Trump is the first presidential candidate of my lifetime who has been regularly criticized for making public statements conforming to rule of law principles. Part of the confusion in the minds of his many critics arises from simple confirmation bias. But another part comes from an inability of his critics to plainly discuss what they mean by the rule of law. No doubt much of it is simply disagreement with the man’s over-the-top style and his political orientation—but normal disagreement about political principles, absent clear on point evidence, ought not lead to claims that one’s opponent is a threat to the rule of law.
So what is the “rule of law”? Unfortunately, there is no simple answer to that query. I well remember my graduation from law school. A thoughtful fellow behind me said, as we waited on line to receive our degrees: “Seth, after three years of law school, as far as I can tell, the rule of law is what a prosecutor says is at risk if he loses a criminal case heard by a jury.” That answer of convenience will not do. Other people fill in the rule of law with all good and noble principles: the rule of law is human rights, separation of powers, democracy, etc. This approach is not helpful either, for even if the virtues of these other principles were not contestable, their content and optimal scope remains deeply contested.
Without attempting to fully define the rule of law, I will put forward some minimal necessary (but not sufficient) conditions associated with the “rule of law”. A person’s conduct is inconsistent with the rule of law, if he knowingly disobeys established law without seeking a change in the law from the legislature (including referenda where permitted by law) or validation of his specific conduct from the courts. On the other hand, a person’s conduct is consistent with the rule of law, if he obeys the judicial orders of lawfully constituted courts, and if he obeys the rules associated with the conduct of litigation in those courts.*
Some accused President William Jefferson Clinton of taking actions inconsistent with the rule of law simply because he attempted to litigate the question of whether the President enjoyed immunity against civil litigation during his four-year constitutional term. This specific critique against President Clinton was misplaced. It was misplaced because the legal issue, the existence of presidential immunity, was left to the courts to decide, not to the President, and because when the courts decided against the President, litigation continued in its normal course (and ultimately the action settled). See Clinton v. Jones, 520 U.S. 681 (1997) (Stevens, J.). Clinton lost. But the fact that President Clinton lost a case—even one involving his own personal interests—does not mean he acted contrary to rule of law norms (on this particular occasion).
Now let’s take a hypothetical. A presidential candidate says:
The federal judges have become lawless overlords. Tyrants. The system is rigged. We must quickly remove all appointed-for-life Article III Justices and judges, and replace them all with elected judges with 5-year terms, and until that is achieved, we must move as much federal litigation as possible into state courts (i.e., those with elected judges) and into federal Executive Branch adjudicatory bodies** subject to presidential oversight.҂҂ We will do the former via constitutional amendment, and the latter via statute.
Now what should we say about such a presidential candidate? If we think his characterization of our current crop of federal judges is correct,*** then we might agree with the course of conduct he suggests. But even if we agree with his characterization of our current crop of federal judges, we still might disagree with the proposed remedy: we might disagree for any number of reasons. We might think the remedy unlikely to fix the problem, or that the proposed remedy itself has defects worse than the (purported) disease.
We also might disagree with this hypothetical presidential candidate’s characterization. We might highly value the personal characteristics and judicial accomplishments of the federal judiciary, and therefore oppose the proposed reform. Would it be fair for such people, i.e., people taking the latter point of view, to claim that the presidential candidate here is a threat to the rule of law?
My view is that it would not be fair; my view is that it would be distinctly unfair. The candidate here is not threatening to use violence. Instead, he is making a proposal and offering reasons for his proposal. And if elected, he is telling us that he intends to use lawful means to achieve his proposal before putting them into effect. For one to suggest otherwise, to suggest that the candidate here is a threat to the rule of law, is merely a way of equating one’s own preferred policy outcomes with the rule of law. In other words, the rule of law is what I think good, and if you are opposed to what I think good, you threaten the rule of law. That all-too-thick all-too-politically-convenient personalized conception of the rule of law won’t do. Nor will it do to identify the rule of law with an appointed-for-life judiciary or our particular longstanding Article III conventions. Several U.S. states elect their judicial officials for fixed terms. Yet, few argue that we have no-rule-of-law zones (and states) in the United States. The Jeffersonians, in effect, removed several Article III judges from their lifetime positions, through their legislative reforms to the organization of the federal circuit courts. The judges who remained on the bench continued to enjoy traditional independence from the President and the Executive Branch. You might disagree with those reforms, but the issue was fully and fairly litigated. See generally Stuart v. Laird, 5 U.S. 299 (1803) (Paterson, J.). Thus, the rule of law continued.
Now let’s try another hypothetical. A presidential candidate says:
The federal judges have become lawless overlords. Tyrants. The system is rigged. We must quickly remove all appointed-for-life Article III Justices and judges, and replace them all with elected judges with 5-year terms. We will first try to use constitutional amendments and statutes, but the issue is too important to leave entirely to normal means. After Justice Ginsburg’s overt politicization of the courts, our politics is no longer normal. I hope this election will be an Ackerman/Tushnet democratic moment. So if you elect me and if the politicized judges stand in the way, I will use the Army to surround the courthouses, and send the FBI to dissenting judges’ homes and keep them from holding hearings and trials. I plan to effectuate the changes I have discussed here by any means possible.
This candidate is plainly making plans (albeit, contingent plans) to violate the law, and he is not relying on future legislative enactments or judicial validation to justify lawless action. This candidate’s intended course of conduct is not consistent with the rule of law. That said, the candidate’s deprecating statements against federal judges are not what makes his conduct inconsistent with the rule of law—such statements are clearly constitutionally protected speech, and that applies both to candidates and even to sitting Presidents. His conduct is inconsistent with the rule of law because he intends to break the law. Buddy—this ain’t rocket science.
Let’s turn to Trump. Professor David Post, on The Volokh Conspiracy, quoted Trump as having stated:
The trial, they wanted it to start while I am running for President. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .
I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.
And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.
The good news is it is a jury trial. We can even get a fully [sic] jury. We are entitled to a jury, and we want a jury of 12 people. And you are going to watch. First of all, it should be dismissed. Watch how we win it as I have been treated unfairly. . . . So what happens is the judge, who happens to be, we believe Mexican, which is great. I think that is fine. You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs. I think they are going to love it. I think they are going to love me. . . .
A lot of people said before you run you should settle. I said I don’t care. The people understand it. And they use it. So when I have 10,000 people, and when we have mostly unbelievable reviews, how do you settle? And in fact, when the case started originally, I said how can I settle when I have a review like this? Now I should have settled, but I am glad I didn’t. I will be seeing you in November either as president. And I will say this. I have all these great reviews, but I will say this. I think Judge Curiel should be ashamed of himself. I think it is a disgrace he is doing this. I look forward to going before a jury, not this judge, and we will win that trial. We will win that trial. Check it out. Check it out, folks. You know, I tell this to people. November 28. I think it is scheduled for. It should not be a trial. It should be a summary judgment dismissal. . . .
It is a disgrace. It is a rigged system. I had a rigged system, except we won by so much. This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. Ok? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case? Where everybody likes it.
Ok. This is called life, folks. . . .
Trump did not say: “I will burn the courthouse down.” “I will jail the judge.”**** “I will litigate, but if I lose, I will disobey or unlawfully frustrate the court’s orders.” “I will litigate, but (should I be elected) I will threaten the Court, staff, and my opponents with the IRS and other administrative reprisals during the course of the litigation or thereafter.” What Trump said, once you cut through all the blather: I have a good, strong case—an American jury of my peers will vindicate me—I won’t settle; instead, I choose to litigate, as is my right. I add that assuring the public that you will litigate, as Trump has done here, is the highest praise a litigant can offer the system. It means—fundamentally—that he expects to receive real justice. Just as Clinton’s litigation in Clinton v. Jones was consistent with the rule of law, so is Trump’s promise to litigate after the election. Again, this ain’t rocket science.
Professor Post thinks otherwise. Professor Post wrote: “And no, Mr. Trump, it won’t be ‘wild’ if you are elected president and come back for your civil trial in November—it will be a disgraceful spectacle.” David Post, On Donald Trump and the rule of law, Volokh Conspiracy—The Washington Post (May 29, 2016, with a May 31 update), http://tinyurl.com/zzbyhfr. Why is choosing to litigate a “disgraceful spectacle”? Professor Post also wrote: “If the guy in charge of executing the laws thinks the system is ‘rigged’—against billionaires, I suppose he means—and a ‘total disgrace,’ then . . . well, you can figure it out. Enforce the law against himself? Or against his pals? That’s for suckers.” Id. If Trump had said any of these things, Post’s position would make some sense. The problem is that Trump did not say anything like what Post describes. This is confirmation bias, plain and simple. Professor Post is wrong: Post is projecting his fears onto Trump’s speech. I suspect that the reason Post does this is because Post is a true-believer: it is un-American to criticize the judiciary along the lines Trump has engaged in, and if a man is so un-American as do that, then certain conclusions naturally follow. But I admit that that is just a guess on my part.
In a next-to-follow New Reform Club post, I intend to discuss Trump, the rule of law, and eminent domain. Trump’s position on eminent domain is criticized as inconsistent with the law and rule of law norms. His critics are not correct.
*I don’t deny that there are some hard cases—which do sometimes occur in Western democracies—when a person ought to disobey the courts and/or their rules. But generally, those limited exceptions are rooted in other moral principles and legal norms which overcome the rule of law; the exceptions are not part of the rule of law itself. See, e.g., United States v. Minoru Yasui, 48 F. Supp. 40, 51 (D. Or. 1942) (Fee, J.) (“No designation need be given to acts which the military sometimes are required to commit under the stress of war and of military necessity, such as ... the refusal of General Cadwalader under Lincoln’s order to obey the writ of the federal circuit court ....”). See generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. (forthcoming fall 2016) (peer reviewed).
**Whether Executive Branch adjudicatory bodies are inherently “extralegal” or somehow inherently inconsistent with rule of law norms is a subject for another day. For a discussion of the history and first principles relating to the administrative state see Philip Hamburger, Is Administrative Law Unlawful? (2014); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harvard Law Review 1231 (1994); Lexington Green, History Friday: The Rule of Law, Chicago Boyz (Dec. 20, 2013, 8:17 AM), http://chicagoboyz.net/archives/40650.html. Hamburger’s and Lawson’s publications have generated responses from across the political spectrum. My own view, which is considered idiosyncratic, is that the Framers left us with a carefully crafted and specific constitutional procedure to deal with administrative and Executive Branch overreach: Article I, Section 7, Clause 3. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Texas Law Review 1265 (2005).
҂҂E-mail Correspondent to Seth Barrett Tillman (“[E]xecutive courts might seem worrisome, [but] Congress has authorized them, the Supreme Court has upheld them, and most law professors consider them entirely lawful, and therefore even [though] this scenario seems worrisome, it [narrowly or just barely] meets the criteria of the rule of law.”).
***I should not have to add, but our trying times require my doing so: what I have discussed here is just a series of hypotheticals. My personal experience with any number of federal judges, as a law clerk and in other capacities, is that federal judges are dedicated, publicly spirited public servants, who are subject to all the defects of the human condition, as are we all, myself included.
****Such things are not impossible to imagine. There was a beloved President and an unpopular federal circuit court judge during the U.S. Civil War .... See generally Jonathan W. White, ‘Sweltering with Treason’: The Civil War Trials of William Matthew Merrick, 39(2) Prologue 26 (Summer 2007).
*****By adult citizens, I mean adult citizens: (i) who are validly-registered; (ii) who are not felons serving their sentences; and (iii) who are not institutionally committed.