Department of Caprice

The rule of law should be understood as an anachronism, a discredited notion that formerly involved the systematic regulation of conduct. Scholars may study law as an intellectual exercise, but they can only pretend that it is now anything more than words on paper.

People who have sat for the law school aptitude test may remember items requiring the test-taker to deduce a rule from the outcome of individual cases. In fact, a rule is just that: a set of cases. Two men carry out a crime. One is sentenced to prison, and other is not. The prisoner was convicted by a jury after a trial. The free man pleaded guilty, and so the rule seems to be that people who plead guilty get lighter sentences. It's a simple exercise when you can make up your own hypothetical cases, but it doesn't work in real life.

Take the case of Donald Trump. He is charged with bribery. As a public official he offered specific benefits to another head of state--a face-to-face meeting and millions of dollars worth of weapons--if his counterpart agreed to commence a prosecution against the son of a political rival. The legal definition of bribery--seldom mentioned and almost never analyzed by news-reporters--is the offer of something of value to influence a public official in the performance of an official act. Trump's offer fits the definition, twice: since the transaction involves two public officials exchanging official acts, Trump is both the bribe-offeror and the bribe-taker. He's guilty, in other words. In fact, according to multiple witnesses, he conspired to commit bribery with the Sccretary of State and at least a half-dozen other people in and out of government. They're all guilty. One even bragged about it and suggested that people should "get over it." It's open-and-shut.

If Trump and others are clearly guilty of a conspiracy to commit bribery, how can there be any doubt whether or not to convict him and remove him from office and prosecute all the conspirators? And yet there is doubt. Not only are we expected to doubt whether Trump will be removed, but we're also denied any consideration of the culpability of others. It appears that reporters are taking it for granted that there is no rule of law.

There seems to be consensus among reporters that the Senate, which will act as jury in Trump's bribery trial, will, for political reasons, ignore the laws against bribery, disregard the evidence we have all heard, and exonerate Donald Trump. None of the conspirators will be penalized. Cops who accept a free lunch might be disciplined, but this particular bribery scheme will be excused. The bias of the jury will be flashed in our faces. News-mongers are unanimous in the view that this will be the outcome, upsetting as it may be to the law of bribery, and we news-consumers must be left to conclude that there is no rule of law. If a jury of senators can't convict Trump, can any jury convict anyone? If bribery laws are not obligatory, should anybody obey the speed limits or refrain from cheating the tax collector? Don't ask, and don't wait for newsmen to ask.

The Trump inquiry is a cavalcade of lawlessness. The inquisitors may be as corrupt as their target. We try in vain to deduce a system of rules from their words and actions. Why were some people compelled to appear, when others were excused? Next time you're served with a legal summons, try ignoring it. You'll be in trouble. Unless you're the President's personal counsel or the Secretary of State. The Trump inquiry announces to the public, worldwide, that there is no law here. Goddamn Putin!

If you try to distinguish signs of obligatory rules in the actions of your government, you will fail. Agents of government can hold you or take your property or even kill you without legal process, and the decisions they make about whom to target follow no rational standard. It's not a system of justice but a system of capricious resolution. Some rules will be binding sometimes on some people, and some will be optional sometimes for others, and justice will be done if we concede that this is justice.