Magna Carta, the Rule of Law and Russian Hacking

On June 15, we celebrated the 802nd anniversary of the signing of Magna Carta. In 2015, for the 800th anniversary, I was privileged to be in London for a series of programs sponsored by the American Bar Association, and at Runnymede with the Queen – and thousands of other people – for the grand tribute to the Great Charter. Interestingly, at Runnymede the most prominent marker of the place where modern legal theory began is a monument erected by the ABA, originally in 1957, and refurbished and rededicated on that day in 2015. Many acknowledge that Magna Carta is treasured more here than in Great Britain.

The speakers at the programs in London were amazing. All of them related how Magna Carta’s most significant principle – that even the King is not above the Rule of Law – is the most important underpinning of a free society. One human rights lawyer from Zimbabwe, whose own life was threatened daily, correctly pointed out that it is respect for the Rule of Law, and not democracy, that protects a nation’s citizens. As she said, any country can elect its officers, but it is not how the elected representatives get there, what matters is what they do with the power once they are in office. If they have respect for the Rule of Law, if they acknowledge that the law exists apart from them and respect the process of either following the law or working within the system to change it, the human rights and dignity of the people are protected.

Lack of respect for the Rule of Law is not confined to foreign countries. Russian hacking and the Russian government’s attempt to influence our 2016 election have clouded the current administration. The institution of an inquiry by Congress and a concurrent investigation by the Justice Department have brought about the resignation of National Security Advisor Michael Flynn and have required the recusal of Attorney General Jeff Sessions. In April, I brought a panel of experts in the law of Independent Counsel (both federal and state) to speak to our House of Delegates.

Panelist Richard Davis, who was a member of Archibald Cox’s staff while he was the independent special prosecutor of Watergate, spoke about how Cox’s appointment occurred and about the power the White House had over him, evidenced by his firing during the famed Saturday Night Massacre. While President Nixon had the power to force the Attorney General to fire Mr. Cox, or be fired himself, it was the exercise of this power in an attempt to stop the Watergate investigation that led directly to the impeachment process, which then led to President Nixon’s resignation. Congress responded to the issues raised in Watergate by passing an Independent Counsel act to remove the Special Prosecutor from the control of the Justice Department and the administration. Kenneth Starr was appointed under this act to investigate Whitewater during the Clinton administration. The legislation authorizing the appointment of Independent Counsel lapsed on June 30, 1999 and was never reauthorized.

Much has already been written about the firing of FBI Director James Comey, and about whether the President had the power to do so. Even if he did, just as President Nixon’s firing of Elliot Richardson and William Ruckelshaus for refusing to fire Archibald Cox, that action belied the principle that even the President is not above the Rule of Law. This could not stand, and Acting Attorney General Rod Rosenstein reacted with the swift appointment of Special Counsel Robert Mueller, the former director of the FBI, to lead the Justice Department investigation. Regardless of our politics, as lawyers we have to applaud Mr. Rosenstein’s action. The investigation will continue, with the presumption of innocence for all. For that is another Rule of Law we must respect.