Legal Learning: The rule of law and Donald Trump
Dr. David Hilfiker was a family doctor in Grand Marais for a number of years, then moved to Washington, D.C., and eventually started a home and hospice for homeless men with AIDS. Now he is retired and writes a blog, hilfiker-on-politics.blogspot.com. Although he is not a lawyer, he recently wrote a perceptive column about the "Rule of Law."
As Wikipedia explains, the rule of law is "the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials."
John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone. Even Aristotle wrote: "It is more proper that law should govern than any one of the citizens." And every person is subject to the law, including lawmakers, police and judges.
Dr. Hilfiker says that there is one person in the United States who does not believe in the "Rule of Law:" President Donald Trump. Here is the evidence for his conclusion:
First, and most serious, he says, is Trump's attacks on "crooked" Hillary Clinton. During the debates before the election, he threatened to put her in jail if he became president. Chants of "Lock her up" were, and still are, commonplace at his rallies.
There is no legal basis on which a president can order someone put in jail. Moreover, the FBI has found no evidence that Clinton broke any law. As Lawrence Tribe, my constitutional law professor at Harvard, put it: "Making threats or vows to use a nation's criminal justice system against one's vanquished political opponent is worse than terrible policy — it's incompatible with the survival of a stable constitutional republic."
And as Washington Post columnist Eugene Robinson wrote: "'Lock her up' is more than a call to imprison Hillary Clinton. It is, potentially, a tragic epitaph for the consensus view of our legal system as a disinterested finder of fact and dispenser of justice."
As his second point, Dr. Hilfiker cites the president's response to special prosecutor Robert Mueller's Russia probe. It is clear that Trump is doing everything he can to undermine the Mueller investigation. Trump fired former FBI Director James Comey "because of the whole Russia thing."
He is calling the Mueller probe a "scam," a "witch hunt" and a "Democrat hoax," though Mueller is a Republican. He appears to be angry that anyone could investigate whether or not his actions are subject to the Rule of Law. As stated by Republican Sarah Longwell in The Hill: "Firing Mueller, Rosenstein or Sessions would be a fundamental blow to the rule of law ... It would resemble what happens in developing countries that lack checks and balances on executive power."
Third, the president has threatened to "look into" changing libel laws so that it is easier to sue the media. "Our current libel laws," he said, "are a sham and a disgrace and do not represent American values or American fairness." Obviously, he does not understand the First Amendment or the many, many court decisions that have carefully drawn the line between free speech and defamatory speech.
There is a long list of other actions that show Trump's contempt for the rule of law: his unwillingness to divest himself from his many businesses that are affected by presidential decisions; his pardoning Sheriff Joe Arpaio, who was convicted of criminal contempt of court for unconstitutionally profiling and detaining citizens; his attacks on judges who rule against him or who have Mexican ancestry; his continued praise of his former national security adviser Michael Flynn, even after Flynn pleaded guilty last December to lying to FBI agents.
A Republican federal judge ruled last month that Trump's ending the DACA program was not only "unlawful" but was "arbitrary and capricious."
Dr. Hilfiker concludes that "each of these actions and others have individually caused damage to our democracy, but taken as a whole they reveal a stunning contempt for the fundamental rule of law." It's pretty scary.
James H. Manahan is a Harvard Law School graduate. He handles family law, wills and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer. He can be reached at firstname.lastname@example.org.