The God-King believes he is the law. As a practical matter, he could be correct…. (More)
That Latin phrase roughly translates to: “The king is the law.” It describes the oldest and still most common system of law, in which the law is whatever the sovereign declares it to be: case by case, person by person, moment by moment. And that describes the system of law in most businesses and most families.
Most businesses have “employment at will,” which means the boss can fire anyone, at any time, and for essentially any reason. In theory that power of Rex Lex is limited by labor laws, discrimination laws, and the threat of wrongful termination lawsuits. In practice, bosses can and mostly do find ways around those limits, if and when they choose. Even if employees work under contract and/or in a company with codified employee rules, the terms are often written by the boss. It’s expensive and cumbersome for an employee to challenge the boss’ dictates, and employment terms often specify that disputes will be resolved in binding arbitration — with the arbitrator selected and paid by the boss. The employee needs a paycheck while that process drags on, and the often inescapable solution is usually to find another job. So even with a contract and/or codified employee rules, in practice it still comes down to Rex Lex.
Rex Lex has even fewer limits in families. Yes, there are parental abuse and neglect laws, but they cover only the most egregious misconduct. In the vast majority of cases, it’s “My house, my rules.” A parent can decree that Adam can stay up until 10pm while Billy must be in bed by 8pm — because Adam is older, because Billy misbehaved, because the parent wants some one-on-one time with Adam, or simply because the parent likes Adam more than Billy. The house rules can change from day to day or even minute to minute, depending on what a parent is doing or his/her patience, fatigue … or mere whim.
That is, by the way, a good reason to be wary when a boss says: “I think of this business as a family.”
Most governments claim to be something more than Rex Lex. The earliest known written law is the Code of Hammurabi, and governments ever since have written systems of law that purport to constrain their leaders. Yet regardless of the system of law as written, local and national officials have ignored the limits. And – far more often than not – they get away with it.
A cop decides not to give you a ticket because he doesn’t feel like writing it up, or because he thinks you’re cute, or because he has sympathy for your explanation. Or he may “throw the book at you” — because you were uncooperative or rude or he doesn’t like your skin color … or just because he’s in a bad mood. You can contest the ticket or arrest but – far more often than not – you will lose. And no one has standing to contest a cop’s decision to give a warning instead of writing a ticket or making an arrest. Rex Lex.
Our system of law recognizes “prosecutorial discretion,” which gives a lot of leeway in whether and how a case is charged. Yes, that is limited by “abuse of discretion” rules; if challenged, the prosecutor must show a reasonable, good-faith basis for the decision. But it’s exceedingly rare for a judge to declare an abuse of prosecutorial discretion. Rex Lex.
And it’s pretty much the same with other local, state, and federal officials. In theory, there are laws and regulations and rules that limit their actions. In practice, they pretty much have to not merely step over a line but also hold up a sign that reads “F—k You” with an upraised middle finger. It’s difficult to prosecute public corruption cases precisely because almost every legal standard leans toward trusting the discretion of public officials unless there is overwhelming evidence of corrupt intent. Rex Lex.
So when the God-King’s lawyer says the “President cannot obstruct justice because he is the chief law enforcement officer under and has every right to express his view of any case” – or when a conservative argues that the God-King had the authority to fire James Comey “for any reason. He could fire him if he didn’t like the tie he wore to a Committee hearing. He could fire him for putting ketchup on a hot dog. He could fire him if he perceived he wasn’t loyal to him. Or he could fire him for incompetence” – as a practical matter they’re usually correct.
As Chief Executive, the God-King has the authority to fire the Attorney General or any other Executive Branch employee. Federal civil service laws create some limits but those rarely apply for senior officials, the people who set and enforce policy for the civil servants. The president can fire those senior officials pretty much at will, at any time, and for almost any reason.
That word “almost” may or may not include examples that pundits and legal experts have bandied about lately. In theory, the God-King could not fire the FBI Director because a Russian oligarch offered the God-King $10 million to appoint an FBI Director who would ignore crimes by Russian nationals in the U.S. In theory, the God-King could not fire the FBI Director because he refused to arrest Alabama Democratic senate candidate Doug Jones and “charge him with something, anything, but make damn sure Roy Moore wins next week.” In theory, the God-King could not fire special counsel Robert Mueller because “Goddammit I will not allow any criminal charges against me, my family, or my close friends — no matter what we’ve done.”
In theory, any of those would be a “corrupt” motive that voids the legitimacy of his authority. In theory.
In practice, he has the power to do those things … and whether he gets away with it depends entirely on whether other people in power decide to stop him: whether subordinates obey his orders, whether Mueller decides to charge him with a crime and an inevitable appellate court hold that the president is subject to criminal prosecution, or whether Congress decide to impeach him.
In practice, if subordinates obey his orders, if Mueller doesn’t file a charge or a court declares that the president cannot be charged with a crime while in office — and if Congress decide not to impeach — then the God-King has the power to do whatever he wants, to anyone, at any time, for any reason. Period. Rex Lex.
In theory, we voters can also stop him, by electing Democratic majorities in the House and Senate in 2018 and/or electing a Democratic president in 2020. In theory.
In practice, our power exists only if we show up to vote. If we don’t … Rex Lex.
Photo Credit: Spencer Platt (Getty Imates)
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