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April 04, 2018


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Patrick S. O'Donnell

One can only hope your post doesn’t get read by anyone associated with FOX News, lest crisis, chaos, and confusion increase by several orders of magnitude within the White House (with direct and indirect deleterious and destructive consequences that of course extend throughout our country and well beyond its geopolitical borders). Alas, the president cannot have respect for the “rule of law” because that assumes one has some viable conception of what the rule of law means* (e.g., elements of predictability and equality, which in part and minimally imply it cannot simply and solely be an instrument of the politically and economically powerful), which all relevant evidence indicates he clearly does not possess (his pathological narcissism no doubt plays a causal part here). Add to this the fact that it’s not only about rule of law simpliciter, but rule of law for a would-be democratic regime, the normative constraints of which, particularly in a constitutional polity (which is a coordination device for ‘the people’ in relation to the state, identifying democratic methods, procedures, and norms the violation of which are identifiable as transgressions subject to legal and political sanction, a constitutional if not democratic crisis occurring when one of the parties bound by this device decides it's no longer in their ‘interest’ to remain bound by its terms), are that much more demanding (even if, in fact, they both constrain _and_ enable, as Stephen Holmes has taught us), morally and politically.

* This is a rather notoriously complicated topic, as philosophy of law and legal theory arguments and debates attest, with this or that positivist take on the topic ruling the roost. I happen to believe, at bottom, that the rule of law, after Plato, Hobbes, and Kant (and after some conceptions of ‘dharma’ in Indic civilization), is a “moral idea” which need not imply subscription to some historically identifiable natural law philosophy, and is exemplified by Fuller’s identification of eight desiderata that collectively amount to a moral aspiration we hope to incarnate in actual legal systems: the fact that we may or often do fail in this regard does not eliminate the normative power and relevance of the aspiration. The historic application of Aristotelian-like moral judgment and reflection upon our political and legal practices and institutions helps us fill out and revise Fuller’s desiderata (its archetype providing a normative model of assessment applicable to our legal standards and conception of legal validity) by way of articulating a common good that is “intrinsic to law’s nature” (Please see Nigel Simmond’s Law as a Moral Idea).

Patrick S. O'Donnell

Oops, that should be Nigel Simmonds’….

Anthony Gaughan

Thanks for your comments Patrick. As you rightly point out, the definition of "rule of law" has long been a topic of robust discussion and debate. In fact, I just did a search on SSRN for the term "rule of law" and it brought up over 5,600 papers!

Patrick S. O'Donnell

But one of the many pieces of appalling behavioral evidence that illustrate or suggest Trump’s utter lack of understanding and inability (intentional and otherwise) to appreciate the meaning of the rule of law in a constitutional democratic polity comes from the grotesque public display of his admiration of and servile displays of affection for authoritarian leaders around the globe. He appears to identify with, if not envy their exercise of despotic power.

And apart from his corrosive effects on the actual rule of law, the president has managed to diminish and degrade national and civil discourse in this country, as his tone and rhetoric is designed to appeal to the basest instincts, fears, insecurities, prejudices, or crudest desires of the crowd or the mob (which in part accounts for the corresponding idealization of and identification with authority and contributes to their individual and collective indulgence in wishful thinking, self-deception, and states of denial), those individuals who appear to possess what Erich Fromm and his colleagues identified as an authoritarian character structure (with proto-fascist or pro-fascist tendencies) in their pioneering social psychological study of the attitudes and character traits of the Weimar working-class: many of these workers ostensibly identified with or voted for leftist ideas and parties, which helps explain why, under the maxim “like attracts like,” it was fairly easy for them to soon be beguiled by fascist rhetoric, swiftly switching their allegiance to fascist forces ascendant in Germany at the time.


Yes, yes, the spin ...

"In the spring of 2017 Rosenstein wrote a memorandum criticizing former FBI Director James Comey, which President Trump subsequently used as a pretext to fire Comey"

Fact: Rosenstein didn't just "criticize" - he recommended dismissal

“The way the Director handled the conclusion of the email investigation was wrong. As a result, the F.B.I. is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”

"The United States today is in unchartered terrain as a nation. We have a president in office who launches tirades against the judiciary and who calls on the FBI to conduct politically-motivated investigations of his opponents."

THis is appallingly ahistorical. No President has railed against the Supreme Court, in "tirades" or otherwise? Did a President (by and thru his AG) approve J. Edgar Hoover, et al. to, e.g., wiretapping MLK, and on and on? Have you no idea of a history of FBI abuses in this country? And, you are calling on politically motivated FBI investigations yourself! What the h... are you talking about?

"The Russia probe thus represents a test of whether the rule of law still functions in the United States as it did 45 years ago during Watergate."

You reveal your bias here, for all to see. YOu have prejudged guilt. THis is very bad modeling for a member of legal academia.

Anthony Gaughan

Thank you for your comments, anon. You are right, I am biased--in favor of the rule of law, the separation of powers, an independent judiciary, and the Constitution of the United States! Have a great weekend.


Oh please ... totally nonresponsive.

Rail against all the Presidents who actually defied the Supreme Court - or threatened to pack it -- stop pretending that the FBI is beyond reproach and that this administration somehow exercises undue influence over it (quite to the contrary) - stop acting like a prosecutor (or worse, you) is a judge of the facts and legal responsibility and, above all, stop complaining that the "Rule of Law" has been violated (let alone the Constitution, geez) and start objectively referencing ample evidence of improprieties in the prosecutions that you applaud, discuss how Clinton dealt with his accusers and Ken Starr, and all the rest, and then, maybe then, you will have a basis to claim you are objective.

Just lifting phrases from the Atlantic and other left wing sources, however, doesn't cast you as an objective observer.

Sorry. It seems you would like to be one, but just can't get out of the bubble.

Have a great weekend, and, perhaps, examine your quite obvious biases. If you are indeed reading the Atlantic, you will find the quote, "Partisanship makes one stupid" or words to that effect.

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