Ever since the FBI raid on Mar-a-Lago this week, American political commentary has lit up with talk of the rule of law. Echoing attorney general Merrick Garland, the press has cast the raid as a “return to the rule of law,” a demonstration of the “bedrock principle” that “no president is above the law,” and has dramatically reaffirmed that even if presidents “commit crimes, they must answer for them.”
This is all sort of true — and sort of not.
It seems the raid of Donald Trump’s Florida home was over an issue far narrower than many first speculated: his improper handling of classified documents, including highly sensitive nuclear secrets and the intercepted communications of foreign leaders. It’s hard to say where any of this is going, but if Trump does end up being prosecuted over carelessly storing government secrets in his house, it’s only fair. Ordinary people don’t get away with these kinds of infractions, like the US Navy sailor who spent a year in jail for guilelessly taking photos inside of the classified areas of a nuclear submarine as a keepsake to show his family.
There’s a poetic justice to the fact that Trump might be prosecuted for violating the Espionage Act. This overly broad, notoriously abused law, passed in the authoritarian war fever of 1917, has been used by multiple presidents to harshly prosecute government whistleblowers — and none have been more aggressive than Trump.
Among other things, Trump locked away a man for four years for revealing to the public details of serious abuse by the FBI in the “war on terror” and attempted to extradite WikiLeaks founder Julian Assange and try him under the statute — the reason behind Assange’s current, ongoing torture. Hopefully, this will prompt a wider discussion and rethinking of this terrible law. But it also has to be said that you reap what you sow.
If the speculation that this raid is really about the January 6 riot, then that’s good too. From ordering an election official to “find” him twelve thousand votes to plotting to order the defense secretary to seize voting machines, all despite being repeatedly told by advisors that he had lost the 2020 election fair and square, Trump very clearly tried to foment a coup, even if it was half-assed and a failure. Prosecuting him for it would be an important deterrent, particularly since fear of ending up in jail is what led some of his aides to back away from his plan on the day.
It would also be a matter of equally applying the law. How does it make sense to imprison the deluded, low-level January 6 rioters Trump helped brainwash but not the elite official at the head of the whole thing?
So yes, whether it’s for improperly handling secret documents or trying to overturn the election, Trump deserves to be in jail. Hell, he deserves to be in jail for much more, given that he’s spent virtually his entire life lying, cheating, and ripping people off, including his own supporters, whom he spent the 2020 campaign fleecing out of their money.
But does this really represent a return to the rule of law and the reassertion that no one, not even former presidents, are above it? Color me skeptical. There’s little sign yet that this impulse to hold the powerful to account no matter what is going to extend beyond the hated and politically inconvenient figure of Trump.
Unfortunately, the United States continues to be a nation defined by elite impunity. Heads barely rolled over the fact that the US Navy poisoned the water supply of ninety-three thousand people in Hawaii last year and lied about it for months. Amazon faces few concrete consequences for serially violating labor laws. The revelation that the CIA may have been carrying out the domestic surveillance it’s legally barred from doing barely made a blip. The various powerful men who were part of Jeffrey Epstein’s sex-trafficking operation (including Trump) have faced no legal repercussions or even public exposure, nor have most of the people who protected him while he was alive. Legacy news outlets paid scant attention to Chevron and US courts’ attempt to punish and jail Steven Donziger, the lawyer who successfully won a judgment against the oil giant for polluting the Amazon.
Last week, an ad featuring Dick Cheney slamming Trump for his January 6 antics went viral, despite the fact that Cheney is best known for two things: being part of the Republican ticket that, unlike Trump, actually successfully stole an election, and lying the country into an illegal war that killed at minimum 4,598 Americans and 185,000 Iraqis.
“A real man wouldn’t lie to his supporters,” Cheney says in the ad with no trace of irony.
Of course, Cheney is just one of many lawbreakers from the George W. Bush administration who continue to live a happy and free life despite his actions. That includes the former president himself, who has now been turned into a lovable goofball despite destroying several countries, implementing a global kidnapping-and-torture regime, and illegally spying on Americans without a warrant. These days, the officials who abetted him get warm obituaries in the pages of the very same newspapers that now demand Trump be prosecuted.
It was especially galling to see Eric Holder, former attorney general under Barack Obama, soaking up applause two weeks ago for claiming he would’ve prosecuted Trump.
“You end up with indict, divide [the country], don’t indict, divide [the country], so just do the damn right thing. Enforce the rule of law,” he told an audience.
Yet it was Holder who looked the other way on the Wall Street criminality that tanked the global economy despite mountains of evidence, created “too big to jail,” and famously declined to prosecute any high-ranking Bush officials over torture.
Actually, that’s not quite true: he did prosecute John Kiriakou, the former CIA officer who blew the whistle on said torture.
“Our desire is not to do anything that would be perceived as political, as partisan,” he said at the time.
It was this refusal to hold Wall Street and members of the Bush administration accountable for their crimes — crimes that, as bad as January 6 was, were far more deadly and ruinous than Trump’s — that led us to this point in the first place. If what we’re watching really does prove no one is above the law, those saying it should be making an equally forceful case to investigate and prosecute figures like Cheney instead of rehabilitating them as noble statesmen. After all, there’s no statute of limitations on war crimes.
Perhaps whatever the justice department has in store for Trump really will be a turning point, ushering in a new era of elite accountability that will see future misdeeds by the influential and powerful appropriately punished. Let’s hope so. The tragedy would be if all this talk about the rule of law ends up mere rhetorical window dressing to punish Trump and only Trump.