Is Erosion of the Balance of Powers Creating a Clear and Present Danger to the Constitution and our Form of Government?
We have reached a tipping point in this great nation. As citizen voters, we need to decide whether the continually weakening of the separation between the three branches of government is sustainable.
For nearly 250 years, citizens of the U.S. have enjoyed the unfettered liberty of being free to have spirited debates about the direction of the country. This fundamental feature in our form of democracy has been an enormous strength -- but it has only been a strength because we have always had the Constitution and the Rule of Law as a backstop -- a backstop that more often than not (with a few notable exceptions) has created and maintained a "constitutionally prescribed lane" for such discussion along with built-in constraints to prevent it from boiling over. And with that backstop, the freedom to disagree and espouse one's own thoughts and opinions have become one of our nation's greatest strengths.
Unfortunately, that backstop is increasingly in question. We have reached a tipping point in this great nation. As citizen voters, we need to decide whether the continually weakening separation of powers between the three branches of government established by the Founding Fathers, will be allowed to continue. This is the real danger we face. It is the 800 lb gorilla in the room that nobody seems to want to take on.
In 1788 in the Federalist Papers No. 51, either Alexander Hamilton or James Madison wrote (it’s not clear which of the two of them authored this, particular paper): "In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others."
Today, we are pushing this fundamental tenet, embodied in the Constitution, to an extreme. Appointments to the Supreme Court have been politicized to the point that both the Executive Branch and the Legislative Branch see the seating of justices as a political imperative. In recent history, enforcement of the nation's laws by the Department of Justice and the FBI has increasingly been subject to Executive Branch interference (DoJ falls under the Executive Branch - more on this below). The Legislative Branch of government is extending it's reach through carefully crafted bills to sidestep the influence of the Executive and Judicial Branches. Both parties accuse each other of stacking the Court, when it comes to seating new justices on the Supreme Court. And, through the profuse use of Executive Orders, the White House in recent memory has taken on the role of effectively legislating without cooperation from Congress.
We need to have faith in the Constitution and the Rule of Law. As a nation, we need to ensure that there is no additional breakdown in the balance of powers between the Executive, Legislative and Judicial branches of government. Otherwise, we are all likely to turn dark and taciturn, as has much of today's Republican party. Without such a balance of powers between our branches of government, everything begins to fail. Madison/Hamilton, in their wisdom, recognized this in 1788.
So, when former President Trump, shortly after being indicted in New York, immediately called for a "de-funding of the FBI and the DoJ" it should have been a clarion call to defenders of the Rule of Law, since it is the basis for our entire constitutional system. It is the one thing that MUST be defended at all costs or our form of democracy will fail. But there is a significant nuance here because the DoJ and the FBI fall under the Executive branch of government (more on this, below).
Former president Trump's well-known prescription for political debate is now being adapted by his followers as a tool for widening their attacks on their political opponents and government agencies that fail to tow the line on their narrative. This has the impact of threatening our very form of government. It goes something like this: 1) assassinate the character of the person or group you are debating with; 2) accuse them of doing what you, yourself have been doing all along (or are accused of doing); 3) use the court of public opinion in an attempt to stir up outrage and influence an outcome outside of the proper channels. The process, prescribed by today's right-wing Republicans is highly-charged with ad hominem name calling, errors in logic, partisanship and, unfortunately, lying with impunity. And more recently, some Democrats have begun to follow a similar script, a development that is scary and dangerous, at best.
Following that script is precisely what former president Trump has been doing since his indictment. He has made comments about the the DoJ and FBI being corrupt and politically weaponized (character assassination). He has accusing them of acting illegally and in a way that ignores the Rule of Law (what he has been doing all along). He has vociferously spread lies and misinformation via social media and personal appearances, using lightly-veiled calls for violence and wide-spread protest, in an attempt to motivate his followers to influence the outcome of his legal cases (using the court of public opinion).
If one really takes the time to research this topic, it becomes apparent that the DoJ is significantly less weaponized after he left office than it was during the tenure of president Trump and his two AG's Jeff Sessions and William Barr. One needs to look no further than how the Durham inquiry backfired to show a glowing example of the clear and present weaponization that existed in Trump's DoJ. Instead of achieving any of the given objectives in the charter given to John Durham, the multi-year investigation ended with accusations of unethical actions by the special counsel, Mr. Durham and former AG William Barr to “weaponize” the US Department of Justice (DoJ) to help president Trump. “It was clear to people following the Durham investigation as it unfolded that it was highly irregular from the start,” said former deputy AG Donald Ayer who served in the George HW Bush administration “Indeed there’s good reason to believe that its purpose and primary function was to create fodder to advance Trump’s election prospects.”
Corruption requires neither a color nor a party, nor is it limited to one's standing in the hierarchy of society. It should be fought against universally, as should lying and unethical behavior. We shouldn't care about whether it is the Democrats or the Republicans who engage in corruption, but we do. Republicans and Democrats keep pointing the same arguments at each other, referring to each other as being corrupt and trying to destroy America. But it is not this debate that threatens America -- the real threat is the breakdown in ethics, morality, dignity, honesty, and integrity in our society — the failure of the American people to put ethics, honesty, accountability and leadership at the top of the priority list when electing a president, and the continual parallel erosion of the balance of powers in our government.
Arguments in discourse that are based purely on partisan rhetoric and absent any documented proof / truth / evidence are not useful in either describing, diagnosing, or correcting issues in our society. Nor do they offer any efficiency in helping the opposing sides to find common ground. Rhetorical arguments only serve a useless functional purpose which is to be divisive, agitate, and spread misinformation. They are gasoline, meeting a flaming match -- and that is, perhaps, why they are so popular in today's version of political debate.
To illustrate this, in terms of recent events: On one side, we have the Democrats clamoring to punish the bane of their existence (Trump and Trumpism) in any way possible. They tend to side with anyone who seeks to bring him down a notch, often in the absence of any kind of rigorous or even reasonable analysis. They have become all-too-prone to taking a strongly-worded stance without first trying to achieve real understanding of the facts and circumstances -- or what the truth really is. Similarly, Republicans reacted to the Trump indictment with shocking scorn, calling the indictment a "political weaponization" of justice and demanding, as former president Trump has, that law enforcement be “de-funded”. And this is being done in broad daylight and often in complete denial of the facts.
Unfortunately, willingness to support the Rule of Law seems to vary, and even change definition, with the political party in power. When Democrats called for de-funding law enforcement following several high-profile murders of African American citizens by police in the line of duty, many Republicans largely reacted with righteous acrimony and indignation. What has changed? Nothing, really, except that this time it was "their guy". And then, suddenly, it became acceptable to de-fund law enforcement.
Unless we were direct participants in the New York Grand Jury, not one of us has seen the evidence or heard the detailed testimony that the New York Grand Jury was exposed to. Yet many Americans seem willing to mindlessly believe half-truths or misinformation that they acquire from partisan cronies on social media, over drinks with their friends, and on myriad TV/cable networks that are pitching entertainment rather than real news -- and, often, they chose rhetoric over truth and facts for the apparent reason that the rhetoric simply offers a more convenient parallel to their desired narrative.
From a legal standpoint, until the lawyers for Mr. Trump have the opportunity to formally challenge the charges brought by the New York County District Attorney in court, it is extremely unlikely that AG Bragg will provide Trump's legal team with the specifics of his legal arguments, and especially not the supporting evidence for those arguments. Such an action would allow Trump's legal team an extraordinary opportunity to counter the arguments and evidence in their filing. Legal analysts have pointed out that such a decision to not reveal all the details of the case against Mr. Trump is consistent with fundamental litigation strategy.
This all plays into an underlying point that needs to be made here. Is it appropriate for anyone to “judge” the merits of a case that they have only partial (or perhaps even false) information about? We Americans seem willing to glibly ascribe guilt or innocence all too frequently and most often without any factual basis. I’m not referring to avoiding any discourse on a particular case or topic. That would, of course, be impossible and even ill-advised. But making harsh and/or judgemental statements like “they should lock his ass up and throw away the key” or, alternatively, “They need to hang that Bragg dude for bringing those charges! It’s pure politics” are the kind of uninformed rhetoric that is well outside the rhelm of respectable and tolerable behavior for people who have not been privy to the charges, the testimony, or the evidence. When we, as Americans, let ourselves get caught up in this, we are just playing into the hands of a manipulator of one kind or another, be it on one side of the fence or the other.
If this ideal is applicable to ordinary Americans, it seems that it should also apply to both the Executive and Legislative branches of our government, as well. They are, after all, Americans, just like the rest of us. It can, and has, been argued that it was never intended by the nation’s Founding Fathers that the Executive and/or the Legislative branches of government would (or could) exert overbearing and restrictive influence on the law enforcement system in this country. That said, we should not confuse the Department of Justice with the Judicial branch. The Judicial branch of government is our court system -- Supreme, Circuit, the magistrate (local) and municipal (city) courts. And their job is to decide the meaning of laws, how to apply them to real situations, and whether a law breaks the rules of the Constitution. Despite the similarity in naming conventions, the US Department of Justice and, hence, the FBI belong to the Executive branch. The attorney general of the United States is appointed by the president. Article II of the Constitution clearly vests “executive power” in the President alone, and it is this reporting relationship which is at the heart of the weaponization problem that is on everyone’s radar today.
In modern history, where it’s safe to say that corruption inside the White House has become a more frequented discussion topic than it has been throughout history, a work-around has been put in place to assuage the potential conflict of interest between POTUS and the DoJ. Since Watergate, every American Presidency has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters. It is this delicate balance between the Constitution and modern practice/legal precedent that became the trigger point for “weaponization” of the DoJ under president Trump - or any other president. But it's safe to say that no modern president before or after president Trump has exerted so much direct influence on the Justice Department. More importantly, this approach to heavy-handedness between POTUS and DoJ represents an unhealed wound. The arguments for and against Executive influence over DoJ are being frequently employed in the verbal warfare between the parties - and this will continue for some time, unfortunately. The solution here, of course, lies with “we the people".
In The Federalist # 78 Alexander Hamilton stated that if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles. As a nation, we need to find a way to come together and let the Rule of Law work and we must steadfastly stand behind its fundamental tenets.
If Donald Trump is guilty, a jury will reach that verdict on the basis of evidence. If not, he will be acquitted by a judge/jury and nothing any of us say or hear on social media about our opinions on his guilt/innocence should attempt to change that. Let's hope it stays that way. Because if it doesn't, this entire nation is going to be in a world of hurt.
https://www.cfr.org/article/unconstrained-presidency-checks-and-balances-eroded-long-trump
https://www.theguardian.com/us-news/2023/feb/10/donald-trump-fbi-durham-investigation
https://www.nytimes.com/2023/01/26/us/politics/durham-trump-russia-barr.html?unlocked_article_code=neI4mpOy1IkjkYar161hez66yCt3OjUIhUq3kSOzkwAU4gPBPJMmj_9xy3GuF85ti1IjnJLhbZ_ivqMhONHWDlrqE_gclR4YeWDQlp2vVHNXPXCEKnHDIRwVjXICnCK8TGA7UNzh-GT8SdT3IvCZ3ErcjXnRsH-hFE93763H1ZgWrXpb0JXTALLBjGyWFL0JEdFbpheS7khyAQw81uzTKzOEyRUp6TUkY9z3fISSMtkZeilXz5DTw0M9KUASh7eJjUsx3jjjGcBNI2dCUxixoUpZr3Wy5OTHJOWnC6dv70y-BDqxPQtufYQCyqx_HfkZM57aNuovefKAePtihdHafWpDt4_bHWY&smid=url-share
https://billofrightsinstitute.org/primary-sources/federalist-no-51
https://rollcall.com/2017/11/03/trump-urges-doj-to-investigate-his-political-foes/
https://www.factcheck.org/2023/04/examining-trumps-claims-on-his-arrest-and-arraignment/
https://www.newsweek.com/jim-jordan-broke-this-new-york-law-alvin-bragg-threats-kirschner-1793301
https://www.lawfareblog.com/independence-and-accountability-department-justice
https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law
https://avalon.law.yale.edu/18th_century/fed78.asp
https://www.politico.com/news/2023/04/09/trump-bill-barr-bragg-merchan-00091115