The rule of law strikes back
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However one tallies the wins and losses in Tuesday’s blockbuster developments in the legal proceedings against Paul ManafortPaul John ManafortMake the special counsel report public for the sake of Americans Paul Manafort should not be sentenced to 20 years in prison Mueller recommends Manafort serve at least 19 years in prison MORE and Michael Cohen, it was clearly a good day for the rule of law in the United States.

“We are all expected to follow the rule of law, and the public expects us – the FBI – to enforce the law equally,” said FBI Assistant Director-in-Charge William Sweeney announcing Cohen’s guilty plea to, among other charges, campaign finance violations.


Sweeney’s statement seemed to serve at least as much as a rebuke to the numerous affronts to the rule of law that have become common currency in our populist era.

Sweeney’s rebuke in defense of the rule of law is warranted. Without a doubt this period has been among the most challenging for the rule of law our country has seen since at least the Nixon-Watergate period. Indeed, the politicization of our justice system; the attacks on the media as “enemies of the people”; the steady blurring of fact and fiction – these developments seem at times to chime more harmoniously with current populist challenges to the rule of law in Turkey, Hungary, Poland or Egypt than even with those dark days in the U.S. in the early 1970s.

That said, when one steps back from the pummeling chaos of the daily news cycle and gains a vantage overlooking the battlefield, one begins to observe signs of hope that our system, and the institutions and values that give it vitality, may be up to the challenge, that it is indeed metabolizing this difficult moment as it was designed to.

Tuesday’s developments could be an important moment in the fightback for the rule of law. The fact that a jury, made up of everyday Americans, performed a central function in the operation of the U.S. justice system with what appears to have been a deliberative, methodical, undistracted process – hallmarks of the rule of law in the United States – gives one hope in the proper functioning of the system. To observe the Justice Department proceed in the Michael Cohen matter in the orderly fashion that it should, despite the high politics and amplified rhetoric swirling around it, gives one courage that justice wins out in the end.

There have been other positive signs for the rule of law in recent weeks. There has been an upsurge in bipartisan support for the rule of law, including the Republicans for the Rule of Law Initiative representing a coalition of Republicans in Congress who have stated that the investigation by special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE should be completed without political interference. There have been an increasing number of congressional Republicans speaking out in defense of the rule of law, as well as an increasing number of independent voices within the administration itself, including Dan Coats, director of National Intelligence, and Kristjen Nielsen, secretary of Homeland Security, regarding Russian election interference. The independent media continues its essential work, despite the “enemies of the people” sobriquet.

This isn’t to say we are out of the woods yet. Indeed, the struggle for the rule of law may be entering its most critical stage yet. There is the issue of presidential pardons for convicted defendants. There is the issue of possible action against the special counsel’s office. Most worrisome of all, there is the fact that significant portions of the American public seem unconcerned by the dangers we face.

One thing that’s clear, however, is that the founders of our country, in their deep insight into the nature of human power, foresaw a moment such as this, and fashioned a system of independent institutions, with robust checks and balances, that would work to rein in such power when it went astray. That system was predicated on the rule of law, and the principle that in a free society no person is above the law. What we have seen in recent weeks is the resilience of that system as it rises to meet a significant challenge. We should not become complacent, or announce the victory of the rule of law against the challenges of populism. But it is important to take stock, and note the days that are undeniably good for the rule of law, wherever in the world they occur. 

Ulysses Smith is a US-based lawyer and Director of the Business and the Rule of Law Program at the Bingham Centre for the Rule of Law.