Helpful commentary on the constitutionality of Syrian airstrikes

Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic.  The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there).  And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes.  Therefore, his only reservoir of power for this action is Article II of the Constitution.  The President’s report to the Congress pursuant to the War Powers Act is here.

The folks at Lawfare have typically excellent commentary on the matter.

John Bellinger’s piece on the War Powers Report is here.

Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).

Jack Goldsmith’s piece is here.

If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited.  But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives.  Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL.  As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action.  It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly.  But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.

 

The constitutional education of America, and of its President

The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle.  The opinion is here.  This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case.  The court’s holding was, in my view, a dubious one, though not an unreasonable one.

Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people.  Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect.  We have had other such moments in our history.  But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.

Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic.  That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti.  It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power.  They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.

One hopes, too, that the President will savor the same opportunity.  His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office.  The one bright spot in this period was his nomination of Judge Gorsuch.  But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists.  The President himself must demonstrate that same fidelity.

Presidents can be critical of the courts.  The judiciary is not immune from criticism, nor should it be.  Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision.  FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs.  President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power.  President Obama criticized the Court’s Citizens United opinion during the State of the Union Address.  It is fair, and proper, that political leaders disagree with judges from time to time.  But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary.  This is, unfortunately, President Trump’s modus operandi.  He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits.  It is the last refuge of a man who is out of his element on substance.

So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate).  And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.

To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order.  This was admittedly a somewhat more complicated matter.  Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well).  And there is no question that the President had the power to relieve her of her duties.  But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences.  Imagine now how Attorney General Sessions must feel.  General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President.  Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.

To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter.  Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country.  But the problem goes even deeper.  The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim.  But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities.  This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.”  And it is becoming increasingly clear that the vetting of this Order was shoddy, at best.   Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?

Does all of this make the Trump Presidency hopeless?  It does not.  On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over.  Judge Gorsuch will likely make an outstanding Supreme Court Justice.  Tax reform is a real possibility.  And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.

But the President needs to right this ship in a hurry.  The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet.  He has created the impression that the law must bend to his will, lest a tantrum follow.  Of course, Americans should have seen some of this coming.  But the people, through their representatives in the Electoral College, elected him anyway.  Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Day One

I have gone quiet for awhile.  It seems like everything I could say has been said by the various talking heads throughout the 24-hour news cycle.  And my work responsibilities have prevented me from having much time to write, here or elsewhere.  But a few thoughts might be appropriate here on Inauguration Day.

I never voted for Barack Obama.  I believed John McCain and Mitt Romney to be better suited to the presidency, and I had too many disagreements with Obama on substance.  But I never understood why Republicans treated him with such disdain and disrespect.  I attribute most of that to the bare-knuckle, zero-sum game of American politics in which every member of the opposing party must be painted, characterized, demonized, and rejected.  I think very little of that brand of politics, and regret that it dominates so much of American life today.  I also think President Obama did little to endear himself to Republicans, especially in the early years when the Blame Bush strategy seemed to be stamped to his team’s every move.  Still, President Obama was an elegant, thoughtful, intelligent man who brought his own brand of gravitas to the office.  I agreed with him at times; disagreed more often.  But he tackled difficult moments with grace and understanding, and demonstrated respect for his office and his role in American life.  In turn, he has earned the respect and gratitude of Americans, even those of us who questioned and criticized him at times.

I am hopeful that President Trump will embrace the constitutional presidency, even more strongly than did his predecessor.  Day One did not raise my confidence in that.  His uninspiring inaugural address made no mention – not one – of the Constitution, or even of the Congress (constitutional references were a regular practice among early inaugural addresses, but have been largely abandoned by contemporary chief executives).  “America First” is a catchy campaign slogan but it is not a policy.  More importantly, it conveys no relationship of the president to his place in our system of constitutional government, nor does it convey anything about the role of constitutional government in securing liberty, justice, and tolerable order for the American people to whom the President pledged his loyalty.  He said his oath was an oath of allegiance to all Americans, but neglected to note that it is chiefly an oath of fidelity to the Constitution.  The address was not memorable, at least not for the right reasons.

The most important thing that happened on November 8 was not the election of Donald Trump, important as that was.  Rather, it was the election of Republican majorities in both houses of Congress.  The President’s pre-inaugural actions, including his cabinet choices, would perhaps have looked much different if Democrats had won one or both chambers.  The burden is now on congressional Republicans to assert the prerogatives of their respective institutions, rather than serve as errand boys for the President.  Standing up to the President will be much easier if the President’s approval numbers remain low.  Their challenge will be to defend their own institutional roles even if the President becomes more popular.  The meaning of the Constitution does not change with the President’s poll numbers.

President Trump has the chance to deploy his notorious private charm in service of the presidency’s soft powers, persuading allies and adversaries alike.  That can be useful.  But he should not confuse the soft powers of the office with the hard ones, those set forth in the formal arrangements of the Constitution.  And it is his fidelity to those arrangements – rather than his Party affiliation – that conservative constitutionalists, and congressional Republicans, should be giving their attention.

 

On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.

 

Ninth Circuit: Feds cannot prosecute CSA violators in medical marijuana States, sort of, for now

The United States Court of Appeals for the Ninth Circuit issued a significant ruling on the criminal enforcement of federal drug law yesterday.  In United States v. McIntosh (here), the court held that, where a defendant is fully compliant with the laws of a designated medical marijuana state, the Justice Department cannot engage in a federal prosecution of that defendant under the Controlled Substances Act.  The key limitation on the ruling for marijuana growers and dispensers, however, is that they must be in compliance with state law.

The case involves the consolidation of multiple federal prosecutions under the CSA.  According to the Ninth Circuit, in one case (McIntosh), the co-defendants were accused of running businesses in Los Angeles that dispense marijuana.  The Government also accused them of managing indoor grow sites in L.A. and San Francisco.  In another California-based prosecution (Lovan), federal and county law enforcement agents allegedly found more than 30,000 marijuana plants while executing a federal search warrant.  In a third prosecution (Kynaston), the Government alleged that, in the course of executing a warrant under Washington state law, investigators found over 1,100 marijuana plants (some growing, some, the court observed, with “root structures of suspected harvested marijuana plants”).  In each case, the defendants were indicted on federal criminal charges under the CSA.  The Kynaston case also involved charges under federal gun laws.

Although many States have moved in the direction of liberalizing their own drug laws, the federal government has not.  It remains a federal crime to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance – among them, marijuana (still a Schedule I controlled substance).  See 21 U.S.C. 841(a).  But in 2014, and again during the appropriations battles in 2015, Congress passed an appropriations provision which says that in certain states (including California and Washington), the Justice Department may not spend any funds to prevent these states from implementing their own laws respecting medical marijuana.  See Section 542 of the Consolidated Appropriations Act of 2016.  So, the defendants in these cases sought to dismiss their indictments and obtain mandamus relief from the Ninth Circuit, alleging that the DOJ’s prosecution of them violated section 542 and that any effort by the DOJ to spend funds on such a federal prosecution would violate the separation of powers (by violating the Appropriations Clause, i.e., the executive spending money not appropriated by Congress).

The court agreed.  But the decision was not as sweeping as it might have been (or as some might think that it is).  This decision does not categorically forbid federal drug prosecutions involving marijuana.  Rather, the court interpreted section 542 to forbid DOJ from preventing the implementation of specific state law rules regarding the “use, distribution, possession, or cultivation of medical marijuana.”  But DOJ has the power to prosecute private individuals who violate the CSA and who are engaged in conduct not authorized by state law.

Moreover, as the court explained, not only is the text of the legislation subject to a limited interpretation, the rider itself has a temporal limit.  The court rightly noted that Congress could alter the existing rider by repealing it and appropriating funds to the DOJ.  Or, as the court said, Congress could enact a similar rider in future appropriations legislation (this legislation is good only for FY 2016, so it expires at the end of September – unless renewed, DOJ could then proceed with any prosecution not otherwise barred by law or the statute of limitations).  Moreover, the text of the rider applies only to States with respect to medical marijuana.  The legislation does nothing to prevent the DOJ from prosecuting those persons who violate the CSA in states that are not among those listed (say, West Virginia or North Carolina or South Dakota).

Still, there is an interesting separation of powers argument here that was not included in the court’s discussion, and perhaps was not even raised by DOJ: can Congress use its spending and appropriations powers in a way that interferes with the authority of the executive branch to carry out its constitutional function of taking care that the laws be faithfully executed?

To be sure, the spending power is among Congress’s most important weapons for setting national policy and forcing State compliance with Congress’s will.  But this law is different than a garden-variety conditional spending bill: it actually protects the states against another branch of the federal government, the executive.   One of the recognized limits on the spending power is that Congress cannot condition spending in way that compels states to violate some other constitutional provision (i.e., an independent constitutional bar, see South Dakota v. Dole).  But again, the instant legislation is different: the issue is whether the “independent constitutional bar” limitation includes the constitutional powers given exclusively to another branch of the federal government.

Congress was not saying here that the CSA was no longer a “law” that the executive has a duty to enforce.  Nor did Congress say that the CSA was unconstitutional, and we know that the Supreme Court has upheld Congress’s power to enact the CSA and permit its enforcement even in states with more liberal state drug laws.  See Gonzales v. Raich.  Congress simply said that, in these states, the executive cannot spend funds in a way that prevents these States from implementing their laws (which, practically, forbids federal prosecution).  And Congress has appropriated money for criminal prosecutions generally, just not for these.  So is the executive’s power to enforce the law a constitutional bar to Congress’s use of the spending power to prevent the use of federal funds for a particular kind of prosecution?  In other words, can Congress use the spending power to limit prosecutorial discretion?

I suspect most would say that the spending power extends to this kind of limit on executive power; in other words, this kind of law is a valid exercise of Article I power.  But I detect a separation of powers issue here that might be worth exploring further.

 

 

Wolves as wolves, and the future of the Justice Department

One of my favorite lines from my favorite opinion of Justice Scalia’s – his dissent in Morrison v. Olson – is his observation that some cases raise issues that will affect the equilibrium of government power in ways that are not obvious.  Those threats to the separation of powers are wolves, he observes, that appear in sheep’s clothing.  “But,” Scalia stated confidently, “this wolf comes as a wolf.”

Of course, he was right.  One wonders whether the same might be said about Donald Trump.  Despite Trump’s pliable relationship with the truth, his pandering, his waffling, his refusal to answer questions about his Obama birtherism, and his seeming disdain for meaningful conversations about the substance of governing, he has not concealed his weakness on constitutionalism.  Time after time, his disregard for, or ignorance of, constitutional government has been on prominent display.  Puffy assertions by folks like Newt Gingrich that Trump is the only candidate who would protect the Constitution are so demonstrably false as to be worthy of harsh and sustained mockery.

That’s why those Republicans who prefer Trump to Clinton solely on the grounds of a potential Supreme Court appointment seem, though not unreasonable, a bit short-sighted: promising to appoint constitutionalist conservatives to the Court rings hollow if the President himself does not understand how to – nor does he care to – protect and defend the Constitution.  And while it is true that the institutions of American government are likely strong enough to withstand a Trump presidency, why would we voluntarily put our institutions to that test?  Doesn’t it say something about the intolerable danger of a candidate that we have to simply hope that the other branches of government will restrain his most dangerous tendencies?  What if we’re wrong?  It is not unreasonable to think that many in a Republican-controlled Congress would be too intimidated by Trump to defy him.  As I have said before, Trump supporters cannot credibly complain about President Obama’s alleged constitutional excesses.  And even Liberal constitutionalism is preferable to anti-constitutionalism.

So I was so pleased to read Orin Kerr’s assessment at VC, which I commend to readers, of a potential Trump Justice Department.  Those of us who worked at Justice, like myself and Kerr, and who have deep affection for the DOJ as an institution, are rightly concerned about what a Trump agenda would do to the enforcement of federal law and the federal Constitution.  And Kerr covers this ground well in his piece.

Most notably, though, Kerr concludes with the following observation about a Trump DOJ: “If you aren’t scared, you aren’t paying attention.  A fascist thug has won the GOP nomination, and now has a very good shot at becoming president of the United States.  And he hasn’t run in sheep’s clothing.  As Justice Antonin Scalia might say, this wolf comes as a wolf.

 

The “Law and Order Candidate”? Seriously?

Thanks to new duties at work, my time for posting on this site has grown sparse.  And I would prefer not to spend that precious time repeating myself here.  But as someone who worked on the prosecution side of violent crime cases, and who has spent his career concerned about problems of crime and violence, I heard something yesterday that I could not let pass without a comment.  I will hope to make such responses rare.

At a time when violence is erupting around the country, crimes rates are increasing, and tensions between law enforcement and citizens are a subject of another national conversation, there has never been a more important time in contemporary America for political leadership that understands the delicate balance between liberty and order under constitutional government.  It was therefore a moment worthy of maniacal laughter when white-shoed wine salesman Donald Trump announced to the world that he is (gulp) the “law and order candidate.”  Yes, just days after telling us that he would protect “Article XII” of the Constitution (of course, there is no Article XII), and offering yet another bizarre compliment to yet another brutal dictator, The Guy In The Hat once again reminded us that he understands neither “law” nor “order.”

You cannot be the candidate of law and order if you appear to accept, even encourage, private violence at a political rally, and say publicly that you wish you could punch a protestor in the face, and long for the good old days when you could beat up protestors without consequence.  (See prior post here.)

You cannot be the candidate of law and order if you offer to pay the legal fees of a people who engage in unlawful violence.

You cannot be the candidate of law and order if you do not understand the role of courts in American government, such as when you insist that Supreme Court Justices conduct investigations of your general election opponent.  (See prior post here.)

You cannot be the candidate of law and order if you habitually file meritless lawsuits, which clog our judicial system and undermine the ability of judges and courts to administer justice in worthy cases.

You cannot be the candidate of law and order if you question the integrity and fairness of distinguished federal judges based solely on their race.

You cannot be the candidate of law and order if you boast publicly about receiving the endorsement of a man convicted and sentenced to prison for raping a teenager, approvingly calling him a “tough guy,” or if you talk about inviting a boxing promoter who has a lengthy criminal history, including a history of violence, to speak at your nominating convention.

You cannot be the candidate of law and order if you threaten a free press with the expansion of libel laws.

You cannot be the candidate of law and order if, in a Nation whose laws presuppose and protect religious pluralism and religious tolerance, you threaten to forbid entry to people based solely on the god they worship, and mock other candidates for their practice of minority religions.

You cannot be the candidate of law and order if you threaten to indiscriminately kill the families of terrorists.

You cannot be the candidate of law and order if you have authoritarian tendencies that, combined with ignorance of constitutional government, threaten the separation of powers.

Whatever Trump’s other virtues or vices may be, I know of no credible prosecutor who would look at Trump’s record and identify him as a “law and order” guy.  Those of us who spent significant parts of our careers working in the law enforcement community, making sure that violent criminals were caught and seriously punished, have endeavored to secure some understanding of how and why “law and order” is important in a free society that values liberty and justice under a written Constitution of limited and enumerated powers.  Trump lacks any such understanding.

Law empowers and it restrains.  “Law and order”- and when we speak of order, we intend something tolerable, within which both liberty and justice can flourish – requires appreciating what law allows government to do, and what it forbids government from doing.  It means respecting rights, particular those of dissenters and those with minority viewpoints, while urging respect for lawfully constituted authority and institutions.  It means, in Madisonian terms, controlling the people while also controlling the government.  “Law and order” requires balance, not belligerence.

When Trump says he is for “law and order,” he likely means nothing of the sort.  Trump equates violence with toughness, belligerence and raw aggression with strength.  To Trump, prudence and restraint are tantamount to weakness.  But brute force is not “law and order.”  And prudence and restraint are indispensable virtues in governing a tolerably ordered society pursuant to the rule of law.

So, Trump the “law and order candidate”?  It’s a hilarious notion.  Except, there is a real (indeed, very good) chance he could win this election.  And it’s not so funny anymore.