November 25, 2019

Today’s theme was the rule of law.

This question is playing out over Trump’s recent overruling of the Pentagon in the case of Navy SEAL Edward Gallagher. Gallagher was court-martialed for allegations of murdering a civilian and threatening his own squadron for reporting him, but was acquitted in a surprise twist after another SEAL admitted to murdering the wounded man in what he claimed was a mercy killing. Gallagher was, though, convicted of posing with the body, which is actually a really big deal in the military. For doing so, he was demoted, and the process started for a review that could have led to his expulsion from the Navy SEALs, an elite unit.

Personalities on the Fox News Channel made a big deal of Gallagher, who appeared often on the network, and of two other soldiers convicted or charged with murder of civilians, railing that they were heroes persecuted by an overly nice military justice system. Over the wishes and advice of his military advisors, Trump pardoned the two soldiers and overruled Gallagher’s demotion and upcoming review, permitting him to retire at full rank. The secretary of the Navy, Richard Spencer, had insisted that Gallagher’s review must go forward to protect the idea of process, and Trump ordered Defense Secretary Mark Esper to stop the review and then to fire Spencer, who released a letter saying “I hereby acknowledge my termination.”

The military has to work on a strict legal system to prevent ranking officers from enforcing justice according to their own whims. For Trump to short circuit that system by declaration led the Navy Secretary to issue this letter, citing the “deadly serious business” of maintaining “good order and discipline.” He wrote that “the rule of law is what sets us apart from our adversaries” and that “it has become apparent that in this respect, I no longer share the same understanding with the Commander in Chief who appointed me.” He went on: “I cannot in good conscience obey an order that I believe violates the sacred oath I took in the presence of my family, my flag and my faith to support and defend the Constitution of the United States.”

Trump has floated the idea of having the pardoned men and Gallagher at campaign rallies for the 2020 election.

The rule of law was also in the news today as U.S. District Judge Ketanji Brown Jackson shot down the argument, made by White House lawyers, that White House officials enjoy “absolute immunity” from compelled congressional testimony. The White House is resisting a subpoena for testimony from former White House counsel Donald McGahn, but Judge Jackson ruled that “per the Constitution, no one is above the law.” The Department of Justice immediately appealed, but Judge Jackson’s forceful opinion might open the door for willing witnesses to come forward. House Intelligence Committee chair Adam Schiff said, “We would encourage witnesses to demonstrate the same courage and patriotism of public servants like Dr. Hill, Lt. Col. Vindman, Ambassador Taylor and others who have come forward to fulfill their duty.” We’ll see.

The Supreme Court also stopped the enforcement of a House subpoena requiring Trump’s accounting firm to turn over his taxes, which they need to investigate the payments to Stormy Daniels, whom he paid to keep quiet before the election about their sexual encounter. That payment might well be a violation of campaign laws, so the House wants to see Trump’s records about it. His lawyers have until December 5 to file a petition asking the Supreme Court to review the case. This is an administrative stay, so it is unclear if the Court will take up the issue. If it does, thanks to the two new Trump appointees on the Court who believe in a strong executive, it is unlikely to be as harsh on the president as the lower courts have been.

And that brings up the other way in which today was about the rule of law. Senate Majority Leader Mitch McConnell (R-KY) boasted on Twitter that the Senate as confirmed more than 160 new federal judges since Trump took office-- that’s one out of every four—and they have more coming up. These people, who are overwhelmingly male and white, are generally extreme defenders of property and opponents of the administrative state that protects regular Americans. Today, in an opinion on the Supreme Court’s refusal to rehear a case called Gundy v. United States (its details don't matter much), Judge Brett Kavanaugh sided with Judge Neil Gorsuch-- Trump appointees both-- to say the Court should reexamine whether or not Congress can delegate authority to administrative agencies. They believe that the Constitution forbids such delegation. If that doctrine holds, it would destroy the administrative state and take our federal government back to that of the 1920s, before FDR’s New Deal regulated business, provided a basic social safety net, and promoted infrastructure.

McConnell’s boasting is an illuminating view into what is really going on in these battles. Are we all equal before the law, or does a minority get to stack the deck against the rest of us?

Ultimately, the fight over the rule of law is really a fight to preserve democracy.