America's Very Own Louis XIV: Guest MINDSETTER™ Schoos

America's Very Own Louis XIV: Guest MINDSETTER™ Schoos

It was the best of times, it was the worst of times,… 

Thus began “A Tale of Two Cities” by Charles Dickens. Set against the backdrop of the French Revolution, it is a story about good and evil, and social justice. It is about the inequities of class, where the highborn, the elites, have one law, while those in the lower classes are subject to the vagaries of their tenuous economic situations and the capricious application of the law. 

If only I had the eloquence of Dickens to describe the turmoil of our times, but it is not time for florid eloquence. Rather it is time to speak plainly. 

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The Trump administration has declared war on the rule of law. This administration has ignored, bent, and broken the law seemingly at whim. He rules by demanding that the government, under the so-called Unitary Theory of the Executive, serve only his needs, even at the sacrifice of the public good. He has not used the law in service to any concept of “justice,” but instead uses the law as a weapon in service to his own interests, needs, and prejudices. 

Trump has ignored the legitimate interests of the other co-equal branches of the government, particularly the Congress which, in the performance of its constitutional duties, requires documents and testimony from the executive branch to fulfill its oversight, investigatory, and legislative duties. Abetted by a feckless republican party in the House and Senate, Trump has been able to bully its members to come to heel. 

Trump has tried to pervert the course of justice by nominating judicial candidates who are so lacking in experience that the American Bar Association has determined several of them to be “not qualified.” Rather than heed the relatively unbiased advice of the ABA, Trump instead looked to candidates advanced by the ultra-partisan Federalist Society, a group whose constitutional interpretations would bring us back to the 1790s.

So close is this relationship that FedSoc co-chair and Executive Vice President, Leonard Leo, took a leave of absence to work in the Trump Administration on selecting judicial nominees. White House counsel Don McGahn. who also worked on selecting nominees for judicial appointments to the bench, once joked that because he was a member of FedSoc, there was no need to outsource the nomination process. By his presence in the White House, it was “insourced.”

Make no mistake, this is not an argument over conservative versus liberal judicial philosophies. Instead it is that several judicial nominees were rated “not qualified.”  In fact, from the years 2017 to the present, 22 nominees for the federal judiciary were  determined by the ABA’s Standing Committee on the Federal Judiciary by split votes  to have been “qualified/not qualified” or by unanimous vote to be “not qualified.” 

King of the United States

More troublesome than the above is Trump’s utter disdain for the law or legal process. He views himself as a sovereign, a modern-day manifestation of French King Louis XIV’s “L’etat c’est moi.” During his early years as a New York businessman, he hired the infamous Roy Cohen as his attorney. Roy Cohen was more “fixer” than attorney. He mentored Trump to employ the three-pronged strategy that we see today: never settle or surrender, sue immediately, and always claim victory. Numerous reports have Trump asking, “where’s my Roy Cohen?”

Enter William Barr. Barr was nominated and confirmed as Attorney General for only one reason: to be Donald Trump’s fixer. The Attorney General is tasked with protecting the government’s interests, whether they be crime protection and prosecution or representing the government’s (i.e. people’s) interests in court. William Barr, on the basis of his belief that the president has virtually unlimited authority to act as he sees fit, has transitioned from being the people’s lawyer to being the personal attorney and fixer for Donald Trump. 

We see this in his virtual disdain of congressional subpoenas issued from Congress. He has ignored subpoenas and has broken his appointments to appear “voluntarily” to give testimony before Congress and has advised others in the administration to do likewise. 

We saw this in his absolute and deliberate misrepresentation of the Mueller Report, and his dogged determination to withhold source documents and grand jury testimony from relevant committees of the Congress. 

We have seen him, no doubt at Trump’s behest, boldly lie about the “resignation” of a United States District Attorney for the Southern District of New York and fired him when the USDA wouldn’t go along with Barr’s fairy tale. That such a move would disrupt on-going investigations mattered little to Barr. Perhaps that was the point.

We have seen him act similarly in the Eastern District of Virginia where, no doubt at Trump’s behest, he replaced a sitting USDA and replaced her with a trusted subordinate and advisor who almost immediately moved to withdraw the prosecution of Michal Flynn, who had twice confessed to the felony of lying to federal agents.

We saw four prosecutors resign in protest of Barr’s decision, again no doubt at Trump’s behest, to argue for a reduction of Roger Stone’s sentence after he was convicted by a jury of seven felonies. 

It is no accident that Flynn and Stone are closely linked to Trump. 

But now Trump is once again threatened with the disclosure to his financial records to the New York City District Attorney and to three committees of the Congress. This is because for one brief and shiny moment, the United States Supreme Court, in two separate cases, by a vote of 7-2 announced that Trump was not a sovereign and must adhere to the rule of law. It must have felt like salt in the wound of Trump’s psyche that his two appointed justices voted with the majority. This came on the heels of prior decisions upholding the DACA program due to his failure to follow the law, and the inclusion of LGBTQ rights under the Civil Rights Act of 1964. The latter opinion, as a delicious irony, was written by Justice Gorsuch, Trump’s first nominee to the Court. 

Regarding Trump’s financial records, the Court did not state that they had to be publicly disclosed. Instead the Court remanded the cases to their respective trial courts for further determination of the scope of information to be delivered to the respective legal authorities. Shortly after these decisions came down, Barr announced that his office was ready to participate on behalf of the president in the hearings before the D.C. District Court. 

So continues the War on the Rule of Law. Keep in mind that the Department of Justice represents the interests of the federal government, and the Office of Legal Counsel represents the office of the presidency. In matters like these, it is not the office of president, unless like Barr one believes that the individual and office are one and the same, but the individual occupant of the office who must defend claims on his personal records. 

The claim by the New York District Attorney seeks documents for years prior to Trump becoming president. The claims by the Congress are for records of more recent vintage, but it is difficult to see how they impact the office of the presidency. However, if the office and duties of the president are encroached upon by the congress, it would be up to the Office of Legal Counsel and not the Department of Justice to argue on behalf of the president. By way of example, think of Pat Cipillone’s representation of Trump, in Trump’s capacity as president, during the recent impeachment trial. 

Either way it’s difficult to see what interest Barr has in either case. Unless it’s to act as Trump’s de facto personal attorney. 

There’s other, more egregious conduct by Trump cloaked in the patina of law. Whether it involves immigration policy, emoluments, the impoundment of funds to advance his political interests, the misuse of stimulus money to reward friends, families and even his son-in-law, or the commutations of prison sentences imposed on trusted political associates, the War on the Rule of Law continues almost unabated.

I have quoted elsewhere the words by Robert F. Kennedy, channeling John Stuart Mill, that I think especially relevant here. In another context, Kennedy said,

“Government belongs wherever evil needs an adversary and there are people in distress.”

The question left unanswered is what happens if it’s the government that’s the evil?

Geoffrey A. Schoos, Esq is the past President of the former Rhode Island Center for Law and Public Policy.      

His most recent book, "Access to Justice on the Outskirts of Hope," is now available online and can be found on his website here.