We all know the image of Lady Justice, best represented by the statue atop the Old Bailey in London. In one hand she holds a scale, to determine the truth, and in the other she wields a sword, to dispense punishment. Her eyes are often depicted blindfolded, because justice is supposed to concern itself only with the facts of a case, not the wealth, ethnicity, or character of the accused. This ideal has been turned on its head in modern society. Today we have two parallel tiers of justice in America: One for the rich, the powerful, and the politically-favored, and another for the rest of us.
Last week, the Justice Department announced that it would not be charging former FBI deputy director Andrew McCabe with a crime, despite the fact that he publicly lied under oath. Ironically, it is this same crime that was allegedly committed by General Michael Flynn, President Trump’s original choice for National Security Advisor. The FBI asked to interview Flynn, ostensibly about the allegation of election interference, but they concealed their intention of targeting him specifically. There is evidence that the FBI agents who conducted the interview were extreme anti-Trump partisans who deliberately altered their records of what Flynn said in the interview in order to indict him for supposed perjury. While Flynn has had the book thrown at him for more than three years now, McCabe got away with the same infraction.
We see this same process at work all over our government. The Mueller investigation targeted Trump confidant Roger Stone with various process crimes, and prosecutors recently recommended a sentence of nine years for the old man. That is more than many violent rapists or drug dealers receive. The Mueller team previously charged former Trump campaign manager Paul Manafort with various minor crimes, but was able to put him in jail, and he was in fact kept in solitary confinement on the orders of an anti-Trump judge. Meanwhile, Hillary Clinton’s campaign manager John Podesta is free, despite doing some of the same things. In fact, Podesta and Manafort actually worked together with the same firm when the crimes were supposed to have occurred. Clinton herself committed numerous crimes during her tenure as Secretary of State for President Obama, but the FBI and Justice Department declined to charge her with anything. However, other not-so-famous people who were charged with similar crimes were put in prison without mercy.
Another example in the news recently involves the opioid fentanyl which is responsible for thousands of overdose deaths in recent years. John Kapoor, former head of the drug company Insys, was found guilty of fraud and sentenced to five years in prison. However, fraud is putting it lightly. Kapoor and his company were found to have not only pushed for their fentanyl-containing drug Subsys to be massively overprescribed, but they even bribed doctors to get it into as many hands as possible. The FDA estimates that more than eight thousand people died as a direct result of Kapoor’s malfeasance. On the other hand, low-level drug dealers are often given much longer sentences, despite only being responsible for one or two deaths. Why is the former CEO given such a light sentence?
I could go on. Whether or not you are charged and convicted of a crime in America today depends greatly on who you know and how much political power you wield. Democrats accused President Trump of election tampering because he wanted to investigate obvious corruption by former Vice President Joe Biden, who is currently running in the Democratic presidential primary. Apparently, investigating possible criminal activity by a candidate is “election tampering”. According to this logic, simply declaring oneself a candidate for high office is enough to insulate you from any criminal investigation. On the other hand, these same Democrats had no problem with Obama’s FBI investigation Trump’s campaign team, and that investigation continuing into the Trump Administration itself. This is simply “who, whom” from the Democrats – anything that undermines their enemies is by definition good, while anything that attacks their own corruption is by definition bad. While this is a perfectly rational strategy for obtaining and maintaining power, it has nothing to do with the American idea of equality before the law.
The ancient world had no law under which nobility and peasantry alike were ruled. Laws were laid down by one king, then amended or replaced by another. Priests often had their own set of laws that they enforced. Outside of civilization it was simply the law of the jungle. The idea of the “Common Law,” a set of rules that was straightforward, everlasting, and applied equally to all, was one of the most important bedrocks in the development of Western Civilization. Before this concept was defined, law was simply a tool wielded by the powerful to use against everyone else. The idea that a king should have to follow the law that he gave his subjects was nearly unthinkable. Laws really were for the little people. In theory, the king was God’s representative on earth, and it was his job to sit in judgment of his people. Forcing the king to follow the law made no sense under this system. When the English nobility forced King John to sign Magna Carta in 1215 it was a watershed moment in the development of human rights. The men present at Runnymede that day declared that no man – not even the king – was above the law.
The Common Law also meant consistency, so that men knew what the law was from one day to the next. Even as late as Renaissance-era England, Parliaments could pass what was called a Bill of Attainder that declared, without a judge or jury, that a particular man was guilty of a particular crime. Parliaments would also pass “ex post facto” laws – making something that was legal yesterday illegal today, and then prosecuting people based on what they did yesterday. Both of these things were explicitly banned by the US Constitution. The philosophy of the Common Law was deeply ingrained in the founding fathers of the United States, permeating everything they wrote. The Constitution was written to be the supreme law of the land, above presidents and congressmen and judges, setting up a balance of power so that no one man could, like Julius Caesar two thousand years ago, amass ultimate authority in our nation. The founders built into the Constitution an amendment process that required super majorities of both Congress and the States, preventing one faction or party from altering the Constitution on a whim to serve their short-term interests.
The US Constitution disallows bills of attainder, as well as ex post facto laws. However, the modern bureaucratic state has found ways around these proscriptions. For example, Congress cannot pass bills of attainder that declare someone guilty, but they can endlessly investigate and subpoena anyone for any reason, and if that person says anything that is less than one hundred percent truthful, even if it is an innocent mistake, they are prosecuted and imprisoned for perjury. The FBI routinely pulls this stunt, as they did with General Flynn. It is a cheap trick to use when you cannot convict someone for actual crimes. Ex post facto laws might not be allowed, but our legal code has become so convoluted that it is often hard to tell at any given moment what is lawful and what is not.
The Constitution also disallows double jeopardy, a system in which the state could continue to prosecute someone until they succeeded in getting a jury to convict him. Today, once you are exonerated in a jury trial, you cannot be tried again for the same crime. The way around this is to use civil court to do what criminal court cannot. O.J. Simpson was acquitted by a jury in his criminal trial for the murder of his ex-wife and her lover, but his former in-laws successfully sued him in civil court for “wrongful death” and were able to deprive him of most of his fortune. While most Americans would agree that Simpson was clearly guilty, something about the way he was punished seems antithetical to the American ideal of justice.
The use of process crimes to obtain convictions that were not otherwise possible has been around for a while. The Treasury Department famously could not find enough evidence to convict Chicago mobster Al Capone of illegal activities, but they could prosecute him for not paying taxes on his ill-gotten fortune. Obviously, Capone did not report his illegal revenues on his tax returns. As with O.J. Simpson, taking down Capone was clearly a good thing, the way it was done was surely another chip in the foundation of the Common Law in America. Today, government agencies use process crimes as a matter of course in their prosecution, whether it is of real criminals or simply of various sorts of political dissidents. The phrase “anarcho-tyranny” describes a system in which one group of people gets away with egregious crimes, while another is punished for the slightest infraction. Does that not sound like America today? Victor Davis Hanson has written about illegal immigrants from Mexico living around Fresno, California, and completely ignoring laws regarding zoning or illegal dumping. Meanwhile, white businessmen in the same region can barely conduct business due to the complexity of regulation laid upon them by the state. See also the push to legalize any crime committed primarily by black Americans, such as fare evasion in Washington DC, while calling for stronger punishment for crimes committed by less-favored ethnic groups.
The consistency of our laws is also not what it used to be. With so many laws on the books, the government cannot enforce everything, so there ends up being a lot of discretion involved in choosing what to prosecute and what to let go. President Obama’s Executive Order for the children of illegal immigrants, for example, did not change the legality of their presence in the United States, it merely instructed federal agencies to stop enforcing immigration law. This sort of capriciousness is a throwback to the time of ancient kings, who chose what laws to enforce based upon whatever criteria they considered important at the time. Today, being prosecuted is often a function of whether you are a member of a protected class or not. Are you rich and powerful? Are you a member of a favored ethnic or social group? Whether or not a crime was committed is secondary in this calculation.
There are clearly parallel systems of justice in America. The rich, the powerful, and the politically connected can get away with anything while the average American is subject to ever-changing laws that can entrap him at any moment. Former prosecutor Harvey Silverglate wrote a book a while ago called “Three Felonies a Day”, suggesting that there are so many twisted and even contradictory laws on our books today that a prosecutor could literally charge any random American with three different felonies on any given day should he so choose. The result of such a system is that prosecution and conviction are not borne out of a search for the truth regarding an obvious crime but are instead dependent on the whims of the people in power. Additionally, the use of plea bargains further removes truth from the so-called justice system. Prosecutors are increasingly charging people far beyond the scope of any actual infraction, so as to create such a threat point that the accused is basically forced to accept a plea bargain. Even for people who know they did not commit the crimes they are accused of, the risk of a guilty verdict putting them away for decades and ruining their business, their family, and their lives is so great that many will agree to plead guilty to a lower charge, despite their innocence.
Probably the greatest constitutional protection of our civil rights is the doctrine of innocent until proven guilty. In many older legal systems, the burden of proof was upon the accused to prove their innocence rather than upon the prosecutor to prove their guilt. Proving guilt is difficult, but proving innocence might be even harder, even if the accused is truly innocent. Our founding fathers would rather have a justice system where a few guilty people escape punishment than one that routinely imprisons innocent people. This too has been turned on its head by our modern bureaucratic state. Look no further than the investigation and impeachment of President Trump – the Democrats’ talking point was consistently that neither the Mueller Report nor the Senate trial actually “acquitted” or “exonerated” the president. In their opinions, he was guilty, and it was up to him to prove his innocence of whatever charges they threw at him. This twists not only American law but a thousand years of western European legal tradition entirely backwards.
The same idea powers the ever-expanding surveillance state. The government is constantly demanding more oversight over our daily lives, whether through cameras on the streets, mandatory reporting of financial transactions, or backdoors into our encrypted devices and applications. Police, border agents, and airport security demand the right to invasively search you with no probable cause. Edward Snowden proved that the NSA has been spying on Americans for many years now. Their usual excuse is that if we have nothing to hide then we have nothing to worry about. However, they maintain different rules for their class of people. The rich and the powerful are accustomed to getting away with their crimes, but they consider the average American to be guilty until proven innocent.
One of the most important corollaries in a belief in a common law is a belief in meritocracy. The conceit of America was that it was a classless society in contrast to Europe with its royal families and nobility as well as its hereditary offices and positions. While this might never have actually been the reality of America, it was at least the ideal we all aspired to. Children were taught that they could do anything, be anything in this country. Sometimes it actually happened. Abraham Lincoln was nobody special until he challenged Stephen Douglas for the Senate and made a name for himself, eventually reaching the White House. Harry Truman grew up on a farm in Missouri and ended up overseeing the end of World War II as president. While Donald Trump was wealthy and famous before becoming president, he came into the election as a true outsider, and remains the only President to be elected with no previous government or military experience. It happened outside of political office as well. Bill Gates and Jeff Bezos started off in prosperity, but they both became the richest men in the world by creating things that changed the way we lived. Elvis Presley and Johnny Cash grew up in poverty and both reached the heights of fame. However, while numerous, these examples are the exceptions that prove the rule.
Today, entrance into the upper crust is largely a product of patronage. The existing upper classes engage in a huge amount of quid pro quo, trading favors and influence like prisoners trade cigarettes. The children of presidents provide an easy example here. Chelsea Clinton received numerous high-profile internships and lucrative board positions despite having accomplished almost nothing on her own. Same with the daughters of Presidents Bush and Obama. Perhaps the most egregious example is Hunter Biden, younger son of former Vice President Joe Biden. By his mid-forties, Hunter Biden had accomplished little, but had been given cushy jobs as the son of a high-ranking Senator. By the time his father was Vice President, Hunter was given a naval commission under a special program that did not require boot camp or training or anything like that. Despite this easy entry, he was discharged due to drug use shortly thereafter. Yet having connections means never having to hit rock bottom. Hunter was immediately given a sinecure position on the board of a Ukrainian natural gas company that paid him hundreds of thousands of dollars a year, despite having little-to-no experience with natural gas, or with Ukraine, for that matter. So much for meritocracy.
The left seemed very concerned about President Trump entering office as a rich man, but what about the opposite? How often do you see people enter elected office and then somehow become obscenely wealthy? The Obama family was moderately well off before the White House, but after leaving they have been awash in money as companies offer them huge sums to get in their good graces. The value in paying Bill Clinton $500,000 for a speech, for example, is not that it will generate that much more productivity, but that it is an unregulated contribution, a bribe even, that will be remembered and rewarded later. Elite politicians, business leaders, and celebrities live for so long in a world of luxury that they forget what it is like to be an average American. They start to actually believe that the laws do not apply to people like them. They never have to wait in line at an airport or fight traffic on city streets. They do not have to clip coupons for groceries, compare cell phone plans, or anything else to try and stay within a limited budget. Their only interaction with the average man and woman might be watching them on TV now and then or at carefully staged town halls – they certainly do not rub shoulders with the hoi polloi on a regular basis.
The extreme upper class exists in another world, one that runs parallel to the one the rest of us inhabit. If we lose our job, we desperately search for a new one, hoping that our meager savings can survive until then, and hoping that there are no medical emergencies while we are in between insurance. For them, losing a job just means picking up the phone and asking for a lucrative sinecure on some other board or an easy lobbying gig in Washington DC. John Bolton, President Bush’s ambassador to the UN and President Trump’s former national security advisor, famously hung around buildings in DC while unemployed and tried to talk politics with anyone who would listen until he got a new position. If you or I tried that, we would rightly be labeled a bum who needs to get a real job. If we are accused of a crime, we can only find the best lawyer we can afford and hope that truth will win out over the massive weight of our legal system. For them, they simply send one of their high-powered attorneys on retainer to make the problem go away. When someone rich and powerful is finally given justice, it is often because the system has no more use of him. Harvey Weinstein was protected, until he wasn’t. Jeffrey Epstein was protected, until he wasn’t. How many people are still protected from prosecution for doing things far worse than many already in prison?
This two-tiered system of life and of justice in America is not a good sign for the health of our Republic. The left likes to talk about income inequality, but an even greater sign of the decline is in inequality of justice. When millions of normal Americans see the famous politicians getting away with the same crimes that would send them to prison, they lose all faith in our government and our society. This is how revolutions begin. The American people will not stand for this much longer. Something has to give. Every new injustice adds more fuel to the fire. Conservative commentator Jesse Kelly said it best:
The decline of America accelerated this week, and its inevitable fall approaches ever closer.