U.S. Rule of Law is Being Weaponized

Justice and History Sculpture (1863) by Thomas Crawford, U.S. Capitol, Washington, D.C. — Courtesy Architect of the Capitol

In the U.S. as well as China, the law is no longer blind

China’s increasing efforts to use the rule of law to threaten or punish those who dare to criticize Chinese Communist Party (CCP) policies provide a vivid warning of how the American rule of law is also being weaponized to penalize people and ideas that some politicians, prosecutors and agencies find offensive.

Given the CCP’s control over the rule of law in that nation, it’s no surprise that China is turning its laws against its critics and detractors worldwide. The latest move is a new law that criminalizes clothes and behaviors that hurt people’s feelings. (Trigger warnings do not appear to be a defense!)

U.S. Rule of Law has become politicized

What we fail to appreciate — to our peril — is that the U.S. rule of law has also become politicized in recent years. As U.S. politics has become increasingly bitter, as our political parties have moved from working together to demanding that the winner take all, as prosecutors and government agencies have used their discretion to target high profile cases, for some the U.S. rule of law has become just one more tool to achieve political advantage.

In school, we learned that the law is blind, and must not show favoritism or bias. Although we echo that idea today when we say no person is above the law, too often we forget to mention that every person must also have equal protection under the law. In that context, the law should never be used to target someone for political vengeance.

But the growing reality is otherwise — and the impact on American democracy and America’s standing in the world will be devastating.

Why the Rule of Law matters

For centuries, the rule of law has mattered because it provides fairness, objectivity and certainty in our business and personal dealings. Politicized, it loses all those things.

Worse, when the rule of law falters, it creates a chilling effect on our freedom of speech and our willingness to run for political office and even take public stands on important issues. President Xi gets it. He understands that for every person prosecuted, thousands more will be scared into silence. Unfortunately, too many U.S. political leaders, prosecutors and judges understand this as well.

We are all vulnerable to political abuse of the Rule of Law

The political abuse of the American rule of law may be one of the critical issues of our time. While it’s easy to think that only “guilty” Americans will be the targets, the definition of “guilty” can shift with every election, with the personal aspirations of every prosecutor, with the policy goals of every administrative agency, and with the judge and jury where the case is brought. Once using the law to target our political opponents is ingrained in our politics, American democracy will become no better than the Banana Republics we sneered at in civics class. Any of us may be the next target, consumed by trying to defend ourselves against an all-powerful government and bankrupted by legal fees even if we are innocent.

Protecting the Rule of Law will be complicated

This is not an easy issue.

America’s labyrinth of federal, state and local laws and even more regulations makes most of us lawbreakers at one time or another, intentionally or unintentionally. Businesses and business leaders are especially vulnerable because of the regulatory complexity governing their operations.

Prosecutorial discretion has always been part of the American criminal and civil justice system, affecting both what cases get brought and what penalties are sought. Regulatory agency cases exacerbate this flexibility and provide even greater power to the party in control.

Forum shopping has also been a part of American jurisprudence for most of our country’s existence. With U.S. Attorneys in dozens of federal districts, 50 state attorney generals and several thousand county prosecutors — most of them appointed or elected on a partisan basis and many of them looking for cases that can advance their careers — finding an opportunistic government lawyer to bring a case in a “favorable” jurisdiction for the prosecution is seldom a problem. America’s growing partisan divides between red and blue states and counties offer ample opportunities to find a grand jury and a trial jury that will dislike the defendant’s politics — a reality that makes an unfortunate mockery of the right to a trial by a jury of one’s peers.

The hazard in each of these areas is not the existence of discretion. It is how the discretion is exercised (and reviewed by the courts, which are also becoming more politicized).

Statutes that are seldom applied are being dusted off to prosecute the political defendant. RICO laws designed to fight organized crime are being deployed to sweep dozens of defendants into the political target’s alleged wrongdoing (a great tactic for coercing cooperation through plea deals). Lawyers are being added as defendants or fined for the legal theories they have dared to advance on behalf of their political defendants.

The financial and structural penalties in civil actions brought by state attorney generals and federal agencies have skyrocketed in recent years, often bearing no resemblance to monetary damage or historical norms. Huge fines have been accompanied by “sudden death” demands such as stripping the defendant of the right to do business in the applicable state or industry. Minor statutory or regulatory infringements can lead to existential punishments for the political targets.

Cases and appeals can run on for years, creating business and personal uncertainty and crushing burdens from legal fees and discovery expenses. For all but the extremely wealthy, the financial costs and associated emotional stress can be debilitating regardless of ultimate innocence. Families, careers and lives can be destroyed.

We are hearing the emerging echoes of cases from America’s past, where the ability to receive a fair trial, representation by capable counsel and equal justice under the law too often depended on a person’s race, community standing or politics. Given the recent popularity of the movie Oppenheimer, the McCarthy era comes to mind.

Under the rule of law, justice cannot depend on whether we like the defendant. Political lynching will destroy American democracy. It cannot stand.

Protecting the rule of law in our currently divided republic will be hard. Our best shot will be to vote for candidates who take the rule of law seriously and refuse to condone political prosecutions. We can also speak out and demand transparency on the cases that do arise. As in earlier eras where the rule of law was threatened by prejudice, ignorance and self-interest, we cannot remain silent in the face of political expediency.

This issue is about all of us

One final footnote: This is not a piece about Donald Trump, Hunter Biden or Elon Musk or other tech CEOs (who are also being targeted with antitrust or regulatory allegations), although they are all part of the greater story. It’s not about Democrats or Republicans. It’s about all of us — and protecting the rule of law in America while we still can.