The basic principles of the rule of law are that everyone is entitled to protection under it and accountable to it. Yet it would be an understatement to say that that principle is not always followed in the American legal system. That the rule of law is more rule in theory than in practice is not new. What is notable, however, is that there are some who, at present, are flouting it so flagrantly and with such disregard for American democracy that they threaten the very existence of the concept of the rule of law in the United States.
First, there is Donald Trump. This week, it was reported that a House investigation into the storming of the Capitol on 6 January 2020 found a seven-hour-and-37-minute gap in White House call logs from that day, including during the storming of the Capitol. This led some to ask whether the former president used a burner phone during that time. Trump said he had no familiarity with the concept; but his former national security adviser, John Bolton, said that he heard Trump speak of burner phones as a way to keep the contents of his calls private. (This is the same president who reportedly tried to flush documents down the toilet while in office.)
Despite this, it remains, to my mind, very unlikely that Trump will face any consequences for what happened on 6 January, when an angry mob that he had summoned to Washington DC tried to stop the certification of the 2020 presidential election results. The House investigation will find what it will find; the House, during Trump’s tenure, voted to impeach Trump not once but twice. But the Senate did not vote to convict. In February, a senior Manhattan prosecutor who investigated Trump on fraud charges quit after the Manhattan district attorney, Alvin Bragg, stopped his pursuit of an indictment.
But it is not just Trump. Ginni Thomas, the wife of Clarence Thomas, a sitting Supreme Court justice who was ruling on cases related to the 2020 election, was, we now know, texting the White House chief of staff about overturning its result in the weeks after it happened. Thomas did not recuse himself from any of those cases. The Senate minority leader Mitch McConnell has dismissed calls for recusal as an “inappropriate pressure campaign”. Again, in all likelihood, Clarence Thomas will remain on the court, ruling on whatever cases he so chooses, even though his wife inserted herself into efforts to overturn a free and fair election.
I may come off as melodramatic in writing that the US political system cannot and will not hold if people are allowed to undermine American democracy without any consequence. I feel melodramatic writing it. But it’s also true. The rule of law isn’t real. Or, rather, it’s only as real as we collectively treat it to be. Which, at present, isn’t much at all.