If you actually believe the ringing words of the founding document of this country, that all men are created equal, then we must all be equal before the law, neither above it nor below it – neither immune to prosecution nor without the law’s protections.
And yet, some have always been below the law since the Declaration of Independence was written. That document speaks of men in ways that exclude women, who in that era were largely controlled by fathers and husbands, and the Black people who were enslaved for another 87 years, and the Native Americans who faced genocide and dispossession into the 20th and, arguably, the 21st centuries.
And of course some have been above it, whether by buying their way out of jail with expensive lawyers, by manipulating those who should enforce the law, by actually being those who are supposed to enforce it, or by being granted, as police and various governmental figures have been, various versions of immunity from the law.
The idea that a president should be immune from not just lawsuits while in office but consequences for crimes even afterward seems like a stepping stone to authoritarianism, but it has many defenders.
I asked constitutional law professor Tobias Barrington Wolff what he thought about that, and he replied: “Presidents, current and former, do enjoy absolute immunity from personal liability for acts taken within the scope of their official duties. But much of the conduct in this case pre-dated this man’s time in office and none of it had anything to do with the duties of the office. Courts give wide latitude to absolute immunity for presidents, but there are clear limits. The supreme court has rejected absolute immunity for a judge who abused his office to commit sexual assault in his chambers, to offer one not-wholly-irrelevant point of reference. A private citizen who falsifies business records to defraud the electorate, cover up a tawdry affair and perhaps also violate campaign finance laws and cheat on his taxes is not a close call.” But the right has denounced it with fury.
“Our democracy’s founding ideals were false when they were written,” wrote Nikole Hannah-Jones in The 1619 Project. “Black Americans have fought to make them true.” At its best this country has striven to become a more perfect union, to move toward equality and justice for all, and often as Jones notes the most oppressed have led those expansions in equality and protection. Black Lives Matter seeking to make police accountable when they commit murder is one example.
At its worst, elites have pursued the opposite goals, whether it’s the Confederacy seeking to perpetrate slavery or attacks on voting rights from Jim Crow to the present or the 2022 supreme court decision to overturn Roe v Wade, depriving women of the right to the bodily self-determination crucial to our equality, or the new war against trans rights. Or the current right’s opposition to accountability for Trump and others and tacit support for the violent attack on the capitol of January 6, part of an attempt to steal an election.
Democrats are fond of the phrase “no one is above the law”, which seems to have its origin in something a Republican president said. Teddy Roosevelt in 1903 declared, “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it.”
But a modern-day conservative at the Washington Post argued that the phrase “could be used to justify any prosecution, no matter how poorly predicated, selective or malicious”, by which logic everyone should be above the law. Of course it’s from a conservative writer, and the conservatives at their most wily are trying to find roundabout ways to say that the 45th president is above the law, as this piece does. The most blunt are essentially arguing that every prosecution is just a vendetta in tribal skirmishing and they’re here to fight for their tribe. They are after all the same people who kept shouting “lock her up” about Hillary Clinton’s sloppy security practices, then excused far more egregious ones in the Trump administration (let alone Trump blabbing away about highly classified secrets to the Kremlin’s foreign minister in 2017).
It’s a reminder that some of us are loyal to principles and some of us are loyal to teams. Inequality is itself about choosing the team through arrangements in which the same principles don’t prevail for all, and while you can argue that’s who the Republicans have always been, they’ve been more shamelessly so since they got tangled up with Trump. The Republican party excused, denied and justified his lawlessness from the time of his 2016 campaign into the present, and Trump himself has been perhaps the most prominent and flagrant lawbreaker in American history.
His crimes were so many and various that they obscured each other – who remembers the emoluments lawsuits addressing how he was illegitimately profiting from the presidency, crowded out as they were by the sexual assault allegations, the alleged crimes committed while attempting to steal an election and later the alleged theft of classified documents, along with the various criminal charges against the Trump businesses?
And of course he’s been using social media and speech to menace those prosecuting him, which is the kind of stuff for which normal people go to jail. In the same season as the payoff and coverup for which he was just arrested, the leaked Access Hollywood tape briefly rocked the 2016 election. In it Trump made a blunt case for inequality, declaring that he liked to “grab” women “by the pussy” and “when you’re a star they let you do it”. That is, your status entitles you to disregard the rights and wishes of others.
If you’re loyal to principles, you have to be unwavering, whether the victim or offender is high-status or low, whether your enemies are in the right, or your friends are in the wrong. But as Frank Wilhoit famously put it: “Conservatism consists of exactly one proposition. There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”
They see the law as a weapon, to be held by the in-group, pointed at the out-group, which is to say they are tribalists passionately committed to inequality. They find the idea of the out-group pointing the law at the in-group outrageous and upsetting. Thus their meltdown over an alleged criminal being charged with and arrested for his alleged crimes.
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