“What might seem like a casual and routine untruth … have the effect of eroding trust in our vital institutions and conditions the public to no longer trust them. The destructive effect of this kind of behavior on our democracy cannot be overstated.”
When Sen. Jeff Flake spoke those words on the floor of the U.S. Senate last week, he did so in defense of a free press. Above any other label, Flake is, and always has been, a conservative. While denigrating the media has risen to the level of a parlor game among many Republicans, Flake recognized it is the duty of a real conservative to defend the value of the press as a pillar of our society. As Flake pointed out, you cannot have a free society without a free press. Where the media is suppressed and undermined, authoritarian regimes find fertile soil. That is why the freedom is enshrined in the First Amendment.
Defending institutions vital to our democratic society is the first responsibility of every conservative. Even the very word “conservative” connotes guarding these institutions from the potential deleterious effects of continual change and tinkering regularly suggested by progressives. Flake understands that duty. He may be the most versed public official in the country on conservative ideology and its underpinnings. Before being elected to office, he served as the executive director for the Goldwater Institute, a think-tank named for arch-conservative Barry Goldwater. Consequently, it is no surprise that Flake’s fidelity to true conservative philosophy trumps his party loyalty — even to a president. Flake’s speech served as the living embodiment of William F. Buckley’s conservative battle cry to “stand athwart history, yelling Stop.”
However, while the conservative columnist in me applauded Flake’s message, the conservative lawyer in me shuddered simultaneously. If untruths erode the institution of the press, they are an existential threat to courts and the legal system. While free speech and a free press are in the First Amendment, the judicial branch of government is a part of the actual, unamended Constitution. Its primacy to our structure of government is only equaled by the legislature and executive. And if one leg rots, the other two fall.
While the media is the main target of scorn for President Trump, our legal system is not far behind. Trump has regularly lambasted our courts: calling into question the ability of a judge from Mexican ancestry to rule impartially on a case against his business; claiming the court system is “broken and unfair” when one ruled against him over DACA; and stating that the legal system “is a joke and it’s a laughingstock.” And that doesn’t even count his attempts — often aided by some Republican officials — to undermine our law enforcement officers.
Such an active assault against the integrity of a fundamental institution can only lead to long-term damage. The more criticism directed to the judiciary and law enforcement, the greater the snowball effect. How long before criminal defense attorneys start asking jurors how they feel about Trump’s tweets? How long before defendants use the president’s words to dismiss their own actions? These are just some of an endless set of examples that may work their way into court proceedings.
That is particularly true for the one branch of government that is ethically bound to refrain from unabashed media commentary. The very practice of restraint meant to preserve objectivity opens the judiciary to unanswered attacks against its ability to be objective.
Our legal system is dependent on its position as the arbiter of truth and justice. With every attack on its ability to perform that function, our democracy falls closer and closer to the abyss.
Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system and public policy. Follow him on Twitter: @MarioNicolaiEsq
