Republicans and
the Rule of Law

Republicans for the Rule of Law describe themselves as “life-long Republicans dedicated to defending the institutions of our republic and upholding the rule of law.” They insist they are fighting to make sure the laws apply equally to everyone, from the average citizen to the president of the United States. They claim to believe in fidelity to the Constitution, transparency, and the truth.

I am uneasy about a group describing itself in such a way. They seem to imply that other Republicans are not supportive of the rule of law. What specifically does this dubiously funded (George Soros/Paul Singer) organization really want?

They want the Senate to engage in further investigations and ultimately impeach Trump.

They have clearly confused the rule of law with the rule of partisan politics. They are a politically partisan, NeverTrump cabal.

But “rule of law” has a specific meaning in the Anglo-American legal context. In its canonical understanding by A.V. Dicey, the very first condition is that “no man is punishable . . . except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”

In President Trump’s case, there is no such identifiable crime. Democrats in the House of Representatives have invented new and totally ambiguous “crimes.” These invented crimes violate every principle of legality as articulated by Lon L. Fuller. The rules must be 1) sufficiently general, 2) publicly promulgated, 3) prospective (i.e., applicable only to future behavior, not past), 4) at least minimally clear and intelligible, 5) free of contradictions, 6) relatively constant, so that they don’t continuously change from day to day, 7) possible to obey, and 8) administered in a way that does not wildly diverge from their obvious or apparent meaning. Both Dicey and Fuller cite “nullum crimen sine legeor “no crime without law.” In other words, one can’t be guilty of a crime if the law did not establish an action as a crime at the time it was committed.

Supposedly, the Republicans for the Rule of Law believe in the Constitution and they see a relation between it, the rule of law, and a republic. Do they understand what this means?

A pure democracy (as in the sort said to be favored by the Democratic party) simply means majority rule. The Framers (in fact, every major thinker of the 18th century) understood that “pure democracy” wherein the untamed majority (or mob) vote wins every time is invariably unstable and ends in either tyranny or lawlessness.

The United States is not meant to be such a democracy. We are a republic. The Democratic Party is in favor of a pure democracy. They would do away with the Electoral College, for example. Democrats also believe that partisan majorities can impeach whomever they want. More important, they think they can more closely direct a simple majority.

A republic, however, favors a constitution that protects the rights of all citizens and minorities, not just majorities. Even President Trump has rights. Those rights include, for example, no warrants without probable cause, no unreasonable searches and seizures (per the Fourth Amendment); equal protection and due process (per the Fifth and 14th Amendments); the right to a lawyer; the right to all evidence and charges against him, and of a public trial before an impartial jury (per the Sixth Amendment); and attorney-client privilege—among others. It is illegal to go on “fishing expeditions” without either reasonable suspicion or a warrant based on probable cause hoping to find something against someone. We have already seen this in the FBI’s partisan abuse of the Foreign Intelligence Surveillance Court.

If one believes in the Constitution, then one must recognize that no branch of government is the final authority. Not the president. But also, not the House.

If one believes in the rule of law one must recognize (per Dicey) that prior practice should be followed. Precedent does not entitle the House to make the rules for the Senate.

An impeachment trial before the Senate is justified only if there is evidence that the president is likely to be guilty of treason, bribery, or other “high crimes and misdemeanors.” In parity with normal criminal trials, a public official must be presumed innocent until proven guilty at trial. Trump has not had a trial, and in fact, the House has refused to send the articles of impeachment to the Senate. Thus, while demands for impeachment are common (as early as Washington’s administration), actual impeachment is rare, and no president so far has been found guilty in an impeachment trial and removed from office. Not even Andrew Johnson. Until he has had a trial, Trump must be presumed innocent.

By refusing to deliver the articles of impeachment to the Senate, House Speaker Nancy Pelosi (D-Calif.) is ensuring no  trial can go forward. Why are the Democrats doing this? First, because Democrats know that the Senate will find Trump to be “not guilty,” in part because what they have charged him with are neither “high crimes” nor “misdemeanors.” Second, by delaying the trial, the fake news media has tried and found the president guilty of not jumping to the tune of the Democratic Party.

Keep in mind that it is not logically possible to prove one is innocent—but one can establish that one is not guilty. Only God can establish or know the truth.

To be accused of a “crime” is not automatically to be guilty. One is entitled to a fair trial. This norm does not mean one is to be tried and convicted by the media. One is entitled to defend oneself and not be subject to a Kafkaesque trial.

The reality is, all Republicans (and even some Democrats) believe in the rule of law. There are Republican members of the House who do not agree with or even like Trump, but who voted against impeachment because they understand and are really committed to principles. Can “Republicans for the Rule of Law” say the same?

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