A culture of impunity or at least a culture of elite impunity is now so widely discussed that it has become almost a cliché of American political discourse. But clichés and caricatures have power when they contain a strong or recognizable element of truth. And we are in the midst of a kind of performance of impunity which is revealing and bracing to behold. A few days ago, the former Prince Andrew, now Andrew Mountbatten-Windsor, was arrested and questioned in an investigation of alleged crimes tied to his relationship with Jeffrey Epstein. Andrew is the first prince to be arrested in 400 years. (Technically, he’s the first British prince ever to be arrested. The last example, Charles I, was king of England. This was before the Union Treaty of 1707 which created Great Britain. Charles was tried and executed.) Today, police in the United Kingdom arrested Peter Mandelson, now a Labour party elder (he made his name under Tony Blair) who was until September the British ambassador to the United States. The investigation that led to his arrest was spurred by the release of the Epstein Files. His earlier resignation as ambassador was also tied to his relationship with Epstein.
As best I can tell, both men are being investigated not for anything tied to underage girls or trafficking but the claim that they passed confidential UK defense information to Epstein. But this detail shouldn’t obscure the fact that the two highest-profile British citizens mentioned in the Epstein Files are now facing serious criminal investigations tied to the revelations of those files. Whatever the exact details, the contrast with the United States is hard to miss. And today it’s matched by the news that Judge Aileen Cannon, who played such a key role protecting Donald Trump from criminal accountability, now purports to have “permanently” blocked the release of Jack Smith’s report on his investigation.
There’s an irony in that criminal justice as it applies to Donald Trump — and, in a less over-the-top way, many avatars of the American elite — actually makes real the “soft on crime” rhetoric we so often see in our electoral politics: a judicial world in which the concern for the rights of criminal defendants is so parodicly extravagant that it’s the government that is more on trial than the defendant. We have a culture of elite impunity and it’s gone into overdrive because the country is now governed by the people who most embody that, people like Donald Trump, or the species of sub-billionaire businessman who doesn’t simply benefit from this culture of impunity but has learned its lineaments in such detail that he can positively manage to it, focusing on all the cheats, workarounds and free-and-clear shots that it makes possible. In a very basic way, when you understand his pre-political history — and even more than the one that began in 2016 — the culture of impunity didn’t simply benefit Donald Trump: it was his business model.
I want to spend a few moments discussing how this relates to electoral politics since it is Donald Trump who didn’t create this culture of impunity but embodies it and has brought it to 11, as they say, by controlling the Department of Justice itself. One of the most striking features of the last three years is the way it became for some a kind of truism that the true mark of a mature democracy is that political leaders, presidents and so forth, are never held accountable for criminal conduct in office. It’s only banana republics and broken states where that happens, the reasoning goes. And there is a limited truth in this in the sense that we see as a warning those countries where leaders fear to surrender power because the new chieftains routinely imprison the old. But democracies supposedly newer and less entrenched more or less routinely charge and imprison ex-heads of state for all manner of crimes, commonplace ones like bribery and tax evasion and more vaunted ones like sedition and abuse of power. At least for the moment, John Roberts and the rest of the corrupt Court majority have taken it upon themselves to fabricate this impunity into the Constitution itself.
Here’s the point I want to zoom in on: Even among those of us who think that powerful people and presidents should be accountable to the law, there is still an idea that a tit for tat of investigations and prosecutions would unquestionably be a bad thing. I disagree.
In the Spanish Empire, when a departing a viceroy left office and returned to Spain, they were subjected to a residencia. I’m going by memory from studying this in graduate school, but the idea was that when the new viceroy arrived they oversaw a fairly exhaustive investigation of the outgoing person’s tenure in office. That looked at corruption but it also looked, just as importantly, at whether they had adhered to the Crown’s policies. In the nature of things, the newcomer had a lot of incentive to knock his predecessor down a peg, to show to the Crown that they were cleaning up messes, holding people to account for not following the King’s commands. New sheriff in town, and all that. So by definition this was not a particularly fair inquiry. It was looking to find fault.
Now, perhaps you might say: why are we looking for guidance from the Spanish Empire, a monarchical system which, despite its often frail and over-extended lines of power, was inherently exploitative, anti-liberal and many other bad things. You have a point. But we can still find helpful analogues and guides even within compromised or bad systems.
The general argument against this kind of thing is that you’ll scare good people away from public service. I don’t buy this. There are so many people who want to run for public office, certainly who want to be president, that I don’t think we’re going to run out. That just runs against all my experience with U.S. politics and, frankly, human nature. Indeed, in my experience the people most committed to public service and with the most integrity are precisely those willing to take on the most risk to serve. Think of the people out there working as spotters and whistleblowers monitoring ICE or escorting immigrant families back and forth to immigration hearings. Think of the risks they’re running. Are we worried that the quite horrifying risks are scaring away the best people?
I want to be clear. I don’t want innocent people harassed with frivolous investigations or driven into bankruptcy by being forced to litigate baseless investigations and prosecutions. That’s at best a necessary evil. But I think it’s mostly a self-correcting problem. Juries are already showing that impatience for baseless prosecutions rooted in political vendettas that we expect of them. Judges, even in this era of a corrupted judiciary, are showing a good deal of the same. These are the down-low obstacles to tyranny baked deep into our system of government, somewhere between constitutional and common law. And they’re very powerful even today.
But the important point is that if we look at our system and ask whether it is skewed in the direction of abuse or impunity, it’s more or less impossible not to say the skew is in the latter direction. So we can manage some necessary evils to bring things back into balance. We maintain it as a truism, if not a practical guide, that with great power comes great responsibility. That means accountability. Politicians and especially presidents are hired to do a job. They are not given the public and the public’s government as a kind of property. Asking to have the vast powers that come with the presidency more than merits a thorough grilling after the power is surrendered. In a sense the contrary principle we seem to be following embodies all the opposite principles, that the greatest potential victim, the one who needs the most protection, is precisely the one who asked for near galactic power in the first place. That is all backward.
I’m always reminded here of a letter, an answer to a question from a correspondent which Thomas Jefferson wrote after he retired from the presidency. The starting point was a discussion of the Louisiana Purchase and specifically whether it is ever acceptable for a president to exceed his constitutional powers in the interests of the republic. His answer has always struck me as exactly the right one. Jefferson said that a president would sometimes not only be permitted but obligated to exceed his powers if the life of the republic was at stake. But once the crisis was past they would be equally obligated to publicize what they had done and throw themselves on the mercy of the public. In other words, Jefferson’s vision had no place for immunity. Leaders were obligated to risk themselves in the interests of the public, not have some kind of kingly immunity from the law.
The challenge we face is what we see now: that leaders can brazenly break the law without any apparent fear of consequences. To get things rebalanced we need to accept some risk for those who don’t break the law. If that’s too much for some candidates to accept … well, they don’t have to ask for the job. Let’s stake our future on those willing to run that risk.