To indict or not to indict that was the question. Whether ‘tis nobler in the mind to suffer the slings and arrows of party politics or to take legal action against the perpetrators of an insurrection. An insurrection that failed, but might have been a rehearsal for another effort. Many pundits make a strong case either way.
To indict a sitting president has some real difficulties. Who will faithfully execute the laws while he is preoccupied with his own defense? He would still be Commander in Chief of the mightiest military the world has ever seen. He still can influence, if not command the Justice Department, the IRS, immigration etc. Anyone can see why that might have undesirable consequences, from chaos to revolution. As much as we might despise a president’s actions it’s probably better to let him carry on, than to be preoccupied defending himself for months. The other remedy would be impeachment or the 25th Amendment, but those are so bound by politics as to be useless unless he is obviously incapacitated like JFK.
An ex-president carries no such protection. Presidents lose all their official power the minute a replacement is sworn in. He or she might remain the titular head of a party or exert ideological influence. The recent ex-president still has a powerful following. So powerful that they believed that a few hundred of them could by storming the Capital building take control of the Federal Government. Even if they captured the building, what was Act 2.
On the alternative, when an important official escapes prosecution, solely because of their former position there is a clear message. Certain prominent persons are above and beyond the law. Once you achieve fame or notoriety you can shoot someone on Fifth avenue and not lose. Having allowed one prominent person to escape consequences opens the door for anyone well known to get away with anything. Anyone, President, TV star, industrialist, drug kingpin, war lord, heir to a large fortune. Is that not the system our ancestors risked their lives to escape by moving to America.
In the old world there was an established hierarchy. The King could do no wrong. (“When the president does it, that means that it is not illegal” Nixon) The aristocracy or clergy could be pardoned by the King, and effectively do no wrong. Certain members of the aristocracy or clergy were given the privilege of ignoring the law in the pursuit of their poorly defined agenda, like the Inquisition or privateers (pirates). The rest of the population rarely received this sort of absolution. There are many places where this is still policy, but the autocrats call themselves by a different title than King, like President for Life, Chairman, General Secretary or all three.
Some so-called conservatives who are typically calling for “law and order” do not want the Justice Department to follow up on certain obviously criminal acts. They are declaring “If you do this, we won’t have a country anymore.” A claim that is so patently nonsensical I hesitate to honor it with a rebuttal. If we do not give certain events due process, investigate and follow the evidence we will still have a country but one without a functioning justice system. We would establish for once and for all that certain people are above the law.
One of the principals we strive for is equal justice under the law, but the reality is not quite equal. Let’s face it, money talks and that makes the system is inherently unequal, “A jury consists of is twelve persons chosen to decide who has the better lawyer.” Robert Frost. In an encounter with the legal system one of the first steps is arraignment.
A judge decides if the defendant must wait in jail or can be free until trial. The richer or better known the defendant the better chance he has of having a normal life until trial. On the other extreme Kalief Browder committed suicide after spending two years at Rikers Island jail without trial. He did not have money for bail or a lawyer.
If the FBI found top secret documents in your basement, would you see the inside of a jail cell?
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Send feedback to obenskik@gmail.com