Here’s what I saw on the news tonight:
1) A President exploiting the power of his office to manipulate the justice system.
2) A presidential candidate boasting about how, in her first act as a state legislator, she exploited the power of her office to manipulate the insurance market (by requiring the purchase of additional insurance to cover the cost of extended hospital stays for new mothers of hospitalized infants).
The President seeks to change judicial outcomes for the benefit of his small band of cronies. The presidential candidate sought to change market outcomes for what she portrayed as the benefit of a small number of patients.
At least the President seems to know what he’s doing. The presidential candidate seems not to have understood, and still not to understand (or at least pretends not to understand), that you don’t make people better off by forcing them to buy additional insurance after the market has already revealed that they have other priorities.
I also saw a bunch of commentators who, like me, are outraged, appalled, and frightened by the arrogance of the President. None of them offered any comment on the arrogance of the presidential candidate — who, frighteningly enough, seems to me to be probably the least dreadful of the alternatives.
The executive branch can make recommendations on sentencing. In any bureaucracy, low-lever employees are subject to be overruled by higher management, and the bosses have a responsibility to see to it that the underlings do their jobs properly.
So the President should speak up if he believes that someone under him is using poor judgment. Apparently that was the case today.
#1 “Apparently that was the case today.” We don’t get everything immediately here over the pond, but I did not know what Roger was talking about here until I looked it up. The pace of the disturbing revelations are stunning.
There is a category difference between politicians with bad policies (all of them) and politicians who are corrupt. There is a difference between bad policy and undermining the entire justice system. Roger is entirely wrong. It is absolutely not the President’s position to insert himself in reducing the sentence of allies. The whole system of checks and balances is teetering. As an example, after the failed impeachment, Trump could probably pardon political allies with impunity, which would allow people to break the law on his behalf without fear of justice. We have already seen him do this. Other presidents have left their dodgy pardons until they are leaving office, where the specific pardon may be considered bad but it does not affect future action.
If we accept for a moment that the candidate’s policy is entirely bad for the reasons given, that does not in any way undermine the system. That is the system, and it is fair game to point out any inconsistencies you may see in the policy and ask people not to vote for it. That does not make it anything like the corruption of the incumbent and to try to draw parallels is not really valid.
However, the reasons given do not necessarily make the policy bad. I read a book containing a chapter on how insurance systems can fail and get locked into an inflationary cycle. One solution suggested by the author, although it made him uncomfortable, was some form of Government intervention.
I do not know which specific policy is being discussed here, I would have to look it up, but it is clear that these are very different things. One is business as usual and can be voted against, the other is dismantling the system.
When trump was elected, I observed the checks and balances working. As an outsider I did not really understand how it was supposed to work, but seeing it in action made me think it was a pretty good system. As an outsider, I am now seeing the system starting to break down. Any system is only as good as the people who implement it. That is a far more serious problem than an economically uneducated politician.
One of the prosecutors who resigned was called Zelinsky. That is rather close to someone else in the news recently. Is there a conspiracy?
Harold, we have a constitution, and a judge with a lifetime appointment decides on the sentence. The President, or someone working for him, merely makes a recommendation.
A low-level prosecutor made a recommendation of 7-9 years for Stone, who had been prosecuted for essentially political reasons. Do you really think Stone deserves 7-9 years? Trump does not, and it is his duty under our system to make such judgments.
To add to Roger’s response, the prosecutors did not brief the DOJ on this sentence recommendation. Sentencing recommendation is based on a point system within the statutory guidelines, i.e., whether you are closer to the 5 or 10 in a 5-10 year statutory guidelines. The prosecutors added a bunch of points with shaky support and were overruled by the DOJ prior to Trump ever being involved.
Perhaps some institutional knowledge should be sought before assuming nefarious actions. Also, this is the fallacy of the one sided alternative. Trump’s actions are bad but the other party’s motivations and actions are never questioned.
As for Harold #2:
I am with Roger on this. And Harold is not correct.
The US Department of Justice is part of the executive branch. And the president of the US is the head of that branch. The president can insert himself/herself in anything, because he/she *is* the executive branch.
In other words, the US Dept of Justice is not an independent entity floating around in Washington DC with powers different from the president.
#6 Illustrates my point very well. The president can do anything he wants because he is the president. Everybody agrees that the president has almost unlimited pardon powers for federal crimes. Almost nobody thinks he should exercise those to pardon his friends who commit crimes on his behalf or commit crimes that he does not mind. At least, until recently almost nobody thought that. He swore an oath to act in the interests of the USA, not himself. The fact that he has certain powers does not mean he can exercise them in his own interests.
One of the missions of DoJ is “to ensure fair and impartial administration of justice for all Americans.” If the President involves himself in individual cases it is not possible to carry out that mission. This is all quite obvious and until recently accepted pretty much by everyone. I do not understand why otherwise reasonable people ignore this stuff.
The Justice system must be apolitical and be seen to be so. It is a cornerstone of the system that there is not political interference in individual cases.
“The president can insert himself/herself in anything, because he/she *is* the executive branch.”
To get this straight, you think it is OK for the president to tell the Justice Dept. he wants them to recommend low sentences for any individual he wants.
Some defenders of Trump deny what he did was political interference because the decision to reduce the sentence recommendation came before the tweet, as Tom says above (#5). Very few defend the idea that it would be OK for that political interference to occur.
#4 “Do you really think Stone deserves 7-9 years?” That is up to the Judge. He was convicted by a jury.
#5 “Trump’s actions are bad but the other party’s motivations and actions are never questioned.” Which other party?
But again, to clarify your argument, you think it was not political interference, but if Trump did interfere in such sentencing recommendations that would be wrong? It would be wrong for Trump to tell Barr he wants lower sentence and for Barr to then tell prosecutors to recommend a lower sentence?
Harold:
“The Justice system must be apolitical and be seen to be so. It is a cornerstone of the system that there is not political interference in individual cases.”
Yes, the justice system may have to be apolitical – but the US Dept of Justice is not apolitical. It is part of the executive branch, thus, very political.
Can the president point out stuff he thinks are not right? Of course he can. In this specific case Trump was pointing out a double standard – rapists and armed robbers (that is, people who commit much more violent crimes) get sentences that are far lighter than the US Dept of Justice was recommending. And that did not sound well to Trump, and he was vocal about it – so what?
By the way – many people, including ones that are not fond of Roger Stone, agree with Trump on this issue (not on others).
You seem to believe that the US Dept of Justice exists in a bubble, somewhere independently, in cyberspace or wherever, out of reach of criticism, out of reach of any accountability. No, the US Dept of Justice is not a solitary island doing its own thing. No, no, and no.
One more thing: you say:
“The fact that he [the president] has certain powers does not mean he can exercise them in his own interests.”
Harold – it is nice to live in Paradise, where we all hold hands and sing Kumbahayah.
The fact is that here on planet Earth, ALL presidents, from the first one onward, exercised powers in his own interests. All of them.
#8 Manfred, Historical note.
The idea of presecutorial independence is very old. It is not laid out in the constitution, nor has it been adjudicated by SC. Nevertheless, according to law scholars (for example Green, Roiphe and many, many others), the concept is baked into the system by history, tradition and practice. Under this narrative prosecutors have a duty, as attorneys, to the rule of law so the Justice Department must stand as an independent bulwark against presidential overreach. Congress has a long-standing acquiescence to the convention, demonstrated in many ways, which is an implicit endorsement of the concept. President Trump has often acted as if this were the case.
Until recently I believe almost everybody subscribed to this view. Almost without exception, Presidents dictated DoJ policy whilst staying out of individual cases. President Nixon was a notable exception, along with the occasional case by Washington, Jefferson and Adams.
This has never been tested by the SC, largely because it was almost universally accepted. There have been some pointers. In 1838 the SC ruled that Congress can impose duties on officials and “”in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President.”
The alternative narrative, as put forward by Alan Dershowitz (before the impeachment)and some others, suggests that the constitution gives the President authority to tell DoJ who to investigate and who to prosecute. Justice department officials are mere instruments of the presidents authority.
This is reversal of the convention.
The independence of the DoJ has been one of America’s strong points. Justice is not politicised and people by-and-large can expect equal treatment under the law.
Are you saying that you agree with the Dershowitz conclusion – that the president has virtually unlimited power to control DoJ and its officials, to decide who is or is not prosecuted?
Supplementary – if yes, do you really think that is a good thing?
Could we see the cost-benefit on additional insurance to cover the cost of extended hospital stays for new mothers of hospitalized infants? At first glance it looks like an innocuous (in a dead weight loss sense) transfer from those at lower risk of extended hospital stays to those with higher risks.
Harold, you act as if the DoJ is a fourth branch of government. It is not. It has always been subordinate to the executive branch. DoJ is not independent. We even had a President (JFK) who appointed his brother to be in charge of DoJ.
Other countries do handle their justice departments differently. But in the USA, all of DoJ is under the supervision of the President.
#11 Roger. You are avoiding the point. The DoJ has always been viewed as part of the executive and having prosecutorial independence. It is a part of the executive, but the officials have until now been free to operate (more-or-less) without political interference.
Dershowitz and Trump are trying to reverse that. This is a very significant thing, at the heart of the rule of law.
Examples of experts saying this, whilst fully acknowledging that DoJ is part of the executive:
“It is not the case that the president has the authority to supervise the discretionary acts of all executive branch officials,” said Kermit Roosevelt, a law professor at the University of Pennsylvania. “His duty is to take care that the laws are faithfully executed, not to execute them himself.”
“Douglas Kmiec, who held senior positions in the Justice Department under presidents Ronald Reagan and George W. Bush, called Dershowitz’s comment “an overstatement of the proposition that law enforcement is an executive function. Of course it is, and in that sense it is under the general supervision of the president. But basic principles of due process necessarily preclude a president from interceding into the enforcement of the law against individual defendants.”
“Those bodies are: the police, the prosecution and the judiciary. It is a fundamental principle of the rule of law that each of these agencies must be left free of political interference in their work.”
“It [this paper] argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not follow from any explicit constitutional or legislative mandate, but is based on an evolving understanding of
prosecutorial independence and professional norms…But designating criminal prosecution an “executive” function does not necessarily determine who within the Executive Branch has authority to make particular prosecutorial decisions. Criminal prosecution is not among the presidential powers enumerated in Article II.”
That paper is here, and well worth a read.
https://www.law.ua.edu/lawreview/files/2018/12/1-Green-Roiphe-1-75.pdf
The issue is, do we overturn this long-held belief in prosecutorial independence? DoJ being part of the executive branch is irrelevant.
It is avoiding this issue to point out ways in which the DoJ has always been political. What is in question is a major and fundamental change in the relationship between the President and Justice.
Here is another from 1937. The specific issue was appropriations, but the limits of presidential power over officials is clear.
https://www.justice.gov/file/19191/download
To paraphrase George Box: All politicians are wrong; some are useful (because they will try to stack SCOTUS to rig the Constitution in my preferred direction).
Harold, your sources give opinions against political prosecutions, but that is what Trump was also doing — giving an opinion against a political prosecution. None of those sources say that a President cannot give an opinion against a sentencing recommendation.
The whole prosecution of Stone was political. The Mueller investigation spent 2 years trying to link the Trump campaign to the Russians, and the closest they got was Manifort not paying some taxes on some East European income, and Stone spreading some rumors about Wikileaks. So the “independent” DoJ did everything they could to intimidate Manifort and Stone to produce evidence against Trump. In the end, they had nothing, and Trump was acquitted.
So now Manifort and Stone might spend the rest of their lives in prison anyway? The President should put an end to it.
Your law review article ends with “history and policy suggest that prosecutors must answer to the law, not the President.” Nobody here is suggesting that prosecutors disobey the law.
By resigning, the prosecutors are essentially admitting that they were angry that the management was limiting their ability to carry out their personal anti-Trump vendetta. There is now a 4-year history of DoJ political activities against Trump, going back to the faked FISA warrants to spy on the Trump campaign.
Harold is obviously right; this would be perfectly obvious to his opponents in this thread if the president in question was a Democrat.
DOJ actually applies a logical framework in developing it’s sentencing recommendations. It is a quantitatively-based assessment.I learned a lot from this article.
https://thehill.com/opinion/judiciary/483090-roger-stones-sentence-how-the-judge-will-really-decide-to-lock-him-up
The real issue here is this: Were the prosecutors political operatives driven by excessive zeal to seek a punishment too severe for the crime or is the Justice Department acting unethically by stepping in at the behest of a corrupt President? If it is the first, then the leadership at the Justice Department is working honorably in conjunction with the president to clean up prosecutions based on a unethical bias against the president. If it is the latter, then good, hard working prosecutors are being betrayed by their immoral superiors. Which is it? I’d like to know.
Larry, I think that you are looking at this the wrong way. America has an adversarial system of justice. Prosecutors have excessive zeal to imprison people, and defense attorneys have excessive zeal to get them acquitted. That is how the system normally works. Only the judges and juries are supposed to be neutral and objective. Prosecutors are subject to oversight by management, political appointments, and elected officials.
Forget the particulars of these cases. The big question is does the President have an absolute right to decide who is or is not prosecuted, as he has claimed?
Roger: “None of those sources say that a President cannot give an opinion against a sentencing recommendation.” They all say the President should not involve himself in individual cases.
Back on Feb 12th (#2) I wrote ” As an example, after the failed impeachment, Trump could probably pardon political allies with impunity, which would allow people to break the law on his behalf without fear of justice.”
On 18th Feb Trump pardons 11 criminals, without the usual formal pardon process of approval by the Office of the Pardon Attorney. Instead these seem to be the result of personal appeals to the president.
As I said, past presidents have almost always restricted such pardons to the very end of their presidency.
My statement seems somewhat prophetic. If this does not cause alarm among Trump supporters I think there is something wrong with them.
Another point, from the same study above:
“Table 1 shows that the search rate for black drivers (5.4%) and Hispanic drivers (4.1%) is higher than for whites drivers (3.1%). Moreover, when searched, the rate of recovering contraband on blacks (29%)and Hispanics (19%) is lower than when searching whites (32%). Thus both the benchmark and outcome tests point to discrimination in search decisions against blacks and Hispanics.
So overall, the results are the same for all tests, benchmark, outcome and threshold. There was discrimination against blacks and Hispanics. The threshold test did show a more consistent pattern when looking at district data.
#22 posted on the wrong post – I will copy to Stop and Think
Harold, I am not alarmed. Trump was elected to drain the swamp, and that means sometimes overruling the unelected swamp creatures who work for his administration. You have your own opinions about Trump should be doing, but you don’t even live in the USA. You also cite the opinions of Democrats and other Trump-haters. If they don’t agree with what Trump is doing, they can vote against him in November.
Your arguments have collapsed one-by-one and have now descended to ignoring evidence because you say it comes from Trump-haters. Of course, anything said against Trump must be from a Trump-hater, so all contrary evidence can be ignored.
There is no argument against Trump based on either American law or the facts of the case. There are only opinions from Trump-haters about what they personally think that Trump should be doing.
The judge sentenced Stone today, and she agreed with Trump and Barr that 7-9 years for Stone would have been excessive.
I don’t think Homer S. Cummings, Attorney general in 1937 was a Trump-hater.
We are not going to agre on Trump, but we can discuss the issue moe generally. I am interested to explore.
You have avoided the question I asked – do you think the President has the right to decide who is or is not proecuted, as Trump and Dershowitz claim, and many comments here support?
This is pretty central. What do you think the limits on the President’s power are? We do not need to discuss here whether Trump is “interfering” or “voicing an opinion.”
I read the Cummings letter. He argues that where Congress has given authority to some administration official, the President can tell him what to do, but he only recourse is to fire him if he does not do as told. This would imply that Trump cannot personally prosecute a case.
The law review article says that there is a historical difference of opinion about the President’s ability to interfere with federal prosecutors. It says “there ought to be a respect and deference, at the least, to professional prosecutors and other officials”.
Okay, maybe so, but ultimately the authority is with the President. I would say the same about military decisions. He has generals and many other officers of various ranks, and a sensible President will delegate 99.999% of the decisions, but ultimately the commander-in-chief has the decision-making power.
Yes, the President has the power to decide who is or is not prosecuted. If bad decisions are being made, then he can fire those prosecutors and hire others. Appointing an attorney general requires senate confirmation. This is how prosecutors are held accountable in the American political system.
“Yes, the President has the power to decide who is or is not prosecuted.”
If we were to grant that,
1) Do you think that is a good thing and promotes Justice?
2) Do you agree if he does have this power, then were the President to use this power for his own personal or party interests against the national interest, the only remedy would be impeachment?
However, I do not grant that he does have the power.
“This would imply that Trump cannot personally prosecute a case.” I take it to mean that Trump cannot direct the officials to prosecute a case. That would be performing the duty of the official, which in this case is deciding who to prosecute.
It has not been necessary to question this power very much, because all Presidents since Watergate (and most before) have accepted the norm that they do not get involved in individual cases and that prosecutors are independent, acting according to the law, not the President. The tension between accountability and independence I believe has prevented Senate from formalizing the separation. They saw no need, and left the situation controlled by norms rather than legislation. Thus the law does not make it explicit. The second part of the Law Review paper “shows that prosecutorial independence is so clearly a part of our democratic system that Congress’s failure to authorize presidential control shows acquiescence or implicit endorsement.”
Taken together with the laws that do exists, the authors believe that this means the President does not have that power. There may be exceptions where other enumerated powers are involved, such as foreign policy. This would not be the case for most criminal prosecutions.
You can argue that the power always existed for presidents, they just elected no to use it. We will not know for sure unless a case goes to the SC.
What we do know is that abandoning the previously accepted independence of prosecutors would be a radical change in the administration of justice. It would allow personal and partisan control of this powerful lever. So to answer my own question 1), it is a very bad thing and sets back the goal of justice for all and equal treatment before the law.
Harold, to answer your questions:
1) Yes, I believe that it is a good thing. Federal prosecutors have a lot of power. They can destroy popularly elected officials, such as Alaska Senator Ted Stevens and Illinois Gov. Rod Blagojevich. I happen to believe that both were innocent of the criminal charges. Some disagree. But I certainly don’t think that such prosecutions should take place without management oversight, and that is essentially what you are arguing for.
2) No, I think the proper remedy is to vote the President out. He should not be impeached for carrying out lawful acts.
In this case, all Trump did was to express the opinion that 7-9 years for Stone would be excessive. The judge issued the same opinion. If that is impeachable, then the judge is the one who should be impeached.
Those who argue for DoJ independence wanted to impeach Trump for firing FBI Director Comey. That did not happen because DoJ independence is a big myth, and the consensus was that Trump had the authority to fire Comey.
So to be clear.
You think that Trump has legal authority to dictate who is or is not prosecuted.
Because he has this legal power, any act he makes in this regard is a lawful act. It is not possible for the President to abuse this power because any act he makes is lawful.
Therefore impeachment would never be appropriate for any act the President makes in this regard.
His pardoning power is essentially unlimited and lawful,therefore any pardons he gives are lawful and not subject to remedy by imepeachment.
It is good to get these things clear. Some people speak of Trump Derangement Syndrome. It is clear to me that it is the followers of Trump who are suffering from this. To allow the very foundation of the rule of law to be washed away in the following of Trump.
“I happen to believe that both were innocent of the criminal charges”
For fucks sake – this is why we have trials! You don’t get to decide whether you think someone was guilty without being a juror! Where would that stop? You are saying that you do not believe in the rule of law, but that personal opinion should trump the verdict of a jury. I do not usually swear in these forums, but sometimes the emphasis just seems necessary. When someone says something as stupid as that expletives just seem necesssary.
Harold, I am just describing American law as it has existed for 2 centuries. It has nothing to do with Trump. Trump’s opinions on these issues are not much different from those of previous presidents.
Yes, I have my personal opinions, which may not agree with those of jurors, judges, and others.
The term “rule of law” refers to adherence to written laws. You are the one proposing limitations on presidential power that are not written in our constitution or statutes.
“The term “rule of law” refers to adherence to written laws. You are the one proposing limitations on presidential power that are not written in our constitution or statutes.”
The term means much more than that.
On line dictionary has it as “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.”
World justice project has it as comprising 4 main elements; accountability, just laws, open Government and accessible & impartial dispute resolution.
One of the fundamental pillars of the rule of law is that officers of the executive do not use their powers for personal gain.
You have literally just argued that the President should be allowed to exercise almost unlimited power over DOJ in his own interests, against the National interest, without fear of any sanction except losing the next election. This is the opposite of the rule of law.
“I am just describing American law as it has existed for 2 centuries.” No! You are describing a major change in the way Justice is delivered.
The laws neither sepcifically forbid nor allow interference by the President in individual cases. Practice, history and tradition have acted to prevent this sort of interference, representing aquiescence on the part of the Senate to this principle. They could have made it explicit if they wanted to change it so the pesident could unambiguosly interfere. They did not need to make it explicit (until now) because the principle of prosecutorial independence was adhered to by all presidents. One of the impeachment articles against Nixon was for doing exactly what you say he was allowed to do. He resigned because even he beieved it was wrong to do that.
“Trump’s opinions on these issues are not much different from those of previous presidents.”
They are radically different. Can you provide quotes from previous Presidents showing they claim an absolute right to personally direct the DOJ?
You cited a law review article by an extreme Trump-hater, and he relies heavily on the opinions of Nixon-haters. He admits “the uncontroversial principle that the Attorney General has discretion over whom to charge and control over other prosecutorial decisions in federal criminal cases.” It is also uncontroversial that the President can fire the AG at any time and for any reason, and appoint a replacement. So the difference of opinion is only whether the President can tell the AG what to do, or fire him and have a replacement do it.
Nixon resigned because it appeared that Congress was going to oust him. I am not sure Nixon was ever convinced that he did anything wrong, and there is no consensus that he did any specific illegal acts.
If, as you say, “laws neither specifically forbid nor allow” then the issue has nothing to do with “rule of law”. Yes, I realize that there are those who use the term “rule of law” to mean “just laws” or legal procedures that they happen to personally agree with, but that is not how the concept has been understand for millennia. If you want rule of law, then go pass some laws to forbid whatever it is that you want forbidden.
You profoundly misunderstand what is meant by the Rule of Law.
Stanford encyclopedia of philosophy says
“The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.”
Encyclopedia Britannica has it: “Rule of law, the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power.”
Your idea that the President can use his powers to act in his own personal (arbitrary) interests, against the public interest, without being held in any way accountable is the opposite of this.
Simply saying the law gives the President these powers does not get around this.
So please drop your insistence that the Rule of Law refers to adherence to written laws. It is getting stale.
If you want to provide your own definition of what you mean by the Rule of Law then do so, but don’t pretend it is the one that has been understood for millenia.
Harold, it is true that Adam Schiff, his Trump-hating law professor witnesses, and the NY Times also used “rule of law” to suit their anti-Trump ideologies. Schiff accused Trump of bribery and other crimes, but could not find a way to charge him of anything that had been defined by laws. So instead the articles of impeachment accused him of violating “rule of law”, where “rule of law” was reinterpreted to mean just the opposite of what it had meant for millennia.
Fortunately, the Senate rejected that reasoning, and dismissed those articles of impeachment.
It is odd that Republican Senators used the term Rule of Law the same as all the others I have described when when Obama was president.
Roger, does it not bother you that your use of the term is at odds with Stanford Encyclopedia of Philosophy, Encyclopedia Britannica, Websters dictionary and Republican senators from 5 years ago and even FreedomWorks?
It amazes me how far people will go to cling to favored views and beliefs. I started looking at Flat Earthers recently because I found it difficult to understand how anyone could subscribe to this patently false view. They cannot be shaken from their view because they understand so little. Reasonable and valid arguments just slide past their comprehension, because they think they understand stuff when they clearly do not and they determinedly make no attempt to gain grater understanding. This is a bit like talking to you. You think you know what Rule of Law has meant for millennia and you will not change no matter how much contrary evidence is presented.
Your idea that the President can use his powers to act in his own arbitrary interests, against the public interest, without being held in any way accountable is the opposite of the Rule of Law.
Those articles do not contradict anything I said.
The President is obligated to obey applicable laws, and not violate laws against crimes like bribery and treason.
Here is where I differ with Adam Schiff and you on use of term Rule of Law. Schiff said that it was in the public interest to give Ukraine weapons to kill Russians, and it violated Rule of Law for Trump to delay payment. The whole impeachment attempt was based on politics, and not any written laws.
You differ not with me and Schiff, but with all those encycopedia. Even Conservopedia has it as “the supremacy of regular as opposed to arbitrary power.”
I guess your quibble is that I said Rule of Law is based on “written” laws, and your source says “regular”. Other dictionaries and encyclopedias use terms like “subject to publicly disclosed legal codes”. [Oxford English Dictionary, Wikipedia]
No pre-Trump source says that Rule of Law means that an unelected prosecutor can make a sentencing recommendation without management oversight. That would be arbitrary use of power.
It is a bit late now, but one final effort.
Hypothetical scenario: a law is passed and written down saying that the President has the lawful power to rule on guilt or innocence in all trials and to decide who is prosecuted.
The president could then have Bernie Sanders or Joe Biden prosecuted for sedition and find them guilty. Would that would be according to the rule of law because written laws were followed?
The USA has a constitution, and it would be impossible for Congress to pass a law like that. The constitution is extremely difficult to amend.
Also, the sedition law would have to have some well-defined meaning, and Sanders and Biden would have to be in violation of those terms. Just running for President is unlikely to be in violation of any written law.
In wartime, soldiers are prosecuted with minimal due process. But it is still rule of law, if the soldier violates some written law that is also applicable to other soldiers.
It would not be impossible. It just requires the votes. It would then some time later presumably be challenged and ruled on by the SC, but until then it would be a written law. The written law would be against the rule of law.
This is an extreme example to demonstrate the principle that the rule of law is not all about written laws.
The SC has not yet ruled on prosecutorial independence.
Yes, you could make an argument if a written law that gives too much discretion to those who administer the law, then it is not really rule of law.
And if you are waiting for some Supreme Court opinion on the subject, it is not really rule of law either. It is rule by judges who invent their own interpretations of the law.
“And if you are waiting for some Supreme Court opinion on the subject, it is not really rule of law either. It is rule by judges who invent their own interpretations of the law.”
Yes! You are getting it. The SC itself can in principle act against the rule of law, even though their decisions are definitive according to the constitution.
The rule of law is not dependent only on written laws, nor on a rigid system of supreme court rulings nor on the existence of a written constitution.
Instead it is “the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power.”
What holds it all together as much as the written stuff is the adherence to accepted norms, principles and beliefs – one of which is a belief in the rule of law itself.
You are quoting from a British encyclopedia. It cites “the legitimate authority of monarchs”, and says “a binding written constitution is widely believed to aid the rule of law”.
This is a British view. The USA has a written constitution.
Stanford says much the same thing. I agree that a binding written or codified constitution aids the rule of law. Most countries do have one. The UK gets by without a written constitution and the rule of law more or less applies. It is perhaps a special case given the lengthy history with a relatively uniform government system. A codified constitution may help, but getting one agreed for the UK today would be very difficult and we seem to get by without. Other examples are Canada, New Zealand, Israel and Saudi Arabia, with differing degrees of success at applying the rule of law.
Whilst a constitution aids the rule of law, it is not sufficient to provide the rule of law. The constitution of the Soviet Union guaranteed free speech and freedom of assembly, yet people who transgressed were summarily imprisoned and worse. On top of the constitution you need prosecutors and judiciary that are independent of the top political control. Anything that interferes with this independence weakens the rule of law.