Impeachment and the rule of law

As usual Dahlia Lithwick makes a number of good points in this piece on the law and politics of impeachment:

On some level, Pelosi is correct to fear the spectacle of a protracted public impeachment battle, but the notion that Democrats should somehow circumvent a president who evinces no respect for the law by persuading him that this time he lost for realz strikes me as demented. . .

It’s easy to forget this, but it bears repeating: The reason former FBI Director James Comey didn’t take the Russian threat against the elections system seriously enough in 2016 is because he believed Hillary Clinton would win by large margins. The reason President Barack Obama and Attorney General Eric Holder and others who knew about the threats before we did failed to respond with utmost urgency and seriousness is because they too believed that Hillary Clinton would win. By large margins. Time and time again, people who had access to both information and power opted to take the less draconian path because they believed that there would still be a free and fair election and that Trump would not win it. We know how that turned out.

We make the same mistake of not acting on the ongoing threats to congressional oversight, to free and fair voting, and to foreign cyberattacks because an election might solve it at our peril. An election may well become the problem. Doing less than absolutely everything possible to reinstate the rule of law in America today in the hopes that there will be less election interference next time, or more benign election interference, or less purposive election interference, is insane. . .

As Jennifer Rubin noted two weeks ago, Democrats have more than one possible response to Donald Trump’s illegal conduct at their disposal. There is no reason why they need to take any single one of them off the table, and there is certainly no reason why they should announce the plan to do so to the New York Times. Banking on an elections system that is being warped before our eyes is a recipe for disaster, and it’s a lesson that should have been learned by now.

The challenge Pelosi faces is the same challenge faced by Mueller, and by Eric Holder. Elections matter, and getting out the vote in 2020 matters. But the Rule of Law still matters, and we shouldn’t abandon it because this small problem of Donald Trump might go away in 2020. The fact is that this problem might not go away in 2020, though by then, the argument that obstruction itself is an impeachable offense will have been lost to us. That’s all the more reason to fight for the rule of law today, as if it were sliding away. Because it is sliding away. That isn’t something the country should wait to vote on. The country already knows it is true. 

From a purely pragmatic standpoint, I suspect that a lot of the talk about whether or when to impeach Trump is happening at cross-purposes. I doubt Nancy Pelosi actually wants to “take impeachment off the table,” (what would that even mean, practically speaking?) and I don’t get the sense that most people who favor impeachment proceedings necessarily want them to begin any time soon, as opposed to after more House committee investigations, that Donald Trump is already obstructing and will continue to obstruct.

For my own part I don’t have a strong opinion at this point one way or another regarding if or when Trump should be impeached, but I would say that Lithwick’s practical observations are well-taken.

I do want to quibble with Lithwick’s in my view overly sanguine framing of the present crisis as a battle to preserve “the rule of law,” given that this frame implies that the rule of law was more or less in place and working OK pre-Trump, and that Trump’s presidency represents some sort of radical rupture in American law and politics.

If there’s one thing that Donald Trump’s entire life illustrates, it’s that “the rule of law” applies only very weakly, if at all, to the lawlessness of people like Donald Trump. Trump is a career criminal, whose business ventures are based on simply not paying any bills that he owes to either private parties or the government, to the extent he can get away with doing so, which is, because he has always been a person of immense social privilege, very considerable.

Trump, in other words, is an example both of how legal rules barely apply to privileged sociopaths, and of how much the legal system relies on essentially voluntary compliance. Rich sociopaths who can hire a lot of lawyers are well aware that they can avoid paying many of their bills by simply refusing to do so, because enforcing legal obligations through the courts is extremely expensive, and many people literally can’t afford to do it. This is Trump’s standard operating procedure: don’t pay anyone who can’t afford to make you pay them.

The same logic applies to sexually assaulting women. When Trump explained to Billy Bush that “when you’re a star, they let you do it. You can do anything. Grab them by the pussy. You can do anything,” he was in fact accurately describing a social context in which privileged men can sexually assault women with impunity, with essentially no legal or social consequences.

That’s how the the rule of law actually works in our society. The legal system continues to function, more or less, because most people aren’t actually sociopaths. But sociopaths are heavily over-represented in positions of power, because being a sociopath gives you a competitive edge over people who voluntarily follow rules like “pay your bills,” and “don’t rape women.”

This doesn’t mean that the rule of law doesn’t exist or isn’t worth preserving. It does mean, however, that we shouldn’t exaggerate the extent to which law actually constrains people, and most especially the powerful and the privileged.

And we should be sensitive to how rule of law ideology can function as a kind of legitimating rhetoric for pervasive social injustice. Here is a quote from Douglas Hay’s essay “Property, Authority, and the Criminal Law,” which attempts to explain the apparent paradox between an explosion of statutes in 18th century England making the death penalty available for various offenses against property, and declining numbers of actual executions:

Equally important were the strict procedural rules which were enforced in the high courts and at assizes, especially in capital cases. Moreover, most penal statutes were interpreted by the judges in an extremely
narrow and formalistic fashion. In part this was based on seventeenth-century practice, but as more capital statutes were passed in the eighteenth century the bench reacted with an increasingly narrow interpretation. Many prosecutions founded on excellent evidence and conducted at considerable expense failed on minor errors of form in the indictment, the written charge. If a name or date was incorrect, or if the accused was described as a ‘farmer’ rather than the approved term ‘yeoman’ the prosecution could fail. The courts held that such defects were conclusive, and gentlemen attending trials as spectators sometimes stood up in court and brought errors to the attention of the judge. These formalisms in the criminal law seemed ridiculous to contemporary critics, and to many later historians. Their argument was (and is) that the criminal law, to be effective, must be known and determinate, instead of capricious and obscure. Prosecutors resented the waste of their time and money lost on a technicality; thieves were said to mock courts which allowed them to escape through so many verbal loopholes. But it seems likely that the mass of Englishmen drew other conclusions from the practice. The punctilious attention to forms, the dispassionate and legalistic exchanges between counsel and the judge, argued that those administering and using the laws submitted to its rules. The law thereby became something more than the creature of the ruling class—it became a power with its own claims, higher than those of prosecutor, lawyers, and even the great scarlet-robed assize judge himself.

To them, too, of course, the law was The Law. The fact that they reified it, that they shut their eyes to its daily enactment in Parliament by men of their own class, heightened the illusion. When the ruling class
acquitted men on technicalities they helped instil a belief in the disembodied justice of the law in the minds of all who watched. In short, its very inefficiency, its absurd formalism, was part of its strength as ideology.

In the most fundamental sense, Donald Trump is a creation of the American legal system, rather than its betrayer, although he is that too.