The founders of the US Constitution accepted social inequality in many spheres, but they did insist on equality in one sphere. All citizens must be equal before the law. That is, the law must apply equally to all. No one must enjoy legal immunity, not even – indeed, especially not — those chosen to govern the country. For otherwise the new republic would have a government of men instead of a government of laws – the fundamental principle cherished by the founders.
No doubt legal equality was always something of a myth. Rarely has effective legal protection been available to non-whites or to strikers, for instance. Nevertheless, until recent decades the powerful could not be sure of immunity. The boss of a big city political machine could be struck down by the courts and end up in jail. But this is no longer so. Legal immunity for the political and corporate elite is now deeply entrenched.
If the president does it, it cannot be illegal
In his book With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful (New York: Henry Holt & Co., 2011), Glenn Greenwald explains how this was achieved. The story begins with Richard Nixon, who first declared that ‘if the president does it, it cannot be illegal.’ A series of presidents established the practice by which each new occupant of the office thwarts any investigation or prosecution of crimes committed by his predecessor — even when this requires breaking campaign promises, as in the case of Obama’s refusal to do anything about the use of torture by the Bush administration.
Immunity was extended from the political to the corporate elite when plaintiffs sued telecommunications companies for illegally tapping their customers’ telephone conversations and e-mail messages and sharing them with the National Security Agency. Not only were the court actions blocked, but Congress was lobbied and bribed to legalize retroactively what the companies had done. (It is extremely rare for crimes to be legalized retroactively.)
No charges were ever filed against the banks whose abuses led to the financial crisis of 2008 – not even for the fraudulent foreclosures that dispossessed mortgage holders and evicted them from their homes.
Look to the future?
A favorite rationale is that ‘we should look forward to the future, not dwell on the past.’ As Greenwald points out, consistent application of this rationale would eliminate the whole system of criminal and civil justice, for reacting to what happened in the past is the business of all law enforcement and court procedure.
Such forgiveness, obviously, is not meant for ordinary people. Indeed,
the lack of accountability for elites goes hand-in-hand with a lack of mercy for everyone else. As our politicians increasingly claim the right to commit crimes with impunity, they impose increasingly severe punishments on ordinary Americans who have broken even minor laws (p. 222).
Laws have been passed setting ‘mandatory minimum’ sentences for specific crimes, depriving judges of much of their discretion and preventing them from taking due account of mitigating circumstances.
One way to highlight the contrast between ‘the law for the rich’ and ‘the law for the poor’ is to compare cases of similar crimes committed by individuals near the top and the bottom of our society. Take the following pair of cases of unarmed theft:
First case: Richard Lynn Scott
As CEO of the Hospital Corporation of America, Richard Lynn Scott masterminded schemes to defraud Medicare of an estimated $7 billion. Without admitting guilt, he settled all civil claims against him by coughing up $1.7 billion, about a quarter of the amount he had stolen. He was not charged with any crime.
In 2011 the voters of Florida rewarded Scott for his business acumen by electing him governor. This gave him the power to decide whether to pardon any of the small-time thieves languishing in the state’s jails.
In 2019 Scott was elected to the US Senate.
Second case: Roy Brown
Roy Brown, a homeless black man in Shreveport, Louisiana, walked into a bank, pointed his finger at a teller from inside his jacket, and told her it was a robbery. She handed him three stacks of bills, but he took only a single $100 bill and gave the rest back. Next day he turned himself in to the police and told them that he had needed the money for food and shelter. He pled guilty to first-degree robbery and was sentenced to 15 years in prison.
To sum up. Brown stole $100, Scott $7 billion. Brown had mitigating circumstances: he stole much less than he could have; he turned himself in; he needed money for food and shelter. Scott had no mitigating circumstances. Brown was sentenced to 15 years. Scott was never even charged with a crime.
Now let us re-run the second case in our imagination to narrow the gap between the outcomes:
When Brown confessed his crime to the police officer, the response was: ‘Well, that’s no big deal. How much of the $100 do you have left?’ ‘Twenty-five.’ ‘OK, we’ll go and give that back to the bank. They’ll lose 75, but they can afford it.’ The bank manager agreed to write off the loss and no charges were filed. The next year Brown was elected mayor.
This, I remind you, is a daydream. When we reach the point at which it is a plausible outcome, socialism will not be far off.
Hit and run
There are degrees of legal immunity. Only a tiny elite enjoy complete immunity, but a larger group have partial immunity. The police and the courts treat them with special leniency in deference to their high social status.
Consider the case of Martin Erzinger, who was driving in Colorado in July 2010 when he swerved, hit a bicyclist from behind, and sped away. The bicyclist received serious injuries to the brain, spinal cord, and knee. A few minutes later Erzinger stopped in a parking lot and called an auto assistance service to report damage to his car and ask to be towed. He did not contact police or call an ambulance for the victim.
‘Hit and run’ is a felony in Colorado, but the district attorney charged Erzinger with a mere misdemeanor, which carries no jail time. He explained that he didn’t want to disrupt Erzinger’s professional work as a hedge fund manager ‘overseeing over $1 billion in assets for ultra-high net worth individuals’ (Greenwald, pp. 101-103).
When corporate crime gives rise to court proceedings, the severest possible penalty is a fine or damages to be paid by the corporation. A CEO or other corporate officer cannot be penalized as an individual, however great his role in decisions to commit crimes.