A Crossroads Revisited: Impeachment and the Rule of Law
There is a strong Gothic wind swirling around this Administration and its congressional allies. If uncontained by the rule of law, it will become a maelstrom.
December 30, 2019 at 11:00 AM
7 minute read
Ten years ago, eight years after starting the Public Service Project at Stroock, I wrote an article in the New York Law Journal called "Pro Bono at the Crossroads." The occasion was twofold: the first National Pro Bono Week and Halloween. It was a reflection piece. The intersection of pro bono publico and Halloween mirrored a career crossroads for me when, in my mid-twenties, I chose between a career in academics or the law. I had started toward a doctorate in English literature, focusing on critical theory and Gothic literature. For me, Gothic was about ordinary peoples' responses to extraordinary and inexplicable changes in the world, changes that rippled through their community and their psyche, rendering both at least temporarily unrecognizable. With the world unbalanced, how would order be restored, if at all? Thrilling, but it was academia and it was in my head. I chose the law because for me it is a more practical response to that profound question and both my heart and my head lead me there. The law is an evolving text, and I was interested in reading and applying it on behalf of society's underdogs, the long-shots and disenfranchised.
Looking back, I'm grateful for choosing the law. I'm grateful because of the rule of law itself, the lifeblood of our democracy; not an abstract concept, but the real fabric of our society, the norms, rules, checks and balances that attempt to level the field and create opportunity. In this deeply disordered time in the United States, I am especially grateful.
Imperfect as it is, with continuing painful failures, our legal system is the best we've got. Its core principles should be cherished and protected even as we attempt a more perfect union. Instead, the President's adherents in the legislative and executive branches are comfortable with putting him rather than the rule of law at the center of our democracy. The President, and not the rule of law, has become their primary purpose. Everything else is a distant second. The effect is fundamentally distortive. What we thought were the safe spaces of democratic governance—open spaces in our national discourse to debate and disagree while inching forward—are gone. Courtesy and decorum, respect for truth and facts, and willingness to listen and compromise are endangered species, crowded out by scorn, easily discovered lies, and brimming anger.
Turns out, we need facts and rules and reason to "long endure," in Lincoln's phrase. Franklin's famous quip after the Constitutional Convention gave us our democracy, "Can you keep it?" is fresh and cutting today. So are Hamilton's dire warnings about a rogue President. History is warning us; but the confusion of a house divided distracts us, turns neighbors into adversaries.
So, as 2020 looms, would I go back to my crossroads and take the other path? No. To see the rule of law torn up is truly a Gothic experience. It is also right now the defining American experience. Whether we are content to see the pieces blown in the whirlwind or yearn for restored order says a lot about how we understand our country's history. What does your personal ledger tell you? Mine, shaped by almost 20 years directing the Public Service Project, says "We can and will do better."
I say that with confidence based on my observations of two disparate groups: our pro bono clients and the witnesses at the impeachment inquiry. Worlds apart in many ways, these two groups stand for the rule of law, each on their own front lines. Our pro bono clients' fortunes rise and fall with their access to a fair shake—writ large as Justice—and whether or not the rule of law is available to them. The State Department witnesses at the House Intelligence Committee hearings last month uniformly flew the banner of rule of law. Their safety and ours depends on it. Their frontlines are about international norms, clear expectations, frank negotiations, and mutual goals. The patience and foresight with which they walk those frontlines (remember, the Ukraine is at war with Russia, or rather, Russia is making war on the Ukraine, our ally) depends not only on skill and experience but on a stable relationship with the rule of law. The President turned that relationship on its ear, and in so doing jeopardized all that we value in that work, regardless of party. At home and abroad, the risk on both fronts is high, the dangers profound, and not easily, if at all, reversible. As goes the rule of law, so go we.
Our pro bono clients, essentially, ask only for a chance to participate fairly in society under the rule of law; not the arbitrary rule of an unscrupulous landlord, abusive partner, or faceless bureaucracy, but the objective rule of due process, an opportunity to be heard, and blind justice. The rule of law so often works against people living in poverty that it might seem as if it doesn't exist, like a myth, like there's no reason even to try because the deck is always stacked against them. That's one arena where much remains to be done, but in the meantime pro bono lawyers, legal services providers and community based organizations seek to fill that gap. When we do, when we incrementally bend that arc of justice for even one family, the rule of law is invigorated, undue hardship averted, opportunity refreshed, and the real promise of a greater America is confirmed.
Four impeachment witnesses stood out for me: Vindman, Yovanovitch, Taylor and Hill. Like others, they defied the White House and State Department to appear and testify. That act alone was a bold shout-out for the rule of law and a sharp rebuke of the President's lawless rejection of clear legislative authority. In describing their up-close experience of the corrupt Ukraine pressure campaign, they each spoke movingly of their reverence for the rule of law. Unlike their bosses in Washington, they take their oath of office seriously, even reverently: to uphold our Constitution and laws. Far from the glamor of the White House, they have neither the time nor the inclination to put anyone's personal problems ahead of their mission. In promoting and safeguarding U.S. interests, the rule of law is their North Star; they navigate with facts, clear-thinking and unwavering persistence. Thus armed, they proved to be incorruptible.
Donald Trump has always been all about stacking the deck. In the White House as in business affairs, he acts out of self-interest. If the law serves that interest, it's tolerable; if not, it's ignorable; if caught, hide it. There is a strong Gothic wind swirling around this Administration and its congressional allies. If uncontained by the rule of law, it will become a maelstrom. And as Sir Thomas More warned his overzealous son-in-law in "A Man for All Seasons," so too should we be warned, regardless of our politics: "And where will you hide … the laws all being flat?. … Do you really think you could stand upright in the winds that would blow then?"
Kevin J. Curnin is a partner at Stroock & Stroock & Lavan, where he directs the firm's Public Service Project. The views expressed in this article are those of the author and do not necessarily reflect the opinions of the firm or its clients.
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