Hold Fast: Navigating the Ballot – How to Tell if a Candidate Respects the Rule of Law
Robert H. Jackson, at Nuremberg
“Procedural fairness and regularity are of the indispensable essence of liberty.”
—Robert H. Jackson, U.S. Attorney General, Supreme Court Justice and Chief U.S. Prosecutor at Nuremberg
Democracy is not tested when the process gives us what we want. It is tested when it doesn’t. As voters evaluate candidates this fall, watch how they respond to losing, being challenged, being told no, and being constrained by the law. Respect for the rule of law means respecting the process—even when the outcome is unwelcome.
As we move toward this fall’s elections at the local, state and federal level, we are inundated with claims by candidates and promises they make to us as constituents. This process is one part of a vibrant democracy. Yet, at this moment, we are challenged with separating truth and facts from rhetoric and hyperbole. A healthy democracy is not a perfect one. It is not static. It’s a living organism that needs attention and care.
Justice Sandra Day O’Connor called “the willingness of the other branches of government to enforce the Court’s rulings, even those with which they disagree” something Americans often take for granted. She cited President Eisenhower’s enforcement of Brown v. Board of Education at Little Rock as one example, concluding: “Such examples illustrate this country’s devotion to the Rule of Law — a devotion without which the protection of liberty would be impossible.”
We’ve seen elected officials and candidates at all levels, from school boards to the White House, claim that the justice system and our institutions are “weaponized.” As citizens, we need to be able to trust that justice is administered fairly.
Respect for the rule of law does not mean agreeing with every investigation, prosecution, court decision, law, or government institution. Realistically, we will all experience times when we strongly disagree with outcomes. And that’s a healthy democracy.
It means accepting that no one is above the law; the law must be applied equally and fairly; accountability is required for everyone; and there are established processes for challenging decisions, investigating misconduct, changing laws, disciplining employees, and reforming institutions. Those processes always matter, but particularly when they produce an outcome we don’t like.
I vividly recall conversations I had with counterparts in other countries during my overseas assignments with the FBI. At times, they saw things more clearly than we did. They would say, yes, your system is not perfect, but we see that it works well much of the time and you can trust that, adding, “It’s not true here.”
And they were right. Taking care of your political friends and punishing your political enemies is a daily routine in many countries around the world.
The central question for us as voters is this: Does the candidate insist on, and respect, the process?
A candidate can strongly criticize a judge, prosecutor, law-enforcement agency, government employee, law, or court decision and still respect the rule of law. But when that criticism becomes an argument for ignoring lawful process, selectively applying laws, retaliating against people for doing their jobs, or removing people simply because they produced an unwelcome outcome, every one of us should hit the pause button.
How do candidates treat the people whose job sometimes requires telling those in power “no”? Think about your reaction when someone tells you no on something that matters. Do you listen to why? Do you consider whether they may be right? Or do you simply decide that “no” doesn’t apply to you?
Retaliation against people for doing their jobs
Any candidate promising to fire, punish, investigate, or retaliate against government employees merely because those employees participated in an investigation, prosecution, court proceeding, or other official action the candidate dislikes should be questioned.
The overwhelming majority of civil servants do not choose their work. They receive assignments.
In a lawsuit filed by former Acting FBI Director Brian Driscoll, he stated that then-White House aide Paul Ingrassia asked him whether FBI agents who “stormed” Mar-a-Lago, “to include the rank-and-file,” should be held accountable.
Driscoll responded: “No; FBI personnel were doing their job in furtherance of court orders, legal warrants, and a properly predicated investigation.”
FBI Director Kash Patel subsequently told Driscoll, according to the lawsuit, that his job depended on removing agents who worked on cases involving the President, “regardless of whether the agents chose to work on those cases or not.”
I know from personal experience over a 29-year career in the FBI that agents and analysts do not choose their case assignments. Yet, as the lawsuit alleges, agents and analysts were fired without due process.
So why should you care?
Because the protections provided by the rule of law and due process belong to everyone. It may be easy to tolerate shortcuts, selective enforcement, retaliation, or denial of due process when the person affected is someone you dislike or whose politics you oppose.
But tomorrow, it could be you, your family, or your community.
You may never encounter the FBI or a federal judge. But you may be standing before a school board, challenging a sheriff, attending a town meeting, or questioning a local official.
There is also an important distinction between accountability and vengeance. Accountability follows the evidence and the process wherever it may lead. Vengeance starts with the person you want punished and works backward.
Watch what candidates do when they lose. Chief Justice John Roberts, responding to calls for judicial impeachment, emphasized that disagreement with a judicial decision is not grounds for impeachment. Appellate review is the established process for addressing an adverse decision. Criticizing a judicial decision is legitimate. Attempting to punish or remove a judge merely for making a decision you dislike is something very different.
Ultimately, respecting the rule of law is easiest when you agree with the outcome. The real test comes when you don’t.
Four tests for voters
Watch what the candidate does when they lose.
Watch what they do when someone tells them “no.”
Watch what they do when citizens challenge them.
Watch what they do when following the law is politically inconvenient.
Questions for candidates
What action(s) would you take if you disagree with an electoral or judicial decision?
Will you commit to following the process and where it leads, regardless of whether you agree with the outcome?
If you believe a government employee has engaged in misconduct, what process will you use to determine what happened and hold that person accountable?
Should the same laws, standards and accountability apply to your political allies and your political opponents?
Lauren C. Anderson is a former FBI executive with more than 40 years of experience in national security, serving in operational and leadership roles in the United States and overseas, as well as in advisory capacities across the government. A member of the Council on Foreign Relations, she co-hosts The Steady State Sentinel podcast and writes What We Choose to Defend, focused on national security, the rule of law, and institutional trust. She is a member of The Steady State.
Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 400 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.
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