I have a great amount of respect for former President Barack Obama, both as a leader and a man. That does not mean, however, that I always agree with him.
During an interview last Thursday with CNN’s Christian Amanpour, the former president told a big fib, or what could more generously be described as a white lie. He said the following about Donald Trump finally being indicted for his crimes: “But the fact that we have a former president who is having to answer to charges brought by prosecutors does uphold the basic notion that nobody is above the law and the allegations will now be sorted out through a court process.”
Barack Obama is a Harvard-trained lawyer, an expert in constitutional law who taught at the University of Chicago Law School, the country’s first Black president, and someone with a deep scholarly knowledge of the color line and the realities of social inequality and injustice in American society. As such, he most certainly knows it is not true that “nobody is above the law in America.” That Obama would make such a statement given his unique role in America’s history and as one of its most powerful people is not a surprise, however. And it certainely does not make what Obama said about the law and justice in America any more true.
During the last few weeks since Donald Trump’s indictment(s) and arrest(s) in New York and then Miami, Barack Obama was not the only person among America’s elites (and everyday people as well) to have told the same fib and white lie about how “nobody is above the law in America” and “that justice is blind”. That chorus was and is very loud and large.
American exceptionalism and its many myths – of which how “the law is blind” and applied “equally to all people” is among the most prominent — is a hallucinatory ideology. These myths help the system to sustain itself even though many know on a deep level, even if they cannot articulate it clearly, that something is fundamentally unjust and broken in American society. In reality, Donald Trump’s indictment and arrest for violating the Espionage Act is the exception that proves the rule: Rich white people (men, specifically) like Donald Trump are generally above the law in America.
Consider the following, even though Trump was arrested and indicted on 37 counts of concealing top secret documents and allegedly breaking other federal laws, he was released on his own word, his passport was not surrendered, he was not perp walked, and no bond or bail was required. Cameras weren’t even allowed in the courtroom.
In reality, Donald Trump’s indictment and arrest for violating the Espionage Act is the exception that proves the rule: Rich white people (men, specifically) like Donald Trump are generally above the law in America.
Trump has also been allowed by law enforcement to publicly intimidate, threaten, and incite violence against special counsel Jack Smith, Attorney General Merrick Garland, witnesses, prosecutors, and others who are involved in the investigation(s) and upcoming trial(s).
In addition, the Department of Justice (DOJ) allowed Trump to keep dozens of boxes full of the country’s most important secrets for many months instead of acting quickly and aggressively to secure those documents as they would in almost any other situation. The DOJ was also very reluctant to investigate Donald Trump for his role in the Jan. 6 terrorist attack on the Capitol.
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The very idea that a rich white man like Donald Trump should be held in some way accountable for his crimes like anyone else has provoked an outcry among conservatives that any “fair” application of the law is somehow a form of “persecution” by a “two-tiered legal system” and a threat to society and the freedom of the average American.On this, former federal prosecutor Jill Lawrence writes at the Bulwark+:
Most GOP leaders are offering hedged concerns about Trump accompanied by fevered falsehoods about a two-tiered justice system weaponized by President Joe Biden, Attorney General Merrick Garland, the Department of Justice, and the FBI to go after, well, Donald Trump.
It’s enough to make you want to require critical race theory classes in every junior high school in America. Because, yes, kids, there is a legacy of systemic bias in this country, whether in housing, health care, education, or the criminal justice system, and it is not bias against rich white guys who used to be president. Or the supporters who have broken the law for them.
With these protests and howls, Trump’s defenders among the Republican Party are unintentionally revealing something very true about American society, a truth that they would forcefully deny: The law, in this country and around the world, has historically been written by and to serve the needs and interests of the powerful and not the powerless.
If Barack Obama had engaged in any of the illegal activity that Donald Trump did throughout his presidency and after (or even in the decades before he became a prominent public figure) he would have been removed from office, investigated, prosecuted, arrested, convicted, and put in prison almost immediately.
Of course, Donald Trump who is a lawless fascist, a malignant narcissist, and an apparent sociopath if not a psychopath, who yearns for unlimited corrupt power has been proclaiming and ranting that he is a “victim” and that the larger legal system has no legitimacy and therefore no authority over him. This is not a performance. Trump and his followers actually believe such a thing; fascists and other authoritarians reject the principle of fairness and equality under the law.
Donald Trump also has an entire “news” media and propaganda machine that is working to protect him from accountability for his decades-long crime spree. Trump’s agents even include Judge Aileen Cannon, who will be presiding over the Mar-a-Lago Espionage Act trial. Cannon already signaled her fealty to Trump in a previous case, as Loyola Law School professor Jessica Levinson elaborates:
We should worry about the judge’s impartiality because of a ruling she made in an earlier stage of this very case where she acted more like a legal advocate for the former president than a neutral arbiter overseeing a historically significant case.
Cannon, without any legal grounding to do so, granted Trump’s request for a special master to review the documents the FBI obtained in August during the execution of a search warrant at Mar-a-Lago. Cannon’s outrageous ruling was reversed by a panel of judges, including two appointed by Trump, in the conservative 11th U.S. Circuit Court of Appeals. In addition to saying the district court “stepped in with its own reasoning” and reached an “unsupported conclusion,” the panel wrote, “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
Again, the justice system is not blind in America. Donald Trump has resources and advantages that few others possess to bend, corrupt, and receive special and deferential treatment.
For those who insist, contrary to the facts and evidence, that Trump’s status as a former president is the primary explanation for why he has been able to escape being punished for his obvious crimes against democracy and the rule of law to this point, I offer a thought experiment. If Barack Obama had engaged in any of the illegal activity that Donald Trump did throughout his presidency and after (or even in the decades before he became a prominent public figure) he would have been removed from office, investigated, prosecuted, arrested, convicted, and put in prison almost immediately. If then President Barack Obama lost the election and then attempted a coup, the FBI and all manner of law enforcement, and likely the US military, would have dragged his Black body out of the White House in shackles and leg irons – if he was so lucky.
If nobody were truly above the law in America, Trump would not have been allowed to engage in a decades-long crime spree without being punished or facing serious consequences. Likewise, if nobody was above the law in America, Trump would not have been allowed to become president, impeached twice, attempt a coup on Jan. 6 that involved a lethal attack on the Capitol, and not be immediately arrested, put on trial, found guilty, and put in prison for the rest of his life.
Ultimately, if the law and justice were really blind in America and nobody was above the law, and we are really “a nation of laws not men,” then Donald Trump would not be the presumptive Republican Party 2024 presidential nominee, almost tied with (if not ahead of) President Joe Biden in the polls and possessing a very good chance of returning to the White House.
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