It’s Worse Than You Think

America’s economy cannot survive without the country’s system of laws. A legal framework allows businesses, consumers, banks, and others to operate within a predictable and understood set of rules specifically designed to simultaneously facilitate commerce and deter inappropriate conduct. It assures that what is considered acceptable commercial behavior falls within basic societal norms. A statute requiring employers to procure worker’s compensation coverage (and imposing steep penalties for violations) both protects vulnerable workers from occupational injury and disease and clearly notifies a company of its obligations. In sum, a robust legal infrastructure provides the stability on which economic actors rely.

Until recently, Americans could safely assume that the country’s legal system was sacrosanct. People may have taken small liberties at the margins (e.g. speeding, taking a questionable tax write-off, etc.), but simply ignoring statutes that didn’t comport with personal or even general notions of justice was unacceptable. Laws would fall into disfavor and eventually change as societal norms evolved. Nonetheless, when a provision became objectionable or outdated, it remained binding until amended or repealed pursuant to a specific protocol. There may have been an outcry when someone was arrested for use or possession of cannabis and a concomitant demand for legalization, but an offender was never entitled to simply ignore an existing provision.

Americans no longer have the luxury of taking the stability of the legal system for granted. President Trump and his supporters have effectively declared war on the rule of law. The appointment of a special counsel and an investigation that seems to be continuously gaining momentum have long been declared portents of an impending “Constitutional crisis”. The reality may be far worse.

The first attack on the rule of law was launched during Trump’s candidacy when he suggested that he would not accept any outcome in which he did not win the election. The actual results and will of the people were irrelevant. Today, with the still remote but omnipresent possibility of impeachment and forcible removal from office, and his much more likely (but by no means assured) ouster in the 2020 election, the United States may have to deal with a holdover president who refuses to yield power. Reality could be rendered irrelevant; Trump and his acolytes have evinced a disturbing willingness to substitute fiction for fact and to forward inane legal theories to substantiate their most objectionable behavior. This is not an academic “Constitutional crisis”. The United States is perilously close to testing whether the rule of law can survive a president determined to hold power in direct contravention of it.

In fact, Trump has long demonstrated an utter contempt for the country’s legal system. He has repeatedly demeaned judges and lawyers who challenge him in any way. The president has ignored the Emoluments Clause, threatened to abuse the pardon power, baselessly attacked the free press, and invited his friends in Russia (even if only through acquiescence to past misdeeds) to further violate American sovereignty and meddle in its elections. These are the actions of a ruler for whom “L’etat, c’est moi” is the sole guiding principle. Even the most self-absorbed, narcissistic of his predecessors at least paid lip service to the notion of acting in the national interest and in accordance with accepted legal principles. Trump sees no need for such niceties.

By contrast, even in this age of extreme partisan fervor, Trump’s opponents have not advocated the abandonment of American legal principles just to be rid of him. “The Resistance” finds odious the president’s constant lying, embrace of jingoism and bigotry, and unabashed support for violations of basic human rights. They see in Trump not just a bad president — ill-suited to the job and refusing to grow into it — but a delusional narcissist of the worst moral fiber who proudly displays a stunning ignorance of world affairs and American history. He has lauded brutal dictators, alienated allies, and threatened the global economic order with the protectionism that was the hallmark of the Great Depression. Though they consider him an exceptionally poor executive pursuing ruinous policies, the opposition acknowledges that the United States foisted this administration on itself by due election. Each of impeachment, removal pursuant to the 25th Amendment, or electoral defeat is a codified means of unseating a president, and these are recognized as the only options available.

The real threat to the nation posed by its president is highlighted by juxtaposing his willingness to ignore any aspect of the legal system not personally beneficial with the relative restraint shown by his opponents. Trump’s menace lies in neither his politics nor his buffoonery. Rather, he is taking aim at the legal foundations on which the nation is built. If Trump succeeds in upending the rule of law, by refusing to cede power or otherwise, he will usher in a long period of destructive instability and the United States in its current iteration may cease to exist. This transcends issues of political party and identity. An economy, society, and nation are in the balance.

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CEO and General Counsel, OliverClarity Inc.

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