Post-Trump priorities: the rule of law

I’m giving attention in a series of individual posts to the ten points that Dan Froomkin (1) has proposed as guidelines for a restoration of democratic governance after Trump leaves power. Whenever that may be.

First point: Restore the rule of law. This includes rebuilding a devastated and defiled Justice Department, prosecuting the rampant law-breaking of the Trump era, and expanding the Supreme Court.

Bill Astore recently wrote about the current situation of authoritarianism and militarism in the US:

All leaders, military and civilian, must remember their oath: loyalty to the Constitution, not to any man. Illegal orders must be resisted. Congress must impeach and remove a president who acts unlawfully. It must also reassert its distinctly lost authority to declare war. And it must stop taking “legal” bribes from the lobbyists/foot soldiers who flood the halls of Congress, peddling influence with campaign “contributions.” (2)

Before going into more nerdy descriptions, this parody song from the British family singing group, The Marsh Family, is an excellent glimpse at what the loss of the rule of law looks like in the US: (3)

This is an explainer by Robert Reich on one of the basic elements of the rule of law, “due process”: (4)

This is a podcast by Ben Meiselas of MeidasTouch about Justice Department career attorneys resigning because they are afraid working in Pam Bondi’s operation will ruin their reputations and/or get them disbarred from practicing law. (There’s an ad in the middle that is easy to fast-forward past.) (5)

A basic thing about “rule of law” is that it is an essential part of democracy. Democracy and the rule of law are overlapping concepts. But we can’t have either of them without the other. (Though insisting on elements of the rule of law for currently non-democratic regimes can be an essential feature of moving toward democratic rule.)

Masked goons with no identification as politic or government officials kidnapping people on the streets or at their homes without warrants and sending them to prison or to a domestic or foreign concentration camp with no due process of law is not part of the rule of law. Trump’s ICE thugs who have been doing just that are a direct threat to the rule of law.

Rule of law is not rule by law. Any dictatorship can have laws that it enforces. Even Hitler’s dictatorship that began in 1933 actually used laws to justify its actions inside Germany until the “Kristallnacht” pogrom in late 1938. Though the courts themselves had been deprived of their independence – and independence of the justice system from arbitrary and/or crassly political, or corrupt motivations - an essential elements of the rule of law.

This is a definition of the general concept from the United Nations:

For the United Nations (UN) system, the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency. (6)

The hopelessly respectable Encyclopedia Britannica has its own definition of the concept, authored by Noami Choi. (7) But her description fails to address clearly the essential connection between democracy and the rule of law. That’s partially nondemocratic government also claim that rule of law is the same as rule by law. She alludes here to the distinctly democratic concept of rule of law:

For the majority of modern democratic societies, however, the rule of law’s requirement that both rulers and the ruled be accountable to the law is of unquestionable value. To be sure, in the modern world, it is the liberal tradition that values the rule of law most highly. Liberals who are concerned with ways of protecting (and realizing) liberty in some form and averting threats to it view the rule of law as an overarching source of security. Nonetheless, there is substantial disagreement even among liberals over what exactly counts as a faithful application of the term and, even when that is pinned down, how it is to be accomplished. [my emphasis]

Claire Gardner has a more specific definition of the democratic concept of rule of law:

The Rule of Law is closely linked with the ideals of democracy. A democratic state under the Rule of Law is a state where citizens elect their own leaders, and the government itself is bound by the law, while also helping to ensure that the law is respected among the citizens of the state. Democracy cannot exist without the Rule of Law, especially the rule that dictates who should occupy public office given the results of elections. However, only supporting the Rule of Law during an election season is not enough. Democratic stability depends on a self-enforcing equilibrium. In other words, political officials must respect democracy’s limits on their actions, particularly regarding the rights of citizens. Institutions that are self-perpetuating and do not operate based on individuality of single actors are powerful actors stabilizing that equilibrium. In a stable, self-perpetuating institution all conflicts are solved according to the institutional rules, and therefore, the Rule of Law stabilizes the democratic society. Rule of Law in a democratic institution allows governments to work their will through general legislation, and then to be subject to that legislation themselves. [my emphasis] (8)

The 1950 European Convention on Human Rights gave a clear statement of the mutual dependency of democracy and the rule of law, which also recognizes that rule of law is critical to adequate protection of basic human rights:

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration [of Human Rights]. [my emphasis] (9)

Froomkin expands on his rule-of-law point with this short list: “This includes rebuilding a devastated and defiled Justice Department, prosecuting the rampant law-breaking of the Trump era, and expanding the Supreme Court.”

It’s also important that Democrats magnify the points that Rhode Island Sen. Sheldon Whitehouse has been stressing for years now, which is the corruption of the Supreme Court including monetary “gifts” from clients who have cases before the Court. People understand that it subverts the justice system to allow judges to take bribes. Pursuing that route would be good and necessary policy, and it would also play well as a political issue.

Notes:

(1) Froomkin, Dan (2025): Is it time to start planning a post-Trump restoration? Heads Up News 06/30/2025. <https://www.headsupnews.org/p/is-it-time-to-start-planning-a-post> (Accessed: 2025-03-08).

(2) Astore, William (2025): America the FUBAR: An Ailing, Flailing, Failing Empire Lashes Out. TomDispatch 08/05/2025. <https://tomdispatch.com/america-the-fubar/> (Accessed: 2025-03-08).

(3) "Pamela Bondi" - Marsh Family parody of "The One and Only" sung by Chesney Hawkes (by Nik Kershaw). Marsh Family YouTube channel 05/16/2025. <https://youtu.be/yYfWkPekNTI?si=j9AEjMKkSH4JSXvM> (Accessed: 05/15/2025).

(4) What is Due Process? Robert Reich YouTube channel 08/12/2025. <https://youtu.be/metN4EiDtmQ?si=N8PSrY6RDOtHhxyS> (Accessed: 2025-08-08).

(5) Trump IN PANIC as MOST DOJ Lawyers SUDDENLY QUIT. MeidasTouch YouTube channel 080/07/2025. <https://youtu.be/-QUXtxLBQ5E?si=Pfbi8Hv4orqtajzl> (Accessed: 2025-08-08).

(6) What is the Rule of Law. United Nations website n/d. <https://www.un.org/ruleoflaw/what-is-the-rule-of-law/>  (Accessed: 2025-13-08).

See also: New Vision of the Secretary-General for the Rule of Law (2023). United Nations website n/d. <https://www.ohchr.org/en/documents/tools-and-resources/secretary-generals-new-vision-rule-law> (Accessed: 2025-13-08).

(7) Choi, Naomi (2025): Choi, Naomi. "rule of law". Encyclopedia Britannica 08/05/2025. <https://www.britannica.com/topic/rule-of-law> (Accessed: 2025-13-08).

(8) Gardner, Claire (2021): Democracy and the Rule of Law. William & Mary Law School (Summer 2021). <https://law.wm.edu/academics/intellectuallife/researchcenters/postconflictjustice/internships/internship-blogs/2021/claire-gardner/democracy-and-the-rule-of-law.php> (Accessed: 2025-13-08).

(9) Quoted in: Tomuschat, Christian (2013): Democracy and the Rule of Law. Oxford Academic 12/16/2013, <https://doi.org/10.1093/law/9780199640133.003.0021>