Drop the idea that 'no one is above the law' and replace it with meaningful action

The J6 committee stopped short Thursday of saying whether it would send a criminal referral to the Justice Department of Donald Trump’s attempted paramilitary takeover of the US government. (A decision on that is expected by the end of the year, however.)

This sparked yet another round of fear and loathing about the impotence of our justice system. What does “no one is above the law” mean when the Congress won’t tell the Justice Department that Trump is a spectacular traitor who committed spectacular crimes?

It means the system is unfair.

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Does this shock you?

Really?

While I appreciate the fear of Trump getting away with treason, I want to remind us all of our longstanding state of politics and law, in which lots of people have committed crimes out in the open for everyone to see without being held individually and criminally accountable.

An example outside politics: The Sackler family is a BFD here in Connecticut. They own Purdue Pharma, a company that makes and markets opioid drugs like Oxycontin. Purdue conspired for years to unleash an epidemic of opioid addiction. State and federal authorities have extracted billions in damages but only after family members made billions more decimating communities around the country.

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The family knew what Purdue was doing when it was doing it. They knew people were dying. They knew they were cash-cowing as a consequence of mass suffering. Yet not one of them has been jailed.

So before we complain about the criminal former president getting away with treason – before we get super-mad at the J6 committee or the attorney general – let’s not forget that our justice system was, um, problematic before the criminal former president came along.

If we complain now, why haven’t we complained as obstreperously every time a goliath conglomerates gets away with murder? The answer, I think, isn’t that we aren’t paying attention. It isn’t that we’ve gotten used to spectacles of lawlessness. I think the more persuasive explanation is our dogmatic faith in no one being above the law.

I’ll leave the history of rhetoric to the historians of rhetoric, but I suspect that our dogmatic faith arises from the American civic religion, which itself is a subgenre of American propaganda.

It was invented, I suspect, to obscure the fact of “all men are created equal” not including all men (not to mention that the Declaration of Independence not mentioning women). “All men” was understood clearly at the founding to mean wealthy property-owning white men, like those who now own goliath conglomerates like Purdue Pharma.

“No one is above the law” has functioned similarly to “all men are created equal.” Whenever someone complains that actually not everyone is treated equally compared to wealthy property-owning white men, these same beneficiaries of the status quo can say, “Now, now. What’s all the fuss? After all, we’re all created equal.”

Whenever someone complains about, say, a criminal former president getting away with a failed coup d'état, beneficiaries of the status quo can again appeal to civic religion as the reason why Donald Trump is the exception. Of course, being an exception, at the scale of the exception, kinda sorta actually really does blow up the rule. But so many of us accept “the truth” of our civic religion that we’re prone to believing it in spite of the evidence of our eyes.

It does more harm than good, I think.

The more we cling to the American civic religion – ie, “no one is above the law” – the more disappointed we are when wealthy property-owning white men are held to a lower standard than normal people are held for the same or similar seditious crimes.

This might not be so bad. Disappointment can lead to political reform. But when faced with systemic flaws, Americans (especially white Americans) have a habit of withdrawing. We retreat into cynicism, as if we knew all along, or nihilism, as if the administration of justice were only for fairy tales and the rule of law were a farce.

Things might be better, it seems to me, if Americans recognized that “no one is above the law” is a product of history, that it’s a result of human choices made in a human context, not a product of God’s will. If we don’t like past choices, we are empowered to make new ones. Choices mean nothing if what’s supposed to happen doesn’t happen.

Therefore, “no one is above the law” does not allow for limits. It promises what should never be promised in a human context in which humans choose. When we fail, we don’t recognize our limits. We don’t recognize the need to expand them. Instead, when we fail, we almost seem to blame God. Our dogmatic faith in “no one is above the law” can lead paradoxically to the loss of faith in the rule of law.

So let’s drop the idea.

Let’s replace “no one is above the law” with a practical human-scale commitment to the rule of law in which justice for a criminal former president is proportional to the effort that goes into achieving it and to the legal and political systems by which it’s achieved. If we fail, it’s then a failure of what could have been, not what was supposed to be.

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