Is the Rule of Law a Chimera?

The term “chimera” has come to describe . . . anything composed of disparate parts or perceived as wildly imaginative, implausible, or dazzling.  Wikipedia

We are hearing about the Rule of Law quite a lot these days in the nation’s political dialogue.  I am wondering how the phrase is hitting the American ear.  Is it properly understood?  Is it considered important?  Why are we hearing it now only from one side of the political aisle?  Does it matter?  Does it exist?

The basic premise of the Rule of Law is easy to understand.  No one is above the law.  Everyone is equal under the law.  The law plays no favorites.  More dramatically, the Rule of Law is a sine qua non of democracy itself, of the people’s self-rule.  Without Law’s Rule, there can be no democratic form of government.  If any person or group is above the law, then by definition there is no democracy.  There is either autocracy or totalitarianism.

This latter connection is the sense in which the term is being used today.  It is used in discussions of the various federal and state criminal investigations of Donald Trump.  The federal government is looking into the potential criminal responsibility of the former president in matters ranging from the insurrection at the nation’s capitol following the 2020 presidential election, to the effort to have the Georgia presidential election overturned, to the obstruction of the government’s efforts to retrieve the classified documents wrongly  taken to the former president’s Florida home.  About these investigations U.S. Attorney General Merrick Garland asserted in a July 2022 news conference that “No person is above the law in this country.”

Well, but there’s the rub here.  Despite the numerous investigations into his misconduct in recent years–and two impeachments by the Congress during his presidency–Trump has still to be charged with any crimes, let alone convicted of any.  And this despite the ample evidence developed by both the House Select January 6th Committee, ongoing federal and state investigations, and investigative reporting that Trump has committed crimes.  These range from obstruction of justice when the federal government tried to retrieve classified documents that he had shipped to his Florida home, to those in connection with the Jan. 6th assault on the nation’s Capitol and the insurrection against democracy itself.

Meanwhile, two years following the insurrection more than 1000 of his supporters who stormed the Capitol on January 6, 2021 have been charged with crimes and several hundred have been convicted to date, with dozens now serving federal prison terms.

Consider the standard for simply making an arrest of someone under U.S. law:  probable cause.  This exists whenever the police have reasonable information that leads them to believe either that a person has committed a crime or is committing a crime.  For Trump and a number of his top associates, this standard has clearly been reached, and still no arrests.  Why not, we may ask.  Suspected burglars, carjackers, robbers and drug users rarely see such forbearance from the authorities.

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This pattern of apparent legal bias in favor of the wealthy, powerful and well-connected and against their obverse–the poor, weak and disconnected–has a long legacy in the American justice system.  It has been found in racially disproportionate police stops and searches of minorities, and in racial bias in the use of the death penalty.  While there has been a decline in the racial bias in drug arrests and incarceration in recent years, it remains substantial.  For example, a national study published in 2020 found that black persons in the U.S. are more than 3.5 times as likely to be arrested for possession of marijuana than white persons, even though the two groups use the drug at similar rates.

The pattern has also long been seen in the legal favoritism shown to white-collar defendants, and especially so to powerful corporate defendants.   These defendants have advantages over other types at every stage of the criminal justice process, as I described in an earlier essay.  As a result, it should be unsurprising that their suspected crimes are considerably less frequently prosecuted than other crimes.

A study published this January illustrates the pattern.  It found that among cases referred for prosecution by federal prosecutors in 2022, only 38 percent of the cases of suspected white-collar crimes were actually prosecuted.  This low number compares to 96 percent for immigration cases, 73 percent for drug cases, 68 percent for crimes involving weapons, and 70 percent for all cases combined.  The study also found that prosecutions of corporations and other business organizations remained rare.  In 2022, less than one percent of federal white-collar prosecutions, amounting to only 31 cases, were filed against businesses.  This tiny rate also applies to all federal white collar cases prosecuted between 2004 (when business cases were first tracked separately) and 2020.

Many factors combine to inhibit the criminal prosecution of white-collar crimes, and especially of the offenses committed by large and powerful defendants in the U.S.  These include the common limitations imposed by the government’s burden to prove guilt beyond a reasonable doubt and to find the intent to commit crimes.  But these limitations become outsized in many white-collar cases, especially those involving wealthy and well-connected organizations.   The reasons for this range from prosecutors’ fears of losing cases in court when the defendant has access to the nation’s best criminal defense lawyers, many of whom served as federal prosecutors earlier in their careers, to the greater difficulties in locating criminal intent and responsibility in large organizations with many layers of decision-making in their management hierarchies.  Hence the rarity of criminal prosecutions for such suspects even in the face of evidence of criminality.

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So what do these patterns of bias and favoritism tell us about the rule of law in the U.S.?  

The first thing to notice is that the rule of law in America has always been aspirational.  In our imperfect human world, it has never described the ongoing reality of criminal justice.  But neither has it been chimerical.  Instead, it exists in our legal culture as the foundational goal of our system of justice.  When powerful individuals and organizations are (occasionally) prosecuted and convicted, prosecutors commonly cite the rule of law and most Americans are gratified.  In those cases the rule of law motivates the prosecutors to pursue challenging cases, and these cases more closely approximate it.

As in the figure below, we can depict the relationship between the rule of law (blue arrow) and the real operations of our criminal justice system (grey line) over time (left to right).  The real operations never fully reach the rule of law.  Instead they shift over time to more or less approximate it according to changes in relations of power in our society.  A recent example is how wrongful police shootings especially of black males are now much more likely to be prosecuted since the murder of George Floyd in Minneapolis and other recent cases.  Aided by the increase in citizen videos of such events, these shootings effectively galvanized social movements for greater justice in law, and police offenders have been sent to prison.  In the not distant past, such crimes have been typically buried in doctored police reports and courts’ bias toward police testimony.

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And what do the slow-brewing criminal investigations into Donald Trump’s behavior tell us about the rule of law and the fate of democracy?

Over the past two years many observers have commented on just  how unprecedented the criminal prosecution of a former sitting American president would be.  Of course that is correct.  It is precisely as unprecedented as his  behavior has been, in particular the assault on our democracy that he waged while in the White House, and especially after his loss in the 2020 national election.

What seems to have been overlooked is how unprecedented the criminal investigations into his conduct themselves are.  From New York City to the State of Georgia to the U.S. Department of Justice, prosecutors have seized the challenge–and the risks–of pursuing potential charges against perhaps the most formidable adversary ever pursued by American criminal law.  We can count these prosecutors’ efforts to date as a real manifestation of the rule of law in action.

But the most important statement about the reality of the rule of law will be made by how these investigations play out.  We do not need a clean sweep of all three of them.  In particular, we do not need to convict Trump in New York of illegal payments to Stormy Daniels.  (But we should.)

But if the rule of law is to be reinforced, we need to see convictions of Trump for seeking to undermine the Georgia election and for spurring the insurrection on January 6, 2001.  The evidence against him is so plentiful, his intentions as clear as they are evil, that a failure to bring him to justice for these crimes would severely undercut faith in the possibilities for equal justice for all.

For while not a chimera, is kept alive by citizens’ belief in it, by their collective faith that its pursuit is an imperfect but ongoing project that underlies both democracy and the basic ideas of the sort of society and people we are.

If Trump were not convicted of his unprecedented crimes against American democracy, it would be a long while–if ever–before our people lost their fear that we are not who we thought we were, and that we do not live where we thought we lived.

If some of us are allowed to live easily above the law, then the rest of us live only as subjects under the weight of law, not as democratic citizens.  But as I wrote in an earlier essay, I believe we shall see both the prosecution and conviction of Donald Trump for his crimes against democracy.