What is NOT a Two-Tiered System of Justice?

 

Presumably many conservatives will take offense at that proposition, so let me modify it by one word.  Authoritarianism consists of exactly one proposition . . . 

Actually, though, when you break it down, this really consists of four propositions:

1. The law protects our in-group
2. The law does not bind our in-group
3. The law binds out-groups
4. The law does not protect outgroups

There are authoritarians the world over, of course, but I am most familiar with the American variety.  The United States is founded uniquely on a hostility toward government and demand for personal freedom, so what goes for Americans may not apply in other countries.  

And current Republican outcry over a two-tier system of justice makes quite clear that to American authoritarians, the most important of the four propositions is the second -- the law does not bind our in-group.

That explains a lot.  It explains why so often you just scratch a libertarian and find an authoritarian lurking beneath.  It explains why it is so easy to conflate anti-state with anti-other. It explains law and order types' sudden conversion to civil libertarianism the minute a right winger gets in the crosshairs of the law.  And it explains Republicans' endless bleating about a two-tier system of justice.

Seriously, try to imagine the implications of Republicans' quota system of law enforcement if one tried to apply it in an even handed fashion.  When Hillary Clinton was under investigation by the FBI for her server, the FBI would have been required to investigate Trump as well for something -- not mishandling of classified documents, obviously, since he had never had the opportunity, buy maybe for some fraud by Trump University.  If Hillary had been indicted, Trump would also have to be indicted, just to be even-handed.  And if Trump University, after all, proved to be a matter for civil litigation and not quite indictable, well, so much for locking Hillary up.  Anything else would be a two-tiered system of justice.

I realize Republicans will say I am being ridiculous.  If asked to explain why, presumably they would say that Hillary was the candidate of the incumbent party and there should be no restriction on an incumbent administration investigating members of its own party.  The problems is in investigating the other party.  Or, as one Republican said, "Republicans should investigate Republicans and Democrats should investigate Democrats."

Again, can we think this through for a minute?  Do you actually want to give the out-party an unlimited license to crime?  I mean, sure, if Democrats are in power, Republicans should have an unlimited licenses to crime.  But next time a Republican is President, do you want to extend reciprocal privileged to Democrats?

Probably the option most Republicans would prefer would be to pass a law forbidding the investigation or prosecution of any Republican office holder, candidate, or staffer.  (Lobbyists, think tankers, major donors and talking heads will probably find their way in later).  While I have no doubt that this is what Republicans would prefer, it is unlikely to survive a constitutional challenge.  

Alternately, one can argue, as some Republicans do, that the real problem is not that the justice system is politicized, but that it is not politicized enough. Their proposal is to fire any career federal employees with any sort of discretionary power and replace them with political hacks.  The federal government should be openly used as a machine for patronage and persecution.  The obvious response to that is what happens next time a Democrat is in office.

There are two answers to that, one honest and one dishonest.  The honest answer is that if Republicans wield their power right, they can use it to assure that no Democrat is ever elected President again.  The dishonest answer is to say that we are already seeing what it looks like, that the federal bureaucracy is already wholly politicized in favor of the Democrats and Republicans only want the same opportunities.  And no doubt they would say, how can it be any worse than it already is.  That is a very foolish question.  Of course things can always get worse than they are now.  Turn the federal bureaucracy into an agency of patronage and persecution and if you ever slip and let the other side win, you will quickly find out just how much worse it can be.  Once again, the court system (including trial by jury) may be the best safeguard here.

Another alternative is to dissolve the entire public integrity division of the Justice Department and halt any prosecutions for political corruption whatever. That would be genuinely even-handed and would pass constitutional muster, but it is not what most people have in mind when they talk about draining the swamp!  Nonetheless, there are some signs that is what some Republicans are calling for.  Some (don't even want to bother looking for link) are saying that while Trump led chants of "Lock her up!" during the campaign, he did not act on that because after he became President his advisors convinced him of how un-American that would be. Sigh!  Trump based his entire campaign on arguing that bigwigs escaped punishment for actions that were punished for the little guy.  And how the argument is that being a bigwig should, after all, grant an exemption from punishment, at least from the opposing party.  

Finally, I can thing of one approach that might actually work.  It might pass constitutional muster, allow draining the swamp, and not be perceived by Republicans as political persecution.  That would be to establish a special office within the Department of Justice for prosecuting members of the opposing party.  It would not consist of DOJ careerists, since Republicans see those as hopelessly biased.  Instead, members would be nominated by the President and approved by the Senate and would all be required to be members of the opposing party.  (Low ranking staffers would not be subject to confirmation, but could be hired from outside the government)..  Any politically sensitive matter in the DOJ involving the opposing party would be referred to this separate division.  Perhaps a devil's advocate could be established to argue against the investigation.  And maybe, just maybe, MAGA Republicans might actually agree to such a system.

Although I have not doubt that the minute prosecuted a powerful MAGA Republican, they would decide that it, too, was hopelessly biased.