Politicization of the law is harming trust in the legal system and creating a chasm between the Right and the Left that is mistakenly centered on legalese rather than policy.
This shift toward casting legal decisions in a political lens increased dramatically four years ago with the election of US President Donald Trump. It has become painstakingly obvious in the last month, beginning with accusations of voter fraud during the US presidential election and now culminating with the assassination of Iran’s nuclear program “father,” Mohsen Fakhrizadeh.
While there are an infinite number of perspectives on these two major events, the one issue that ties the two together is the question of how people view the law leading into 2021.
As 2020 comes close to passing into history, Pennsylvania US District Court Judge Matthew Brann recently dismissed one of Trump’s legal claims, saying it was “like Frankenstein’s Monster… haphazardly stitched together.”
One can debate a variety of potential Trump policy wins and losses, but when it comes to legal decisions, he has been consistent. He attacks any decision against him as political and praises any decision in his favor as true and accurate.
The idea of politicians criticizing decisions they do not like goes for pretty much all politicians.
But Trump has been unique in how far he has tried to label the judiciary as political, no matter who the judge is.
Trump correctly said Brann was appointed by president Barack Obama, but he is a lifelong Republican and has been supported by many top Republicans in Pennsylvania.
Next stop was the Federal Appeals Court.
This time, Trump’s lawsuit claiming widespread election fraud was summarily tossed out by three Republican-appointed judges, including 3rd Circuit Judge Stephanos Bibas, who was appointed by Trump himself.
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” wrote Bibas.
LIKE THE Frankenstein’s Monster comment, this remark exposes that Republican and Trump-appointed judges are consistently finding his claims of a rigged election lacking in evidence and proof.
But in the fake-news or post-truth age, Trump and what is left of his legal team – many of his first-string lawyers resigned after he insisted on big accusations less connected to specific incidents – seem to not realize that in the world of law, evidence still matters.
Was there some minor fraud in the US elections?
Undoubtedly, since there has been some fraud in nearly every election that has ever occurred.
Might there have been more because of the mail-in voting situation?
Maybe, but maybe not.
To date, the court cases, audits and recounts seem to show that most states took election security far more seriously this year, precisely because of their concerns about mail-in voting.
Maybe there still was some more fraud, but nothing systemic or widely coordinated, and nothing that could alter the election result.
Rather, most of the “legal” claims go something like this: Republican poll-watchers were allowed inside a vote-counting room, but they were 20 feet away and wanted to be six feet away.
They sued in court and were eventually allowed to come closer.
Trump and his legal team claim they were never allowed in the room.
Incidentally, Democrat poll-watchers were kept at the same distance at all times.
Trump is likely to be surprised that his US Supreme Court, where he placed three justices to make a six-to-three conservative majority, is not going to help him with such claims.
There is simply a fundamental misunderstanding that courts can be dominated with alternative facts the same way that social media can.
And then there is the assassination of the father of Iran’s nuclear program.
FORMER OBAMA administration CIA director John Brennan shot off a series of tweets on Friday, claiming that whoever killed Fakhrizadeh had committed “a criminal act” and that it was “an act of state-sponsored terrorism” and “a flagrant violation of international law.”
Part of what makes this interesting is that Brennan is not a lawyer in an ivory tower but a former national security adviser and CIA director who ordered many targeted killings of US enemies worldwide.
Characterizing killing the father of the nuclear program of the world’s leading state sponsor of terrorism as violating international law and criminal is also making the law into a political football – a disservice to the rule of law.
If Fakhrizadeh was an innocent physics professor who just taught in a university, then killing him would certainly be illegal, the same as killing any other civilian.
But as former CIA chief, Brennan knows better. He knows exactly what Fakhrizadeh has done for the military side of Iran’s nuclear program.
His real point is political: He thinks it is a bad idea to try to take aggressive measures against Iran before the Biden administration takes charge – and that it is especially bad to attack Iranian government officials who are not part of its armed forces.
One can debate whether he is right or wrong regarding policy.
It is true that targeting a state official could expose Israeli, US and other atomic-energy officials to similar dangers. And it is also true that this attack may hamstring the Biden administration’s options with the Islamic Republic.
There are some experts on international law – usually not those who need to fight wars – who would label it criminal.
But even Brennan tries to cover himself by essentially acknowledging that the US, when he ran the CIA, took out people like Fakhrizadeh if they were associated with ISIS or al-Qaeda.
He is just saying that Iran is better or more impervious to being attacked because it happens to be a state.
THIS IS a fiction that one can entertain when Iran’s ballistic missiles do not have the range to hit your country (the US), when Tehran has not used two proxies to fire rockets into your civilian cities (which it has done to Israel) and when the ayatollahs have not destroyed some of your largest oil fields with drones (which it has done to the Saudis).
If Iran develops a nuclear weapon in the next year, it will be able to hit Israel and Saudi Arabia but not the US.
So maybe for Brennan that makes Iran less of a threat.
But for Israel, the Saudis and the rest of the moderate Sunni Middle East, Iran is currently a much greater threat than ISIS and al-Qaeda; if it would get a nuclear weapon, it would become an existential threat.
Killing Iran’s head nuclear scientist is not a legal issue at all. It is a policy one, which can be seen from different perspectives, depending on whether your country is imminently threatened, like Israel and moderate Sunni states, or is merely a general security issue, like for the US.
Who has the best strategy to tackle Iran is an open debate. No one has fully succeeded to date with either diplomacy or maximum pressure.
But Brennan knows how big a threat Iran poses to Middle Eastern countries and knows that his arguments are far more about policy than law.
And so, the world enters 2021 with both sides of the political spectrum trying to use the law to change decisions and outcomes they do not like, instead of being willing to confront these real-world events with policy ideas about future events they might actually be able to change.
Politicizing the law from either side of the spectrum ultimately does a disservice to domestic and international law. It weakens the public’s faith that any of this confusing world can make sense and be confronted with even a modicum of neutrality and objectivity.