The “rule of law” is back in the news. I put it in quotes because, like most expressions we bracket this way, the rule of law is a contested term that defies definition. It is a Rorschach Blot—people see in it what they want. But it is also one of our most revered concepts, ranking with liberty and democracy as the bedrock elements of American identity. It is one of those ideas that no one is allowed to mock, even though no one can define it precisely. All we know for sure is that if you stray from it, if you betray it—whatever it is—you have sinned against what it means to be an American.
It is precisely this vague potency that makes it such an irresistible rhetorical weapon. To say that a powerful figure is a threat to the rule of law is one of the most serious charges we can level. It makes his transgression substantially more grave. And because we don’t have a fixed definition for the term, we tend to level the charge far more often than is warranted. The net of this overuse, of course, is to cheapen the meaning of the term even more.
I was thinking of all this as I listened, bemused, at the increasingly common lament that the president’s frequent Twitter storms against the Special Counsel, the Attorney General, and the FBI are an assault on the rule of law. The Nation, for instance, recently decried the president’s behavior as an attack on “the very pillars of American democracy and rule of law.” Others, from across the political spectrum, have expressed comparable views. Let’s look at this more closely.
The idea seems to be that the law must be allowed to operate without criticism by the potential target of an investigation or his supporters. If taken literally, this is ridiculous. Worse, an argument like this will most commonly be used to silence the Left. Consider, for instance, a different investigation. Let’s imagine that former FBI Director J. Edgar Hoover made it his business to investigate the Rev. Dr. Martin Luther King for alleged ties to the communist party, as he did. I hope no one would consider it an assault on the rule of law or the pillars of American democracy if Dr. King and his supporters had denounced the investigation as politically motivated and criticized Hoover as biased. Or let’s imagine a congressional committee with some Orwellian name like, “the House Committee on Un-American Activities.” Let’s suppose HUAC made it their business to investigate alleged connections between private citizens and the communist party, as they did for many years, destroying scores of lives in the process. I hope no one would consider criticism of the committee an attack on the rule of law.
These examples make plain that there cannot be anything improper when a target—or his supporters—attack an investigation. It might be stupid, and a good attorney will strongly urge her client to shut the hell up—advice I’m sure Mr. Trump’s lawyers have given to their client and that he has ignored. But like any client, the president has a right to be an idiot. Criticism—even intemperate, false criticism—is always fair game, and never a threat to American institutions.
Moreover, since most investigations are directed not against the powerful but the powerless, those of us on the Left should be very careful about arguments like the one currently in circulation. If we suggest that the target of an investigation must be silent while well-staffed, well-funded investigators go about their business, systematically building a case, rest assured that argument will come back to haunt us when an investigation is launched against progressive leaders.
A more thoughtful complaint is that the president has done far more than take to Twitter. He has affirmatively tried to interfere with the investigation. Reference is made, for instance, to his treatment of former FBI Director James Comey, whom the president fired, as he said on national television, because of “this Russia thing.”
But unless the expression is so broad as to encompass any challenge to the machinery of justice, even this is not a threat to the rule of law. It may be a crime—he may have obstructed justice, for instance—but that is hardly a gauntlet thrown against our very identity. Once again, it helps to imagine a different scenario. Suppose the FBI were investigating a different crime syndicate, and that the Capo tried to bribe an FBI agent in order to get him to back off. That’s a crime, of course, and a serious one. Or maybe members of the syndicate tried to befuddle the FBI by concealing criminal proceeds or destroying evidence. That too is a crime. Or maybe members of the syndicate simply tried to throw the FBI off the scent by lying to investigators. Lying to a federal agent is also a crime, and one that Mueller has already charged. We do not view those who engage in this duplicitous behavior—and it happens all the time—as threats to the rule of law, or anything comparably lofty. Instead, we view them as criminals. They’re bums, no more and no less.
And in fact, they are not particularly worrisome bums. Federal prosecutors have a great deal of experience investigating and prosecuting complex criminal enterprises. They have numerous tools at their disposal that allow them to uncover, trace, and expose the far-flung illegal operations of even the most sophisticated cover-ups, even if they span the entire globe. They can subpoena documents, compel testimony, and induce cooperation. Mueller has assembled an exceptionally able team, with years of experience using these tools in prior investigations. And if his team continues to find that members of the president’s circle broke the law—either prior to or during the investigation—there is every indication the Special Counsel will prosecute them. The president may be a crook. He may be surrounded by crooks. But so long as the investigation is allowed to run its course, the rule of law is safe.
Ah, but some people say it is different because he is the president. There is something particularly dangerous, they say, when the president criticizes or interferes with an ongoing investigation. Something in his position elevates his actions and transforms them into a much more serious threat to American life. But how? If President Kennedy had criticized FBI Director Hoover for his investigation of Dr. King, would we say he had attacked the rule of law? I hope not. In fact, we consider it a moral failing on the part of President John F. Kennedy and Attorney General Bobby Kennedy that they did not restrain Hoover. They encouraged him. So are we saying we now look back and wish the Kennedys had betrayed the rule of law? Somehow I don’t think so.
In sum, the president can criticize to his heart’s content. He may interfere, but only at his grave legal peril—a line he may already have crossed. Yet that too would be ‘merely’ criminal, and no threat to the rule of law. The only thing he cannot do is fire the Special Counsel. That is a bridge too far because it puts him, structurally, beyond the reach of legal restraint. That is why White House Counsel Donald F. McGahn II threatened to resign rather than carry out Trump’s order last June to fire Mueller. McGahn understands what most hyperventilating observers do not. The president may be a crook, he may be committing new offenses every day in his misplaced determination to discredit the FBI and the Special Counsel, but we cheapen the meaning and majesty of our values if we say a bum like him represents a threat to our way of life.
