In politics and in government, when unwritten practiced procedures are accepted historically as de facto rules of the road they eventually come to be regarded as established norms. They gain respect and acquire importance because of their smooth and continued usefulness. They preserve what has worked in the past and provide guidance for new participants — without “reinventing the wheel” — for how the peoples’ business has been and should be conducted.
Such norms are rarely questioned because they grease the wheels of government. Why mess with success? Until a problem emerges there is little need to either alter them or codify them into law.
However, when adverse consequences arise because of changes to or the abandonment of these norms, the fact that they are unwritten can pose a problem. On occasion these squabbles cannot be amicably resolved. They reach a boiling point and eventually may require adjudication by the courts. This can be a lengthy process and it sometimes ends up creating new law. Most of the time, in a country of laws and not of men, this is a good thing.
But when the abandonment of accepted norms becomes a tactic, not born of an honest disagreement, but of a cynical attempt to circumvent existing law, to delay an expected court ruling or to frustrate justice with a bogus argument, in legal terms that is regarded as “frivolous litigation” (when a claim is presented by a party’s legal counsel that he or she has reason to know is either manifestly insufficient or prohibited by existing law).
In lower courts, frivolous litigation is more common but also more easily recognized and dispensed with. But in higher deliberations, where there is more power, money and will to search through endlessly barren tracks of law for new legal arguments, the process of identifying frivolous litigation is rife with detours and forks in the road. When unscrupulous lawyers and their cynical clients — or more to the point, when the president and his corrupt U.S. attorney general — are allowed to take a high court down these dead-end roads to delay and avoid a final judgement, or worse, escape justice altogether, it mocks our justice system and severely damages its credibility.
We already live in a country where there are deep virtual chasms between what is moral and right and what is legal and permitted. While this is not uncommon in stable and well-functioning governments (chasms are where new law is born and can grow into bridges), in this Trump era, the chasms have widened considerably and dangerously. On one side, new law is not keeping up with the times we are in, and on the other side, old law is stealthily being circumvented. Solutions are getting more out of reach.
We have arrived at a time in this country when the reputation of a high-priced legal firm is actually enhanced more by its ability to thwart the law than to follow it. This phenomenon was once limited to lawyers who catered to the underworld of mafia bosses and corrupt CEOs. Now, because of the lack of due diligent oversight by our Congress, the politicization of our courts and the distracted and at times willful inattention of our citizenry, getting around the law has become openly in vogue — perhaps soon to become a reality show competition for the masses.
In the choice between what is right and what is legal, the rich and powerful no longer need to hide their preference. They can just follow Trump’s example. So far, few people seem to care enough or know enough to stop him and them.
Putting aside policy differences, there will be a high price to pay for Trump’s unanswered renunciation of, repeated attacks on, and obvious ignorance of the value of process. The precedent that he has set for future administrations, not only in domestic policy but in foreign policy as well, is fraught with danger. Compounded by a pliant and subservient Congress much like the one we have today — a Republican Senate so addicted to power and fearful of losing it that it is willing to turn a blind eye to treachery and a Democratic House more concerned about holding onto power than fulfilling its congressional oversight responsibilities and so timid that it balks at every turn — such a combination, again, could certainly spell disaster for our country.
Meanwhile, a blueprint is being created where future leadership will be chosen not by character and a demonstrated will to do what is right and moral, but by a willingness to skirt, if not break, the law in service to the wealthy and a talent for not getting caught.
As Americans we are witnessing the trashing of our believed ideals, the erosion of our claimed values, the destruction of our trust in government, and the unraveling of whatever is left of the American dream. And we are listening to and watching it all happen on our personal device of choice!
Dan Gomes is a resident of Schenevus. The views expressed in this column do not necessarily reflect those of The Daily Star or CNHI.