Keeping writes about the limitations on the usefulness of law and the politics of humiliation.
When people hear the term “abuse of power” many immediately begin to think of how the law can be applied to address the problem. This is especially true of lawyers: if you are armed with a hammer (legal education) everything looks like a nail (a violation of the law). And there are in fact many instances of abuse of power for which the law offers an appropriate and effective remedy. Think of corruption by a public official, for example, a police officer who takes a bribe to overlook commission of another’s offence. Where the evidence is clear enough, prosecution of the officer is likely to result in a conviction and punishment for that abuse of power. The law has done its job.
Indeed, it can be argued it is the primary task of the law to address abuse of power. But abuse of power comes in many different forms. Sometimes, even when the abuse could, in principle, be addressed by existing law, there are tough decisions to be made about whether going after the offender with the law might do more harm than good. This determination can be especially tricky where it is a public official that abuses his or her power. But then there are the many abuses of power that the law cannot reach because they are too subtle to be handled by it or because, by making the abusive behaviour illegal, and thereby creating a legal remedy, rights that are fundamental to a democracy, such as freedom of expression, would be endangered.
Allegations of abuse of power have been swirling around the current US president and his associates for years, both before the 2016 election and since. Questions about whether and how the law can or should be used to address those allegations are centre of mind for many. As is this: if the law is not the appropriate tool for many of the abuses, then what else can be done to curb the illegitimate exercise of authority? For there is little doubt that the rot that has beset American public life can only worsen if the abuse we see evidence of almost daily goes unaddressed.
The American scene
Many people are very worried about the cumulative effect of the Trump administration’s abuses of power on the foundations of American political life. Increasingly often, people are reported as saying they fear they are witnessing the end of American democracy. Amongst those who have not yet given up hope, some are giving serious consideration as to how those abuses should be addressed if Trump is defeated in November and Americans find themselves, as Ian Bassin, former legal counsel to the Obama White House says, “lucky enough to be wrestling with the very difficult questions of accountability that countries face after an abusive autocratic regime.”1
Some of that thinking is devoted to how the law should be used to impose consequences for these abuses of power. But many recognize that there are tricky questions about when and how it should be used, especially in connection with abuses of power by those in public office. And probably most important, in a democratic country, there are of necessity limitations to the law’s usefulness in such contexts.
The result is that for many of the most corrosive abuses of power exhibited by those holding public office, the law does not offer a remedy. Take, for example, the American president’s non-stop lying about nearly everything: as John Harwood puts it, his “dishonesty is both comprehensive and routine.” 2 Law cannot police truth just as law cannot function as a substitute for ethics, or basic decency. The law cannot fill what Frank Bruni has called the “vacuum of integrity.” 3
Abuse of power as threat to democracy
A recent op-ed in The New York Times by Michelle Goldberg argues that if abuses of power by public officeholders are not addressed, democracy is imperilled. The trigger for her, and for so many others writing along similar lines in the United States today, is of course the Trump administration. But her arguments have much broader application, as is true of much other good writing on the current American predicament. For example, Timothy Snyder’s On Tyranny, Twenty Lessons from the Twentieth Century draws useful parallels between aspects of the decay of American civic life – for example, the deliberate and gross over-simplification of language for propagandistic purposes – and some of the authoritarian movements of the previous century, for example, the fascism of Nazi Germany. The abuses of the Trump administration have been seen before and, where they went unchecked in the past, the results were often devastating. There are pretty clear lessons to be learned, one of which is that firm lines on what will count as abuse of power must be drawn and penalties imposed if they are crossed.
Goldberg’s central point – that abuses of power by public officials must not be allowed to go unchallenged if democracy is to survive – is surely correct. The abuses erode confidence in the system: how can citizens be expected to maintain their commitment to societal norms, such as public health measures, or the law, when their leaders, and their cronies, do not? It is widely recognized that Donald Trump’s refusal to wear a mask during the early months of the COVID-19 pandemic contributed to confusion over the usefulness of masks which dissuaded many Americans from wearing them, with the predictable tragic results.
Goldberg is hardly alone in holding the view that those who have egregiously exceeded their authority during the Trump presidency must pay a price for their abuses of power. But she makes the important, additional point that the manner in which those consequences are imposed will be key to whether their cumulative impact is to shore up, or instead further undermine, democracy in the US. Law can play a central role in addressing abuses of power but it has to be wielded wisely, neither being, nor appearing to be, part of a vendetta against political opponents. It has to be used, and be seen to be used, instead as part of a sincere effort to restore the integrity of political institutions.
Drawing lines in the sand
Of course, turning a blind eye to abuses – letting them go unchallenged – invites more of the same. On the other hand, imposing consequences for abuse of power – drawing lines in the sand – sends the message that such abuses will not be tolerated, that they will not go unpunished. It can be difficult in practice to know exactly when and how to draw those lines, but that they need to be drawn is irrefutable. Thomas Friedman uses the following anecdote to make the point:
… a Bedouin chief … discovered one day that his favorite turkey had been stolen. He called his sons together and told them: “Boys, we are in great danger now. My turkey’s been stolen. Find my turkey.” His boys just laughed and said, “Father, what do you need that turkey for?” and they ignored him.
A few weeks later the Bedouin chief’s camel was stolen. His sons went to him and said, “Father, your camel has been stolen. What should we do?” And the chief answered, “Find my turkey.”
A few weeks later the chief’s horse was stolen, and again his sons asked what they should do. “Find my turkey,” the chief said.
Finally, a few weeks later his daughter was abducted, at which point he gathered his sons and told them: “It’s all because of the turkey! When they saw that they could take my turkey, we lost everything.”
The lesson that the Bedouin chief was trying to teach his sons is that he could live his life without that turkey — but he couldn’t live his life with what the stealing of his turkey with impunity implied: that when people keep eroding the norms of society, stealing — turkeys or the truth — eventually becomes the norm. 4
Friedman argues that with reference to Trump, the “turkey” is his tax returns which he has failed to divulge notwithstanding that he promised to do so. But it’s the stealing of the turkey, or the withholding of tax returns, “with impunity” that really matters:
During the campaign he promised to release [his tax returns] after the I.R.S. finished auditing him. Then, after he was elected, Trump said, sorry, not going to release them ever. And nothing happened. Trump, I am reliably told, has actually said to people close to him, “Can you believe I got away with that?”
Law reform could address the specific issue at hand, as it probably could some of the other abuses of power by the Trump administration: it could, for one thing, be made mandatory that all candidates for public office make public their tax returns or their names do not go on the ballot. But the general, broader problem – the lying – will always remain beyond the reach of the law.
A primary purpose of the law is to curb abuses of power
Regarding Trump’s behaviour while in office, it has been argued that criminal charges should be brought for a variety of offences including his “apparent obstruction of justice [as] outlined in the Mueller report” and for possible offences under “federal bribery laws, insider trading laws and other anti-corruption and public integrity laws.” 5 The basic democratic principle that no one is above the law demands a firm response, especially where breaches have been significant.
It is after all a primary purpose of the law to provide a remedy for abuses of power both by people in government, and by others. The whole raison d’etre for administrative law – a key branch of the law in any complex, modern state – is to ensure that public officials act only within the scope of the authority granted to them. The landmark case on abuse of power by a government official in Canada, Roncarelli v. Duplessis, decided in 1959, is illustrative. At the time there were on-going tensions between the government of Quebec and the Jehovah’s Witnesses, an evangelical sect known for going door-to-door and handing out pamphlets on the street to proselytize. Maurice Duplessis, both Premier and Attorney-General of the province, was very firmly in the anti-JW camp. Frank Roncarelli who ran a restaurant in Montreal suddenly found that his business’s liquor license had been revoked simply because had supported the Jehovah’s Witnesses by providing security for bail when they were arrested for illegal leafleting.
Roncarelli argued that the province had acted without authority in refusing the license renewal for activities that had nothing to do with the purposes of Quebec’s liquor control legislation. There was strong support on the Supreme Court of Canada for his view of the matter.
… action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. 6
Emphasis was placed on the need for public officials to exercise their powers in what the Court called “good faith:”
‘Good faith’ in this context…means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchal¬lengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status. 7
The province of Quebec – in the person of Duplessis – had abused its power and was held to account for that abuse.
But even at less exalted levels, that the primary function of the law is to curb abuse of power is obvious. The core notion behind criminal law is to provide public sanctions for those who abuse their power, for example, in cases such as assault which involve physical abuse, or cases of fraud or embezzlement where the harm is primarily financial.
Debates about law reform often centre around whether or not it is appropriate that law should be extended to address abuses of power in areas where it has not in the past. The struggle to have rape by one spouse against another recognized as a legally punishable form of sexual assault – which culminated with amendment of the Canadian Criminal Code in 1983 giving that recognition – was essentially an argument about whether a public instrument like the law should be applied to abuses of power in the so-called private realm. Many who opposed bringing marital rape within the purview of the criminal law did so not because they denied that power was being abused – yes, there were still some who thought “a man’s home was his castle,” but they were not the primary opponents to the proposed change of law – but because they thought the law was an inappropriate tool in the circumstances.
Law serves a number of functions: providing rules for coordination of activity, such as driving vehicles on public roadways (keep to the right, or to the left, as the case may be) and public safety, such as rules aimed at minimizing fire hazards. But it has been persuasively argued that the most important function law serves in any society is to curb abuse of power. As Martin Krygier argues in essays such as Four Puzzles about the Rule of Law: Why, what, where? And who cares?, to curb the abuse of power is precisely what we want the law for. And when the law does function in this way, it is justifiable that we have a duty to comply with it.
Through history law has been used in myriad different ways – some of them grossly unethical or cruel. Think here of the racism enshrined by law in South Africa under Apartheid or the anti-Semitism embedded in law under the Nazis. Rule by law is no guarantee of humane governance. For that, the rule of law is, while not close to sufficient, certainly necessary. But in a state governed by the rule of law, law is supposed to function so as to limit the abuse of power, not facilitate it. To the extent that law does in fact function this way, the ideal of the rule of law is realized.
When to use the law
It is one thing to say that there must be consequences for abuses of power and quite another to know when it is time to act. For one thing governments always face an array of pressing issues and dealing with delicate matters of abuses of power by previous administrations may seem just too much to take on at the given time. This is the explanation given by some to excuse the Obama administration’s failure to hold George W. Bush and his colleagues accountable for offences they are alleged to have committed, in particular, in connection with the 2003 invasion of Iraq.
For another, it can be very difficult indeed to know when enough really is enough, to be confident that an important line has clearly been crossed. For human beings are notoriously adaptable to even damaging change. When that change is incremental – almost indiscernible – as when the occasional lie slides into the habitual lie which eventually morphs into the Big Lie – how do we determine when the time for action has arrived?
How to use the law
The decision to use law is itself an exercise of power and therefore can be, or appear to be, abused. Accordingly, the imposition of consequences, as Goldberg underlines, must not be seen as political payback:
Should Trump officials face prosecution, [Ian] Bassin worries about even the appearance of a political vendetta. “If they are seen as political retribution, and look in any way like President Trump’s own claims to ‘lock her [Hilary Clinton] up,’ that can actually be more destructive than restorative,” he said. “It risks sending us down a downward spiral where each side, when winning power, seeks to prosecute its opponents.”
It will be exceedingly difficult to avoid the appearance of vendetta in a country as polarized as the US. But thought is being given as to how to ensure that such processes are seen as politically neutral applications of the law. The recommendation has been made, for example, that the next Attorney-General – assuming the sitting Republican president is not re-elected – should be someone who has not been active in Democratic Party politics.
Law can only reach so far
There are of course circumstances where lying is subject to legal sanction. For example, when sworn to tell the truth in a court of law, a person who lies to the court can be punished for perjury. Indeed, under the Canadian Criminal Code this can be punished by a prison term of up to fourteen years. For another, many cases of fraud involve lying to obtain something one is not entitled to and may also incur sentences of up to fourteen years.
But the vast bulk of lying is not and cannot ever be punishable at law in a democratic country in which freedom of speech is both a valued liberty and also a necessary tool for reaching decisions in the public sphere. Natural human communication, including its non-verbal aspects, is much too complex to be analyzed in a manner that would satisfy legal requirements. Testimony on the witness stand is highly regulated, stripped-down communication: “Just answer the question asked – yes or no.” We have all seen the movie about a thousand times. Lying in these artificially simplified circumstances can be reliably detected, but in ordinary talk – not so much.
And in any event, how could debate on matters of public policy ever take place if lying were subject to legal penalty? For one thing, even well-intentioned people utter falsehoods all the time, simply because they are mistaken. And who is to decide whether falsehoods are innocent or intended to deceive? An Orwellian Ministry of Truth? Governments that have enforced, by law, their version of the truth – their “party line” – have been abusive – indeed tyrannical – in the extreme.
And yet lying is a primary tool of some of the worst abusers of power. Writing on the parallels between Trump’s approach to politics and that of the Nazis, Eric Chenoweth8 notes that “Trump, too, lies all the time … The lies are legion, daily and also foundational to how Trump practices politics and carries out the presidency.” He uses the example of immigration policy:
A supposed unstoppable flood of criminal aliens from Mexico and Central America is falsely claimed to pose a dire threat to the nation’s economy and identity – even its existence. Therefore, extreme policies must be adopted to stop the “invasion,” including by anti-constitutional means.”
Dangers are grossly exaggerated and then it is claimed that “Only I can fix it.” As Chenoweth notes:
The lies govern policy and propel action at the cost of lives, money, the Constitution, and international treaties. These are not small or “spin” to justify partisan policy. They form part of the Big Lie: a foundational framework of false beliefs used to gain and retain power.
Probably the greatest damage the US president is doing to American public life is through his incessant lying. Robert McCrum, a Brit and former admirer of the American approach to government, puts this well:
We, once faithful supporters, no longer have any appetite for a noble experiment consumed with rage, ever more vulnerable to the manipulation of untrammeled power, and tormented by habitual untruths. It’s these lies that are most lethal. … This infamous 45th president will be remembered for many things, but the worst is the blizzard of his more than 20,000 outrageous falsehoods, the cynical disabling of the body politic.9 [Emphasis added] Where?
And yet how can it be that so many obvious and demonstrable lies have been accepted or at least tolerated? How can it be that the truth has come to matter so little in American public life? Chenoweth offers this explanation:
Using lies and a Big Lie framework as the basis for governance has a certain logic. As Goebbels and Hitler practiced it, the lie is internalized. The less that truth is the basis for politics, the more one must lie. The more one lies, the more it forms the basis for one’s own truth. The more a party’s platform and governance is based on lies, the more followers must adopt those lies and the new truth to support the party and its leader.
The extreme political polarization in the US is often cited to explain why the lying is tolerated, even accepted: if your overriding political goal is to support a particular party or faction – to feel yourself a part of that group – then you have to accept what is being dished out by its leader.
As I write, the US president is at it again. In the process of addressing the unrest that has attended some of the “Black Lives Matter” activism across the country, he is regularly using exaggeration, lies and fear tactics to paint himself as the only possible choice in the November election: “In a classic authoritarian tactic, Trump … vastly over stated the extent of lawlessness and political violence, then promoted himself as the kind of strongman needed to restore order.”10
The politics of humiliation
Trump and his associates should be held to legal account for abuses the law would have been used to punish had anyone else committed them. But scope for use of the law in these and other cases of abuse of power by public officials is necessarily limited in a democracy, leaving a vast volume of abuse, including much of the current president’s lying, outside its ambit.
One has to expect that unaddressed abuses such as the lying will continue until the conditions which nurture the extreme polarization enabling them are examined and addressed. What might those conditions be? Tom Friedman makes a compelling case that central to them is humiliation: he argues that a considerable portion of the American public feel so disrespected by mainstream institutions they will support a politician who lies to them constantly and whose policies generally do them no good at all because “They’re attracted to his attitude — his willingness and evident delight in skewering the people they hate and who they feel look down on them.”11 “Humiliation,” Friedman says, “is the most underestimated force in politics and international relations. The poverty of dignity explains so much more behavior than the poverty of money.”
Perhaps what Americans most urgently need is a national inquiry into the humiliation that seems to be pushing them over the political abyss into tyranny.♦
- Quoted by Michelle Goldberg in “After Trump, America Needs Accountability for His Corruption,” The New York Times, August 13, 2020.
- “Trump’s dishonest campaign is entirely on-brand,” CNN, September 6, 2020. https://www.cnn.com/2020/09/06/politics/election-2020-donald-trump-dishonesty/index.html
- “We’re Here and They’re Not,” The New York Times, August 28, 2020.
- “What Trump and Putin Have in Common,” The New York Times, March 20, 2018.
- See Michelle Goldberg.
- Roncarelli v Duplessis,  SCR 121, p. 142.
- Roncarelli v Duplessis, p. 143.
- All references to and quotes from Chenoweth are drawn from “Can it Happen Here? Donald Trump and the Fracturing of America’s Constitutional Order,” June 29, 2020. https://www.shankerinstitute.org/blog/can-it-happen-here-donald-trump-and-fracturing-americas-constitutional-order-0
- Robert McCrum “A ‘tyrant-clown’ has destroyed my love affair with America,” The Guardian, September 6, 2020
- Collinson “Trump inflames tensions and justifies violence — and there’s a reason why,” September 1, 2020.
- “Who Can Win America’s Politics of Humiliation?” The New York Times, September 9, 2020.