Who Threatens the Rule of Law?

The New York Times gushes “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.” Why do scholars ask whether one candidate could threaten the rule of law when another candidate has engaged in a pattern of undermining the rule of law for many years, especially when that person had clear, unambiguous duties that were routinely ignored? Why do we contemplate the rule of law of a possible Donald Trump administration but do not note the outright disregard of the rule of law by Hillary Clinton?

We can judge the ethics of others, particularly those in positions of power, by whether they comply with laws and rules that they believe are superfluous, unnecessary, or inconvenient. When they contrive a rationalized excuse to ignore those laws, we should ask whether they truly understand that the grave importance of subordinating their conduct to the rule of law.

Next month will mark the 50th anniversary of the Freedom of Information Act, signed into law on July 4, 1966 by President Lyndon Johnson. It is a profoundly important law that implements a critical principle of self-government. The government must provide information about its conduct to any interested citizens, even to those who are overtly hostile to its political aims.

Any public servant who has a duty to obey any law, including the Freedom of Information Act, must choose how fully they will subordinate themselves to its letter and meaning. Hillary Clinton’s tenure as Secretary of State from 2009 to 2013 was characterized by outright enmity for the Freedom of Information Act. In May, 2016, Department of State lawyers disclosed that there were 79 active FOIA lawsuits against the department, many of which are related to Secretary Clinton’s administration. Most, if not all, of these lawsuits could have been avoided if, under Secretary Clinton’s leadership, she and the members of her staff had recognized their duty to conduct their public business in the open and transparent manner that the law requires.

The recent report from the State Department Inspector General describes how Secretary Clinton went out of her way to hide her communications from public scrutiny. (In doing so, she created circumstances that put classified information at great risk, but that is not at issue in this discussion.) She knew she had a clear duty to preserve her communications for the purposes of both the Federal Records Act and the Freedom of Information Act, but she chose to disregard that duty because she found it personally inconvenient and possibly politically disadvantageous.

If any person is so unwilling to obey the laws that exist to provide citizens access to the information to which they are entitled, what other laws are they disregarding? If someone can rationalize circumventing the law for what they believe is their political advantage, why would we believe that they will take seriously an oath to faithfully execute the Office of President?

Fortunately, considering that it is likely that either Donald Trump or Hillary Clinton will become the next president, our form of government is expressly designed for the possibility that any one branch of government will try to arrogate to itself whatever powers it wants. Furthermore, even a rogue president cannot compel his agents to execute actions that they regard as illegal. As an even more specific and topical example, just having access to the “nuclear codes” doesn’t mean that the president can unilaterally order a nuclear strike.

Perhaps a silver lining in the prospect of a president who inspires dismay in about half of all Americans is that we may yet return to a better balance among the branches of government. For many decades, the president has had a too-prominent place in our government. Presidents have run roughshod over Congress for a long time. A period in which the Congress determines the national agenda for the president to execute would be a refreshing change.

It is reasonable to ask whether a potential Trump presidency might create challenges to our system of checks and balances, just an anyone’s presidency might. It’s equally reasonable to ask whether a potential Hillary Clinton presidency might create even more formidable challenges.