Preserving the Law

Dear Readers,

What makes America “exceptional” is our adherence to the law. In some countries, like Russia or China, the law is merely a façade to oligarchical rule. In others, like Egypt or Venezuela, a tacit understanding exists between the military and a ruler in a quasi-dictatorship. In still others, like a North Korea, there is only a “Dear Leader” who subjugates even the military to the power of one.

The law makes America great; yet, our flaws also show up in it. Racism was overt in our Constitution and some of the laws we passed to keep slavery alive and the races segregated. During Jim Crow, the law was silently used to effectively prevent persons of color from voting, by having Whites-only primaries, poll taxes, grandfather clauses and literacy tests. We used the law to almost wipe out Native American culture, shoving them onto Reservations and taking their rights. The Japanese were interred in “camps” just for being of foreign descent. The Prohibition Era was targeted to criminalize Southern Europe, German and Polish immigrant wine and beer. It is easy for the law to acquire a hateful tinge.

We have to be very, very careful about how and why we are manipulating the law; we have to avoid it being used again as a sword to freeze our culture or tool of personal vendetta. These are perilous times; we are creeping toward making the law about this, instead of about truth and justice, a tool of individual manipulation, and this takes a step closer to losing our freedom.

In post-Second Reich Germany, the German people surrendered their freedom because of fear of Jewish and Roma people; a wary suspicion of “them.” The Third Reich was born of the ashes of a country bitter from an unfair peace thrust upon it. Cultural purity became a country’s identity, instead of the democratic promise of the Weimar Republic.

Now that Donald Trump is no longer president, the cracks in our legal shield can be examined without a retort of partisanship. We can take steps to seal the ruptures and shore up the law against illiberalism; we especially need to make sure our Justice Department operates independently of a president’s will.

The Justice Dept.—a sprawling entity housing agencies, lawyers, judges and law enforcement officers, who investigate and prosecute crimes, prosecute and adjudicate immigration laws—is our government’s civil attorneys, and are the watchdog for our civil rights. It is enormously powerful.

When it works right, it is apolitical and institutionally selfish. William Barr said he read the Muellar Report before its redacted version was made public, and he found nothing to see, as an internal memo told him; he refused to release it.

The last administration was concerned about leaks associated with inquiries into Russian influence on our election in 2016. If there were leaks, there might be crimes committed. It was not unique in doing so. The Bush administration was concerned about how Scooter Libby was exposed, the Obama administration was furious about leaks associated with Edward Snowden; our government needs to be able to secure secrets.

A contrary value is that we are a free society. We have a free press, it reports based on confidential sources, we protect those sources, this helps insure our press is free. In Belarus, a tyrant forces down a commercial airlines with an opposition reporter on board, to capture and torture him into a “retraction” of his reporting. We are not so barbaric and heavy-handed in this country, leaving us all freer.

Another freedom we enjoy is a separation of powers and coequal branches of government. The president should not use his or her power to “punish” Congress or the Judiciary; Congress seeking “punishment” of someone in the Executive Branch can conduct public oversight, but it refers possible criminal violations to the Justice Department for possible criminal punishment; the Judiciary is supposed to take great pains to not “legislate from the bench.” In Russia, Putin poisons and imprisons political opponents; here, we share power.

The past administration had no guardrails. Incensed at the public reports against, the Justice Department secretly subpoenaed reporters phone bills and other “metadata” (allows you to see detailed facts about communications like phone numbers called), and renewed gag orders, that prevented disclosure of the subpoenas. The same for Congressmen Adam Schiff and Eric Swallwell, staff members and even a child. We now know that the Justice Department was doing the same with Don McGahn, the president’s own White House counsel. None of these subpoenas were subject to judicial scrutiny; no Justice Department (it does not which party controls it) should be able to do this.

The system works with grace, when each branch of government stays in its respective lane. It creaks and breaks down when any branch oversteps its bounds. The first FBI director, J. Edgar Hoover, is famous for keeping secret dossiers on powerful people. He wanted to have “dirt” on them to be able to blackmail and “persuade” a position he favored. He served in its directorship essentially for life; we sent amended the office to require ten (10) year terms subject to Senate consent and advisement, downgrading the profile of the position (and, of course, President Trump famously even fired James Comey).

We can’t have a Justice Department tasked in secrecy to investigate reporters or members of Congress. We can’t have a Special Counsel quaking at angering a president bent on labeling an investigation a witch-hunt. We may need some bipartisan cooperation to draft new laws to handcuff a future President from abusing power in a similar manner. Certainly, if the Biden Administration continues the pattern of infringing on personal freedoms, as the past one, Republicans will condemn this anti-democratic behavior.

We have to constantly renew the law; constantly renew our government. We reacted to J. Edgar Hoover, by making the FBI Director more responsible to government. We reacted to Watergate with a series of reforms. Every time our law needed some spackling, Congress has held hearings and crafted a series of fixes.

We are at that juncture today. The past administration’s legal excesses exposed us as needing to formalize limits to Justice Department authority; Congress needs to take action again.

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 jim@rockefellerlawcenter.com.

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