Will the Rule of Law Survive in America?

American Democracy

Democracy Examined

Rule of Law Under Attack as President Trump Commutes Stone

During the Friday night graveyard slot last week, President Trump announced his decision to commute the sentence of convicted felon and longtime political confidant, Roger Stone. Stone became a central figure in Robert Mueller’s investigation into Russian meddling in the 2016 election after he was identified as the conduit between the Trump campaign, Russian intelligence officers, and Wikileaks. Over the course of the investigation, Stone was charged with five counts of lying to Congress, obstructing a congressional investigation, and tampering with a witness. In an extraordinary departure from DOJ norms, Attorney General Bill Barr overruled the prosecutor’s initial sentencing recommendations, prompting their withdrawal from the case and a significantly lighter sentence for Stone. 

Yet AG Barr’s intrusion into the case is dwarfed by Trump’s commutation, which is widely understood to be a delivery on the President’s promise to reward Stone for withholding information from Mueller’s investigation. According to the White House, Stone was a “victim of the Russia Hoax” and was charged with process crimes only “in an attempt to manufacture the false impression of criminality.” Robert Mueller maintains that Stone is a convicted felon, regardless of his commutation, and that his crimes impeded “the government’s efforts to find the truth and hold wrongdoers accountable.”

  1. The President has the power to commute. What is the issue here?

The Constitution gives the President the power to grant clemency to whomever he chooses, except during impeachment. However, that does not negate the fact that Stone’s commutation represents an unprecedented attack on the Rule of Law in our country. The Founders originally envisioned this power as a check on the judicial system. They never intended the President to use pardons to reward friends, and certainly not to secure the silence of those who could implicate him in a crime. The fact is that a disproportionately high number of President Trump’s pardons have been for political allies (31 out of 36, according to a Harvard Law Professor). Yet his commutation of Stone exceeds nepotism; his latest pardon borders on obstruction of justice. Even AG Barr admitted that “it would be a crime” to issue a pardon in exchange for the recipient’s promise to not incriminate him. In granting Stone leniency, he has misused his powers under the Constitution to place himself above the law. 

Presidential attacks on the Rule of Law are not without historical precedent, but they have never been so brazen. During the Watergate Scandal, President Richard Nixon and John Dean, the White House counsel, agreed that pardoning Watergate burglar E. Howard Hunt would be politically untenable. Even to Nixon, granting clemency to an individual who might testify against the President would be obviously corrupt. Fifty years ago, this behavior would have practically invited impeachment. Today, Congress does little more than look on impotently as the President undermines the Rule of Law. 

  1. Is there any safeguard against a President’s attacks on the Rule of Law?

The Founders had intended each branch to act as a check on the others with “ambition [counteracting] ambition,” but with Congress unable or unwilling to hold the Executive responsible, the President has wide latitude to pursue his own interests. Today, President Trump may use his constitutional powers as a shield, pardoning political allies and loyalists; tomorrow. will he move to prosecuting those investigating him in the first place? Will he attempt to indict his political opponents? These are not merely hypothetical questions. We are learning that without a Congress willing to hold the President responsible for his abuse of power, there is little we can do in-between elections.


Wisconsin Supreme Court
Source: wisconsin.gov

Wisconsin Legislature’s Power Grab Upheld 

Last Thursday, the Wisconsin Supreme Court upheld major laws curbing the constitutional powers of the state’s Governor and Attorney General. These laws—drafted in 2018 by a lame-duck Republican Legislature—mandated oversight and approval from a legislative committee on all legal actions taken by the Governor and Attorney General, effectively limiting the scope of the Democrats’ powers to act before they could take office. State Senate Majority Leader Scott Fitzgerald and others on the right argued the laws increased accountability for a “rogue” attorney general, while those on the left—including the dissenting judge—argued the laws made the governor “a drone without the energy or independent wherewithal to act as a co-equal member of government.”

  1. Why is this a problem for Democracy?

In a functioning democracy, there’s normally competition between the different branches of government in order to ensure they check and balance one another’s powers. But in this instance, that competition was undermined by politicians representing a minority of the population who sought to entrench their power in perpetuity. Indeed, if you’re a Wisconsin citizen who votes Democrat, this State Supreme Court case is yet another in a series of actions that may lead to a perception that the system is being rigged against you. 

In 2011, the Republican-controlled Legislature passed a sweeping voter ID law and severely gerrymandered state legislative districts to ensure that even if they got a minority of votes, they would maintain a majority of seats. The strategy worked: by 2018, Republicans “lost every statewide race, won less than half of the statewide vote, but won 63 of 99 seats in the state assembly and a majority in the state senate.” Then, after Democrats won the Attorney General and Governor’s race, Republicans used this majority to pass the aforementioned lame-duck laws that curbed the power of the popularly elected Democratic Governor and Attorney General, changes that had been deemed unnecessary when Republicans held those offices.

What’s more, while some states like Michigan and North Carolina have had gerrymandered districts struck down by their courts, Wisconsin’s court has not done the same. On top of this, the Court didn’t just predominantly side with the lame duck laws that limited the powers of the popularly elected governor and AG. It also bucked 85 years of precedent by overturning Governor Ever’s vetoes on multiple spending bills, even while similar cases against former Republican Gov. Scott Walker’s veto habits were dismissed

  1. Have other states legislatures done similar things?

Yes, this undemocratic behavior is part of a larger pattern. In North Carolina, Republicans attempted to limit the incoming Democratic Governor Roy Cooper’s power to appoint cabinet members before his inauguration in January, 2017. And aside from this lame-duck strategy, state legislatures across the country have gerrymandered their districts to unfairly benefit one political party over another. This problem has been accelerated by technological innovations that have allowed political operatives to precisely gerrymander districts for maximal political benefit. And it hasn’t just been Republicans that have benefited from gerrymandering. In Maryland, the Democratic party has severely gerrymandered the state. Regardless of who employs these political strategies, they violate the will of the people and severely undermine citizens’ trust in the democratic process.

Historic print of Oklahoma showing Native American Tribe's regions
Source: Oklahoma Department of Transportation / Government Printing Office / The Atlantic

Supreme Court Makes Most Significant Native American Decision in Decades 

On Thursday, the Supreme Court ruled that most of Eastern Oklahoma remains an American Indian reservation, in a decision that will have major ramifications for criminal justice and Native American territorial sovereignty. Neil Gorsuch sided with the court’s liberal bloc in a 5-4 decision, ruling that only federal and tribal – but not state – courts have jurisdiction to prosecute crimes involving Native Americans committed on Native land. These changes in jurisdiction cast into doubt hundreds of prior state convictions of Native Americans.

The Court further ruled that the Muscogee Creek Nation’s boundaries, which contain much of Tulsa (the state’s second biggest city), were never legally dissolved and therefore remain Native land.

The majority opinion, penned by Gorsuch, argued that Congress’ previous delineation of the area as an Indian reservation still held: “because Congress has not said otherwise, we hold the government to its word.” The decision directly impacts five Native American tribes across a 3 million acre stretch of Eastern Oklahoma. Reflecting the sentiments of Native rights activists nationwide, Principal Chief David Hill of the Muscogee Creek Nation declared, “this is a historic day… it’s never too late to make things right.”

  1. What benefits does the ruling have for Native Americans?

Although the decision most directly affects the region’s criminal justice system, it has important broader implications. For instance, lawyers are examining the impacts of the decision on issues like taxing and zoning, particularly whether the reservation’s residents are exempt from obligations such as state taxes. Environmental regulations are also in question, as indigenous activists consider the effects of the decision on tribal negotiating power in future deliberations with the state.

At its core, the shift in jurisdiction gives Native Americans a glimmer of hope for representation, sovereignty, and the correction of historical wrongs as America reckons with its checkered past. Between 1831 and 1837, tens of thousands of Native Americans were forcibly relocated from their long-time homes in the Southeastern United States to what would one day become the state of Oklahoma. The Supreme Court’s decision finally makes good on the promise which lay, in the words of Justice Gorsuch, “on the far end of the Trail of Tears” – the promise, made by the federal government in 1832, that the Indigenous people of the land would one day “be allowed to govern themselves.” 

  1. Do Native Americans have an ally in the Supreme Court?

Justice Gorsuch’s vote, while not unexpected, bodes well for future Supreme Court cases on tribal rights and sovereignty. Gorsuch’s textualist approach to interpreting the Constitution and 19th century treaties has landed him on the side of protecting the land rights of Native residents more often than not. Since his appointment, he has been the swing vote in favor of Native American rights in multiple cases. In 2017, for instance, the Court ruled 5-4 that the state of Wyoming could not cite an Indigenous man for illegally hunting game in the state, with Gorsuch delivering the decisive vote. And in 2019, Gorsuch successfully argued that a Yakama Nation-owned business could not have fuel taxes imposed on it by Washington state. 

Gorsuch’s powerful concluding words in Oklahoma v. McGirt shed a great deal of light on the impact of his philosophy on his decision-making: 

If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.

It’s safe to say that Native Americans can expect a fair hearing on the Supreme Court in the coming years.