The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States

“l’histoire […] [est] après tout qu’un ramas de tracasseries qu’on fait aux morts.”

[“History […] [is] an annoying trick we play upon the dead.”]

~ Voltaire

(See here regarding the translation.)

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A war or a revolution or a riot often makes little sense to contemporaries. There is a metaphorical fog, and there is confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

It is only in the later clear prose of a good historian, or the elegant prose of a confident judge, that the events seem to take some form of order: that what was messy and complex becomes a neat linear narrative, with reasoned conclusions based on tested evidence.

But it is not like that for those at the time.

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What is actually happening currently in the United States is unclear.

There is a metaphorical fog, and there is actual confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

Not even those instigating the chaos know what is going on: they are too busy moving fast and breaking (and taking) things.

They may have some vague ideas about what they will do next, but one suspects what they will do next will come down to opportunism and cunning more than anything more concrete.

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But in this fog there are certain things which can be made out.

For example, there are individuals who are insisting on being constitutionalist – despite the intense pressure and open threats to be otherwise.

There are the federal prosecutors who refused to apply for the prosecution of a politician to be dismissed:

There is the federal judge who appointed an independent lawyer to assist the court when nobbled prosecutors were found to apply for that dismissal:

There is the governor who said “see you in court” in the face of a president announcing that they were the federal law:

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“See you in court” is a phrase that conveys the essence of the rule of law: that there is a forum where assertions of power can be tested for their legality.

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And then there are things which are not being said.

Here is what seems to be the sound of constitutional silence:

Some are suggesting that the lawyers here are acting in bad faith, and that they do indeed know whether DOGE has an administrator.

Perhaps.

But what is more likely – and what would be far more significant – is that the lawyers do not actually know if DOGE has an administrator.

And here the word “know” is crucial – do they have knowledge?

They may have an understanding, a guess – or they may have heard somebody say something.

But if they do not know, they do not know.

And they are not going to mislead the court otherwise.

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Indeed, whether DOGE actually exists is becoming more of a question for a theologian or a philosopher than for a mere legal commentator.

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Perhaps soon all this will settle down, and the fog and confusion will clear, and we will see what has really happened.

The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.

It takes time to “see you in court” – and one does not know what one cannot see before one eventually gets to court.

By the time a court intervenes – and the adults stop the infantile antics – a lot of damage can be done – and certainly a lot of data and other material can be taken.

The law is sometimes not well placed to deal with what happens under the fog of war.