A post-legal society

Dear Readers, As a lawyer, I find legal events fascinating and have a keen interest in their societal implications.  One of the things I try to do for you, readers, is share these observations.  

We really are living in unprecedented times because of how expansive the current administration views presidential power.  Our courts are creaking under the stress and our future looks murky.  What direction will we go?

In Russia, there is no law … and the Federal Security Service (FSB) conducts assassinations at the behest of its President.  Essentially, Russia is a gangster state with no rules.  We are flirting with this endgame in this country.

Judges attempt to make rulings based on the law and are often criticized as enemies of the state.  The respect for the judiciary is at an all-time low.  We are tolerating lawlessness because we are in favor of the results.

Immigration.  As a country, there is a general consensus that our immigration system is broken, but we have been unable to reach a congressional solution to fix it.  President Trump has stepped into this power vacuum with Executive Orders that are dismissive of legal restraints; to be fair, President Trump is building on the extra-legal trail-blazing of Presidents Obama and Biden.

Tacitly, Congress has approved of President Trump’s actions by expanding the budget of ICE, making it the single most prominent law enforcement organization in the country (and one of the largest in the world).  Now, we have a paramilitary extra-judicial organization of masked agents controlled only by President Trump’s personal vendettas against immigration and “blue” cities and states.  This has resulted in blurring legal lines … and we will end up paying for this with civil lawsuits for trampling on the rights of both legal residents and citizens.

John Bolton has been indicted, ironically for President Trump, for allegedly harboring state secrets.  We do not know exactly what the criminality is.  We do know that Mr. Bolton is a right-wing vocal critic of the current administration.  We also know that President Trump pulled his Secret Service protection against Iranian death threats.  This reeks of using the Justice Department as a “gangster” actor and an avatar of intimidation.

This follows the heels of questionable indictments of James Comey (President Trump’s first FBI Director) and Letitia James (New York Attorney General and architect of a successful large civil case against Trump, Inc.), which President Trump demanded.  He campaigned on a “revenge” tour if he was re-elected President and it has come to fruition.

It gets worse.  President Trump is seeking to “weaponize” the IRS to investigate his individual political critics and groups that fund them.  If money is the equivalent of free speech, he is trying to shut off the financial spigot of the political opposition.

When it comes to the justice system, though, we will not be dependent on judges to protect us; we are Grand Jurors and trial (or Petit) Jurors.  So, for example, attempts to charge protesters of ICE agents with felonies in Washington, D.C., have been resisted by Grand Juries.  Even the Comey Indictment was barely eked out by the Trump sycophant, Lindsay Halligan, appointed to carry out President Trump’s directive that career prosecutors rebelled against.  Juries will decide the fate of these public figures.

We should care about all this and not be “numbed” by the avalanche of abuse.  Civil society is less free when the tools of law enforcement are wielded as a cudgel to satisfy the whims of one man.  

Canons of ethics guide prosecutors and judges.  In general, these exist to ensure that duties are performed fairly, impartially, and without personal bias.  When personal connections or perceptions conflict with the need to remain impartial, officials recuse themselves from decision-making roles and involvement. 

Crime is investigated as a violation of our civil society, and offenders are hunted down.  In contrast, offenders are generally not first identified (except when viewed as the spoke of criminal activity) and potential violations of statute are secondarily discovered.  The latter are signs of the approach of a “gangster state.”

In the United States, law is defined by statutes duly passed by a legislative body and signed into law by an executive authority.  It is not defined by the whims of a single person, as is happening today.  

In essence, then, we are witnesses to the dismantling of our legal system.  Even if you find some of the results desirable, we need to rise up and defend the system.  Our fate lies in the hands of us jurors and voters.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.