Overreach by agencies, prosecutors, and the president underscores a hollow slogan.
During this election year, one insistent theme refers to the urgency of “saving American democracy.” In the abstract, no one cares to dispute that proposition: at its core, it claims that we should have free and fair elections to make sure that the people elect those candidates who represent their basic values. If the plain meaning were the true meaning, the push to “save democracy” would satisfy a strong populist impulse which is, however, in deep tension with a second dominant theme: no all-powerful state, no matter how it is chosen, should ever exert complete control over the lives of its citizens. Hence, any constitutional democracy places strong limits on the power of government to do what it wills by a combination of structural devices and protections of individual freedoms on such matters as speech, religion, contract, and property. The goal is to safeguard those freedoms from a militant majority that can invokein the exclusive power of the state to bring criminal and civil prosecutions against its enemies.
In this election, these principles are all being tested perhaps as never before, as the Biden administration has pushed the law to the limit—in both criminal prosecutions and in civil enforcement through executive orders and administrative regulations.
Start with the former. Unsurprisingly, pro-Biden forces have taken a vow that, in the words of Robert Reich, it is imperative (in bold type) to “Become a political activist to ensure Trump is not elected.” And why? Because Trump is “one of the worst demagogues in American history” and “truly evil.” The American Bar Association, for its part, has its own Task Force for American Democracy, whose neutrality has to be called into question. Its Republican co-chairman is Michael Luttig, one of the leaders of the movement to disqualify Donald Trump from office as an insurrectionist because of the events of January 6, 2021, about which Trump’s buffoonish indifference merits the harshest condemnation.
The weaponization of the criminal and civil justice system against Trump in deep-blue New York constitutes, at a systematic level, a far greater threat to democracy than mere verbal condemnation. These suits are efforts to shut down a political enemy by aggressive litigation that borders on show trials.
The initial assault was in the civil fraud cases that New York Attorney General Letitia James brought before Judge Arthur Engoron, which branded as fraudulent Trump’s standard banking practices on highly dubious legal theories. That episode is being followed up by Alvin Bragg, the Manhattan district attorney, who has made good on his campaign promise to get Trump by stitching together minor charges of falsification of business records into a thirty-four-count felony indictment, supposedly to cover up some other as-yet-unnamed crime. Bragg is right that no one is above the law, including someone who arranges the selective prosecution of a political adversary. Bragg is aided in this endeavor by the presiding judge, Juan Merchan, a loyal Democrat whose daughter, Loren, has worked for the Biden-Harris campaign. Merchan should have recused himself long ago from a spectacle in which the judge has ordered Trump to sit through jury selection and an entire months-long trial—a requirement Trump insists constitutes election interference in a tight campaign. Indeed, this case should be heard outside Manhattan, if it is to be heard at all.
The same pattern is followed by Jack Smith, who is charging Trump for offenses of assaulting, resisting, or impeding certain officers in violation of 18 U.S.C. Section 1512, which first deals with document mutilation intended to prevent the compromising of documents’ use in any official proceeding, and then adds a savings clause that punishes anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Its unprecedented application to political protests has generated much confusion in Fischer v. United States, whose petitioner, Joseph Fischer, was in the Capitol for about four minutes. Why then use that act to charge Trump, who never entered the Capitol at all? The only answer is political, in that the higher penalties available under the Sarbanes-Oxley Act are preferred to the straightforward criminal charges like assault that carry lesser penalties. Thus, the lawsuit fits in perfectly with the Democratic campaign strategy to keep January 6 first and foremost before the public to divert attention from Biden’s foreign policy positions in Afghanistan, Israel, Ukraine, and Taiwan.
The mischief on the criminal side is paralleled by the Biden administration’s aggressiveness in regulatory matters, showing a wholesale disregard of the principles of separation of powers that limit the ability of the president to act independently of Congress. Executive orders or agency rulings are often needed to fill in the gaps that Congress has left in complex statutes, particularly with respect to specific procedures needed to implement sensible reforms. But the Biden administration has abused this power more than any previous administration, seeking to gain through executive orders and regulations major reforms that could never receive congressional consent.
Nor does “saving democracy” seem to be top of mind when it comes to climate-change regulations. The Biden administration highlights the dangers of fossil fuels but disregards other environmental risks associated with alternative energy sources like wind and solar. It has been known for years that erratic and unreliable energy sources are capable of causing serious environmental harm while reducing the stability of the electrical grid—all while driving up consumers’ already high utility bills. The average taxpayer does not seek to ban either solar or wind energy but to insist that they, like other forms of energy, not be the recipients of large public subsidies on the one side and an exemption from liability for environmental harms on the other. Ample amounts of private capital are dedicated to making alternative energy safe and affordable, and bless them if they succeed. But until then, the Biden administration has altered the playing field with a 2021 executive order “that sets an ambitious new target to make half of all new vehicles sold in 2030 zero-emissions vehicles, including battery electric, plug-in hybrid electric, or fuel cell electric vehicles.” It is hard to imagine a greater abuse of an executive order than for the president to bypass Congress by unilaterally establishing national policy that will outlast his time in office, even if he were to win a second term. And this for a mandate using unproven technologies. Yet who has the power to stop this abuse of authority in court?
One reason judicial challenges are so difficult is that for many years the Supreme Court has taken the ill-advised decision to defer to executive orders and administration regulations in its limited oversight role. But as the judicial cat slumbers, the political mice continue to churn out regulations that upset the balance of power between Congress and the president. Currently it is widely predicted that the court, in the case of Loper Bright Enterprises v. Raimondo, is likely to ditch its 1984 decision in Chevron v. NRDA because of the ever-increasing risk of agency overreach, which in this instance seeks to take over the role of the House of Representatives in initiating revenue measures.
But the aggressive use of executive orders continues. The White House implemented a massive new round of student loan forgiveness even after it had been rebuffed on that point in Biden v. Nebraska. Shot down for an abuse of discretion on student loan forgiveness, the administration did not close the spigot but instead gave dollops of forgiveness on separate occasions to undercut the rule, which again allows it to make under-the-table appropriations without the approval of Congress.
This is not an enviable record, but it is fair to ask: what about similar wrongs under President Trump? For all his bellowing, Trump as president did not institute criminal prosecution or push the envelope on executive orders or administrative regulations.
We finish with the conclusion of a dejected Lionel Shriver, writing in the Spectator, who spares no words in calling the race a “dead heat” between two “wretched” candidates. But she adds: “I’ve a hard time imagining that even Trump will mobilize the army, install a dictatorship, and declare himself president for life in 2028.” Time will tell.