The idea that nobody is above the law is trotted out fairly regularly by various lawmakers, pundits, late night comics, and social observers. I hardly need to explain what the idea entails but for sake of completeness I’ll simply say that it means that everybody, no matter their social status or position, is subject to the law. No exceptions.
You don’t have to have been on planet USA too long to realize that this idea – which sounds principled and proper – isn’t at all true. You could say it’s an ideal that should be aspired to. You could say it’s theoretically true. You could call it a reassurance that’s doled out to the masses that they may be convinced of the law’s impartiality. There’s many approaches, but underneath it all, the proclamation that nobody is above the law is simply false.
Large corporations and those who run them are above the law, at least in the sense that they don’t suffer its consequences. Corporations routinely break the law to increase profits. When found out, enforcement levies a fine that is usually a small percentage of the profit they made by breaking the law in the first place. Rarely does an individual go to jail or suffer personal financial penalties. Breaking the law becomes simply a cost of doing business, like expansion expenditures or copy machines.
Individuals with enough wealth are above the law. Not technically, but in practice. It’s true that once in a while the law aggressively goes after a Jeffrey Skilling, a Bernie Madoff, or a Jeffrey Epstein [update:expired] especially when it’s a high profile case, but all too frequently when a wealthy individual breaks the law, they use their abundant resources to defer, deflect, and mitigate the law’s effects. Or to evade it altogether. They may not be exactly above the law, but they’re certainly not subject to it to the same degree as most. Those without an abundance of resources have no such advantage.
Donald Trump is above the law. People appear on television on a regular basis to claim it’s not so, but they speak in the spirit of wishful thinking, or as a means to express their frustration, or in an attempt to convince the audience that this means they’ll do something.
There’s a lot of evidence for Trump & Crew law breaking. In plain sight. And if in some cases, it’s not evidence per se, at least facts that ought to be brought before the law and considered. Emoluments, Hatch Act, obstruction of justice, campaign violations, sexual offences, defiance of congressional subpoenas, lying to congress. This list is by no means exhaustive and doesn’t even get into Trump’s other financial crimes (such as bank fraud) about which his long time cohort Michael Cohen has testified.
Meanwhile, those who might hold Trump accountable won’t act – either from an over-abundance of caution or from blind loyalty. Congress makes some half-hearted attempts, but does little to nothing when the administration refuses to go along. That is to say, congress mostly shrugs and throws up its hands when the administration breaks the law. AG William Barr – who recited the required nobody above nonsense during his confirmation hearings – recently shut down an investigation into Trump because he believes that a sitting president can’t be indicted. Which of course is the reason he was hired.
If nobody enforces the law for particular individuals, those people are effectively above it. It doesn’t matter what the law says; it only matters what it does, or in this case, what it doesn’t do.
If those in a position to enforce the law actually want to do something to transform the nobody is above the law fiction into fact, they would first need to honor their oath of public service. With respect to the idea that for the law there are no exceptions, they would need to put aside all other considerations. As it stands, they either pretend that facts are false, or point out that the effort might fail.
There’s no cure for willful blindness or the complete collapse of integrity, but it bears mentioning that all prosecution efforts run the risk of failure. Prosecutors must prepare, and prepare well, but even so there’s no guarantee of success.
However, if someone must be placed above the law because the effort to hold them accountable might not succeed or may be too inconvenient or might backfire, then please, spare us the fairy tales. Just come out and say it: In this new era, truth isn’t truth, reality is whatever we invent, and crime (at least for certain people) is simply no longer against the law.