2.We value a rule of law which is consistent, impartial, evenly distributed and upheld, that the law for one person is the same as for another. That justice is separate from politics, that there is a consistent and agreed upon set of constructs, principles and norms which govern every person fairly and impartially. That every man and woman has “their day in court”, and that the courts are fair and honest. That justice is, as they call it, “blind”.
For those of you new to this blog, and for those returning to see the newest post, allow me to introduce what I am doing.
I believe, like Abraham Lincoln said even before he was president that a house divided against itself cannot stand. I believe that as Americans we do have common ground, shared values and beliefs that make us one nation. I believe this underlying unity has been obscured by the past years of partisan politics and rancor, and that to survive and thrive as the nation we all wish it to be, we must “Come Home” to our bedrock believes. I have in the first post of this series, (scroll down to America Come Home) tried to articulate for myself and share what I believe those key shared values might be.
In this post, I wish to explore one of those values, that of the rule of law.
Todays papers – I mean that in the literal way, “today, as in the day I am writing this – are filled with serious questions about whether the nation has lost its way with regard to the rule of law. Front page articles are taking our Attorney General to task for not adhering to bedrock judicial principle.
As with every post, my hope is to offer what I believe is a clearly shared common value, to explore the nature of that value, to investigate whether and how the particular value really is one of our American core believes, and then to ask whether the current administration is taking our nation closer to, or further away from holding to our real core shared values.
Today I would like to investigate something about the nature of one key shared value, a shared belief and aspiration for a nation in which we can trust in the rule of law. I articulate that value as above.
Impartial Justice
This is a bedrock principle of the founding of our nation, perhaps among the few truly bedrock principles.
We are Americans in part because we believe and affirm that humans are endowed with certain unalienable rights The federal judiciary is the principal guardian of the rights conferred by the constitution. Americans have accepted the principle that the Supreme Court is the final arbiter of what is constitutional and what is not. While the final arbiter, the Supreme Court is neither the sole symptom nor manifestation of the rule of equal justice, impartial justice, but rather represents the vast body of laws, codes, and the system of enforcement, trial of fact, and then assessment of the correct application of that law. This complex system forms the vast fibers, sinews of trust, really which make up the rule of law by which we as a nation strive to order our interaction and commerce.
What is the source of the strength of the highest court, and the judicial system. It cannot only be the capacity of force, for we believe as another bedrock principle that government governs by “consent of the governed”. Presidential Medal of Freedom winner under Ronald Reagan, Irving Kaufman, while Chief Judge of the US 2nd court of appeals states quite definitively , “What, then, is the source of the Court’s strength? The Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society. When, in the public mind, the Court is functioning as an apolitical, wise and impartial tribunal, the people of our nation – even those citizens to whom the results may be anathema – have evinced a willingness to abide by its decisions.” Unless the public believes that issues of great moment, he argues, are decided by reference to constitutional principles that transcend shifting political vicissitudes, the Court’s stature as an independent body is in jeopardy. Our basic notion of rule of law is eroded when the vaunted and hallowed objectivity of judicial system, our justice department, our courts, and our law enforcement agencies become intertwined, commingled and rendered less pure by an untoward pollution by partisan politics.
In an extensive legal analysis, Kaufman traces the history and meaning of Judicial independence in a landmark article on the Columbia Law review. “Aware that unbridled government prerogative can easily engender an unending cycle of tyranny followed by revolt, the framers chose to make all exercises of national power subject to the rule of a higher law: a constitution drawing its authority directly from the will of the people”
Having stated this Principle, the judge proceeds then to trace the history of our ideal of judicial independence through its origins in English law.He delineates the foundation, from before our existence as an independent nation, of the idea that law, once enacted, once “rightly decided and approved, ” has a supremacy over and limits sovereign power. Early legal commentators in then very royally governed England insisted that the “the Crown was accountable to the law because the law makes the king”, that the natural order was that “his own laws bind the lawgiver”. One prominent early English jurist articulated that the “King hath no prerogative but that which the law of the land allows him”.
In fact, back in ‘merry old England’ days, when the Sovereign James II challenged such a conception, and argued that the King, as absolute sovereign of England. was empowered to dispense with any of the laws of government which he found necessary, when he denied the principle of the law’s supremacy over the dictates of the sovereign, he was deposed by force of arms and Parliament “effectively assumed the sovereign power of England” as the Sovereign permanently renounced claim to absolute power.
That tradition of an impartial judiciary, so hard won in England, was also a judicial goal in colonial America, with one jurist arguing that the impartial and independent administration of justice was a requirement to ensure the safety both of the citizens persons and possessions. It was in some measure a British attempt to maintain control over colonial judges, including a statute passed by parliament in 1774 making Massachusetts judges dependent on the crown, which Kaufman argues shortly lead to “public outcry, public violence and ultimately revolution”.
The change of nationhood did not erase, but rather strengthened this principle. In framing the constitution, it was understood, in Kaufman’s words, that “the security of individual rights could be preserved only if the legislative and executive powers were kept within the limits prescribed by a higher fundamental law.” They realized that their bold experiment could succeed only if “judicial power were kept absolutely separate and distinct from the executive and legislative branches”. While the concept of separation of powers tolerates some overlap of functions, it will not tolerate “undue or injurious intrusion by one branch into the sphere of another”.
Situations can be seen to test these concepts. The current fallout regarding the firing of US attorney Berman, is thought by some to be an attempt to subvert the separation of the principled separation of justice from politics. Professor Austin Serat, for example, distinguished professor of law at Amherst college, has offered the opinion that “Berman’s firing has highlighted the Trump administration’s eagerness to once again subjugate the apparatus of American justice to the president’s personal and political agenda. It is the latest post-impeachment purge of officials deemed insufficiently loyal to the president.”
To determine whether this is a fair characterization requires some investigation of the laws, customs rules and norms governing the role of the US attorney and its relationship to the political process. At the risk of being redundant, the purpose of this blog is to discover then articulate some of the shared values and common ground we hold as Americans, and then to determine how they apply to the current administration and the choice we have in November.
Judicial impartiality constitutes an essential element of due process, and affirms that judges must be free to act without fear of personal consequences, for example termination. Duke University Law professor Sara Sun Beale has written extensively on the role of US attorneys, and has presented a very comprehensive review of history and role of the US attorney especially in the light of the relationship between the role of politics and the prosecutorial function of the US attorney .
She points out that the Court has held that the President, in order to fulfill his duty to ensure that the laws are “faithfully executed” must be able to remove subordinate executive branch officers who are not performing to his liking, and that Congress should not interfere with that prerogative. What if the role that officer is fulfilling, however, is to investigate actions by the President, as it may be seen to be in the present case of the firing of Attorney Berman? “It is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will”.( site above)
The impetus for her incredibly well documented questioning the relationship of political motivation in the US attorney’s role arose in part from the “public firestorm” which flared from the notion that political considerations may have influenced a wide range of judicial decisions under the George W Bush administration.That concern erupted over the firing of 9 US attorneys in 2006. Only two had been terminated by a president in the twenty five years prior to 2006. Beale questioned whether this political influence had “tarnished the reputation and credibility” of the justice department. At the time inspector general reports found the department improperly used political considerations to hire judges, interns and prosecutors
US attorneys are appointed by the president, and serve at his pleasure, but once chosen they are ““expected to leave behind partisan politics, adhering to the norm of prosecutorial neutrality”. There was serious concern for mechanisms to “help insulate U.S. attorneys from the improper partisan pressures that may arise from within the executive branch”(italics mine).
Beale outlines an extensive history of the progressive centralization of power from state control to one residing with the Attorney General and that office, which she terms “main justice”. The bottom line is that while the Attorney General had had authority over US attorneys since before the time of the Civil War, it took some decades before an organizational structure existed to extend central judicial authority to the widely distributed web of US attorneys. Over the twentieth century the central department of justice assumed greater control over the dispersed justice system, both through increasing communication technology, deferral on the part of local offices in particularly complex cases, and also the assumption of increased formal regulatory authority by Main Justice. The broad and pervasive centralization of judicial priority setting was much accelerated by the focus on anti-terrorism activities following September 11.
While Professor Beale goes on to say “the appears to be general agreement that from the outset the position was regarded as a ‘political plum’ that went to party stalwarts”, she articulates how clearly threatening to our notion of impartial justice this political entanglement can be. She quotes a judicial scholar who was also an Attorney General of the United States going so as far as to say, “this treatment of it(the position of US attorney) as a reward for political activity is a serious menace to enforcement of law.”
I think we have every reason now, then, to ask, whether these current interventions by the Attorney General into who retains the role of US attorney will have the effect, as it is arguably its intention, to be a ‘serious menace to the enforcement of law’, in this case, who knows, just throwing it out there, enforcement of laws pertaining to activities of his boss, the current president.
Former judges openly call our nation’s ‘highest law enforcement officer’, the Attorney General, a “lying bully who is determined to subvert the independence of our nation’s prosecutors” .
And, according to columnist Max Boot, albeit not a Trump fan, it is impossible to give Barr the benefit of the doubt, because, Barr distorted the findings of special counsel Robert S. Mueller III’s investigation; overruled line prosecutors to recommend a more lenient sentence for Trump crony Roger Stone; tried to dismiss the charges to which Trump’s former national security adviser Michael Flynn had already pleaded guilty; and has appointed investigators to investigate the investigators who probed the connections between the Trump campaign and Russia. A retired federal judge concluded that the attempted dismissal of charges against Flynn was “clear evidence of gross prosecutorial abuse,” and more than 1,900 Justice Department alumni have called for Barr to resign.
In a sense Trump didn’t start this, but his enablers made huge strides in laying the ground work for a disregard of law and norms. The Constitution says that the Senate shall advise and consent to Supreme Court Justices. It doesn’t specify the election year exception. Even without his refusal to hear witnesses in an impeachment trial (John Bolton, anyone?) his refusal to do his constitutional duty damaged the rule of law, immeasurably.
What is my bottom line here? I hope, with this series of posts to test whether the current administration is taking our nation closer to, or further away from our core shared values, bedrock principles and common ground as Americans. I believe I can demonstrate strictly from these first principles that it does not.
There will be times when we can have honest and substantive elections regarding conservative versus liberal policies, and which will make our nation better.
This election is not such a time. We must reject the current administration because its values are not our American values. Today are argued that the respect for the impartial rule of law in this administration is not our American respect for law.
There will be other elections, but this time, we must reject Trumpism.
Come Home America.
The Center, our center, must hold.