Aiding and Abetting

One week from Monday I will hunker down for another state Bar Examination. The Bar Examination is a discreet and strange task, relating only tangentially to a law school experience and relating almost never to the practice of law. That is the reason that I am studying with vigor and why my family has evacuated the state for the duration, despite that I passed it once, have practiced law for nearly seven years and am a law professor.

Today I reflect on one of the most profound and rare attributes of our social compact. The people of the United States are fallen humans without exception, but the Law to which we submit is historically rare and wonderful. Our Law defines the bounds of our Experiment, but its evanescent promise is under siege. Since this siege comes in a time of war and a demand for greater executive power, unfortunately, it is not historically rare at all.

I am studying criminal law and criminal procedure and today scanned again a brief list of rights afforded to criminal suspects and defendants in our Constitution:

The prohibition against compulsory self-incrimination,

The prohibition against double jeopardy,

The right to a speedy trial,

The right to a public trial,

The right to a trial by jury,

The right to confront witnesses,

The right to compulsory process for obtaining witnesses,

The right to assistance of counsel in cases of felonies or in misdemeanor cases in which imprisonment if imposed and

The prohibition against cruel and unusual punishment.

Against whom is the prohibition imposed? The State. Against whom is the right enforced? The State.

Observe, too, that these are gifts, grants of power and protection and rights, to the bad guys.

This is the great difference so often lost in the contemporary political discussion, the nuance ignored by so many, apparently including the Chief Executive, the difference between the Government and the Law.

The Government is not the Law but is subject to the law. Even as the Government propounds new law, it subjects itself to its application, or should, even without signing statements.

I believe in the progressive use of the government for the benefit of the people. I am not a libertarian but claim Hamilton’s observation that government is necessary to constrain the passions of men, even rich men in a democracy, or maybe especially rich men in a democracy. The great constitutional truth, though, is balance: balance among the branches and balance between the power of government and the rights of the governed. In our extraordinary founding document, the Framers chose to restrain the national government from abusing the bad guys.

The Law gives the bad guys power over the Government. The Law presumes and demands innocence even if the Government knows the guilt. Even when the Government has absolute proof of evil, it must provide due process to respect the rights and power of the evil wrongdoer. The Government may be convinced of the malice and danger of a criminal, yet the Constitution affords that thief, that murderer, that rapist, that terrorist, that traitor, that arsonist, that kidnapper, that burglar and that fraud a guarantee that the Government only can proceed against him fairly, within the rules, in public, with disclosed evidence and with all the power necessary to defend himself.

The Constitution does not care if the Executive Branch is very, very sure of itself.

The Executive Branch, the President, the military and the police are necessary and can be forces of great good and progress. The Constitution, however, sides with the bad guys when the Executive Branch begins to believe that it is the Law. If the bad guys cannot trust the Law, none of us can, and the Executive Branch becomes a dangerous threat to the very “way of life” it purports to protect.

When the Executive Branch ignores the voice of the more democratic Congress and hides its actions from the neutral Judiciary, beware of the siege.

If you are a good guy, rise up and demand that the Government acquiesce to the Law.

If you are a bad guy, make good notes and prepare your appeal.