of the judicial branch, and its role in America’s possible collapse? If the Supreme Court rules that the president is immune from investigation while in office it amounts to an endorsement by the judicial branch of criminal behavior by the executive branch.
If the legitimate and necessary attempts at executive oversight are invalidated by both the legislative and judicial branches then the system of checks and balances that underpins the separation of powers is dead, and the executive, Trump, becomes an autocrat. This is the future to which Donald Trump aspires, one in which holding office in America is not a way to serve one’s country, but to serve oneself.