With Liberty and Justice for Some (2 page)

The dangers of abandoning this principle were well recognized. In
Federalist 57
, James Madison emphasized that equal application of the law to political elites was a prerequisite for a free and cohesive society (“one of the strongest bonds by which human policy can connect the rulers and the people together”), and warned that in its absence “every government degenerates into tyranny.” Perhaps most tellingly of all, the founder who was the least philosophically inclined but the most practiced in the exigencies of governance—George Washington—vowed, in a letter written in December 1795, that there would never be immunity for wrongdoing by high government officials on his watch: “The executive branch of this government never has, nor will suffer, while I preside, any improper conduct of its officers to escape with impunity.”

What the founders recognized was that unless the law were applied equally, subjecting all citizens to its mandates, the Constitution would simply consist of a set of guidelines or suggestions, compliance being optional. In view of that danger, equal enforcement was embedded in formal American jurisprudence from early on as the linchpin of the rule of law. The seminal 1803 Supreme Court case
Marbury v. Madison
is widely remembered for having established the foundation for how the U.S. government functions: Congress enacts laws, the president executes them, and the courts “say what the law is.” But the Supreme Court’s ruling was just as meaningful for what it signaled about how the principle of equality under the law would work in practice. The central dispute in
Marbury
was whether the courts had the authority to subject officials in the executive branch to their rulings—that is, whether officials who violated the law could be compelled to submit to judicial decrees. The court’s unanimous decision announced that the judicial branch had not only the right but the duty to enforce the law on all citizens, including high-level officials in the executive branch. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” the chief justice wrote.

What makes the founders’ insistence on equality under the law all the more striking is that none believed in equality as a general proposition. Indeed, the opposite is true: they considered inequality on every level, other than in law, to be the natural, inevitable, and just state of affairs. Even Jefferson, one of the most egalitarian of the founders, held that there was “a natural aristocracy” among men, based on “virtue and talents.” And he saw its existence as not only inevitable but desirable: “The natural aristocracy I consider as the most precious gift of nature for the instruction, the trusts, and government of society.” Similarly, for Adams, inequality was both inevitable and natural, even divinely ordained: “It already appears, that there must be in every society of men superiors and inferiors, because God has laid in the constitution and course of nature the foundations of the distinction.” Yet the founders concurred that nothing constituted a greater threat to the Republic than to allow this inequality of wealth or political power to determine the treatment of citizens before the law. In particular, they disdained superior and inferior positions imposed by the state rather than determined by merit. Paine, for instance, loathed inherited titles on the ground that they doled out rewards based on assigned status rather unrelated to entitlement. He declared:

To Paine, a system of legally enforced inequality would enable the elite to exploit the law to entrench unearned prerogatives or shield ill-gotten gains. And those counterfeit nobles would turn the law into a tool to promote and protect injustice rather than to correct it. Though Paine’s liveliest polemics were devoted to scorning the accumulation of wealth, he had no quarrel with income inequality
provided
that there was no such inequality under law. The rich could buy what they desired, dress and eat as they wished, and wallow in the most effete comforts and luxuries. But the law was the one realm where their money and property would count for nothing.

One point is vital to acknowledge: like all of the other principles espoused by the founders, equality under the law was not always observed in practice. Indeed, it was often violently breached from the very beginning of the Republic. Slavery, the dispossession of Native Americans, the denial of voting rights to women, and the granting of superior legal rights to property owners are a few of the most glaring deviations.

But even when the principle of equal treatment was betrayed, American leaders in every era have emphatically affirmed it, not so much out of hypocrisy as out of aspiration. Indeed, for those who were devoted to justice, the persistence of inequality was precisely what made equality before the law so imperative. Over time, this principle would provide the road map for eradicating injustice. It was the impetus for the abolition of slavery; the enactment of the Fourteenth Amendment, with its overarching guarantee of “equal protection of the laws”; the enfranchisement and empowerment of women; the civil rights movement; enhanced protections for the poor in the criminal justice process; and numerous other legal and social reforms of the last two centuries.

Today, equal application of the law remains a sacrosanct principle among virtually all legal theorists. Contemporary scholars routinely emphasize that the rule of law cannot exist without legal equality. As the constitutional legal scholar Michel Rosenfeld argues, the rule of law is not merely weakened if “the ruler and his or her associates consistently remain above the law”; it ceases to exist by definition. When the powerful can effectively exempt themselves from law’s punishments, we live under “the rule of men,” even if we maintain a facade of laws and other trappings of a legal system, such as courts, legislatures, and judges. Indeed, it’s nearly impossible to find a definition of the
rule of law
that does not contain some requirement that the law be applied equally. As Judge Diane Wood, of the Seventh Circuit Court of Appeals, observes, the consensus view is that “there is no one in a society governed by law who is above the law or immune from some form of legal constraint.”

This conception is practically universal, certainly in the West. In the early 1990s, the World Bank and International Monetary Fund announced that any states wishing to receive financial assistance were required to respect the rule of law, prompting debate over what exactly that entailed. In a 1998 essay in
Foreign Affairs
, Thomas Carothers of the Carnegie Endowment for International Peace articulated the standard used by the Western world to dictate to developing nations what the rule of law minimally demands. The rule of law, he wrote, is “a system in which the laws…apply equally to everyone.” Unless the political and financial elites are subject to the same laws as everyone else, he argued, there could be no rule of law—only its trappings. He cited Latin America, Asia, the former Soviet Union, and parts of the former Eastern bloc as examples of “the ruling elite’s tendency to act extralegally” wherever “legal systems remain captive of the powers that be.” The most crucial challenge in developing countries, as Carothers put it, is that elites “must give up the habit of placing themselves above the law.”

We face a similar challenge in the United States today. For all the homage we pay to equality under law, we have virtually abolished it in practice. Indeed, beyond isolated, politically motivated rhetoric, we hardly even pretend to believe in its validity any longer. Instead, the United States now has the exact opposite of a single set of laws before which everyone is equal. It has an entrenched two-tiered system of justice: the country’s most powerful political and financial elites are virtually immunized from the rule of law, empowered to commit felonies with fullscale impunity and to act without any constraints, while the politically powerless are imprisoned with greater ease and in far greater numbers than in any other country on the planet.

Over the past several decades, we have witnessed numerous examples of serious lawbreaking on the part of our most powerful political and financial leaders with no consequences of any kind. It is no exaggeration to state that the current consensus among journalists and politicians is that except in the most blatant and sensationalistic cases (typically ones in which other powerful factions are aggrieved—a Bernie Madoff here, a Rod Blagojevich there), criminal prosecutions are simply not appropriate for the country’s elites. Courtrooms, indictments, and prisons are there for ordinary Americans, not for the ruling classes, and virtually never for our highest political leaders.

The central promise of the American founding—that all would stand equal before the rule of law no matter what other political and economic inequality was allowed—has been abandoned. Two features of contemporary American political life are particularly significant in this regard. First, the elites’ exemption from the rule of law has been strengthened at exactly the same time that the law has become an increasingly draconian instrument of punishment for the rest of Americans—particularly the poor and racial minorities. Not only does the law fail to equalize the playing field; it perpetuates and even generates tremendous social inequality.

Second, though unequal application of the law has always been pervasive in American society, until recently such inequality was regarded as a problem: something to be deplored and, if possible, corrected. Today, however, substantial factions in our political culture explicitly renounce the principle of legal equality itself. It is now quite common for American political discourse to include arguments expressly justifying the elites’ legal impunity and openly calling for radically different treatment under the law for various classes of people based on their power, status, and wealth.

Historically, our collective insistence on the principle of equality under law has been principally responsible for our forward progress, our ability to identify and eliminate major and minor transgressions. Conversely, our abandonment of that principle precludes such progress and, worse, shields legal inequality from reform. A society that demands equality under the law will move inexorably toward it. A society that renounces this virtue will move in the opposite direction. We have, manifestly, become a society that no longer even rhetorically affirms the necessity for this equality, and the outcome is exactly as dangerous, oppressive, and antidemocratic as the American founders warned it would be.

Wealth and power have always conferred substantial advantages, and it is thus unsurprising that throughout history the rich and well-connected have enjoyed superior treatment under the law. In the past, those advantages were broadly seen as failures of justice and ruefully acknowledged as shortcomings of the legal system. Today, however, in a radical and momentous shift, the American political class and its media increasingly repudiate the principle that the law must be equally applied to all. To hear our politicians and our press tell it, the conclusion is inescapable: we’re far better off when political and financial elites—and they alone—are shielded from criminal accountability.

It has become a virtual consensus among the elites that their members are so indispensable to the running of American society that vesting them with immunity from prosecution—even for the most egregious crimes—is not only in their interest but in our interest, too. Prosecutions, courtrooms, and prisons, it’s hinted—and sometimes even explicitly stated—are for the rabble, like the street-side drug peddlers we occasionally glimpse from our car windows, not for the political and financial leaders who manage our nation and fuel our prosperity. It is simply too disruptive, distracting, and unjust, we are told, to subject them to the burden of legal consequences.

This is no hyperbole. As multiple episodes demonstrate, a belief that elite immunity is both necessary and justified has indeed become the prevailing ethos in the nation’s most influential circles. In countless instances over recent years, prominent political and media figures have insisted that serious crimes by the most powerful should be overlooked—either in the name of the common good, or in the name of a warped conception of fairness according to which those with the greatest power are the most entitled to deference and understanding.

This is what makes the contemporary form of American lawlessness new and unprecedented. It is now perfectly common, and perfectly acceptable, to openly advocate elite immunity. And this advocacy has had its intended effect: the United States has become a nation that does not apply the rule of law to its elite class, which is another way of saying that the United States does not apply the rule of law.

The last decade in particular is full of examples. Consider the way our political class responded to the crimes committed by the Bush administration during the “war on terror.” Even as recently as 2007, allegations that the administration was breaking laws and committing felonies were dismissed as shrill, groundless rhetoric. But now it is understood even in the most mainstream opinion-making circles that numerous actions undertaken by top Bush officials—torture, warrantless eavesdropping, the Central Intelligence Agency’s black sites, politicized prosecutions, obstruction of justice—violated the law. This recognition, however, did not lead to calls by our politicians or by the establishment press for what should naturally follow from the discovery of serious crimes: criminal investigations and prosecutions. Instead, nothing happened, even though the United States is a party to two separate treaties—the Geneva Conventions and the Convention Against Torture—that obligate all signatory countries to prosecute any officials who ordered, authorized, or otherwise perpetrated torture. And since the U.S. Constitution states that international treaties made “under Authority of the United States” shall be “the Supreme Law of the Land,” not only are the radical acts of the Bush administration illegal, but so, too, is the ongoing refusal to investigate and prosecute those crimes.

The consensus that even the most serious Bush crimes need not—and should not—be prosecuted reflects our political class’s central belief: that the law simply does not apply to them. And the result of that mind-set is exactly what one would expect: a group that knows it can break the law with impunity increasingly does so. If the threat of real punishment for criminality is removed, for many rational people there will be little incentive to abide by the law and much incentive to break it. Alexander Hamilton, in
Federalist 15,
explained why.

For the nation’s most powerful elites, the law has indeed been whittled down to “nothing more than advice or recommendation.” Although there have been episodes of unpunished elite malfeasance throughout American history, the explicit, systematic embrace of the notion that such malfeasance should be shielded from legal consequences begins with the Watergate scandal—one of the clearest cases of widespread, deliberate criminality at the highest level of the U.S. government.

The Evolution of Elite Immunity

When first presented to the public, Watergate was broadly dismissed as an insignificant affair, a “third-rate burglary” that few imagined could topple a popular president. Once it was subjected to intense media focus, reaction to the scandal largely broke down along partisan lines. Most (though not all) leading Republicans belittled its importance or insisted that President Richard Nixon had no direct culpability in the crimes. Democratic leaders, for their part, tried to exploit the scandal for political gain, but without much vigor or conviction that it could actually sink the president. As segments of both Congress and the media tenaciously pursued the truth, however, it became undeniable that serious criminality had pervaded the upper reaches of government.

By the scandal’s conclusion, few contested that not only Nixon’s top aides but Nixon himself had committed serious felonies—either in authorizing the break-in and related illegalities, or in obstructing the ensuing investigation. Nonetheless, Nixon was ultimately shielded from all legal consequences thanks to the pardon granted by his handpicked vice president, Gerald Ford—who, it was widely believed, secured his appointment by agreeing to protect Nixon from prosecution.

In his 1983 book
The Price of Power
, Seymour Hersh compiled extensive evidence suggesting an implicit if not overt deal. As he makes clear, Ford was selected because Nixon and his secretary of state, Alexander Haig, were confident that they could count on Ford’s protection. “Nixon and Haig thought of Ford as a proven commodity,” writes Hersh, “a man who placed loyalty to Nixon and the Republican presidency above his personal ambitions and his political well-being. They assumed, according to the aides, that Ford would take care of his former boss as soon as he became President.”

Americans would condemn this sort of arrangement as cronyism and corruption of the sleaziest sort if they witnessed it in another country. In the United States, however, political and media elites (though not the general public) widely agreed that immunizing the felony-committing president from the criminal justice system was the right thing to do.

Ford first explained his decision to pardon Nixon in a speech to the nation on September 8, 1974. The new president began by paying lip service to the rule of law: “I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but”—and here he tacked on a newly concocted amendment designed to gut that phrase’s meaning—“the law is a respecter of reality.” Ford then proceeded to recite what have by now become the standard clichés our political class uses to justify immunity. Watergate, he intoned,

Remarkably, Ford explicitly pointed to Nixon’s lofty status as a reason to exempt him from the accountability applied to ordinary Americans—a complete reversal and rejection of the central covenant of the American founding. Ford’s signature line—“Our long national nightmare is over”—put a heroic spin on the betrayal of the rule of law: we end the “nightmare” of high-level criminality by sweeping it under the rug, protecting the wrongdoers, and pretending their crimes never happened.

Upon Ford’s death in December 2006, prominent figures rushed forth to consecrate his pardon of Nixon as an act of great nobility, magnanimity, and self-sacrifice, and thus to glorify its underlying premises. Leading the charge, not surprisingly, was Dick Cheney, Ford’s former chief of staff and the then–vice president. By 2006, Cheney himself had been accused of involvement in a wide variety of illegal acts, from establishing a worldwide torture regime and spying on Americans without warrants to outing a covert CIA agent and obstructing the resulting investigation. Cheney’s own interests were thus clearly served by exploiting Ford’s death to bolster the propagandistic notion that elite immunity is dispensed not for the benefit of the powerful but rather in patriotic service of the common good. At Ford’s funeral, Cheney eulogized his former boss by heralding the pardon as an act of national salvation.

In fairness to Dick Cheney, we heard the same message from others, almost note for note. The
Washington Post
’s David Broder—the so-called dean of the Washington press corps—spoke for many journalists, past and present, when asked what would have happened had Nixon not been immunized.

The actual beneficiary of the pardon, of course, was not “Americans” but Richard Nixon. Thanks to Ford’s act, Nixon himself was shielded from the kind of punishment that, as a “law-and-order Republican,” he had devoted his career to imposing on ordinary Americans when they broke the law, no matter how petty the offense. Yet this grant of immunity to the nation’s most powerful figure was endlessly cast as a generous gift to the American public, which—we were repeatedly told—had been spared the agony, acrimony, and shame of seeing their leader held accountable for his crimes as any other citizen would be.

The Nixon pardon, and the way it was sold to the country, became the template for justifying elite immunity. Nowadays, with only rare exceptions, each time top members of the nation’s political class are caught committing a crime, the same reasons are hauled out to get them off the hook. Prosecuting public officials mires us in a “divisive” past when we should be looking forward. It is wrong to “criminalize policy disputes”—meaning crimes committed with the use of political power. Political elites who commit crimes in carrying out their duties are “well-intentioned” and so do not deserve to be treated as if they were common criminals; moreover, politicians who are forced out of office and have their reputations damaged already “suffer enough.” To prosecute them would only engender a cycle of retribution. Political harmony thus trumps the need to enforce the rule of law.

Of course, all criminal prosecutions are, by definition, exercises in looking to the past rather than the future. All prosecutions impose substantial burdens on the accused, cost enormous amounts of time and money to resolve, and are plagued by numerous imperfections. The nation always faces pressing challenges and urgent problems from which headline-grabbing prosecutions will distract attention. All individuals accused of serious crimes suffer in multiple ways long before—and completely independent of—any actual punishment. And while it is true that criminal proceedings involving politicians who commit crimes in office inevitably engender partisan divisions and undermine political harmony, citing these circumstances as just cause for legal immunity is, by definition, creating a license to break the law.

In his memoirs, Ford explicitly acknowledged that he had dispensed with the rule of law when pardoning Nixon, but he went on to defend his decision anyway. Indeed, Ford claimed that political leaders have not only the right to act as he did, but the obligation. As he put it in
A Time to Heal
: “I learned that public policy often took precedence over a rule of law. Although I respected the tenet that no man should be above the law, public policy demanded that I put Nixon—and Watergate—behind us as quickly as possible.” One would be hard-pressed to find an instance of the American founders—or anyone who genuinely believed in the rule of law—claiming that “public policy often took precedence” over justice. To believe that public policy considerations, as assessed by a particular individual, override the rule of law is simply a euphemism for declaring that the rule of law is dead and the rule of men reigns supreme. Yet starting with Ford, such explicit repudiations of the rule of law have become an increasingly common and perfectly respectable view.