President John Adams once said that the United States was “a government of laws, not men.” The Founders understood that the only justification for the unavoidable disparities in wealth, talent, and position in society was the equal application of the law. This July, many conservatives and libertarians lamented the supposed death of the rule of law with the decision of the FBI not to recommend charges against Hillary Clinton. The truth of the matter is that the rule of law has been under attack in this country for almost 50 years.
The historical record is clear. When elites and their allies face legal consequences for malfeasance, their political or institutional associates protect them from punishment. If you are shocked by the FBI’s recent announcement, then you haven’t been paying attention.
When Richard Nixon was impeached by the House of Representatives for his connection to the break-in of the Democratic National Committee office located in the Watergate complex, he quickly resigned from office. Was he guilty of high crimes and misdemeanors? The American public will never know for sure. Nixon was pardoned by his successor, Gerald Ford, less than a year after his resignation.
In 2002, the Bush Administration, in concert with some of the nation’s largest telecommunications companies, authorized the warrantless wiretapping and data collection of thousands of U.S. citizens. Was this in contravention of the Foreign Intelligence Surveillance Act? The American public will never know for sure. In 2008, a bipartisan Congress granted the complicit telecom companies retroactive immunity, and no administration officials were ever investigated or prosecuted.
In the wake of the Iraq invasion, the Bush Administration authorized the wholesale torture of enemy combatants. Was this in violation of the Convention Against Torture? The American public will never know for sure. After spending most of the campaign season railing against this alleged violation, Barack Obama swiftly announced upon taking office that no investigation or prosecution of former Bush officials would take place.
According to Federal Bureau of Investigation statistics, over eleven million men and women were arrested in the United States in 2013. That is close to four thousand arrests per one hundred thousand people. The highest category of arrests were for alleged drug violations, with close to seven hundred thousand arrests for alleged marijuana violations. What hope do many of these fellow citizens have in the American criminal justice system? Overworked public defenders, coercion into plea deals to avoid maximum sentences, and the possibility of watching their children, friends, and loved ones live out their lives through the bars of a cage.
I do not know whether Hillary Clinton is guilty of risking the exposure of state secrets any more than I know whether Richard Nixon, or members of the Bush Administration would have been found guilty of their alleged crimes. That is the point. The due process applied to you and me does not apply to those in power in this country.
We used to believe that there are no kings in America; Thomas Paine once wrote that “In America the Law is King.” Now we know better. In America, the Will of Kings have become the Law.