Former president Donald Trump is facing ninety-one criminal charges as he seeks to win back the White House in 2024. The indictments are the latest battle in a roughly six-year crusade against Trump that first sought to remove him from power through the Twenty-Fifth Amendment, then with espionage charges and impeachments, and that now aims to block him from becoming president again. The mantra we hear from those in politics and media who support these efforts is that nobody is above the law.
But there’s an entire class of people above the law. Or who at least act like they’re above the law—the political class. The hypocrisies of their effort to convict Trump and block him from holding office again reveal that the motivations are purely political—not born of some commitment to a higher moral or legal principle.
Two broad schools of thought make up Western legal philosophy. They are natural law theory and legal positivism. Natural law theory says that law exists regardless of the dictates of states. That justice is derived from nature and common to all humans. Simply put, natural law theorists argue that a crime is a crime regardless of what the state says. That makes killing another human with malice aforethought murder, for example, even when it’s done with the blessings of government officials.
Many libertarians, such as Murray Rothbard, ground their moral opposition to state power in appeals to natural law. There is no special status that someone can attain that allows them to commit crimes.
The idea that nobody, not even the president, is above the law is right in line with this view. But, taken to its logical Rothbardian conclusion, equality under the law is a denial of political authority. So, it’s bizarre to hear the political class use this slogan as a rallying cry when all their wealth, power, and status is built on political privilege. And they can’t rightfully go after Trump for how he used his political authority because that’s not unique to Trump.
The political class prefers legal positivism, which separates law from morality. According to legal positivists, law is what the sovereign political authority says it is. There may be just laws and unjust laws. But they are all valid laws in this view. Legal positivism enshrines the political class’s privileged legal status above the rest of us.
Therefore, the way to get Trump is not to show he did anything immoral or wrong but to prove he technically broke some rule made up by members of an earlier political class. That way he can be driven out of public life without threatening the regime’s authority. But the problem hasn’t been finding crimes committed by Trump but finding crimes unique to Trump. Because all recent presidents have broken the law.
President George H. W. Bush launched a war on Iraq without congressional authorization. That is illegal according to Article 1, Section 8, Clause 11 of the Constitution, the set of rules Bush swore an oath to uphold. President Bill Clinton did the same, overseeing illegal military operations in Somalia, Serbia, and Iraq.
President George W. Bush conducted warrantless surveillance on American citizens, which is illegal according to the Fourth Amendment, and committed torture, which is prohibited by Section 2340A of Title 18 of the United States Code. His administration also launched undeclared, and therefore illegal, wars in Afghanistan, Somalia, and Iraq.
President Barack Obama conducted more illegal wars in Libya, Syria, Pakistan, Mali, and Yemen. In many of those wars, Obama expanded George W. Bush’s policy of giving support to al-Qaeda, which is treason according to Article 3, Section 3 of the Constitution. Obama also ordered the assassination of an American citizen in Yemen who had not been tried or even convicted of a crime. The Sixth Amendment makes that illegal.
Combined, these illegal wars have killed millions of people. They are appalling crimes of which Trump is also guilty. His administration continued the wars in Syria, Iraq, Afghanistan, Somalia, and Yemen despite his running on a more isolationist foreign policy. Yet he’s not being charged for any of that. The crimes he’s facing charges for are far less serious, but they are more unique to Trump.
In New York, Trump is charged with mislabeling some business expenses during the 2016 election. In Georgia, he’s charged with conspiring to overturn an election prosecutors claim he knew he’d lost. Federally, he’s charged with claiming to have won an election he allegedly knew he’d lost, which prosecutors say incited the riot at the Capitol on January 6, 2021. He’s also charged with keeping classified documents after leaving office and conducting a “scheme to conceal” them from the federal government.
By refusing to bring charges against Trump that could also be brought against the presidents they like, the political class has shown that its aims are political. If they were committed to the rules that they swore an oath to uphold, they’d have to indict many of their own. And if they genuinely believed that nobody exists above the law, they’d have to give up a whole lot more.