Imagine for a moment that you’re a member of Renee Good’s family. You’re mourning her death at the hands of an ICE agent in Minneapolis, and you want justice.
So you visit a lawyer to see what can be done.
First, you want to help in any criminal investigation of the officer. You’ve got information about Good’s intentions when she protested ICE activities — information you think might be relevant to prosecutors looking into the case.
“I’m sorry,” the lawyer replies. “The administration has already declared that the agent did no wrong, and the Justice Department’s civil rights division hasn’t opened an investigation into whether the agent violated Renee’s constitutional rights.
“Federal officials are, however, investigating Renee and may investigate her family, so you might need a defense lawyer.”
You didn’t have high hopes that the Trump administration would hold anyone accountable, but surely the next administration could? There’s no statute of limitations for murder, right?
“I’m sorry,” the lawyer replies. “Given President Trump’s past pardons, I’d say it’s quite possible that he’ll pardon the agent. And once he pardons the agent, he’s beyond the reach of federal law for the shooting.”
But there’s state law, right? You’ve seen the mayor of Minneapolis, Jacob Frey, speak out. Tim Walz, the governor, is furious. Murder is still against the law in Minnesota.
“I’m sorry,” the lawyer replies, “but there is only a small chance that will work. There is a doctrine called supremacy clause immunity that prohibits state officials from prosecuting federal officers when they’re reasonably acting in their official capacity. It’s not absolute immunity like the administration claims, but it’s still a high hurdle for any prosecution to overcome.”
We can still sue the officer, can’t we? Even if the government can’t or won’t prosecute, we’ll still want to hold him liable.
“I’m sorry,” the lawyer replies, “but there is almost no chance that will work. There’s a federal statute that gives you the ability to sue state and local officials when they violate your constitutional rights, but there’s no equivalent law granting the right to sue federal officials for the same reasons.
“In 1971,” the lawyer continues, “the Supreme Court created a path for plaintiffs to sue federal officials for violations of their constitutional rights. Since then, however, the court has limited the reach of that case, and it is now extremely difficult to sue when the federal government violates your civil rights.”
And there you have it — that’s the challenge any citizen faces when he or she tries to hold the federal government responsible for violating the Constitution. The government is defended by a phalanx of immunities and privileges, buttressed by the president’s unchecked pardon power — a vestige of royal authority that should no longer have any place in our constitutional republic.
Failing the stress test
President Donald Trump is stress-testing American law, and the law is failing the test. The health of the American experiment rests far more on the integrity of any given American president than we realized.
We trusted that presidents would impose accountability on the executive branch. We trusted that presidents wouldn’t abuse their pardon power — or, if they did, then Congress could impeach and convict any offenders. And so we manufactured doctrine after doctrine, year after year, that insulated the executive branch from legal accountability.
It’s hard to overstate how much this web of immunities — combined with the failure of Congress to step up and fulfill its powerful constitutional role — has made the United States vulnerable to authoritarian abuse.
The ancient question: Who will watch the watchers?
In Federalist No. 51, James Madison wrote some of the most famous words of the American founding. “If men were angels, no government would be necessary,” Madison wrote. “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
This is a version of the ancient question: Who will watch the watchers?
Madison’s next words were crucial. “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
In the Trump era, those auxiliary precautions have utterly failed. They’ve been undermined to the point where the reverse is now true. Rather than providing additional precautions against the rise of authoritarian rule, American law and precedent seem to presume that angels govern men, and those angels would be free to do even more good if only they possessed a free hand.
The ‘dual state’
And so we’ve slowly but surely created the mechanisms of what the Nazi-era Jewish labor lawyer Ernst Fraenkel called “the dual state.”
Last March, Aziz Huq, a University of Chicago law professor, wrote a prescient (and deeply disturbing) piece for The Atlantic that revived Fraenkel’s analysis for this new American age.
Fraenkel had observed the rise of Nazi rule as a working lawyer and committed social democrat and noted that ordinary Germans enjoyed the benefit of what Huq describes as a “capitalist economy governed by stable laws” even as other parts of the German system changed into an engine of genocide and war.
The two components of the dual state are the normative state — the seemingly normal world that you and I inhabit, where, as Huq writes, the “ordinary legal system of rules, procedures and precedents” applies — and the prerogative state, which is marked (in Fraenkel’s words) by “unlimited arbitrariness and violence unchecked by any legal guarantees.”
“The key here,” Huq writes, “is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state.”
It’s the continued existence of the normative state that lulls a population to sleep. It makes you discount the warnings of others. “Surely,” you say to yourself, “things aren’t that bad. My life is pretty much what it was.”
While we’re thankfully not yet close to the Nazi reality, you can see the emerging dual state in action in Minneapolis right now. In much of the city, life is routine. People create new businesses, enter into contracts, file litigation and make deals as if life were completely normal and the rule of law exists, untainted by our deep political divide.
But if you interact with ICE, suddenly you risk coming up against the full force of the prerogative state. One of the most heartbreaking aspects of the ICE agent’s video of the fatal encounter between Renee Good and ICE is that it’s plain that Good thinks she’s still in the normative state. She has no idea of the peril she’s in.
She seems relaxed. She even seems to have told the agent that she’s not mad at him. In the normative state, your life almost never depends on immediate and unconditional compliance with police commands.
But she wasn’t in the normative state. She had crossed over the border to the prerogative state, and in that state you can be shot dead recklessly, irresponsibly and perhaps even illegally, and no one will pay the price. You might even be rewarded with more than $1 million in donations from friends and allies.
In fact, some of the anger against Good comes from those who think she was the one in the prerogative state, that she was operating recklessly and lawlessly, heedless of any consequence.
Best intentions gone awry
Unlike in Nazi Germany, our emerging prerogative state was often built by well-meaning people operating with the best of intentions.
Think of supremacy clause immunity. For most of our nation’s history, states were far more of an instrument of oppression than the federal government, and limiting the authority of states to prosecute federal officers was indispensable to protecting civil rights.
The limits on lawsuits against public officials are often designed to protect (presumably) good public servants from (presumably) malicious and frivolous lawsuits from angry and ungrateful members of the public. Would good people want to enter public service if they were vulnerable to endless litigation?
As a consequence, for generation after generation, lawmakers and courts have twisted themselves into a logical and moral pretzel, somehow believing that the government will be better if it is less accountable to the public and to the law.
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Yet we don’t apply such reasoning to other vital aspects of public and commercial life. How many people think, “We need banks to have a flourishing economy, so let’s make bankers immune from most lawsuits and nearly impossible to prosecute”?
The opposite is true. The integrity of the banking system is so vital that we need more accountability and transparency, not less.
The wisdom of Madison’s words
And so it is with the government. Trump is proving the wisdom of Madison’s words. Any legal or political system built around trust in the integrity of the president is doomed to failure.
Angels do not govern us — men and women do — and no man or woman should be immune from the rule of law. We’ve taken that idea for granted for far too long, to the point where we’ve abandoned the “auxiliary precautions” the founders knew we needed. Now we are paying the price in blood.
David French writes a column for the New York Times.
