• Show Notes

By Asha Rangappa 

Dear Listener,

The impeachment trial of former President Donald Trump ended as expected on Saturday, notwithstanding a brief emotional roller-coaster over whether witnesses would be called (they weren’t). Forty-three senators voted to acquit Trump. A recent analysis by the publication Just Security found that 30 of the 43 senators who voted to acquit based their decision — either in whole or in part — on their belief that the Senate lacked jurisdiction to try a former president. Their rationale highlights a troubling pattern we are seeing from Republicans — a refusal to comply with decisions that they simply don’t agree with.

The legal question concerning jurisdiction had been voted on by the Senate last week, with 56 senators finding that trying a former president was constitutionally valid. That vote should have been binding on the senators. After all, jurisdiction is about a tribunal’s power over a claim or a person: If the proceeding moves beyond that question, then jurisdiction, by definition, exists — senators wouldn’t have the power to vote on anything else, like calling witnesses or acquitting the president, if it didn’t. Unfortunately, unlike in a court of law, such decisions in an impeachment aren’t enforceable; impeachment trials are more or less a free for all, beyond the explicit text of the Constitution. But by hanging their hats on this issue, the majority of senators who acquitted the president were not only engaging in legal sleight of hand, they were thumbing their noses at a basic ground rule of democracy.

Tom Tyler, a professor at Yale Law School, argues that the essence of the rule of law is deferring to a legal outcome, even if the result is unfavorable to your side. We experience this in many small ways in our daily lives: If we get a ticket for coming to a “rolling” stop, we may still have to pay the fine even if we are sure that we came to a “full” stop. (OK, that example might be slightly autobiographical.) On a larger scale, we must comply with decisions made by our legislatures, like raising our taxes, or decisions by courts which could affect some of the most intimate details of our lives, like whether we can legally adopt a child, or have a relative visit us from a country covered by a travel ban. We do this not because we necessarily like the ultimate outcomes, but because we know that they are produced by democratic processes in which we can participate.

The decision of 30 senators who chose to disregard a decision produced by a fair, transparent, and deliberative process follows a line of similar actions which discounts the results of those processes if they challenge their power. The most blatant and recent one is, of course, President Trump’s refusal to accept the outcome of the 2020 election (which itself included refusing to accept the decisions of 60 courts which rejected his challenges, and of state legislatures which certified their electoral vote for President Joe Biden). But there are other high-profile examples before Trump. Take, for instance, Kentucky county clerk, Kim Davis, who in 2015 refused to issue a marriage license to gay couples following the Supreme Court’s decision legalizing gay marriage that year. Well before that was Alabama Governor George Wallace, who famously stood at the doors of the University of Alabama to prevent two Black students from enrolling there in 1963, in defiance of orders from the Justice Department to allow them to do so.

It’s important not to confuse these actions with civil disobedience. Civil disobedience uses noncompliance with the law as a form of protest — but importantly, in doing so it accepts the consequences of noncompliance. Typically, this involves being arrested and going to jail (at the very least), as was the case with Mahatma Gandhi during India’s fight for independence, or Nelson Mandela in South Africa’s fight against apartheid, or with Black Americans and activists who fought for civil rights here in the United States. In fact, it was the very enforceability of the laws in these situations which helped highlight their injustice.

By contrast, the type of noncompliance reflected in Saturday’s vote in the Senate is one that simply seeks to “opt-out” of a decision that conflicts with personal beliefs, without suffering any consequences. In doing so, it doesn’t highlight injustice, but rather privilege — it’s a show of power, not principle. Some observers have likened the Senate Republicans’ actions to the Jim Crow South, where white juries ignored blatant violations of the law by white defendants against Black victims, thereby reinforcing racial hierarchies at the expense of justice.

Our country can’t survive with “cafeteria democracy,” where individuals pick and choose the laws and decisions they want to go along with based on whether it suits their personal preferences at the moment. Our relationship with the law is like a marriage — as citizens we agree to uphold it through good and bad. If we lose this most basic building block of democracy — the rule of law — then we have nothing left for it to stand on.

Stay Informed,

Asha