As the US was forming, Thomas Paine famously wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other."

As so many of former President Trump’s key people defy legal subpoenas to avoid being asked under oath for truth and facts about the January 6 attack on our Capitol, the American concept of rule of law is seriously challenged. 

When folks like us are called legally to appear, we comply. Even the Mafiosa do.  It shakes our system when political power brokers at the top of our government or politically attached to Donald Trump defy the very legal system they are sworn to uphold. 

Rule of law is a hallmark of American democracy. Our successful 240+ year American experiment in self-governing is built on the base of abiding by the law - whether it’s driving on the right side of the road or the peaceful transfer of power.

Americans are sometimes served a formal subpoena to provide information to a court or a proceeding. Almost all Americans respond to those subpoenas. Only the lawless ignore subpoenas and try to avoid the law.

In our history and civics books we highlight the rule of law as something that makes us a functioning and stable representative democracy. Our civic leaders, whether elected or appointed, not only rely upon the rule of law, they regard it as a great virtue of our system. We ask our children to join us in the belief that, as Nixon special prosecutor Leon Jaworski said leading up to President Nixon’s resignation from office, “no one – absolutely no one – is above the law.”

We especially take umbrage when the economically or politically powerful act in a manner that shows they consider themselves above abiding by the law - when their actions say they think they are so important that they don’t have to follow the rules to which we mere mortals must adhere. Theodore Roosevelt said it very clearly: “No man is above the law and no man is below it: nor do we ask any man's permission when we ask him to obey it.”

Our leaders should be models of good citizenship for all, especially because they are in the law-making and law-enforcing business.  Members of Congress (the makers of law), judges (the interpreters of law), and a president and his executive branch employees (the enforcers and administrators of law) actually swear an oath to follow the rule of law.

If any of them want to legitimately claim executive privilege or “plead the Fifth” to avoid self-incrimination, due process calls on them to respond to subpoenas and then, during testimony, claim their rights. Assertion of their rights in the press is a political act, not legal compliance. That is lawlessness and those who do it need to be held to account. 

The defiance of the rule of law by these political power brokers at the top of our system of government poses the grave potential of endangering the foundation of our freedom and democracy. When high level office holders like that commit themselves to this form of stark lawlessness, we are but a step away from becoming a third rate autocracy.

As Donald Trump and his followers ignore that law every day, refusing to even testify, faith in our system is eroded. The defining question of our day is will our nation be guided by the rule of law or lawlessness. On which side of that dichotomy do you stand?

Evan Berrett lives in historic Uptown Butte after retiring following 47 years at the top level of Montana economic development, government, politics and education.  He is an award-winning producer of Montana history videos who continues to write columns and commentaries and occasionally teaches Montana history.