Recent Academic Writing on the End of the Rule of Law

 

 

[T]here are numerous other methods that Trump will likely deploy on day one of his new administration to immunize himself and punish those who attempt to hold him accountable. The two most important of these would be to appoint an attorney general who could be counted on to fire Special Counsel Jack Smith in an attempt to end the federal prosecutions. Without a special counsel protecting the criminal trials, Trump could then demand that the attorney general withdraw the federal government from the D.C. and the Florida indictments. Second, Trump may attempt to pardon himself for any federal crimes or commute any sentences he has received up to that point. Although it seems likely that both of these acts would constitute criminal obstruction of justice by the President, the Trump v. United States ruling could give Trump cover to do just that; according to the majority opinion, appointing and removing Justice Department officials is among his core constitutional powers to which absolute immunity attaches, and the same would be said for any exercise of the pardon power, given that it is an enumerated power under Article II.

It is not overly dramatic to say that should these events occur, it would signal the end of the rule of law with respect to the presidency . . . .

 

Claire Finkelstein & Richard Painter, When an Indicted Candidate wins the Presidency: What Happens to the Trials if Donald Trump Wins the Election?, S. Cal. L. Rev. Postscript 1, 4 (Oct. 2024), <https://tinyurl.com/yc49yy7x>.

Trump never had a chance to remove Special Counsel Jack Smith. Smith resigned days before Trump will take office. And before he left, Smith actively closed down the D.C. and Florida federal prosecutions. (Albeit, zombie-like, the Florida prosecution continues—against the non-Trump defendants.) If these things were wrongful for Trump to do, was it not also wrongful for Smith to do? And if so, do Finkelstein and Painter think Smith should be impeached for wrongdoing in office amounting to high crimes and misdemeanors? Or should Smith be indicted for criminal obstruction of justice? See, e.g., Claire O. Finkelstein & Richard W. Painter, “You’re Fired”: Criminal Use of Presidential Removal Power, 25 N.Y.U. J. Legis. & Pub. Pol’y 307 (2023), <https://scholarship.law.upenn.edu/faculty_articles/242/>.

One wonders.

Do these two legal academics believe that the rule of law in the United States is now at an “end … with respect to the presidency”?

One really wonders.

 

Seth Barrett Tillman, ‘Recent Academic Writing on the End of the Rule of Law,’ New Reform Club (Jan. 15, 2025, 4:43 AM), <https://reformclub.blogspot.com/2025/01/recent-academic-writing-on-end-of-rule.html>;