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.