The USA operates under a principle called the Rule of Law. According to Wikipedia, that means:
“…all citizens and institutions within a country, state or community
are accountable to the same laws, including lawmakers and leaders.
It is sometimes stated simply as ‘no one is above the law’.”
It also means that the American version of democracy is not based upon simple majority rule. Some legal concepts -- for example, freedom of speech and religion, equal treatment and due process -- are more important than anything that Americans might choose for laws created by a majority vote or the actions of anyone elected by a majority vote.
This seemingly straightforward Rule of Law concept can sometimes be complex to apply in practice, so that’s what lawyers argue about in courts. It’s what I’ve done for the past 40 years as an American lawyer in Washington, DC, and I know how it works…or I know how it used to work, until recently.
That’s changing now. Many of America’s current political and legal leaders have forgotten about these fundamental values, or maybe in their self-interest, they are intentionally trying to eliminate them. If so, they are already getting very close to succeeding.
Rule of Law in Washington is disappearing so fast that it’s almost extinct
The U.S. Congress is where laws are created, and decisions are made about how to spend American taxpayers’ tax money according to those laws. However, Congress hasn’t done much of anything lately because the Republicans in Congress have been too busy fighting among themselves. Right-wing politicians have essentially frozen all activity by refusing to cooperate or compromise even with members of their own party. When a government stops making and implementing laws, the Rule of Law becomes irrelevant.
Congress is also supposed to do its part for the “checks and balances” between the three branches of the U.S. government – executive, legislative and judicial (the President, the Congress, and the Courts). Each branch has a duty to monitor the other two.
This, too, is coming to a halt in Washington. For example, Americans have become increasingly suspicious of U.S. courts, another key participant in the Rule of Law. Reasons for their cynicism start at the top: the highest American court, the United States Supreme Court, appears to be in the pockets of the wealthy.
That’s because many of the court’s recent decisions support an American plutocracy -- a society controlled by those with the most money. It’s been exacerbated by revelations that at least two Supreme Court justices have routinely but privately accepted lavish gifts and luxury travel. They’ve responded with halfhearted explanations but no apologies. Then they’ve ruled in ways that favor the rich, which isn’t surprising when private jets are waiting to take them on yet another extravagant free-of-charge vacation as a reward.
Some members of Congress responded to this news by doing their jobs: the Democratic-led Senate Judiciary Committee began to investigate two billionaires to ask them what they got in return for their secret generosity to the conservative members of the U.S. Supreme Court. That seemed like a reasonable question to ask, and Congress needed to do its job (of checks and balances) by asking it because the problem was at the highest court, meaning that no other U.S. court could possibly investigate.
Republicans in Congress reacted by threatening all sorts of vindictive activity to stop such fact-finding. The Senate inquiry is now on hold, and so-called justice still seems to be for sale at the Supreme Court. Ethics rules that apply to lower court judges continue to remain non-existent at the highest level. Many Americans, especially American lawyers, are appalled.
That’s a significant change from the way courts used to be regarded in America. The U.S. court system, and especially the Supreme Court, was respected because they needed to make hard decisions. Not all of their decisions were popular, although the consensus was that the Rule of Law needed to be implemented somehow, and courts were the best way to do it. But when the country’s top judges ignore that pesky Rule of Law thing whenever it applies to them, why should anyone else play by the rules?
Speaking of U.S. courts, legal history is currently being made because a former U.S. President finds himself in numerous courts as a result of his behavior in his businesses, mishandling secret government documents, illegal election efforts, hush money paid to a porn actress and the insurrection at the U.S. Capitol. No other president in American history has ever achieved the dubious distinction that Donald Trump has accomplished.
The trial has begun in the first of those many cases. One would expect a past U.S. President to respond in a civilized way to prove that the allegations against him are untrue or that they are based on incorrect interpretations of the law. That would be proper American legal procedure for every American in an American court (that Rule of Law thing again). He has not played by the Rule of Law.
He has responded instead by calling the judge and other official court personnel insulting names even to their faces in the courtroom. He has repeated the never-ending phrases from his campaign crusades against his enemies, real and perceived, about how much he is hated and how the trials are witch hunts designed only to unfairly interfere with his busy campaign schedule to become the president again.
He gives long speeches about his self-perceived greatness and why he is more special than anyone, so he is entitled to ignore everyone else if he chooses. The judge and even Trump’s own lawyers seem to have given up hope of getting him to answer any questions about the very real factual evidence against him.
This abysmally poor litigation strategy will not help him win the cases against him at trial or on any appeal. Perhaps he mistakenly believes that if he becomes the president again, he will be able to pardon himself, although that’s simply wrong because the judgments and penalties that are the likely results of the trials against him are U.S. state-law-based outcomes which would not be covered by any presidential pardon even if he could pardon himself of other federal crimes.
Some Americans are amused to see him act in a courtroom like a petulant child unable to control himself despite the fact that his fortune and future are at stake. It’s perhaps not so entertaining to think that anyone who is that out of touch with reality once had access to the nuclear codes and may soon have access to them again.
But that’s a potential future disaster. The current calamity is already underway: Mr. Trump’s disregard for the Rule of Law is fully accepted by the vast majority of voters in the Republican party and by some independents and Democrats, too. He is so popular that he doesn’t need to show up for candidate debates to make his poll numbers continue to rise. This is not only among his base of fanatical fringe supporters; it’s overwhelming support in the entire Republican party. Recent polls show that he could also win the election.
Much of America no longer cares about the Rule of Law.
Such voters are obviously unfazed by Mr. Trump’s legal troubles and shameless responses to them. If anything, they admire how handily he is tearing down the Rule of Law. They seem to want their next president to be someone who has no accountability, who is untouched by laws, courts or morals and who has enormous authority to impact and control their lives. This is the polar opposite of the Rule of Law, and it’s known as authoritarianism. Those voters want it for America.
This is not hyperbole or doomsday speculation. Mr. Trump and his advisors are already working out the details of how to give voters exactly what they want. Credible news reports describe plans for a re-elected President Trump to deploy the military to act as domestic law enforcement, to place millions of immigrants into camps, to put Trump loyalists into all positions of power in government regardless of their competency and to use government lawyers to attack and destroy Trump’s political adversaries.
Lists are being compiled of Trump loyalists and enemies. To Finns, such lists may bring back awkward memories, but other plans will affect current-day Finland as well, such as proposed increases in the power for the future U.S. president to impose tariffs and visa/border controls at his whim, based only upon who he thinks are his friends on any given day.
Such planning work has been outsourced to a coalition of right-wing think tanks and Trump’s former colleagues working under the title “Project 2025.” The result would be to put the people who want to burn down American democracy in charge of the U.S. government. If any of that happens, we shouldn’t even try to pretend that the Rule of Law will still exist in America.
We should hope that such predictions are overblown, but no one has yet denied their accuracy. On the contrary, the more that those destructive plans are revealed to American voters, the more popular Trump becomes in the polls. In response to questions about Project 2025, a Trump campaign spokesman said:
“…Trump is focused on crushing his opponents…
Trump has always stood for law and order….”
“Law and Order” – that sounds hauntingly familiar.
That phrase might initially appear to be the same as the Rule of Law, but it’s not. It should nevertheless be remembered by anyone who has paid close attention to world history. Exactly 100 years ago, in November of 1923, a certain European politician was at the center of events that became known as the Munich Beer Hall Putsch (if you skipped history class at school, look it up).
That politician ended up in a court trial and lost. He didn’t really defend himself in court; he instead gave speeches directed to his supporters rather than to the court. History is repeating itself so far in 2023. He then ended up in prison for a while but gained so much popular support from his legal troubles that he didn’t stay locked up for long. A few years later, that same politician would proclaim:
“…there is no country in the world where law and order are better
maintained than in present-day Germany.” – Adolf Hitler
Tom A. Lippo is a Finnish-speaking American lawyer. Educated at Yale, the University of Jyväskylä and Stanford Law School, he is the founder of FACT LAW, an international law firm established in 1985. FACT is the first law firm with offices in both Finland and the United States. Tom has been a lawyer in Washington, DC, based on Capitol Hill for over 40 years.