Of Men, Not Law - To Make America Hate Again

By William A. Cohn

August 29, 2017 "Information Clearing House" -  Aristotle said the rule of law is better than the rule of men. Having law above us guides us – away from our corrupt destructive impulses, enabling greater peace, liberty, prosperity and security. The current head of the U.S. has wrought havoc on rule of law norms by inciting hate and lawlessness and sowing chaos – the antithesis of law and order. His hasty pardon of a cruel racist sheriff post-Charlottesville is simply the latest action taken to undermine the judiciary and divide people.

45* has raged particularly against the judiciary and the press – the two institutions vital to checking tyranny. The judiciary is the branch of government most independent of politics, and thus best able to safeguard constitutional values. Federal judges ruled Sheriff Arpaio’s indiscriminate dragnet detention of peoples in violation of the 4th and 14th Amendments of the Constitution. When he persisted with racial profiling of Latinos he was in held in contempt of direct court orders.

To pardon a public official who refuses to obey the law (especially a direct court order) is to give the finger to the judiciary, and thus our constitutional order. It encourages further lawlessness. It unleashes bias, hate, vigilantism, mob rule. And it hits where the rubber meets the street. Most people encounter law via policing, so when racist cops are unmoored then law is seen as a threat, not a protector. There is a circular logic to the fear and hate-mongering of 45* which need be recognized and thwarted. The writing was clearly on the wall.

Citizen Trump made his entry into public policy by calling on New York to re-implement the death penalty in order to execute young black men wrongfully accused of raping a white woman. And old story seized upon by this opportunist hater to raise his profile. That he still called for the execution of the Central Park Five after they were exonerated should have disqualified him from holding office in any reasonable society. Yet today he is the inciter-in-chief of the lynch mob, hailing the unrepentant racist former Sheriff as a “patriot” who was treated “unbelievable unfairly” by the courts. An emboldened Arpaio then echoed 45*’s slander of federal judges, making unsubstantiated claims of Judge Susan Bolton’s (who issued the contempt order) bias.

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45* has brought Jersey-style governance to the capital, where he employs the tactics of Tony Soprano and Rupert Murdoch to hold sway over others. Payback against the Arizona Senators who had sought to assert independence from the psycho-in-chief was the most likely impetus for the Arpaio pardon. As well, he was sending a message to others (e.g., those Special Prosecutor Mueller will question), as mobsters do. Loyalty and betrayal – the be-all end-all of mobsters. Dismantling the administrative state creates a void for racketeering.

The reaction must be a mass mobilization to resist this dictatorial agenda. Counting on our existing political parties is foolish; looking to the Supreme Court is a wishful prayer. Affected communities are at the vanguard of the resistance. Using the courts in the battle against tyranny is a vital tactic, as is protest by putting bodies in the streets, even in the face of the resumption of the military equipment transfer to police program and the increasing criminalization of dissent.

We now know that 45* never consulted the Department of Justice before issuing the Pardon, and that he has snubbed and undermined its mission of equal justice under law since taking power. Thankfully, the DOJ and federal judges have not succumbed to his mobster tactics. The judiciary should be receptive to petitions from people hurt by the unlawful actions of the current U.S. administration – that is all of us.

William A. Cohn, professor of jurisprudence at New York University, and lecturer on law, ethics and critical thinking at the University of New York in Prague and SUNY Empire State College, is a member of the California Bar. He is the author of Led Astray: Legal and Moral Blowback from the Global War on Terror, in Assessing the War on Terror (Routledge 2017).