Restoring the Rule of Law

Should Trump use DOJ against his enemies?

Note: Mark Pulliam and I co-authored the below essay, published today at Tom Klingenstein. Mark writes at Misrule of Law and is a frequent contributor to Law and Liberty. Check them out.

Over the last four years, regime lawyers and government officials have repeatedly ignored the constitution, stretched the meaning of federal and state statutes, and shredded legal norms. They have investigated, prosecuted, and persecuted their political opponents. They did this to suppress those who challenged their rule and to send a message to would-be challengers. 

With Donald Trump’s election and pending inauguration (assuming no shenanigans between now and then), unpleasant things will have to be done to hold these people to account. The regime’s aggressive lawlessness will require a response. 

The response must balance the immediate need for accountability with the ultimate need for reconciliation. On the one hand, we must hold responsible those whose criminal conduct subverted our constitutional order. On the other, we must prepare to reconcile with the millions of Americans who erred grievously in supporting the regime’s lawlessness — at least with those people who are humble enough to acknowledge their error. 

Equal justice under the law, an essential feature of the rule of law, means enforcing the law in an even-handed manner. Violators must be held responsible for their actions. This is not “retribution,” any more than arresting a thief or murderer constitutes retribution. All citizens are expected to obey the law. No one is above the law. Lady Justice is depicted wearing a blindfold, not so that she can ignore lawbreaking, but so she can mete out punishment regardless of the identity of the perpetrator. Over the past four years, the regime has applied the law in a one-sided manner — punishing political opponents (sometimes by fabricating crimes or seeking disproportionate punishment) while looking the other way as agents of the regime ran roughshod over legal norms. Many Americans lost respect for our legal system due to the unfair and unjust manner in which laws were enforced and violations were condoned.

With the inauguration of President Trump to his second term, the double standard must end. Those who violated the law during the Biden administration must be held to account. This is a necessary first step to restoring the rule of law, and, just as importantly, restoring public faith in equal justice under the law.

Indeed, fashioning an appropriate response will be the most important task of Trump’s first year. It will require an attorney general with the backbone to design and implement it. Here’s a sketch of how that might look. 

Accountability

There are many examples of regime conduct that can be prosecuted under existing federal criminal statutes. These cases should be investigated, presented to grand juries for indictment, and prosecuted. For instance, 18 USC 242 makes it a federal crime to deprive somebody of a constitutional right under “color of law.” A Trump DOJ could use this statute to investigate the regime’s lawless prosecutors, government officials, and even judges. 

Consider, as just one example, the conduct of Shana Bellows. Bellows, the Maine secretary of state, used the power of her office to remove Donald Trump from the ballot in Maine. Though not a lawyer, Bellows claimed that Section 3 of the Fourteenth Amendment required her to do so. The Supreme Court smashed that pretense in Trump v. Anderson, ruling unanimously that Trump must be restored to the ballot in states where he had been removed, including Maine.  

It’s doubtful that Bellows has considered the possibility that DOJ might prosecute her. After all, the Department is staffed with regime allies, and under Merrick Garland it wouldn’t dream of doing so. But following Trump’s inauguration, Garland and his henchmen will be replaced with honest and tough prosecutors who should investigate Bellows’s conduct carefully to determine if she attempted to use her official position to deprive Maine’s citizens of the right vote for Trump — a federal felony under 18 USC 242. 

A brief review of publicly available facts shows that her conduct likely satisfies the elements of that offense. There are three: (1) The willful (2) deprivation of an individual’s constitutional right (3) while the defendant was acting under the color of law. 

The first element is what is called the mens rea, or intent. It requires proof that Bellows acted “with the particular purpose of violating” a Constitutional right or “with reckless disregard [of] the risk” that her conduct would do so. Her public statements alone prove her intent, as does the fact that she “did the rounds” on several regime-approved propaganda outlets that feted her “bravery.” A grand jury subpoena for her official email will almost certainly uncover further evidence of her intent.

Second, in removing Trump’s name from the ballot, Bellows violated numerous constitutional rights of Maine’s citizens (and of Donald Trump), including their right to vote. Prosecutors will have no difficulty proving this element and may find that Bellows violated other civil rights under the First, Fifth, Twelfth, and Fourteenth Amendments.

And, of course, Bellows was acting in her official capacity — that is, “under the color of law.” That’s how she was able to remove Trump’s name from the ballot in the first place. She had to be Maine’s secretary of state to do so. This satisfies the final element of the offense. 

The brief analysis above paints what prosecutors call a prima facie case. If the facts are what they appear to be (that is, if the facts described above are in fact true), and if prosecutors can prove them beyond a reasonable doubt, then a jury should find Bellows guilty of this felony.  That’s all there is to it. Bellows ought to hire an experienced criminal lawyer. Soon. 

Similarly, Trump’s new attorney general should investigate the members of Colorado’s Supreme Court. Late last year, the majority upheld a decision to remove Trump from the Centennial State’s ballot. Just as it is important to make an example of lawless executive branch officials, judges must be made to understand that they, too, cannot escape criminal liability merely by characterizing their criminal conduct as a legal order.

Indeed, prosecutors could look to the majority opinion itself for language to prove willful intent. Here’s the place to start: “We are also cognizant that we travel in uncharted territory.” This quote alone strongly suggests that the author of the opinion knew he was depriving Coloradoans of a fundamental civil right. After all, there is only one way in which the opinion is “uncharted”: state officials (in this case judges) used their official positions to try to subvert a national presidential election by denying half of Colorado’s citizens the right to vote. This goes to the very essence of the conduct prohibited by 18 USC 242. 

These are just a few examples. Investigations should be opened into Jack Smith, Jay Bratt, Fani Willis, Alvin Bragg, Letitia James, Alejandro Mayorkas, Jocelyn Benson, Jena Griswold, and many others. A thorough search of the United States code will likely uncover offenses they have committed, including offenses that can be proved easily. Indeed, applying the federal criminal code to their conduct will require prosecutors to do much less creative interpreting than state and federal prosecutors did in prosecuting Donald Trump, John Eastman, and Douglass Mackey, among others. 

Reconciliation

People who subvert our form of government, who weaponize the criminal justice system, who prosecute their political enemies must be held to account. But after examples have been made, we must go about the business of reconciliation. Acts of mercy will facilitate this. But mercy will have this effect only if the offenders understand who holds the cards. Those who get a pass must be made to understand that, but for the restraint of their fellow citizens, they would be prosecuted to the fullest extent of the law. 

Repairing the damage wrought by years of malicious, divisive, and destructive regime lawlessness will not be easy. The devastation is widespread. But it can be done. First with a calibrated but serious response, then with reconciliation. 

It must be clear to all Americans that, during Trump’s second term, the conservative half of the country that suffered tremendous injustice from the regime’s lawlessness suddenly had the powerto exercise an awful retribution. And chose not to.

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