Donald Ayer -- Bush 41 Alum

A restoration of the rule of law

A restoration of the rule of law: Kamala Harris’ “freedom” campaign is coming for Trumpism

Success this November is vital for the only political party that supports the rule of law

Donald Trump’s attacks on the rule of law – the basic notion that we have no kings and no one above the law in America – has made the phrase a common feature in our recent political discourse. Indeed, Kamala Harris embraced it as a "fundamental principle" to be held "sacred" in her acceptance speech at the Democratic convention. In doing so, she called our attention to the one thing that most took for granted until the arrival of Trump and his MAGA movement. Up until that point, we, the beneficiaries of the free, democratic society that has made us the envy of the world, assumed it would always be that way.  

Simply put, the rule of law is what keeps us free. Its constraints override the contrary will of any one person. For that reason, dictators have no use for it. In authoritarian states, the autocrats’ will governs, allowing them to prosecute, imprison or take the life of anyone who opposes them. As concisely put by John Locke, the brilliant 17th-century political philosopher who inspired America’s founders, “Where law ends, tyranny begins.”

The rule of law is built upon the structure of institutions and procedures needed to rein in such abject power. Our constitution does that by dividing power among co-equal branches, reducing the authority of any one branch so that no power is unlimited, and citizens’ individual rights are protected. The basic precepts at issue are clearly spelled out in a recent Statement of Principles from the Society for the Rule of Law, an organization made up of former Republican government officials like retired Judge Michael Luttig.

A nation based on law, not men, is in jeopardy as never before because of a would-be dictator and Project 2025, his allies’ blueprint for his exercise of autocratic power. It includes detailed plans to allow him to do anything he wants  – including "termination" of provisions of the Constitution. 

One need only review the Rule of Law Society’s Statement of Principles to see that Donald Trump, at various times, and especially now during the campaign, has undermined and attacked them all, in pursuit of a rule-free system in which he is free to infringe or deny our basic freedoms.  

To start with, he has targeted the central innovation of the founders in recognizing that the people are the only legitimate source of governmental authority. Our fight for independence was a rebellion against a king who denied American patriots the right to participate in our own government. Thus, as the Statement’s preamble states, ‘we the people’ possess and exercise the powers of self-government through free and fair elections” and everyone must  “honor and respect” the electoral results absent legal action that invalidates them.  

Trump’s conduct before, during and after January 6, 2021, to overturn what his own officials described as the most secure election in our history has been a sustained effort to deny this foundational Principle. His ongoing efforts to disrupt the upcoming election continue this plan.  

A corollary to the people’s power to govern is that the government must honor our fundamental rights. Thus a key Principle of our rule of law is that we must "respect, support, and defend the constitutional rights of all Americans" with fairness and due process of law. We are equals in this regard – "No person is above, beneath or beyond the law." 

Trump has promised to violate these fundamental precepts, including by stating dozens of times that he will use the government to punish his enemies. His “naked politicization of the Justice Department,” the subject of a new book entitled, Where Tyranny Begins, rejects the longstanding norm of DOJ independence from the president in the handling of criminal cases without fear or favor. Note the past intervention of former Attorney General William Barr to secure special treatment for Michael Flynn. Trump’s intent to align DOJ actions with his personal interests includes his plan to free most or all of the January 6 rioters, even those who engaged in violence and assaulted police. 

The rule of law’s keystone is our judicial system. The courts are the indispensable institution making real our structure of limited government based on the Constitution and protections for equal treatment and fundamental rights. When individual rights collide and interests cannot be reconciled without intervention, the courts are there to address the dispute. 

Trump’s disdain for verdicts that go against him and for courts that do not support him has been pervasive. He is quick to dismiss as "rigged" the often adverse outcomes of litigation he is involved in, including his New York conviction on 34 felony counts. Within the past year, his campaigns of public vilitication aimed at New York Supreme Court Justices Arthur Engoron and Juan Merchan – the judges in Trump’s own trials, as well as their staffs and family members – have prompted threats against them and our system of independent justice.  

Then, of course, there was Trump taking the law into his own hands when courts rejected his 2020 judicial challenges to the election result. While the rule of law includes, as the Principles state, protecting "the right of aggrieved candidates to invoke the judicial process to challenge the results of elections,’ it also provides that they also “respect the resulting decisions of the courts of law."   

There is one other commitment set forth in the Principles that we all owe to our fellow citizens and ourselves – to "honor the truth and speak against untruths that undermine respect for the Constitution and laws of the United States." Trump, by contrast, compulsively lies freely about facts that contradict his self-interest. His chronic lying has sowed discord and division in the nation, not to mention his use of lies to defraud contractors, tradesmen and Trump University students who have done business with him. 

Given the seriousness of this threat, it is highly appropriate that Vice President Harris has made a defense of the rule of law a high campaign priority. It’s commendable the American Bar Association, our largest organization of lawyers, on August 6 announced its endorsement of the "Statement of Principles to Preserve, Protect and Defend the Constitution, the Rule of Law and American Democracy,” Importantly, more than 2000 individuals have signed its still-open list.  

Statements matter, and even more important is action. Each of us who cares about the 235-year-old constitutional heritage with which we have been endowed must do all we can in the coming months to ensure that the ultimate arbiter of legitimate power, our electoral system, delivers an unmistakable message this fall. Success is vital for the only political party that supports the rule of law. Otherwise, we could wake up on November 6 with our freedoms to speak and assemble, our right to vote, and our reproductive freedom fading quickly in America’s rearview mirror.  

Donald Ayer formerly served as the Deputy Attorney General in the George H.W. Bush Administration. His Op-Ed, co-authored with Dennis Aftergut, originally appeared in Salon.