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R.I.P. Rule of Law, How Bad Can It Get?

William L. Kovacs

August 2023

R.I.P. Rule of Law, How Bad Can It Get?

With the exception of the Civil War, the people of the United States have generally lived in a rule-of-law society, one in which all persons are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. Regrettably, by living so long in good fortune, the people of the U.S. have not put serious thought into what happens when the rule of law dies. The Biden administration’s recent creation of a two-tier system of justice bluntly informs us that while the nation has been blessed with a civil society for 247 years, we are not protected from a bad ending. The theory of the rule of law may be eternal, but its application in the U.S. now appears transient.

Why are the actions of the federal government today more harmful to democracy than in the past?

While there has always been corruption in the federal government, it has never been systemic until the Biden administration. The House of Representatives Committee on Oversight and Accountability sets out the timeframe of corruption from 2013 to 2023. It includes Biden’s corrupt dealings with China, Ukraine, Romania, and Kazakhstan. Biden’s Department of Justice and its surrogate investigative arm, the Federal Bureau of Investigation (“DOJ”), have indicted and are attempting to imprison former president Trump, Biden’s primary rival in the 2024 election. This all follows four years of the Trump presidency, during which the DOJ lied to the FISA courts about the Trump administration and concocted the false Russian collusion narrative that led to the sham impeachment of Trump.

The most horrifying conduct of Biden’s special counsel is his effort to criminalize Trump’s right to speak, think and have confidentiality in his discussions with lawyers. This conduct is an attempt to criminalize all speech that is different from the government’s sanctioned speech.

There is also the DOJ’s attempt to give a sweetheart, no jail time, deal to Hunter Biden by ignoring his conduct as a tax cheat, drug addict, money launderer, and unregistered foreign agent. Even the day before Devon Archer was to give testimony before the House Oversight Committee, DOJ informed him to report to prison before giving testimony. This was an overt attempt at witness intimidation. While the list of crimes by the Biden administration will fill volumes in the history books, the existential question is – how much harm can the Biden administration do to the nation if its conduct continues?

How bad can Biden’s corruption get? Really bad!

Keep in mind the federal government has sovereign immunity. It cannot be sued without its consent. It will not prosecute itself for criminal conduct. Yes, corrupt officials can be prosecuted but only if the DOJ seeks to prosecute them. The Hunter Biden saga illustrates the power DOJ to destroy the rule of law in the United States. DOJ intentionally delayed prosecuting Hunter Biden for almost a decade, thereby allowing the statute of limitations to expire on the most serious tax evasion charges. And, finally, when a Republican House of Representatives pushed the DOJ into prosecuting Hunter Biden, DOJ indicted him on misdemeanor charges and, in a faux plea agreement, sought no jail time. It also attempted to give him complete immunity for all other crimes.  Fortunately for the nation, judge Noreika uncovered DOJ’s deception and refused to accept the sham plea deal.

The significant point in DOJ’s coverup is that it has the sole power to determine who will be prosecuted and what laws will be enforced. Congress can investigate DOJ actions, but it cannot force it to act in accordance with the law or to apply our laws equally. The courts can only hear matters before them. Nothing requires the federal government to prosecute any specific crime. The president can fire corrupt DOJ officials, but what if those officials are carrying out the president’s orders? Yes, the House of Representatives can impeach the president for treason, bribery, and other High crimes and misdemeanors, but if the Senate refuses to convict the president, all his corruption continues.

What does this mean?

President John Adams described our Republic as “A government of laws, not of men.” In the 21t c. those words are pure poppycock. The United States is a government of individuals holding personal power, wealth, and privilege. These individuals will undertake any action, including criminal conduct, to protect themselves the country be damned.

While the proper role of a government official should be as a trustee to the Constitution and a fiduciary to the institution in which they serve, few officials follow that path. Most hold power as politicians that give loyalty only to those helping them maintain their office. It is this loyalty to party and donors that undercuts the principle of separation of powers in the Constitution. There are no checks on power; there is only the Republicans checking the power of Democrats and Democrats checking the power of Republicans.

How can the power of the Executive branch be controlled?

The most effective mechanism for ensuring limited government, but the least likely to be acted upon by our officials, would be for each branch of government to constantly check the power of the other branches, notwithstanding political party affiliation. Absent an effective check on power, there are a few options for restraining corruption:

1.  The most practical approach to controlling corruption in the Executive branch is if one House of Congress is controlled by a party in opposition to the president. That House of Congress can refuse to fund a corrupt government, notwithstanding the fact that part of the government will shut down. The House of Representatives has a clear choice, to fund corruption or to shut down the corrupt agency.

To appropriate money, the House of Representatives and the Senate must agree on the amount of money the government needs, and the president must sign the appropriations into law. But if one House of Congress refuses to appropriate any money to fund a part of the government, that part of the government will be discontinued without passing a new law. This crude process is the only way to control a corrupt government.

2. Congress should grant Use Immunity to those with knowledge of corruption in the Executive branch. By granting use immunity to corrupt officials, corrupt officials can be forced to testify without fear of future punishment for the new information they provide. Securing the truth may be the only mechanism to make the federal government honest and eventually workable.

3. The only real power “We the people” have to control government is our power to vote for members of Congress. We do not vote for the President; that is done by the electoral college and a convoluted quilt of state voting laws, state Secretaries of State, and judicial proceedings. The Supreme Court is appointed, as are the millions of nameless bureaucrats that make laws daily by regulating almost every aspect of society.

Our right to vote for members of Congress is extraordinarily powerful. It is a legal mechanism for a peaceful revolution. With our votes, we can vote out all members of Congress every two years and elect a Congress that is a trustee of the Constitution and a fiduciary to the institution in which they serve. Only by electing a Congress willing to constantly check the powers of the other branches of government can citizens ensure that at least one branch of government, Congress, functions as the Constitution intends.

Electing a Congress that obeys the Constitution is the only failsafe mechanism given to the people to ensure we remain a Republic. If the people of the U.S. continue to elect a Congress that gives it loyalty to politics rather than the Constitution, the nation dies.

So how bad can a corrupt government be?

In the final analysis, John Adams was wrong. We are not a government of laws. The Biden administration and its DOJ have transitioned the United States into a government of men. Rather Thomas Jefferson, Adams’ nemesis, had it correct when he stated, “The government you elect is the government you deserve.” There is little in our Constitution to control a government that is willing to corrupt our constitutional system for personal benefit. So, we must all recognize as citizens the government we elect only functions as well as the individuals we elect.

So how bad can it (the federal government) get without the rule of law? Pick your worst nightmare, and don’t leave any possibility out for being too terrifying. As a nation of men, not laws, we are all subject to the power of narcissists exercised for personal political advantage. History has proven such insanity can result in inhuman outcomes.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]





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  • The Big Lie: I Can’t Answer, the Matter Is Under Investigation

The Big Lie: I Can’t Answer, the Matter Is Under Investigation

William L. Kovacs

July 2023

The Big Lie: I Can’t Answer, the Matter Is Under Investigation

The eight most disingenuous words used by federal agencies to hide their criminal activity are “I can’t answer, the matter is under investigation.” These words are used to obstruct, mislead, delay, and discourage congressional investigations into the legality of Executive branch activity.

Unfortunately, this simple statement often achieves its goal of obstructing efforts by Congress to obtain information. While Congress may be upset with the response, many times, it is cowed into accepting presidents can protect their people from being investigated for criminal conduct. Fortunes, however, can be reversed. If Republicans win the White House with a presidential candidate who sincerely wants to uphold the rule of law, restore justice to the legal system and hold the “Deep State” accountable, that president can make it happen.

The leading Presidential candidates for the Republican nomination have promised to fire the FBI director and clean house at the Department of Justice. If a Republican wins the presidency in November 2024, FBI Director Wary and AG Garland will resign long before they can be fired. So, candidates, please, stop pandering. No one will be fired. All pablum, worthless and oversimplified promises.

Suppose a new president truly wants to clean up the deep, dark, corrupt state at the DOJ and FBI. In that case, the Republican president need only waive Executive Privilege and issue an Executive Order declassifying all investigatory materials sought by the current Republican House of Representatives. Let Congress bleed the truth out of those subverting the Constitution.

Executive compliance is simple. When Congress requests documents, the Executive should order them produced. When testimony is sought, provide it without asserting objections. Cooperate with the Republican House to find the truth.

Since the Nixon administration, presidents have asserted Executive Privileges thirty times to block congressional investigations. Presidential assertions included protecting the president’s brother (Billy Carter), girlfriends (Monica Lewinsky), mismanagement of funds (Solyndra), foreign affairs (Benghazi), gun running (fast and furious), and the Watergate tapes. Democrat and Republican administrations act as if providing Congress with requested information concerning an investigation will somehow diminish their manhood.

Finding and eliminating corruption is for the benefit of the nation. Hiding corruption does not assist the president in the faithful execution of the law. The DOJ/FBI’s long-running minuet of never sharing information with congressional committees is a mechanism of deceit, not of protecting the independence and effectiveness of law enforcement, the identities of informants, avoiding pre-trial publicity, or interfering with prosecutorial discretion. The Supreme Court has long recognized the “…implied power [of Congress] to investigate and to compel the production of information” from the Executive branch.

“Executive Privilege for presidential communications is limited to the quintessential power and nondelegation of Presidential power, and those are the core functions in the Constitution.” It should only be asserted to preserve those core constitutional functions. Claiming it beyond the core constitutional functions is a delaying tactic that often allows illegal conduct to continue.

As to declassifying all documents related to alleged criminal activity in the Executive branch, no president should ever be intentionally or unintentionally covering it up. The American Bar Association writes, “Under the U.S. Constitution, the president as commander in chief is given broad powers to classify and declassify such information, often through executive orders.” While there are procedures for declassifying the materials, a president, except for certain materials such as nuclear secrets, has almost total control to declassify records by Executive Order. Presidents at all times have the power to put sunlight on government corruption. When they choose not to expose corruption, it is an intentional coverup.

Unfortunately, since the Nixon administration in the early 1970s, the Executive branch has forced Congress to issue subpoenas to secure requested documents. Presidents achieve their goal of protecting corruption by requiring years of legal battles to enforce the subpoena.

Hopefully, there will be a Republican Congress, or at least a Republican House sworn in on January 3, 2025, and on January 20, 2025, a Republican president. Between January 3, 2025, and January 20, 2025, the Republican Congress can prepare the appropriate investigative letters to the incoming president requesting the information needed to root out corruption in the DOJ/FBI. On January 20, when the Republican president enters the White House, his first order of business should be to issue an Executive Order waiving Executive privilege and formally declassifying the documents relating to all congressional investigations. These waivers should encompass all alleged DOJ/FBI corruption as described in the Durham Report, Mueller and Horowitz Reports, payments received by Joe and Hunter Biden from foreign countries, all matters associated with the development of a two-tier system of justice, efforts by the federal government to force social media companies to manipulate information distributed to the public and all other matters of high-level DOJ and FBI corruption.

By taking this approach, the president will tremendously assist the congressional investigation of the DOJ/FBI misconduct without investigating the departments he leads. If Congress finds evidence of criminal activity, it will refer the evidence to new appointees at a  DOJ for appropriate prosecution.

Suppose Executive branch personnel refuse to testify or take the Fifth to protect their constitutional rights. In that case, Congress can grant the Use Immunity, which compels their testimony but provides immunity to the witness for the new information provided. A witness that refuses to testify after being given Use Immunity can be cited for contempt of Congress and imprisoned.

It’s time the federal government gets serious about corruption in government. More intriguing would be if a president followed this advice. The nation might uncover who is running the Deep State

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

This article was first published in The Thinking Conservative.