“Lawless” is a word we associate with the Wild West.
When the western parts of the U.S. were settled in the 19th Century, there was literally no law out there. No sheriffs, no police, no judges, no courts. Settlers and cowboys didn’t have to obey the law because there was no law.
The novels of Louis L’Amour about the Sackett family vividly describe the lawlessness at that time. If a thief stole your cattle and got caught, you simply hanged him from the nearest tree. (“The Oxbow Incident” tells what happens when you hanged the wrong guy.)
James Michener’s novel “Alaska” describes the lawlessness in that territory before the federal government established courts. The rule of law did not exist because there was no law.
“Lawless” today is a word being used to describe the current administration in Washington. There are laws on the books now, but the president doesn’t pay any attention. The president threatened to destroy cultural sites abroad, a blatant violation of the Geneva Convention, which is U.S. law.
A war criminal, Lieutenant Clint Lorance, was convicted by a military jury of ordering his soldiers to murder unarmed civilians, after nine members of his unit testified against him; then Lorance was not only pardoned by President Trump, but welcomed as a guest of honor at a political fundraiser. The president has pardoned numerous other criminals who happen to have friends in high places, including Joe Arpaio, Scooter Libby, Dinesh D’Souza, Rod Blagojevich, Bernard Kerik, and Michael Milken. Trump simply ignored the Justice Department process that is supposed to evaluate pardon requests.
Over the years, Trump has proclaimed people guilty or not guilty before trial, or immediately deserving of the death penalty or exoneration. He declared some FBI officials “scum” and said “we have a lot of dirty cops.” He publicly mocked federal judges and derided the criminal justice system as a “laughingstock." He ignores the emoluments clause of the constitution.
How should we respond to these attacks on the rule of law? The four attorneys prosecuting Roger Stone responded to President Trump’s interference in the case by resigning. The rest of us can respond by letting all our friends know that lawlessness is not acceptable.
How should members of the military respond to illegal orders from the president? The president is commander in chief of the armed services, but every soldier and sailor swears an oath to support and defend the Constitution. Anyone charged with defending the Constitution is morally and legally bound to disobey an illegal order. (Remember the My Lai massacre.)
I saw a survey that asked people what they would do if the president canceled the elections this November, on the ground that he was concerned about illegal voting. A majority of Republicans said they would approve. Would the military enforce such an order? Another survey revealed that 42% of Americans without college degrees approved of having a strong leader who “doesn’t have to bother with Congress or elections.”
In 1935, Hitler and the Nazis took away the citizenship of all Jews in Germany. Would the military enforce such an order here? The movie “Outbreak” (made in 1995 but still very current) tells the story of a deadly new virus in a California town; the army is willing to follow a presidential order to bomb the town to kill the virus (and all the inhabitants).
Chuck Rosenberg, a former U.S. attorney and senior FBI official, wrote this in the Washington Post: “The rule of law is a construct. It was made by people — and is nurtured and preserved by people. It can also be destroyed by people ... The rule of law is precious and fragile. As citizens ... we either safeguard it or we surrender it. That’s the choice. What political leadership did here (in the Roger Stone case) — mandating a favor for a friend of the president in line with the president’s publicly expressed desire in the case — significantly damages the rule of law and the perception of Justice Department fairness.”
Even President Richard Nixon respected the rule of law. When Congress subpoenaed his audiotapes and the Supreme Court ordered him to comply, he turned over the tapes to Congress. President Trump, on the other hand, refused to obey any subpoenas for documents or testimony. The Senate determined that this conduct was not impeachable.
The Wild West is not the only place where lawlessness is apparently acceptable.
James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at firstname.lastname@example.org or jamesmanahan.com.