The assault on the rule of law is accelerating in Colorado and America. A growing number of elected leaders use the words "rule of law" as the punchline to a political speech. Far fewer practice the principle. The oath taken by law enforcement executives is not a promise to uphold and defend the constitution and laws… "unless I disagree with them."
The rule of law is a fundamental principle of our American legal system predicated on the equal enforcement of our laws based upon the pursuit of justice, not to assuage political promises. Intrinsic to the rule of law is the commitment by the executive branch to enforce laws promulgated by the legislature and reviewable by the judiciary.
The use of government’s massive and monopolistic executive powers to pursue individuals and entities in court should always be the product of the pursuit of justice, not the satisfaction of political promises. Campaign-trail promises to use executive authority to investigate, prosecute or sue a specific person or entity upon election are an outrageous practice that has become increasingly the norm. It should be decried everywhere.
Letitia James, the 2018 Democrat nominee for New York attorney general, pledged to use every tool at her disposal to investigate and pursue President Donald Trump. Whatever potential investigation and prosecution might ensue, it is forever tainted with a political partisanship that reinforces skepticism about our system.
Similarly, 2018 Democrat nominee for Colorado attorney general, Phil Weiser (in an election I lost), promised to sue opioid manufacturers if elected — in the middle of Attorney General Cynthia Coffman’s investigation. It is irrelevant if an ultimate lawsuit resulted in a (paltry) settlement. The political pledge to “vote for me and I will sue X or prosecute Y” is repulsive to our American form of government.
Equally pernicious are pledges not to enforce certain laws, because of some elected official’s substitution of their judgment for the legislature’s or the public. Far from an ethical use of discretion, it is an abdication of duty. The answer to an inability to enforce a law with which someone disagrees is resignation from the position, not corrupting the rule of law.
Beth McCann, 2016 Democrat nominee for Denver district attorney, promised never to use the death penalty, regardless of how deliberate, evil, aggravated or repeated a murderer’s conduct. That is an affront to the rule of law. The appropriate response to “I don’t like this law” is to advocate for its repeal, which our legislature did in 2020 — not to make campaign promises never to enforce it.
The 2020 Democrat nominee for district attorney of the 18th Judicial District (who inexplicably has already announced her candidacy for 2024) promised never to prosecute any juvenile — including 17-year-old rapists and murderers — as adults for any acts, no matter how evil or repeated. Our legislature has already declared that there are instances in which a juvenile’s adult conduct need not be handled by “kiddie court.” No person could object to a case-by-case analysis of when to seek adult consequences for violent juvenile offenders, but a campaign promise not to do so across the board is a rejection of our system of government and the rule of law.
Numerous self-described “constitutional sheriffs,” Republicans, have routinely and repeatedly pledged not to seek “red-flag” protection orders designed to separate the dangerously mentally ill from firearms under any circumstances. Refusing to pursue such an order in a specific case for specific reasons is one thing; a blanket promise to reject in its entirety a law is an abdication of their oaths. They can find little protection in their self-justification that they believe such a law is unconstitutional. There is a process for that and it involves challenging a law in court. Judges at multiple levels are empowered to determine the constitutionality of a law. Abandoning a commitment to that legal system, irrespective of any disagreement with the law, opens the door to chaos. Imagine what a sheriff or other elected executive can do if they are empowered to pick which laws they like and do not like based upon the simple declaration “I think it is unconstitutional.”
In Florida, Tampa-area District Attorney Mark Warren signed a pledge not to prosecute violations of the state’s new abortion restrictions. He is not alone in the U.S. This month, Gov. Ron DeSantis removed him from office for refusing to do his sworn duty.
Imagine the outcry from the Left if an attorney general nominee promised to use all of their tools to investigate Gov. Polis’ failure to disentangle himself from his jillions in investments while in office. Or the screams of injustice if a prosecutor declared they would never pursue hate-crime sentencing enhancers.
There are only four things we can do with our laws: enforce them, amend them to something we like better, ask a court to strike them down, or repeal them. We cannot — we must not — ignore them or pledge never to enforce them. Democracy and the rule of law are again on the ballot this year. Reject the platitudes and vote for those who practice the principle.
George Brauchler is the former district attorney for the 18th Judicial District. He also is president of the Advance Colorado Academy, which identifies, trains and connects conservative leaders in Colorado. He hosts The George Brauchler Show on 710KNUS Monday through Friday from 6 a.m. to 10 a.m. Follow him on Twitter: @GeorgeBrauchler.