The impeachment proceedings provide an excellent opportunity to remind people of something they ought to know, but perhaps have forgotten: The rule of law exists in this country to conceal politics. Perhaps that is not its only purpose, but it is certainly the most important. Those who want to change the status quo do well to remember that the law will not save us if the politics are against us. This is not hyperbole, nor is it necessarily a bad thing, but it does require some explanation, and the best way to explain is to offer a few illustrations.
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Not too long ago, the Trump administration decided that Israeli settlements in the West Bank do not violate international law, reversing the U.S. legal position that had endured since at least 1978, through Democratic and Republican administrations alike. No one doubts that the announcement is less about law than politics. After all, nothing in either fact or law has changed. All the circumstances that made the settlements illegal before the announcement still exist, and still make them illegal today. The only thing that has changed is the lickspittle to Benjamin Netanyahu sitting in the White House, who knows how important Israel is to a portion of his base—and not just Israel, but the conservative wing of Israeli politics.
Yet, if the result can be explained entirely by politics, why did the Trump administration nonetheless feel the need to place itself on the side of the law? If the law is immaterial, why claim it? The answer tells us a great deal about the rule of law as an ideal in American life. The best way to understand it is this: Every time you read, “the lawyers reviewed the law and decided…” substitute, “the high priests studied the entrails and decided….” Then everything becomes much clearer. In a secular state that purports to pay homage to the law rather than a god, having “the law” on your side is not simply a legal statement. It is a declaration of moral legitimacy. The secular gods approve of the action—that is, it is legal—and therefore it is morally acceptable, it is just.
This form of legal religiosity finds its purest expression in the claim that a particular legal argument meets with the approval of the Founders (hallowed be their name). When someone really wants to signal that their view of the law is superior to all others, the trump card (dare we say) is to claim the approval of the Founders. Why else would we capitalize the word? The next time you hear someone say, “The Founders believed …” substitute, “Listen unto me for I have reviewed the entrails and have divined the mind of the Founders.” We worship their words and battle over their meaning. Even if they did not speak to our precise situation, we find it necessary to prove that, had the Founders faced a quintessentially 21st-century question, like whether the police can search your cellphone without a warrant, they would’ve agreed with us.
The purpose of this silliness, of course, is to conceal politics. We imagine the law (and especially the Constitution) as pure. It is sacrosanct, standing above and removed from the ugliness of bias and partisanship. We invoke the law as if to say, “It is not me speaking. I am but a mortal, flawed and conceived in sin. It is THE LAW. It is the will of the Founders.” That is what I call the rule of law as an ideal. It asserts, quite plainly, that law is not important in and of itself, but as a claim to moral legitimacy, to rightness in a secular world. In fact, it goes farther to say that law does not matter; all that matters is the capacity to claim it in order to conceal a prior political judgment.
We see the operation of this ideal every day. In the post-9/11 torture scandal, for instance, the Bush administration took great pains to cloak its political determination to torture people behind a dense, footnote-studded legal opinion that blessed the CIA torture program. As a work of legal craftsmanship, no competent legal scholar took the torture memo seriously. Even the Bush administration eventually disavowed it. But like the decision by the Trump administration to validate Israeli settlements, its purpose was not principally as a legal document. It was written to stamp torture with the imprimatur of the law, and therefore vest it with moral legitimacy. Once the memo appeared, the Bush administration could say (and did say, again and again) that the program has been reviewed by Justice Department lawyers at the highest level, who found it entirely within acceptable legal parameters. “The high priests studied the entrails.”
The rule of law as ideal also explains the hullabaloo over the Mueller Report. The left waited with bated breath for just one sentence: The President broke the law. The right took the failure to deliver that indictment as a complete exoneration. Obviously, as my friend David Cole explained in the pages of the New York Review of Books, the report was anything but an exoneration. The facts unearthed by the Special Counsel did not remotely exonerate the President or his team. On the contrary, they condemned him and them. But David’s argument misses the point of the rule of law as ideal: The facts did not matter. What mattered was whether the left or right could claim the mantle of moral legitimacy, and since Mueller did not pronounce the law against the President—that is, he studied the entrails and did not explicitly brand the President a criminal—Trump won.
If we need another example of the rule of law as ideal, consider the twisted legal position taken by former Harvard Law Professor Alan Dershowitz on behalf of President Trump in the impeachment proceedings. To begin with, Dershowitz dutifully claims he is not really acting on behalf of the President, but of the Constitution, thus declaring his bona fides as an impartial high priest interpreting our most sacred text. Then he divines the mind of the Founders, insisting that if they were here, they would excuse Trump’s abuse of power because it does not constitute “criminal like behavior,” and therefore does not justify impeachment. No serious constitutional scholar agrees with his take, but its merit qua legal reasoning is utterly irrelevant. It is no more important than the torture memo. He has studied the entrails, and his pronouncement will certainly provide Republicans with the cloak they need to pretend their judgment is really a statement about the majesty of the law, impartial and pure, and not about politics.
Some may be shocked at what I have written. They still worship the law, and believe there is a there there. I have given up on that fantasy. Yet that does not mean all is lost. It simply means that the President and I agree, if only in one respect: All that matters is what happens at the ballot box. The law will not save this country.
