Talking about the Rule of Law with Robert Mueller and E. P. Thompson

Aziz Z. Huq

 

“What is remarkable (we are reminded) is not that the laws were bent but the fact that there was, anywhere in the eighteenth century, a Rule of Law at all.”[1]

 

Predictably and painfully, the public exorcism of the Mueller investigation came to an ashen close this week. Its climax—or perhaps more accurately, bathetic anticlimax?—took the form of a pair of congressional hearings where the Special Counsel along with an assistant testified. These were a peculiar blend of ghostly whispers conjuring evasions and circumlocutions, a surfeit of the usual theatrical bluster and malarkey—thank you, Jim Jordan—and the occasional huffs of exasperation by Mueller himself. The latter were not, though, evinced by any pained splinter of concern at the documented fact of presidential criminality. Rather, the special counsel showed the most energy when his rock-ribbed prosecutorial reputation seemed under interrogation. In contrast, the sedulous documentation in volume 2 of the Mueller report, which persuasively adumbrates almost a dozen discrete instances of presidential obstruction of justice, has vanished into little or nothing. At the hearing, their echo yielded nothing but “euphoria” from the White House.[2] The reason is easy enough to see: no reality-show producer is rushing to book Mueller on the strength of his ethereal performance.[3] But absent of some histrionic moment, like something out of A Few Good Men (1992), it is hard to see how the hearing could have made much impact in the first instance.

These events would be no surprise to readers of E. P. Thompson’s masterful history Whigs and Hunters. Its first 250-odd pages, after all, are a powerful, even unforgettable testimonial to the potency of “bad law, drawn by bad legislators, and enlarged by the interpretations of bad judges” (WH, p. 267). Those pages sketch indelibly the Black Act of 1723, a cruel enclosure of land and customary rights as an incident of class war, one that extended the death penalty to deer stealing, tree cutting, and burning. In the body of Thompson’s account, law is a tyranny, as red in tooth and claw as the rapacious English land-owning class that wielded it without compunction or hesitation.

Yet, in a passage that has puzzled many of his admirers and ideological fellow travelers, Thompson ends his account with a paean to the rule of law. Despite everything in Whigs and Hunters, he nonetheless praises the “remarkable” virtue of law. This adheres in its “principles of equity and universality which, perforce, has to be extended to all sorts and degrees of men” (WH, p. 259). This quality of generality is common to many leading definitions of the otherwise protean rule of law, from Joseph Raz’s to Lon Fuller’s.[4] Hardly a panacea—remember Anatole France’s pungent line about the law’s “majestic equality”—law still seemed to hold for Thompson the promise of some vestigial constraint on the wielding of state power against the vulnerable.[5]

One hears something of an echo of Thompson’s sentiment, I think, in calls from the left for the machinery of criminal justice—responsible for the evil of mass African-American incarcerations, the horrors of the war on drugs, and far more—to crank into action against Trump. There has been an idea on the left that prosecutors will come swinging to the rescue, ending the moral catastrophes of the Trump presidency, without reckoning with its structural causes or institutional continuities.

The hope was always an unlikely one, quite apart from its selective and culpable omissions about American criminal justice’s longer historical record. At the Mueller hearings, the hope plainly flared and died. The documented instances of serious criminality—witness tampering of the sort that gives drug dealers a bad name—are simply ignored, drowned out with cries of “no collusion.”

I think this is an opportune moment for thinking about the role that law plays in constraining power, and state power in particular, in a putatively liberal and democratic context. In particular, this is an opportunity to think about the circumstances in which that constraining role can be anticipated, and when it is likely to fail. When, that is, should we anticipate the cooperation of law with “tyranny,” and when should we anticipate the vindication of “principles of equity and universality”?

Something of an answer to this question germinates within the text of Whigs and Hunters itself. For Thompson, the “essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just” (WH, p. 263). That is, to function effectively as ideology, the law cannot be wholly supervened by the naked policy preferences of a hegemonic class. It can’t be too ruthless or zealous in its pursuit of dominion. The civilizing force of the law’s touch thus depends on the political implausibility of (too much) hypocrisy. Appearances, or the compulsion to keep them up, turns out to matter. This sort of mechanism contrasts with the notion, associated most recently with Frederick Schauer, that law constrains only when it can credibly threaten coercion or force.[6]

Once one focuses on the legitimacy of law as a normative system independent of “gross manipulation” as the effective vector of law’s constraint, the failure of the Mueller report to generate consequences commensurate with its accusatory force becomes clearer. For three related structural reasons, the current occupant of the White House has no need even to gesture or perform fealty to the rule of law in terms of his personal conduct. Both for him and for members of his political coalition—both legislators who ignore his criminality and judges who ignore his nakedly unconstitutional animus—the civilizing bent of law’s generality no longer has a gravitational pull. These reasons, to be clear, aren’t general in scope. They are local to a particular historical moment. They may be, therefore, exemplary rather than exhaustive of the conditions in which Thompson’s aspiration founders.

To begin with: there is simply no partisan political logic to law’s restraint, even where what is at issue are serious violations of the criminal law. In a separation-of-powers system, just as in a parliamentary system, a president in large measure stays afloat through his or her ability to influence legislators. Republican legislators in safe seats—whether because of the “big sort”[7] or just gerrymandering[8]—have to worry not about the general election but the primary. Unless Republican primary voters are motivated to care about legality, Republican legislators are not likely to be moved by allegations of law violation. That is, they have to worry about the slice of the population that is probably most likely to approve of Trump, and perhaps most likely to be enraptured by his venal and venial sins. But Trump commands an approval ratingconsistently greater than 80 percent among Republican voters.[9] That approval may be correlated with a distaste for certain elements of liberal constitutionalism.[10] Tellingly, it peaked after his recent racist attacks in four women legislators of color.[11] This means that Trump has nothing to fear from copartisan legislators; they, in contrast, have everything to fear from his ability to provoke a primary challenge.

Second, the American public sphere is organized around media that are structurally oriented toward the dilution and distortion of information harmful to Trump, and the elevation of information (true or not) that helps him. This is not the internet, but the pro-Trump cable news shows that populate much of the public imaginary. In a brilliant dissection of political misinformation during the 2016 election, Yochai Benkler, Robert Faris, and Hal Roberts have shown that misinformation’s diffusion is not the result of Putin’s troll farms or Cambridge Analytica, but rather the decision of cable news hosts, acting as trusted intermediaries, to push out Pizzagate or deep state conspiracies.[12] Benkler et al.’s compelling empirical analysis decisively undermines the canard that social media or Facebook alone has critically undermined the possibility of a shared public sphere by enabling the spread of disinformation.[13] Given the structural alignment between the Trump presidency and Fox News in particular, it was never likely that any wrongdoing (barring perhaps the infamous possibility of murder in cold daylight) would move the needle.

Finally, there is the content of the law itself. To an extent that nonlawyers perhaps do not appreciate, the law’s substance is not predetermined by the text of, say, a criminal statute or the Constitution. The questions whether the president can obstruct justice, or whether he or she can be indicted as a result, are not resolved by Article II of the Constitution or the obstruction statute directly. Rather, they are interpretations of the law. Interpretations depend on the institutional context in which they are manufactured. Law’s penumbra, as Thompson appreciated, is a function therefore of its institutional conditions.

The law of criminal penalties is in the first instance the work of prosecutors, who must interpret vague or general statutes before applying them. The only formal legal authority on whether a president can be indicted is, therefore, controlledby the Department of Justice, a body that reports to the president.[14] Even before one gets to the stacking of the federal bench with former prosecutors and White House lawyers, or starts to dabble in the airy suppositions of “unitary executive” theory, there was a (yet again structural) bias against the kind of generality that Thompson savored—at least when it comes to the president. The point here is absolutely not that the president is “above” or “beyond” the law: the relationship between law and the presidency is far too complex,[15] far too mutually constitutive, to support that sort of broad and inchoate a claim.[16] Rather, the specific forms of legality that the president can invoke, or that can be invoked against him or her, are a function of institutional context, and in the context of the criminal law there is a profound inconsistency between the aspiration of “principles of equity and universality” and the brute fact of institutional motivation.

On the same day as the Mueller hearing, a federal judge in Washington, D.C. upheld a Trump rule that would bar almost all asylum claimants because they had moved through a third country without first seeking asylum there, a rule that even the neoliberal Economist decried.[17]  Law, in at least one of the forms that Thompson recognized and documented in Whigs and Hunters, remains alive and well in America. Where and how it grips is a function, though, and should be the focus of careful and situated analysis—and not a matter of aspiration or hope alone.

[1] E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (London, 1975), p. 259; hereafter abbreviated WH.

[2] Eliana Johnson and Melanie Zanona, “’Euphoria’: White House, GOP exult after a flat Mueller performance,” Politico, 24 July 2019, https://www.politico.com/story/2019/07/24/robert-mueller-testimony-gop-white-house-1430049

[3] Peter Baker, “The Blockbuster That Wasn’t: Mueller Disappoints the Democrats,” New York Times, 24 July 2019, https://www.nytimes.com/2019/07/24/us/politics/trump-mueller-democrats.html

[4] See Joseph Raz, “The Law’s Own Virtue,” Oxford Journal of Legal Studies39, no. 1 (Spring 2019): 1-15; and Lon L. Fuller, The Morality of Law (New Haven, Conn., 1969).

[5] Anatole France, Le Lys Rouge(Paris, 1960).

[6] See Frederick Schauer, The Force of Law (Cambridge, Mass., 2015).

[7] Richard Florida, “America’s ‘Big Sort’ Is Only Getting Bigger,” CityLab, 25 Oct. 2016, https://www.citylab.com/equity/2016/10/the-big-sort-revisited/504830/

[8] See Nolan McCarty, Keith T. Poole, and Howard Rosenthal, “Does Gerrymandering Cause Polarization?” American Journal of Political Science53, no. 3 (July 2009): 666-680.

[9] “Trump approval ratings,” FiveThirtyEight, 30 July 2019, https://projects.fivethirtyeight.com/trump-approval-ratings/

[10] Aziz Z. Huq, “The People Against the Constitution” University of Michigan Law Review116, no. 6 (2018): 1123.

[11] “Republican Support for Trump Rises After Racially Charged Tweets,” Investing.com, 17 July 2019, https://www.investing.com/news/politics/republican-support-for-trump-rises-after-racially-charged-tweets-reutersipsos-poll-1925530

[12] Yochai Benkler, Robert Faris, and Hal Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (New York, 2018).

[13] The post-2016 criticism of social media, in any case, was always at odds with the known demography of the Trump coalition. More recent studiesshowing widespread distrust of social media on the right and left only undermine it further; see Katerina Eva Matsa and Elisa Shearer, “News Use Across Social Media Platforms 2018,” Journalism.org, 10 Sep. 2018, https://www.journalism.org/2018/09/10/news-use-across-social-media-platforms-2018/

[14] See “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” The United States Department of Justice, 10 Dec. 2018, https://www.justice.gov/olc/opinion/sitting-president’s-amenability-indictment-and-criminal-prosecution

[15] Aziz Z. Huq, “Binding the Executive (by Law or by Politics),” University of Chicago Law Review 79 (May 2012): 777.

[16] “While You Were Tweeting,” The Economist, Jul. 20, 2019, https://www.economist.com/leaders/2019/07/20/the-white-house-ditches-half-a-century-of-immigration-law

[17] See Spencer S. Hsu, “Federal judge allows Trump administration rule restricting asylum access to continue,” Washington Post, 24 July 2019, https://www.texastribune.org/2019/07/24/federal-judge-upholds-trump-administration-rule-restricting-asylum-acc/; and “The White House ditches half a century of immigration law,” The Economist, 20 July 2019, https://www.economist.com/leaders/2019/07/20/the-white-house-ditches-half-a-century-of-immigration-law

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