Where there is rot, there is renewal


By Agathon Fric

Last year, the New York State Bar Association Journal picked up an article I wrote on the Trump Administration’s barrage of assaults against the rule of law.

Except you wouldn’t know it.

Before publication, the editors decided to remove my references to specific events demonstrating the President’s clear and present disregard for that unassailable maxim, which posits that any exercise of public power must be grounded in a legal rule; no one is above the law; and there is one law for all.

My purpose was not partisan. You see, I’m Canadian. I don’t vote in U.S. elections and I have no more skin in the game than any other concerned citizen of the world. In the same breath, I called out Canada’s Minister of Finance, a liberal-elitist foil to Trump’s conservative populism, for his own missteps.

Missteps. It sounds almost quaint, doesn’t it?

My editors’ intention was not subversive. They wanted to appeal to a broad, ideologically diverse audience (as ideologically diverse as a group of New York state lawyers can be). Introducing politics to the mix would have risked alienating readers and deflating my message.

But that message—that we must act to strengthen rule of law norms in our communities—is inescapably and rightly political. Without positive reinforcement, the rule of law begins to rot. Continue reading

Trump, the Republican Party, and the Rule of Law

Carolyn Kaster/AP

By Michael Klarman

A quick glance around the world these days can be frightening for defenders of the rule of law: thousands of officially sanctioned extrajudicial killings in the Philippines under President Rodrigo Duterte; lengthy prison sentences on fraudulent charges for two journalists reporting on ethnic cleansing of Rohingya in Myanmar; the officially orchestrated torture and dismemberment of Washington Post contributor Jamal Khashoggi in the Saudi Arabian consulate in Istanbul; the imprisonment of hundreds of opposition politicians and journalists by President Recep Erdogan in Turkey; government packing of the courts in Poland; the criminalization of immigrant aid groups and the forced closing of Central European University in Hungary. The list goes on and on. Surely, most Americans believe, such things could never happen in the United States.

Think again. President Trump poses a greater threat to the rule of law than anything Americans have witnessed in generations. To be sure, the United States is not likely any time soon to see officially sanctioned killings of drug users without due process or mass incarcerations of journalists daring to criticize the government. Yet, along a wide variety of dimensions, Trump shreds the rule of law. The Republican Party, which has largely become a “cult” of Trump worshipers—in the words of recently retired Republican senator Bob Corker—has been mostly complicit. Consider several examples.

The rule of law does not countenance a nation’s chief executive selecting, at his whim, winners and losers in the economic marketplace. Yet Trump has frequently punished corporations and their executives when they have dared to cross him. Kenneth Frazier, the chief executive of Merck & Co., resigned from the President’s American Manufacturing Council in protest against Trump’s refusal to offer an unqualified repudiation of white supremacists after the violence erupting during a “Unite the Right” rally in Charlottesville, Virginia, in the summer of 2017 (“very fine people on both sides”). Trump immediately responded on Twitter that Frazier’s resignation from the council would give him more time “to lower ripoff drug prices.” When Harley Davidson responded to European tariffs on its motorcycles—which were increased in retaliation for Trump administration tariffs on steel and aluminum—the President responded, “We won’t forget, and neither will your customers.” When General Motors Co. recently announced that it was cutting thousands of jobs and closing several manufacturing plants in the United States, Trump immediately announced, “We are now looking at cutting @GM subsidies.”

The President’s retaliatory actions against corporate foes have not been limited to tweeting threats. Trump’s furor at the Washington Post—for, among other things, counting the number of his lies (over 8,000 and growing)—has led him to retaliate against its owner, Jeff Bezos, the founder and chief executive of Amazon. Trump has personally intervened with the Postmaster General on more than one occasion to urge a doubling of the postal rates charged for delivering Amazon packages. (Trump has kept these meetings off his public calendar.) Similarly, Trump’s Justice Department has sought to block the proposed merger between AT&T and Time Warner, unless CNN—the president’s favorite media punching bag, which happens to be owned by Time Warner—is sold off first. Because the Justice Department today rarely objects to such vertical mergers, one has to wonder whether the President has intervened to punish a political enemy. Regardless of whether such punitive efforts by the President succeed, the chilling effect on other potential corporate critics of Trump must be considerable. Continue reading