There’s a monster on loose ….
— from “Monster”, by Steppenwolf
A couple of weeks ago Archuleta resident Rachel Suh wrote an excellent column about the Colorado Supreme Court removing Donald Trump from the primary ballot. It was well-researched and written. She’d have gotten an ‘A’ in my class. Unlike most rantings of self-professed ‘political activists’ (as Suh unfortunately describes herself), her thoughts were rational, well-reasoned, and articulate.
But the Colorado court’s action is not an aberration. It’s a symptom of an insidious malady infecting the rule of law — that just because something can be done, doesn’t mean it should.
A significant factor contributing to the creeping failure of our society is the corruption of the rule of law – which has been replaced by the rule of lawyers. But not in the sense proclaimed by those who villainize the entire legal profession. I’ll explain by beginning with a few basics about the law.
Since humans began living together they have recognized the need for some objective structure to maintain order, and resolve conflicts. This structure takes two forms: folkways and mores. (“more-aze”)
A folkway is a shared cultural tradition. A way of thinking, believing and behaving.
Mores are binding rules of a community which can take different forms. They may be a ritualized customs, a revealed law (establish by religious teaching), or positive law (codified by a constituted government). Folkways and mores are often interrelated.
For example, an informal cultural folkway that discourages incest — becomes formalized as mores. Whether for moral reasons or because they learned that repeated incest can result in defective offspring is not relevant — the proscription against it emerged organically.
For whatever reason, the members of the community adopt a more’ to prohibit incest – and sanction transgression. This transition from informal ‘custom’, to a formal stricture, is the basis of ‘natural law’.
As societies became more complex they create government to provide a structure to enforce more’, resolve conflicts peaceably and provide security, for their members. In exchange the members cede a degree of their individual autonomy to the group. This is know as the ‘social contract’.
When societies become more complex, so does government. The origins of our modern legal system can be traced from the Sumarians, the Phoenicians, and Greeks, through the Roman republic — where you can see the origins of many of our modern legal principles, and institutions.
By the time of the establishment of our own government, our founders (most of whom were well-educated, and knew history) sought to create a structure that would prevent the abuse of power that inevitably leads to tyrannical government. The result was, as founder John Adams described it, “a government of laws, not of men” — meaning that we should be governed by impartial principles rather than the whims of individuals.
As a society, we have lost that. In the past decade the ‘rule of law’ has been replaced by the ‘rule of men in the form of partisan politics’:
The criminal justice system has been perverted by selective politically motivated prosecutions.
In the summer of 2020, rioters destroyed both private and government property in many major cities with few if any of the perpetrators being even apprehended, let alone convicted — despite ample video evidence to support prosecution. Yet the federal government has gone to extraordinary means to prosecute anyone even remotely near the capitol building on January 6, 2021.
Also during the 2020 riots, those perpetrating the mayhem went free while a young man (Kyle Rittenhouse) who defended himself from the mob, some of whom were armed, was charged with murder. The citizens on the jury acquitted him.
Prosecuting citizens for defending themselves is not unique to that case.
A few years earlier another young man (George Zimmerman) was prosecuted, after defending himself against a larger aggressor. A leading authority on criminal law, Alan Dershowitz, correctly assessed that prosecution by saying the person who needed a lawyer was the prosecutor who filed the case. Again, a jury of citizens acquitted. (And the voters in the prosecutor’s circuit saw through her. She lost re-election.)
Before the Zimmerman case, there was the abomination of the prosecution of the Duke University lacross players for a false rape allegation. The entire prosecution was political. The District Attorney who brought the charges was subsequently disbarred for his misconduct in charging the players.
Politics is behind the farcical prosecution of former President Trump in New York city. The Manhattan District Attorney ran for office in part on a promise to indict Trump. Meanwhile other actual serious crimes were excused. “In his first year, Bragg downgraded 52% of felonies to misdemeanors — compared with 39% downgraded in 2019 — and had a dismal 51% conviction rate for felonies he did charge.”
Department of Justice attorneys lied on the FISA wiretap application related to the Trump-Russia hoax.
As the Inspector General investigation of that hoax revealed, “We determined that the inaccuracies and omissions we identified in the applications resulted from case agents providing wrong or incomplete information to Department attorneys and failing to identify important issues for discussion.” https://www.justice.gov/storage/120919-examination.pdf
Crimes by Trump’s opponent were ignored.
Prior to the 2016 election, the FBI Director (a lawyer) decided for himself that Hilary Clinton’s clear violation of federal laws involving classified documents would not be a case that “any reasonable prosecutor” would pursue. Well… I was a “reasonable prosecutor” for over three decades, and just the evidence made public was sufficient to sustain a conviction of Clinton for the very crime which the Department of Justice improperly used as a pretext to search Donald Trump’s home.
The FBI director, a long time political ally of Clinton, decided “the law” did not apply to her. It was the very antithesis of a “nation of laws, not of men”.
How have we reached the point where political partisanship has corrupted the “rule of law”? A brief relevant history of the past one hundred years can shine light on the problem.
Heinrich Rommen taught at Georgetown for over 20 years, after having fled Germany following imprisonment by the Nazi’s for his writings. Trained as a lawyer, he wrote that “modern dictators are masters of legality”.
The National Socialist German Workers’ Party (Nazi’s) were careful to camouflage their atrocities behind the law — beginning with the Enabling Act in 1933 passed by the Nazi-controlled, democratically elected Reichstag — followed by the Nuremberg Laws enacted in 1935. Even at the 1942 Wannsee conference, when the plans for the ‘Final Solution to the Jewish question’ were finalized, there was discussion about how the existing laws allowed for it.
Before the Nazi’s, Soviet dictator Joseph Stalin populated the Gulags by perverting the legal system. One of the first things the Marxist Bolsheviks did after seizing power and creating the “Supreme Soviet” (legislature) was to take “defunding the police” to its ultimate end. They abolished the existing police force.
Policing responsibilities were taken over by the Cheka — the forerunner of Stalin’s NKVD, and the current KGB. It quickly became apparent that the role of the Cheka was to enforce conformity to socialist doctrine.
The socialist-controlled Supreme Soviet then enacted a new criminal code, which included the infamous “Article 58″ which Stalin used to populate the slave-labor camps described so graphically by Aleksandr Solzhenitsyn in his Nobel-winning opus The Gulag Archipelago.
Article 58 criminalized any political deviation from the socialist government’s approved doctrine — including “thought crimes”. It was the law under which Solzhenitsyn was himself convicted of a thought crime.
Speech codes, such as exist on many college campuses here – and prosecution of ‘hate speech’ – is the first step in criminalizing thought crime. The definition of ‘hate speech’ seems to change like the weather.
What the Nazi, and Soviet, socialists did was all entirely legal under their laws. Using the power of government to prosecute thought crime is the modus operandi of totalitarian regimes from Stalin to Hitler to Mao to Castro. It is now expanding its evil reach into non-totalitarian countries.
The legal case against Donald Trump, of which the action of the Colorado Supreme Court so well described by Rachel Suh, is merely one component of this “lawfare” against the freedom to select our own leaders. But it’s not limited to personal politics.
It’s also financial. Part Two looks at the economic consequences of “the rule of lawyers”.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.