Alongside the Constitution, United States citizens are beholden to an unwritten legal system of norms and traditions that you can’t find in any lawbook. Among these unwritten rules is the rule that America’s political elites are often in practice above the rules.
Recall former President Obama’s unconstitutional war making in Iraq and Syria in 2015, or former Director of National Intelligence James Clapper perjuring himself before the Senate in 2013 when asked about the NSA’s mass spying on US citizens, or former CIA Director John Brennan perjuring himself about the CIA’s illegal spying and torture practices.
A particularly famous case from 2016 was the FBI letting Hillary Clinton off the hook after finding her sharing of classified information over a private email server to have been illegal. After NBC News reported that “Clinton Broke Federal Rules With Email Server, Audit Finds,” FBI director James Comey stated that the FBI had indeed found “evidence of potential violations of the statutes regarding the handling of classified information,” but that, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.”
He added that, “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.”
In other words, FBI personnel decided not to enforce the law on Hillary Clinton, in part because they had previously neglected their duties in similar cases, and in part because they didn’t feel like it this time either. Such discretionary leniency from one government crony to another is dependent on the powers that be in Washington broadly agreeing about who belongs on what side of the state’s wrath.
On Thursday, the Justice Department lodged federal criminal charges against former US President and leading 2024 republican candidate Donald Trump for allegedly mishandling classified documents and obstructing efforts to reclaim them—the first federal charges ever faced by a US president. And this is just months after Trump’s indictment in Manhattan for an alleged hush-money payment to Stormy Daniels—the first criminal charges ever faced by a US President.
Until Trump had irreversibly won over the crucial voters in 2016, establishment Democrats and Republicans were united against him. Despite entrenched Republican powers having partly accepted him into their fold since then (seemingly out of political necessity), his outsider status and de-facto leadership of an anti-establishment insurgency has persisted—significantly increasing in the wake of his split with Mitch McConnell and Mike Pence over the handling of Jan. 6 and election theft claims.
Trump’s unique status as both former US President and outsider facing criminal charges poses a special opportunity. Perhaps the unprecedented hatred that the establishment has for Trump, by leading them to go after him in a way never previously experienced by a former American president, can erode the Comey-esque logic immunizing countless officials from facing legal trouble for possible crimes.
Often, all it takes is a single breach of etiquette by entrenched powers to overturn a long-established norm. Democrats had the opportunity to learn this lesson in the 2010s when they changed the process of judicial nomination in ways that backfired on them massively by paving the way for the Supreme Court’s current 6-3 conservative majority.
The model of turning political enemies’ unprecedented legal actions against them, if applied in the wake of the Trump indictments, could be a game-changer.
If Republicans are right to decry indictments of Donald Trump as “obviously a political hit,” as founding editor-in-chief of The Daily Wire Ben Shapiro has argued, they should be more concerned with the pattern of discretionary and non-objective applications of the justice system generally than they are with any individual instance of it.
For America’s public officials to be more consistently held accountable to the legal system they claim governs them, the norm of plausibly criminal activity at any scale being forgiven with little pretense of objectivity must be dispensed with.
America’s political elite hate Trump so much they were willing to sacrifice the norm of political leaders being above the law. That can ultimately hurt them more than it hurts their opponents in the populace.
Rather than making the mistake of treating this like an isolated incident, right-wingers should see the legal challenges against Trump as a model to apply constantly to all public officials going forward, regardless of their political affiliation or bureaucratic clout.
Stop letting criminals in powerful offices hide behind arbitrary norms of unaccountability. Start normalizing the investigation and prosecution of criminal political leaders instead.
Saul Zimet works at the Cato Institute’s Center for Global Liberty and Prosperity. He has been published by Quillette, the American Spectator, the Cato Institute and the Foundation for Economic Education, among others.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.