An important distinction
It’s repeated to the point that it has become a cliche. Merrick Garland has underlined it in his rare public utterances. “No one is above the law.” That is a foundational bedrock of the American system of justice. While it may be an ideal that Americans sincerely endeavour to achieve, the end result isn’t always perfection. Even so, there cannot be any doubt that equal justice under the law is always the aim.
I hope you’ve noticed in the above paragraph that I have done a little bait and switch. I interchanged two sentences. I have suggested that the notion that “no one is above the law” is the same as “equal justice under the law.” They are not, and I believe that the attorney general Merrick Garland has always been careful never to suggest that they are the same. Whenever he has made a statement about what he’s up to, he’s always careful to say that “no one is above the law.”
It’s an important distinction because, if you think about it, “equal justice under the law” is not only not true in the narrow sense we are discussing it now, it’s probably best that it’s not true. We know, for example, that if anyone other than a former president of the United States had brought home classified and top secret documents, refused to give them up and went around telling anyone who would listen that they have no intention of giving them up, they would be in prison right now. If you have any doubt about that then just ask Reality Winner.
That is not equal justice under the law. We give presidents and former presidents different treatment from the rest of us, and for good reason. We need to give them the benefit of the doubt because, for better or worse, we the people of the United States put them where they are, more or less, and we need to make absolutely certain that we get it right when we accuse them of crimes.
To be sure, some people do not merit the benefit of the doubt — and Donald Trump is a notable example. But when we treat him the way we do it’s because we are respecting the office of the President and not the man. The man is a quivering pile of crap. The presidency, on the other hand, is a sacred institution enshrined by the Constitution. Caution must be observed.
It’s the final conclusion that we have to get right. Unquestionably, if Reality Winner went to prison then Donald Trump should go to prison. Justice and the stated ideal that no one is above the law demands that the end result be the same. Their paths may be very different but the end must be the same. Just remember that the notion of equal justice under the law is a fairy tale we tell ourselves.
If justice were hasty when it came to presidents then that haste would be abused by evil men and women. The next Congress is a case in point. Come January we will be glad that the justice system isn’t hasty with presidents when Republicans take over Congress, because if it were otherwise they would immediately abuse that haste and unjustly throw Joe Biden and Kamala Harris straight into prison, in imitation of tinpot banana republics everywhere. That is the calibre of the political hacks that comprise the Republican Party today.
If Trump never goes to prison then we can call foul. In the meantime it’s best we err on the side of caution. Having a clear eyed understanding of the important distinction between no one being above the law and equal just under the law should make it easier while we wait. Something tells me we won’t have to wait much longer. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.