Increasingly, threats to the rule of law are as acute as those presented to our species by the unfolding catastrophe of global warming. We are too complacent about both.
As someone who teaches in a law school, I believe it’s critical to look closely at two recent events that demonstrate a crisis of the rule of law in the United Kingdom and the United States.
The first event is the judgment of the U.K. High Court striking down Prime Minister Boris Johnson’s attempted prorogation of Parliament — on the basis that it was an illegal and unconstitutional attempt to subvert democratic debate and preempt an anticipated vote of non-confidence in Parliament.
That decision ought immediately to have forced Johnson to resign; it did not. It did however trigger a series of events that have resulted in a Dec. 12 national election in the U.K.
The second is the decision by U.S. Congress to initiate an impeachment inquiry into President Donald Trump.
Over the course of the past several weeks, those impeachment proceedings have shone a public spotlight on a series of high-profile State Department and other government officials. Their alarm earlier this year about Trump’s conduct on foreign affairs did what Robert Mueller’s report on Russian collusion could not. It triggered the impeachment process.
Trump conviction unlikely
The decision of the Democrat-led House of Representatives to initiate an impeachment inquiry will probably lead to the adoption of articles of impeachment. However, conventional wisdom suggests conviction by two-thirds of the Republican-controlled Senate is unlikely.
A segment of America’s liberal chattering class is nevertheless hopeful enough to begin asking the question of whether Trump can stand for re-election if he is actually impeached and convicted. The answer is unclear.
The constitutional crisis around the Trump presidency raises grave questions about public order, civil peace and national cohesion, which are basic to the legitimacy of the state, its rule-making powers and ultimately its monopoly on force.
These questions are particularly urgent amid the impact of Trumpian and Brexit-era politics on the rule of law in even the most established democracies.
In a televised statement on behalf of a unanimous U.K. Supreme Court bench, the Honourable Lady Brenda Hale, the president of the court, condemned Johnson. She said he had violated the British Constitution by using a request for prorogation of Parliament to avoid continued Brexit debate and to duck a potential vote of non-confidence.
Lady Hale’s judgment was a monumental moment for the evolution of the rule of law in the U.K., and it was celebrated as a moment of sanity. Yet it only temporarily averted another constitutional crisis because Johnson did not take the judgment as invitation to resign, and insists that he remains legitimately in office. This is symptomatic of the crisis of the rule of law — a crisis that now exists on both sides of the Atlantic.
Trump grows more brazen
During the same period in time over the last several months, Trump, perhaps emboldened by the failure of Congress to impeach him on the basis of the revelations contained in the Mueller report, has become more brazen.
It’s been alleged that this summer, shortly after the Mueller investigation had concluded, Trump improperly withheld military aid money allocated by Congress to Ukraine.
He advised Ukraine President Vladimir Zelensky that the release of those funds was contingent upon that country’s investigation of the Ukrainian business dealings of Hunter Biden, the son of Trump’s rival presidential candidate, while Joe Biden was vice-president.
Since then, evidence has emerged of a similar conversation in June between Trump and Chinese President Xi Jinping about investigating the Bidens.
Under any other circumstances, revelations of this sort would trigger serious political consequences. Recall Watergate, when Richard Nixon’s similar efforts to derail his political rivals ultimately resulted in his resignation.
Today, these dramatic revelations have prompted Congress to finally initiate an impeachment investigation. Trump’s response, likely aimed at distraction, was to precipitously and suddenly remove U.S. Special Forces from the Kurdish border areas of Syria and Turkey. The word’s attention was suddenly on this monumental abandonment of the Kurds, a key American ally. This was both a dangerous distraction and a huge slap in the face to the Kurds — and the rule of law.
On both sides of the Atlantic, the durability of the rule of law is being tested more and more intensely. Although the decision of the U.K. Supreme Court was perhaps a win for the rule of law, Johnson’s refusal to resign as a result of the judgment suggests we’re now in an unprecedented era of political lawlessness.
In the U.S., Congress has oversight of the executive branch headed by the president. But for decades Congress has abdicated its oversight responsibilities over the executive.
Ironically, to preserve the rule of law, Congress must act to trigger impeachment and a trial on the Senate floor overseen by the chief justice of the U.S. Supreme Court. However, even if Congress introduces articles of impeachment on the House floor, the Republican Senate will likely vote to acquit.
Or worse, House Majority Leader Mitch McConnell might refuse to hold the trial outright, much as he refused to hold confirmation hearings when Barack Obama’s administration sought to appoint Judge Merrick Garland to the Supreme Court.
Increasingly, political leadership is now dominated by outsize celebrity egos and buffoonish caricatures of strongmen. Today the rule of law is not holding political leaders to account. After all, those leaders are now reality TV show hosts and former celebrities as often as they are career politicians.
Things are not as they used to be. Authoritative statements by esteemed officials that the rule of law has been violated no longer have immediate or obvious political consequences. Political scandals that would have upended the status quo only a few years ago barely register today.
Just as the destruction of our ecosystem is imminent if we do not act fast on climate change, so too is the destruction of our most cherished political and legal traditions.