What are cookies?
Cookies are small pieces of information that are stored on your hard drive to allow the British Institute of International and Comparative Law to recognise you when you visit. They can remember your preferences by gathering and storing information. They do not identify you as an individual user, just the computer used. Cookies cannot be used to run programs or create viruses on your computer. Cookies do not give the British Institute of International and Comparative Law access to your computer.
What types of essential cookies does BIICL use?
We also use some third party cookies to help us improve your user experience.
If you don't want to receive cookies.
If you would prefer not to receive cookies while browsing our site, you can set your browser so that it will not download cookies onto your computer. Doing so will still allow you to navigate through the majority of our site but possibly not all of it. If you wish to access the password protected areas of our website you will need to allow "per-session" cookies. These are temporarily used while you are visiting the site but deleted when you close your browser or log out.
Rosenstein's departure would test Americans' commitment to Rule of Law
First published in The Hill on 1 October 2018
We may be about to arrive at the constitutional moment many Americans have been dreading for some time now
A moment the founders of our country foresaw and sought to head off through the structuring of our constitutional system, but whose rich complexities they did not fully fathom. The moment represents a fork in the road for the nation, one no less decisive for our self-definition as Americans than were our responses to Pearl Harbor or 9/11.
The moment will not be the firing or resignation of Deputy Attorney General Rod Rosenstein.
Rather, the critical moment, the one that is so consequential for the future of the country, is the one that comes next. What will Americans do in response to an event that would be so perilous for the rule of law as an unwarranted removal of the deputy attorney general at this moment in time? If Rosenstein's removal is warranted - as a result of any untoward behavior on his part in the past - will they insist that his successor embody the independence required to fulfill the critical function Rosenstein is currently serving?
The stakes are this high, in part, because the removal of Rosenstein would place into jeopardy the independent investigation into Russian interference in the 2016 election, and related matters, being conducted by Special Counsel Robert Mueller. Whether or not you like the political machinations surrounding the Mueller investigation, the investigation itself is serving an essential function in upholding the rule of law at a time when our political system is not. To date, Rod Rosenstein has been the bulwark in protecting the ongoing work of the Mueller investigation. If the critical fact-finding function being served by the Mueller investigation is interfered with by the very branch of the State under investigation, our ability to understand and address what happened in 2016 will be set back considerably. The credibility of democratic governance in the United States is at stake.
More than this, however, is what this moment would mean for who we are as a nation, and the degree to which we are willing to overlook the slow, steady erosion of our most basic values and governing principles. In recent months attacks on the press have become so frequent and so aggressive that the words "enemy of the people", a phrase with a long history among totalitarian regimes, has become commonplace as a description of the media. We have become inured to the steady antagonizing of the Justice Department and individuals within it, without regard to its critical function as a source of independence in our democracy.
Indeed, at times our country looks and feels more like a two-bit autocracy than the resilient democratic leader of the free world that we would hope it to be.
There is precedent for Americans drawing a line in the sand against attacks on the rule of law, the most obvious of which took place during the Watergate era. The precipitating moment in the early 1970s was the "Saturday Night Massacre", when the country responded forcefully to President Nixon's attempt to subvert an equally high-stakes investigation by ordering his attorney general to fire the special prosecutor, only to have the AG and his successor resign in protest before the third-in-line ultimately complied. Up to that point, the public was largely sanguine in regard to the Watergate allegations and the president's efforts to interfere with the investigation, reelecting Nixon in a landslide less than six months after the Watergate reporting began appearing in the press. It was Nixon's effort to subvert the independent investigation, and with it the rule of law, that was a bridge too far for a majority of Americans.
If, as many fear, the constitutional moment is here, the fundamental question is how will Americans respond? Will we defend the basic principles on which our country was founded, demanding that our representatives in Congress fulfill their Constitutional responsibilities as a check on the executive branch? Or will we shrug this off as just another among many affronts to the rule of law in recent years? We may find out before the week's over.
Does the Vienna Convention provide a legal off-ramp for unilaterally changing the Northern Ireland Protocol?
Ronan Cormacain | 13th June 2022
Modifying Retained EU law in the UK: Increasing Rule of Law Concerns?
Oliver Garner | 22nd October 2021
A new instrument to uphold the Rule of Law in EU Member States: the ‘Regulation on a general regime of conditionality for the protection of the Union budget’ and its contested implementation
Julinda Beqiraj | 22nd January 2021
Launch of the Independent Commission on UK Public Health Emergency Powers
13th October 2022
Weekly Update 6 May 2022
6th May 2022
Weekly Update 29 April 2022
29th April 2022