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Can We Still Hope for a Government of Laws, Not Men?

Trump’s 2nd Impeachment and the Rule of Law

The ongoing Second Impeachment Trial proceeding of Donald J. Trump has recently been described by Senator Rand Paul  (R-KY) as a “partisan farce,” but its significance is far greater than that.  It is a truly distressing sign that our politics in the early twenty-first century has spun so far out of control that the most basic and hallowed principle of our government – the rule of law itself – is endangered.

The clearest statement of that fundamental maxim of government for a free people – important both in our revolutionary struggle against Great Britain and in the drafting of our Federal Constitution in 1787  was that authored by John Adams in the Massachusetts Constitution of 1780, Article XXX:

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”

Article XXX   mandates a clear separation of governmental powers, so that all branches of the government will carry out their duties pursuant to clearly established rules, in order that no officials will act arbitrarily and that the rights of the people will be preserved and protected.

The phrase “government of laws and not of men” conveys that those who wield the reins of power have an obligation to conform their conduct to the existing practices, laws and Constitutional provisions.  While it is true that existing legal and constitutional barriers were erected by men and women, those enactments were done pursuant to the authorizations of the people or their duly-elected representatives, so that by following the rules laid down, we are maintaining the sovereignty of the American people themselves.

The events leading up to the Presidential election of 2020, and the current proceedings against Mr. Trump, however, smack of nothing if not arbitrary power.  The manner of voting in that election – often through mail-in ballots with the grave potential for chicanery – and through the alteration of election rules by fiat of state executive authority rather than the deliberation of state legislatures (as our Federal Constitution mandates) hardly conformed to the aspirations of the rule of law.

This second Trump impeachment, which as Alan Dershowitz and others have argued, wrongly construes the exercise of First Amendment rights – then President Trump’s understandable suggestion that the results of the election were irregular and needed to be corrected – to be a call for “insurrection” and thus the “high crime or misdemeanor” required for conviction under the Constitution.

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The substance of the impeachment charges brought against Mr. Trump are dubious enough, but the procedure involved, to conduct a trial after the target of the impeachment has left office appears by the terms of the Constitution itself to be highly questionable.  Equally disturbing is the fact that the Democrat-controlled House of Representatives rammed through the impeachment without giving the then President any chance to offer a defense.  This was in stark contrast to our most basic legal and constitutional norm of due process, and in flagrant disregard of previous precedent regarding Presidential impeachments.

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Some have sought to defend this second impeachment of Donald Trump by suggesting that impeachment, after all, is a political and not a criminal process, and that the safeguards of due process and the presumption of innocence, so important in a criminal trial, do not apply to such a political proceeding.  There is some merit to that argument, but it still represents a grave danger to the continuing rule of law.

For some years, now, many of our law professors, pursuant to the doctrines of “Critical Legal Studies,” have come to believe that the rule of law is itself a “myth,” and that all law, ultimately is simply politics.  Were this true, the noble aspirations expressed in Article XXX would be a nullity, and the American people would simply be the vassals of whatever group happened to be in control of the government at any given time.

The perception of election chicanery and the persecution by impeachment of Donald Trump have caused many of us to wonder whether we are seeing the triumph of Critical Legal Studies and the collapse of the aspiration of a government of laws not men. 

The rule of law and Constitution, Adams himself recognized, could only be maintained in a country where the citizenry and the government understood that there were religious and moral obligations that mandated adherence to those authorities.  Indeed, it does not go too far to say that “a government of laws and not men” might well imply that there must be an authority greater than humankind itself that is the source of our natural rights to life and liberty, and that has granted to us the capacity for self-government.  That was, of course, the belief not only of Adams, but also of those who signed our Declaration of Independence from Great Britain.

In our increasingly secular age, and at a time when unparalleled vitriolic politics threatens to obliterate the ties of Constitution and laws that bind us together, it is not Mr. Trump’s purported “insurrection” that presents a danger to our republic, but the jettisoning of the rule of law and Constitution by his tormenters. 

Mr. Trump should be acquitted by the Senate, and there ought to be some means of reassuring Mr. Trump’s supporters that the Biden administration was not put in place by deliberate misconduct.  That was all, actually, that Mr. Trump sought, and his and his supporters’ dismay is understandable in light of officials’ obligations to proceed in accordance with established procedures and the rule of law. 

By: Professor Stephen Presser

Stephen B. Presser is the Raoul Berger Professor of Law Emeritus at Northwestern University’s Pritzker School of Law, the legal affairs editor for Chronicles: A Magazine of American Culture, and the author of Law Professors: Three Centuries of Shaping American Law (2017)