Apr 12

Apr 12 Hyperpartisanship Endangers U.S. Rule of Law By Luke Perry

Hyper-partisanship has been destructive to U.S. government over the last few years. Rule-of-law is the latest target in the wake of the FBI executing a search warrant for Michael Cohen, the personal lawyer of Donald Trump, who is being investigated for possible bank fraud, wire fraud, and campaign finance violations.

Rule-of-law is the cornerstone of democracy. Simply put, this means most people respect and follow the law, most of time. Due process is necessary for rule-of-law to be effective. The law must apply equally to all citizens, regardless of one’s status in society.

President Trump has received unprecedented scrutiny for a modern president. This understandably frustrates him. No politician likes to be misunderstood, slighted, or attacked. Trump’s supporters share his political vision and think this criticism is unfair and counterproductive.

All presidents are heavily scrutinized. This is part of the job description when you are: 1) head of state; 2) head of country; 3) Chief Executive; 4) Commander and Chief; 5) domestic and foreign policy leader; 6) top economic manger; and 7) top party leader, among other things.

How presidents respond to this constant, unparalleled pressure define their character and leadership ability. This is where President Trump’s critics believe he has proven himself unprepared and unfit for office.

The country is being torn apart over this extraordinarily controversial and charismatic figure. Fortunately, the law is more dispassionate and can be instructive here.

Much of the Bill of Rights is focused on the rights of the accused. This is vitally important to ensure a dictatorial government doesn’t abuse power and oppress citizens through the criminal justice system.

America is fortunate to have strong rule of law. As a democracy scholar, I have experienced parts of the world where this isn’t the case. It can be a scary experience when the law is corrupt. At any moment, police demand bribes, government indiscriminately imprisons you, and criminals extort or harm you.

Our system of law is not perfect. Centuries of race based slavery and segregation emanate in significant and troubling ways. Still, our system works better than most of the world.

The Fourth Amendment protects against “unreasonable searches and seizures” by requiring “probable cause” to issue a warrant. That means the government must clearly demonstrate it’s more likely than not someone perpetrated a crime before searching and seizing their property.

This was a reaction to Britain’s use of “general warrants” that allowed the government to search without cause, often times targeting political enemies. In the 1760s, British courts decided this practice violated English common law.

The crown used a similar tactic to search private dwellings for goods that U.S. colonists had not paid tax on. These “writs of assistance” lacked time constraints and were unsuccessfully challenged in court. John Adams considered this the “legal spark” that started the American Revolution.

Executing a search warrant is not an “attack on our country” and “what we all stand for.” Instead, this process reflects the centrality of the U.S. Constitution in our society, a document every president takes an oath to uphold.

No amount of power or political gain is worth weakening our rule-of-law. Ensuring its healthy continuation is one of the greatest responsibilities of the president and the citizenry he serves.

Luke Perry (@PolSciLukePerry) is Chair and Professor of Government at Utica College.