Balkinization  

Monday, May 14, 2007

The Difference Between "Rule of Law" and "Rule by Law" (A.G. Gonzales Please Take Note)

Brian Tamanaha

Although there are various definitions of the “rule of law,” a core element that all definitions share is the notion that the government and its citizens must abide by the law. This idea raises a problem that prompted philosophers as diverse as Aquinas and Hobbes to express doubts about whether the rule of law is possible. The problem is this: the government is the source of (state) law, so it cannot be bound or coerced by the law, because one cannot bind or coerce oneself. In Hobbes’ words, “he that is bound to himself only, is not bound.” Aquinas put it in these terms: “The sovereign is said to be exempt from the law; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence upon him, if he acts against the law.”

We have partially solved this conundrum through an institutionalized separation of the “sovereign.” Now there is no single sovereign in control of producing and applying the law, but rather legal actions are divided up between the legislature, executive, and judiciary. Thus it is no longer the case that a sovereign “is bound to himself only,” because each institution has various ways to hold the others accountable to the law. That’s how it’s supposed to work in our system (in theory anyway).

This arrangement helps, but it does not eliminate the problem. The ultimate guarantor of the rule of law is the power to threaten and exert violence, which is allocated to the executive branch. That is where the problem reappears in concentrated form. How can the executive branch be subject to coercion if it is the source of coercion? More specifically, how can we insure that the Justice Department, which holds the coercive power of the federal government, abides by and enforces the law?

We can try internally dividing up the Justice Department, with one part holding the others accountable, but that can only go so far. The Office of the Inspector General and the Office of Professional Responsibility investigate questions of legal impropriety within the Justice Department (and by internal regulation an independent prosecutor can be appointed when the need arises). But none of these various institutional arrangements necessarily solve the problem, for all are internal to the Justice Department, and therefore are susceptible to influence. If the entire Justice Department is compromised, it is impossible to construct any mechanism that will be capable of “coercing the coercive power.” Under these circumstances, the rule of law, in the sense that the government is bound by the law, would indeed be impossible.

In the end, Hobbes and Aquinas were right: whatever wields the coercive power cannot coerce itself. The only possible answer to this problem was given by Aquinas: the source of coercive power, through a commitment of its own will, must bind itself to abide by the law in good faith. Without this, the rule of law would not exist. It’s a thin reed on which to rest the rule of law, but there is no other way.

For this reason, although it has largely gone unnoticed from the outside, the non-partisan culture within the Justice Department has made a large contribution to the rule of law. Although the heads of divisions are political appointees who change with administrations, the rank and file have always taken pride in being excellent lawyers committed to upholding the law. The political party membership of the lawyer didn’t matter. Administrations may be Republican or Democratic, but never the Justice Department itself. What made this work was the commitment of each lawyer to, above all else, abide by and act consistent with the law.

This is why the systematic ideological (party membership, political beliefs, etc.) screening of applicants for positions in the Justice Department poses such a serious threat to the rule of law. The evident purpose of this screening is to insure that the legal actions and decisions of Justice Department lawyers will be consistent with and further an ideological agenda. Although recent reports about this effort place the blame on a neophyte lawyer, Monica Goodling, she was appointed by others who knew what she was doing, and she is just one player in a broader pattern to seed the Justice Department with ideologues.

An editorial in the New York Times said this effort by the Bush Administration would “politicize the rule of law,” but that is an oxymoron. When the institution that has the authority to enforce the law—wielding the awesome coercive power of the government—becomes “politicized,” the “rule of law” fails to exist.

The system becomes one of “rule by law,” in which those who control the levers of government utilize the law to advance their ends (as Marty details below). This is not a partisan issue. Everyone—Republicans, Democrats, and independents—should be alarmed.

Comments:

Exactly so! The Justice Department is not just any branch of government. That is why, when the Bush Administration has riddled the entire government with corruption, the corruption of the Justice Department is different from, and more alarming than, the corruption of other executive agencies.
 

"We have partially solved this conundrum through an institutionalized separation of the “sovereign.”"

We also tried to solve it by having a special class of law which is supposed to bind the sovereign, but which the sovereign isn't permitted to change without an involved formal procedure meant to require social consensus.

But there does in fact seem to be no way to force the sovereign to use that procedure anymore. Remarkably, some people actually celebrate the loss of that safeguard.
 

There is a coercive power other than military might: the power of the purse. This administration hears only statements from power. The time is well past for Congress to answer in kind. Make all appropriations contingent on compliance with Congressional oversight. If that means temporarily shutting down the federal government than so be it; this is that important.
 

Have any of the professors who post here ever actually worked in a prosecutor's office at the state or federal level? Every time I read posts like this claiming that prosecutor's offices are generally apolitical unless someone by the name of Bush is in charge, I tend to think not.

I have worked in two prosecutor's offices and practiced in cooperation with or against several others.

News flash!

Every single office I have had dealings with is political in that they prioritize their limited resources to accomplish what the boss wants done. If an attorney does not want to pursue the goals of the boss, he or she is generally not long for the office.

This is how it should be. Prosecutors are elected to serve the will of the voters or are appointed by elected officials who serve the will of the voters.

My first boss was elected on a platform of jailing criminals and enforcing laws against pornography in our rural district.

In contrast, my second boss was elected on a platform of alternative sentencing to rehabilitate criminals in our urban district. He developed one of the most innovative juvenile programs in the nation and devoted a far larger percentage of his budget there than did my first boss.

There is nothing "corrupt" or wrong about following the priorities of the elected official in charge of that prosecutor's office.

Of course, the targets of the prosecutor's law enforcement priorities will probably have a different and more negative view of those priorities than will the voters who elected the prosecutor or the official who appointed the prosecutor. That is the situation here where congressional Dems are the target of Justice's priorities to prosecute election fraud and are fighting back by attacking that priority as "political" because they cannot defend the fraud itself.
 

There is no crime in having political priorities influence prosecutorial actions. There are crimes that can (and may have been committed) in abusing prosecutorial discretion or in obstructing justice. Neither of thse statements is relevant to the debate here. The problem is that we seem neither to be able to agree that 'anything within the bounds of legality goes' when it comes to organizing and structuring the DoJ's business, because neither party can stomach the idea of being on the losing of end of this, nor can we agree on the fact that there are 'extra-legal' boundaries which limit the pursuit of political objectives but which are not themselves 'laws.' So discussing 'the rule of law' doesn't help. Both the left and the right at various times have paraded the notion that 'everything is politics' and there is no coherent and consistent party position in oppositon to this. Today it is Democrats, and the left in general, who are arguing that there HAS BEEN an 'accepted' notion of 'the right way to do things' that flourished until the Bushies came to power, but not so long ago, the same folks were arguing that there was no such thing as a 'right way' to do things, there was only the 'way things were done' which depends mostly on power relations. Law as such has done what it can, well or ill, for us (even to the point where the constitution is being called into question as the source of our difficulties). No, it is time to discuss, describe, define and promote in the most serious way the social and political virtues that are required for the effective and decent operation of our type of government. After all, isn't a democracy defined as a govermment in which everyone gets what the majority deserves? DREED
 

There's a difference between having policy priorities (loosely or even not so loosely associated with the general platform of the party in pwer), and (ab)using the DoJ, turning it into just one more weapons for the achievement of party power. The problem is not whether to enfore or not enforce (and if so, how vigourously and how strictly) election laws and corruption laws, but rather, whether particular types of prosecutions are targeted only at one party, and if others are quashed or discouraged because of the party of the alleged perps. When the DoJ gets turned into a wholly owned subsidiary of the RNC (and in particular, of the most partisan hacks and thugs therein), then we have problems.

But the good news is that responsible Republicans are of the considered opinion that even the lowly White House Travel Office should not be subject to allegedly partisan machinations, and if such is alleged, a special prosecutor equipped with the full power and resources of the FBI and millions in taxpayer funds in pocket ought to be brought in to get to the bottom of things.....

Cheers,
 

Faces or a vase? Are we looking at the donut when we should be paying attention to the hole?

Actually, much more interesting than the case of the fired USAs is what those that were not fired were up to.

The ones that got fired refused to go on partisan witch-hunts (or pursued corruption within the maladministration, or both). They have unarguably done nothing wrong.

Did the ones that didn't get fired make a deal with the devil? Did they pursue cases (and/or ignore others) for partisan purposes like good little Bushistas?

Cheers,
 

In re: questionable actions involving USAs:

Via The Carpetbagger Report:

[...]

* Paul Krugman noted a couple of weeks ago, for example, that Chris Christie, the former Bush “Pioneer” who is now the U.S. attorney for New Jersey, issued subpoenas as part of an investigation against Sen. Bob Menendez (D) shortly before last year’s election.

* In New Hampshire, Democrats want Congress to investigate whether prosecution of a Republican phone-jamming scheme on Election Day 2002 was intentionally delayed until after the presidential election two years later.

* Did the U.S. Attorney’s office in Pennsylvania intentionally target Bob Casey allies to undermine his Senate campaign against Rick Santorum?

* Why was the career U.S. Attorney in Guam removed in 2002 after he started investigating disgraced GOP lobbyist Jack Abramoff?

* Why has Western Pennsylvania’s U.S. attorney, Mary Beth Buchanan, spent a disproportionate amount of her time launching public-corruption investigations against Democrats, while overlooking Republicans?

* In July 2005, the U.S. Attorney in Denver decided not to pursue a matter in which bouncers at a Bush event impersonated Secret Service agents to throw out three law-abiding ticket-holders because of their bumper sticker (the Denver Three controversy). Did politics dictate the decision?

As Bud Cummins, one of the purged prosecutors, recently explained:

“[T]he public must perceive that every substantive decision within the department is made in a neutral and non-partisan fashion. Once the public detects partisanship in one important decision, they will follow the natural inclination to question every decision made, whether there is a connection or not.”

Bingo. It’s the consequence of the administration undermining public confidence in the system.
 

The people who wrote the Constitution understood the problem quite well.

This is why they didn't let the federal government have a large standing army which would enable it to enforce its will without the active support and cooperation of the individual states, and the individual citizens.

The 2nd Amendment is, and was always intended to be, the "reset" button for our government
 

Mr DePalma,

Cynicism masquerading as realistic sophistication is still cynicism.

Before I became a professor, I practiced law as a public defender and later as a prosecutor, and Marty worked in DoJ, so you are not the only one with insights from the field.

We have all seen (and engaged in) good and bad practices--the key is to be able to recognize the difference.

Brian
 

How the separation of powers addresses the problem of sovereignty posed by aquinas and hobbes, and later expanded for a modern context or notion of state by schmitt (unacknowledged here), is only partially addressed here. The separation of powers necessarily precludes the identification of the office of the executive with the person occupying the office. Congress can hold the person accountable for abuse of the power given to the executive office, not the office itself. At that point, the person can be thrown out of office, while the coercive power of the state (found in the executive office) remains in the executive office. By the same argument, a weak congress and judiciary establishes more identification between the man and the office, and therefore the state itself. Schmitt’s relation to Nazism, where the sovereign power of the state is fully constituted not only in an “executive office” but in the man occupying the office – because the two are identical – is found in this argument. He believed the state’s power, diluted between branches, was divided against itself and therefore weak. The alternative, a state with no contradiction or self-dividedness, was fascism, and the full power of the state is in the hands of one person.
 

Bart DePalma doesn't seem too cynical to me. Doesn't everyone in politics hire based on politics? Even justices and other federal judges do it (looking for signals on resumes like Federalist Society or Larry Tribe recommending the applicant). Why are prosecutors, federal or local, any different? They are political actors too, regardless of any hope that they might not be.

If there's a story here, it's that incompetent lawyers were hired. But, that lawyers with political associations or leanings were hired is old news.

To the victor goes the spoils, right?
 

dsc25:

To the victor goes the spoils, right?

Better in the original French: "L'etat c'est moi"....

Cheers,
 

matthew wrote: Congress can hold the person accountable for abuse of the power given to the executive office, not the office itself.

That manner of checking executive power didn't work so well for the Roman Republic. (See Julius Caesar.) The Constitution empowers Congress to hold the office accountable, with the power of the purse, among other things. Congress needs to assert its own authority as vigorously as the Executive asserts its.

papabear wrote: The 2nd Amendment is, and was always intended to be, the "reset" button for our government

I have trouble imagining a citizenry armed with shotguns, or even assault rifles, prevailing against modern tanks. If we were serious about maintaining the ability of the citizenry to violently overthrow their government, then we would preserve unfettered access to information on producing weapons of terrorism. I don't think that would be a good idea. Far better to rely upon civilians' economic power to check their government.

dsc25 wrote: Bart DePalma doesn't seem too cynical to me. Doesn't everyone in politics hire based on politics?

See arne langsetmo's comment above on the difference between having policy priorities versus using government offices as a tool for partisan entrenchment. That is the crucial distinction.
 

Administrations may be Republican or Democratic, but never the Justice Department itself.

Do you actually believe this? Was the Clinton era Justice Dept neither Democratic nor Republican? The Kennedy era one, run by JFK's brother? This seems to be deliberate self-deception.
 

See arne langsetmo's comment above on the difference between having policy priorities versus using government offices as a tool for partisan entrenchment.

If the Democrats do it, it is setting policy priorities, but if the Republicans do it, it is "partisan entrenchment"? How can the two be distinguished, other than by your partisan affiliation? Was Clintons firing of the US Attorneys "setting policy priorities", or was it "partisan entrenchment"? Explain your answer.
 

When decisions are made to further objectives believed to be in the public good, then it is setting policy objectives.

When decisions are made to further the partisan political asperations of a specific party, then it is partisan entrenchment.

For example, deciding to focus prosecutorial resources on public corruption is an appropriate policy objective. By contrast, filing a dubious "voter fraud" indictment two weeks before an election because it will suppress voter turnout and favor your party is inappropriate partisan entrenchment.

Sometimes distinguishing the two may be hard; there are certainly gray areas. That's why Congress is holding hearings. From the testimony that I have heard, I don't believe that what occurred falls close to a gray area. I am convinced that some people in the Justice Department (such as Bradley Schlozman) were inappropriately using a government office for partisan entrenchment.

(By the way, please forgo the conservative talking points like "Clinton dismissed prosecutors too." Those lines work only on the uninformed. Most everyone reading this blog understands the difference between dismissing prosecutors at the start of an administration ... which both Bushes, Clinton and Reagan all properly did ... versus dismissing a select few prosecutors mid-term.)
 

Quitealarmed,

Certainly congress can check the power of the executive branch, but they cannot charge the executive branch with misconduct, or abuse of power, which is what I was referring to. For that they charge the person holding the office, challenging the validity of that person’s claim to the office.

But this clarification reminds me I forgot to make my point in the previous reply. The question was “How can the executive branch be subject to coercion if it is the source of coercion? More specifically, how can we insure that the Justice Department, which holds the coercive power of the federal government, abides by and enforces the law?”

My answer: The executive branch cannot be subject to coercion, but the person occupying the executive office can be (once removed from office.) It is this non-identification between office and office-holder, implicit in congress’s right to impeach, that essentially prevents sovereignty from accumulating in the executive branch.

Before Bush, the opinion was that a great deal more in the constitution prevented this accumulation of power, but it turns out that much of this can be circumvented by clever lawyers (Addington). Impeachment remains, however.
 

correction: clever lawyers during a state of emergency (the war on terror).
 

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