America Has Too Much Law

Democracy can also die in brightly lit courtrooms.


Mike Flynn speaking at the Republican National Convention in Cleveland, July 18, 2016.
Mike Flynn speaking at the Republican National Convention in Cleveland, July 18, 2016. PHOTO: ALEX WONG/GETTY IMAGES

Some countries fail because they have too little law. Others have too much of it. Russia is a good example of the former, America of the latter.

The rule of law requires democratic government, which in turn requires a border between law and politics. When it’s all politics, you have what the Soviets called “telephone justice,” in which the judge phoned the party boss before coming to a verdict. When it’s all law, the prosecutor and judge replace the ballot box and democracy dies in brightly lit courtrooms. That’s where America seems to be heading.

In recent decades we’ve seen an encroachment on democratic government in which policy differences are criminalized. It got a boost in 2016 when Mike Flynn led chants of “Lock her up!” at Trump rallies. We knew that donors to the Clinton Foundation didn’t have to wait for the next world for their reward, and even the New York Times concluded that “it was hard to tell where the foundation ended and the State Department began” when Hillary Clinton was secretary. Many Americans, including many Democrats, thought Mrs. Clinton was corrupt. But that didn’t make her a criminal, and it would have been undemocratic to deprive her supporters of the right to vote for her.

Then there was what James Comey called her “extremely careless” handling of classified information. This seemed to be a synonym for “grossly negligent” handling, which is a crime. But it wasn’t malicious or disloyal, and was a good example of a case unworthy of prosecution. Especially for a politician before an election. Prosecute a presidential candidate? That’s the sort of thing they do in places like Ukraine.

We’ve begun to mimic Ukraine, however, through Robert Mueller’s investigation and the hunt for the Great Trump Defendant. What Mr. Mueller has come up with so far is process crimes and secondary offenses—failing to register as a lobbyist or lying to the Federal Bureau of Investigation—not conspiring with the Russians. Every American prosecutor dreams of nailing Al Capone for tax evasion, but what if the target isn’t Al Capone? What if he’s an ordinary schmo like Mr. Flynn, who under pressure cuts a deal to plead to the Martha Stewart crime of lying about something that wouldn’t have been a crime had he told the truth?

In the case of Brett Kavanaugh, the border was violated from the other direction. He was accused of something much more serious than a process crime—but in a political setting rather than a court of law. That allowed his opponents to toss aside the need to provide evidence of wrongdoing, and to promote any charge, no matter how ludicrous.

The Kavanaugh hearings may be a harbinger. Every politician, especially conservative ones, will be accused of criminal conduct, even from the likes of Michael Avenatti. We don’t want to give our politicians a pass from prosecution, but the border between law and politics nevertheless needs reinforcement so as to protect the dignity of democratic politics.

Mr. Buckley teaches at Scalia Law School. His new book is “The Republican Workers Party: How the Trump Victory Drove Everyone Crazy, and Why It Was Just What We Needed.”

Appeared in the October 10, 2018, print edition.

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