The fact that it went to press just before the Senate impeachment trial, and thus cannot account for the near-collapse of an independent Justice Department, the capitulation of Senate Republicans who believed that President Trump had inappropriately sought Ukrainian election interference but who felt somehow helpless to hold him to account, and recent lawsuits against opinion journalists in major newspapers, actually only highlights the fact that even when one believes the situation cannot get worse, it always gets worse, and often in the span of mere weeks.
Painter, who served as White House chief ethics counsel under George W. Bush, and Golenbock, the author of several New York Times bestsellers, seek to chronicle the erosion of the rule of law in the Trump era, and in some ways, the most chilling parts of the book are not the descriptions of Trump’s lawlessness, whether in the form of attacking the press, benefiting financially from his presidency, obstructing the Mueller probe or fawning over despots. Much of this will be familiar to anyone who has tried to keep up with the events of recent years. But set against the context of historical precedent, the case becomes crisper. In their descriptions of the Salem witch trials, the internment of Japanese Americans after Pearl Harbor, the suspension of habeas corpus during the Civil War, the Palmer Raids and the pointless waste of the McCarthy era, the authors remind us that each of those actions was taken under color of law, effectuated by presidents, congressmen and lawyers.
Indeed they are quick to remind us, in a terrifying chapter on the rise of the Third Reich, that judges, prosecutors and democratically elected officials formed the very backbone of Nazi Germany. And that the transformation of Germany from democratic republic to bloody dictatorship took place in less than three months. In urging Americans to stand up for the rule of law — and its bulwarks of religious tolerance, guarantees of due process, truth, a free press and freedom from corruption — Painter and Golenbock archly make the more complicated case that law itself is often deployed to break the rule of law. As was the case in Nazi Germany, the breakdown can be progressive and can come in the guise of statutes, codes and court cases; these trappings do not make descent into autocracy lawful, they merely make it invisible.
Two weeks before the release of “American Nero,” Trump retweeted a meme of himself playing a fiddle, with the words “My next piece is called nothing can stop what’s coming.” With a bizarre sense of timing, Trump had evoked the Roman emperor of the book’s title, who famously fiddled as Rome burned around him. Nero, who died in 68 A.D., was a famously corrupt, nativist ruler who flaunted his great wealth, assassinated perceived enemies and surrounded himself with sycophants.
While it’s not always clear why Painter and Golenbock discuss certain eras, cases or ideas and neglect others, what emerges in the aggregate is a devastating picture of how much has been broken in how little time. (Painter takes pains to critique the Bush administration for, among other things, the Iraq War and the torture program.) You may find yourself realizing that the choice of the hopelessly ineffectual Matthew Whitaker as acting attorney general to succeed Jeff Sessions has been deleted from your personal memory bank — or that, compared with Sessions, who seemed to have certain ethical lines he could not traverse, William Barr appears to have no such lines, yet nobody seems to recall what the old lines were or how they got there. In fact the book ends with an all-out cri du coeur about the need for accountability for Trump in some legal forum: “The rule of law requires it. But do Americans care? We should, but do we? Too many Americans are numb to Trump’s behavior and rhetoric. They don’t seem to be aware of how Trump’s actions and words threaten the rule of law and our democracy.”
“American Nero” is thus a kind of master class in law for the numb and the frozen. Painter and Golenbock are less interested in defining what “rule of law” means than in warning us that, time after time, in the darkest moments of history, tyranny has flourished in constitutional democracies when it comes dressed as lawful actions taken by sober leaders. The argument is that we need to understand the connection between the corruption contemplated in the Constitution’s emoluments clauses and Trump’s properties in Russia and Turkey. We need to lash the framers’ arguments about the need for a free press to the president’s unrelenting Twitter attacks on the media, specific reporters and provable truth. We all need, in short, to become experts in law in order to recognize lawlessness, whether it comes from the “nihilists in charge of interpreting laws,” such as those who authorized the torture program, or Joe McCarthy’s efforts to purge the State Department and the military of those he deemed disloyal.
Paradoxically, in this view, the law is gossamer-thin and subject to abuse, but also enduring and timeless and resilient. It is not up to Trump, his minions or his legal defenders to decide what is lawful — but it’s up to those of us who may feel like constitutional spectators, or hobbyists, or amateurs, to decide what the rule of law means and what it means to us. That’s a herculean ask, as the authors are well aware, but the alternative is nothing less than the end of an empire.
The History of the Destruction of the Rule of Law, and Why Trump Is the Worst Offender
By Richard Painter and Peter Golenbock
BenBella. 456 pp. $26.95