'The Rule of Law' and Trump's Indictments

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Back with us now, University of Chicago law professor Aziz Huq. Many of you will remember that Professor Huq was very generous with his time for us this spring and early summer as a regular guest each time the Supreme Court handed down a major decision from the end of its term, and, boy, were there major decisions at the end of this last term. Now Professor Huq has a book that is of perennial importance in the United States, but also very relevant to the presidential campaign and also very relevant to the rest of the world. It is simply called The Rule of Law: A Very Short Introduction.

Now the rule of law, Kamala Harris argues, is very much an issue between her and Donald Trump.

Vice President Kamala Harris: Do we want to live in a country of freedom, compassion and rule of law, or a country of chaos, fear and hate?

Brian Lehrer: Harris at a recent rally. Of course, not having an insurrection is one way the rule of law would apply in a democracy, but what does the term really mean here and now or anywhere at any time? The book tells us that even in Aristotle's day, people used the term but disagreed on its meaning or its virtue.

Aziz Huq joins us now. Professor Huq, always good to talk. Welcome back to WNYC.

Professor Huq: Thanks for having me back, Brian.

Brian Lehrer: First, is there a simple definition of the term the rule of law so we all start on the same page?

Professor Huq: I think the best ways to think about the rule of law is as a term that people use to describe the moral standard to which they hold the law. That is, we don't just look to a legal system to be effective. We look to it to- we look for certain virtues in that system. As you noted, there's a long history of scholars and thinkers and lawyers and ordinary people articulating what their moral hopes are for the rule of law, and much of that history is captured or channeled through the term the rule of law.

Brian Lehrer: I mentioned the Aristotle reference in the book. I mean, he lived in ancient Greece. Is the term the rule of law, or however it translates from the Greek, that old?

Professor Huq: The term the rule of law was first used by a Victorian English legal thinker called Albert Dicey, and has since been taken up not just by politicians like Kamala Harris. It's also worth saying that Donald Trump and his allies have made arguments about the rule of law. We see rule of law talk being employed by bodies or people as varied as the president of the World Bank, the Prime Minister of Singapore, and the Premier of China. Indeed, the Chinese constitution, in Article 5, embodies the rule of law as a principle of Chinese government. That ought to tell us that there are many different ways of using the term the rule of law.

Brian Lehrer: Well, China doesn't even have an elected government, and yet they use the term the rule of law. What does it mean in that context, different from the United States, where, again, the first thing that may come to people's minds right now is January 6th?

Professor Huq: I think for the Western tradition, the rule of law has come to embody two clear ideas. The first idea is that the law should be public. There should be a law that's written down, and that written-down law should be available to citizens and followed by officials. The second idea is that the law should provide constraint. That is, the law should apply equally to citizens and officials, and those officials should be subject to sanction and penalty if they violate the law.

If we think about how those ideas of publicity and constraint apply in a context like China, we can see the Chinese Communist Party using the first idea, the idea that law is a tool for channeling instructions through public pronouncements, as central to the strategy of rule on the part of the Communist Party. On the other hand, the idea of law as constraint, the idea that officials or party members are constrained by the law, has fallen by the wayside in the Chinese version of the rule of law.

Brian Lehrer: Right, and probably even more so in the Xi Jinping era, though we don't need to dive too deeply on that. Although, I was thinking, reading in on this for you, that China aside, that there are countries that have elected strongman leaders who may be popular but lean toward authoritarianism. Is the argument there that the rule of law constrains leaders too much from providing public safety or prosperity, things like that? I'm thinking Duterte in the Philippines, Bukele in El Salvador now, and some other examples. I mean, TIME Magazine had an article just last week about Bukele with the headline, "A crackdown on gangs has made the authoritarian leader arguably the world's most popular head of state." Again, that's El Salvador, for people who don't know, but we don't usually see those terms bundled together: authoritarian leader and arguably the world's most popular.

Professor Huq: I think that there's a connection between a crisis that's either economic or public order or public health and stresses on the rule of law, and I think the connection works as follows. Often, you have a government that is faced by some kind of unexpected shock and doesn't do a good job of addressing that shock. Into the electoral landscape in the background or in the fallout from that failure, you have an authoritarian leader, somebody like Bukele, somebody like Rodrigo Duterte in the Philippines, coming in and saying, "I can fix these problems. I can address this shock if only I have these extraordinary powers," and people vote for these leaders.

Sometimes those leaders are able to address the crisis, the spiraling crime or the collapse of the economy, often using extraordinary powers beyond the law. In addressing those crises, one of the casualties is the felt sense among officials and the public that the leaders of the government remain constrained by law. Out of crisis and the reaching beyond the law that comes with crisis comes an erosion of democracy, an erosion of legality, a poorer quality rule of law than you had before.

Brian Lehrer: Can we apply that description to the current political debate and, even explicitly, the presidential race in the United States, that when Kamala Harris talks about the rule of law and when Donald Trump talks about the rule of law, they're talking about, to some degree, two different things?

Professor Huq: I think that when Trump argues that his various prosecutions are in tension with the rule of law, whether or not he uses that exact phrase, what he means is that the tools that the government has are being used unequally as between different individuals because of their politics. I think that that is a way in which the rule of law comes under pressure. It's a form of violation of the rule of law as constraint on political power.

I think the answer to Trump's argument, however, is that as a matter of fact, the law is not being applied unequally because Trump's actions as president, as candidate, are unique in American history in terms of the contempt that he has evinced for the constraints on presidents and the safety and wellbeing of citizens and political opponents. Just as a matter of fact, I think, Trump might be describing a rule of law violation, but it's not a rule of law violation that exists in reality. Flip that around; what Harris is describing, I think, is capturing aspects of Trump's behavior that do show a persistent disregard or indifference to legal constraints in a way that I think is inconsistent with both the rule of law as publicity and the rule of law as constraint.

Brian Lehrer: I know you're very critical of the Supreme Court's presidential immunity ruling in that context, and we'll get to that. Listeners, any questions, comments, or stories about the rule of law? 212-433-WNYC. You can approach this as abstractly as you like, as you would like as a concept in political philosophy, or you can really be specific about issues where you think a rule of law matters and is at stake right now in this country or perhaps any other country that you may have come from. We talked about El Salvador, Philippines, maybe you're from one of those places or others that may be relevant to this conversation, China, or that you have connections to. Or even if the rule of law, as usually meant, is always the best indicator of democracy and human rights, as sometimes has been debated. 212-433-WNYC for University of Chicago law professor Aziz Huq. 212-433-9692.

Professor Huq's new book, The Rule of Law: A Very Short Introduction. By the way, is this part of a series, books called a very short introduction, on various subjects?

Professor Huq: There is a series of around 800 books called Very Short Introductions Series. I won't speak about my own book, but in general, they are terrific little books, about 120 pages a piece, which give you crisp and comprehensive introductions to topics usually written by people who are experts in their field. For example, at the beginning of the pandemic, I know that I wasn't the only person reading the Very Short Introduction on viruses, epidemiology and pandemics.

Brian Lehrer: Yes. I'll say your book certainly falls into that category, so listeners call and ask a question of the brisk but comprehensive Aziz Huq. Among the contemporary issues that you say put the rule of law at risk are terrorist threats, economic crises, and climate change. Can you make the link with climate change?

Professor Huq: I think that we see in recent Supreme Court cases the tensions between the rule of law and climate change, where in the United States we have a set of statutes that give the Executive branch power to deal with environmental problems. The Clean Air Act is the most important of these. Various administrations, not just Democratic ones, have looked to these statutes, which date back from the early 1970s and before, as legal authority to deal with the problem of climate change and in particular, carbon-based emissions. Now in the 1970s, carbon-based emissions were not seen as a problem.

One of the things that the US Supreme Court has done in the last five years is to push back aggressively on the administrations', particularly the Biden administration's, willingness or efforts to use these older statutes to deal with new problems. I think that from the perspective of the Supreme Court, what they are doing is addressing a rule of law problem. What they are doing is saying, look, this statute, when it was handed down to the public, when it was promulgated, surely did not mean that you could regulate carbon dioxide, because no one at the time thought that that is an omission [unintelligible 00:14:10] that can be regulated under this statute.

Now I think that that is a rule of law argument, but I think that the counter is that-- well, there are a number of counterarguments, but one counterargument is that the rule of law is absolutely a virtue of government, but it's one virtue among many. There are moments where the virtue of being responsive as a democratic government should be responsive not just to the desires of the public, but to the immediate physical harms, the immediate social and environmental harms that bear upon the public is another really important value. The Court has prioritized what it sees as rule of law values over other considerations.

Brian Lehrer: On pandemics, the conservative critique of the US COVID response, in part, was that mandated lockdowns and vaccines for admission to public spaces were tyrannical. I would argue that taking extreme measures in an earnest quest to protect public health is very different from mandates done just to increase the power of somebody who just wants more power, but Trump and RFK Jr. and others still claim there was pandemic tyranny. How do you deal with it in your book about the rule of law?

Professor Huq: I think that one way of understanding the complaints of RFK and Trump and others is as picking up and using the publicity strand of the rule of law. What they're saying is, look, these statutes, as they were originally understood, as they were originally enacted, couldn't have been expected to include the power to order lockdowns or, for example, the power to order moratoriums on evictions, which was one of the important questions that came up before the Supreme Court. I think the countervailing argument to that or another countervailing argument to that is that, look, these statutes, in fact, are written in very broad terms, and they give administrators an awful lot of discretion.

Yes, it's true that there is some tension between publicity or the idea of law being clear and giving people guidance, on the one hand, and on the other hand, a law that is written in vague terms that give people discretion, but we should recognize that there are many situations in which writing the law in general and vague terms in ways that allow officials and the public to respond to new and unexpected circumstances is really valuable.

The other point I'd make is that when Trump or RFK make these rule of law-style arguments; as you noted, they're moving between or trying to get people to think that there is a rule of law as constraint problem, that this is a problem of officials abusing their power for their own benefit, when really that's not the case. It's a rule of law as publicity problem, not a rule of law constraint problem.

Brian Lehrer: Barnabas in Brooklyn, you're on WNYC with Aziz Huq. Hi, Barnabas.

Barnabas: Good morning. I'm longtime listener, first-time caller. One of the things-- When I hear the term rule of law, it's easy for me to kind of get it confused with the term law and order. I know, like in the late 1980s, early 1990s, with the crack era, my [sound cut] [inaudible 00:18:12] was an incarcerated person would often talk about law and order. When the term rule of law started to be more publicly stated, often got those things confused and associated those things with some sort of legislation that was seedy or some sort of undercurrent to where people of color, more specifically, would be kind of victims of the government. Things like eminent domain and the various things, similar to what you were speaking about earlier with the low-lying areas in Queens, where we would have certain benefits and access to just social standing within our citizenship. However, some of those benefits and privileges could easily be snatched provided that the right wording were applied to certain legislators.

Brian Lehrer: Yes, what a great question. Barnabas, glad you're a first-time caller, don't make it the last time. There's a lot in there, Professor Huq.

Professor Huq: It's a great question, Barnabas. I think the way to think about this is that particularly the idea of the rule of law as constraint stands in opposition to the phrase law and order as it's been evoked since the late 1960s by American politicians. Here's why. Part of the idea of the rule of law as constraint, and this goes back to the Victorian legal thinker Albert Dicey, I mentioned, is a twofold limit on the state's power.

The first limit is that when the state punishes you, it has to go through the ordinary courts and give you the full measure of the due process of law. Second, when officials misuse their power, the ordinary courts also have to be open to people alleging the abuse of that power. That's what the rule of law means. Now the people who argued for the rule of law, starting with Lee Atwater, who was the campaign manager for Richard Nixon, use that term as a cudgel, as a club to attack particularly the legal decisions of the Warren Court, which was the Supreme Court of the 1950s and the 1960s [crosstalk]--

Brian Lehrer: Are you saying they used the rule of law as a phrase to attack the Court, or law and order?

Professor Huq: Politicians, in the wake of Atwater, used the term law and order as a cudgel to attack the due process rights of criminal defendants, and to argue for a rollback of the remedies that victims of police violence have against police brutality. It is the justices who are appointed by law-and-order presidents who spin a doctrine of qualified immunity up from nothing. Qualified immunity has no basis in a statute or in the constitution, and yet qualified immunity has come to be an almost impenetrable barrier to victims of police violence seeking a remedy, a damages remedy, in court.

[unintelligible 00:21:51] a matter of the due process rights of people who are swept up in the aggressive policing that we've seen from the 1970s onwards, and also as a matter of their entitlement to relief from constitutional violations, the rule of law stands on their side, and the label law and order has been used as a club against them.

Brian Lehrer: Really interesting question from Barnabas relating those two terms to each other, and really interesting answer from you. Related, a listener writes in a text message, "Why does the rule of law theoretically apply to all, but realistically only punishes a few?" We'll take that as a rhetorical question that suggests why a lot of people are cynical about the rule of law, even as a value in this country, because of the way it sometimes seems to be unequally applied, as in what you were just describing about immunity.

That'll lead me, as we run out of time, to my last question for you, which I said I was going to ask you about anyway, your article about the Supreme Court's presidential immunity ruling that protects Trump in various ways. You see it as setting ground rules for legal despotism, you wrote. I'll just give you one question of hypothetical pushback, quick answer, and then we're out of time.

The majority on the Court, I think is fair to say, made the distinction between official acts of the presidency and things done as a private citizen. Does it really harm democracy that much? If Trump inspired the January 6 riot in his role as candidate for reelection, not as president, he could still be held accountable, I assume. If he were to say directly, as your president, I think people should protect against rigged elections by storming the Capitol and stopping them from certifying the vote, that would be something else. Give us your quick analysis, and then we're out of time.

Professor Huq: At the core of the constraining idea of the rule of law is the idea that when officials have the cloak of state power, they are capable of wreaking damage that they cannot do as a private citizen. What the Court has done is to say that we ought not to be worried about when officials act with the cloak of official power because they can always be prosecuted for what they do in their private capacity. The Court's argument is- it blinks the reality that particularly presidents have such awesome and wide-ranging and undefined powers that to leave those powers unguarded is to, in essence, give up on the project of maintaining the rule of law when it comes to the White House.

Brian Lehrer: Professor of law at the University of Chicago, Aziz Huq. He's got a brand-new book called The Rule of Law: A Very Short Introduction. Fascinating conversation. I'm sure you've got a lot of people out there thinking new thoughts about the subject and how it applies to life today. Thank you very, very much.

Professor Huq: Thanks for the terrific discussion, Brian.

 

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