The rule of law is a centuries old concept that all members of society, citizens as well as government officials, are equally subject to the laws established by their duly elected government. This concept is described in many ways such as “the law is the king”, “no man is above the law”, or “we are a government of laws, not men.” We are told these concepts so we believe our government will always be fair to us and if our government breaks the law, the government official or the government itself, will receive the same treatment under our legal system as we would receive for similar activity. Very comforting as a concept. But keep in mind the “rule of law” is not a law of any kind and it has no binding effect on anything. It is merely a concept or more appropriate, a fable repeated by governments to make themselves sound accountable.
The U.S. Constitution places limits on the powers of government and how the government must treat us should they want to act against us, which is the requirement of due process, a procedural right. Additionally, Amendment XIV of the Constitution establishes that the government cannot deny any person within its jurisdiction equal protection of the laws. Note, it requires the government to treat persons equally when the government acts against them. Other than limits placed on the government by the Constitution or laws passed by Congress, there is scant mention of how our legal system applies to the operation of government when it acts illegally.
Cementing this disparity of how government relates to its citizens, is that after our Constitution was ratified the federal courts adopted from English courts the doctrine (not a law) of sovereign immunity, i.e. “The King Can Do No Wrong”, which means that no one can sue the federal government without its consent. While the federal government has given its consent to be sued on specific matters (e.g. torts, breaches of contract, copyright violations, open records laws, and violations of civil rights when government officials are acting under color of law), the doctrine of sovereign immunity usually bars citizens from taking legal action against the illegal operations of government.
Our legal system operates on two separate tracks. The first is the law imposed upon ordinary citizens for which we are prosecuted for violating. And since the government has hundreds of thousands of laws it can always find a violation of some law by a person it wants to prosecute.
The second track is the one under which government operates. This second track, due to sovereign immunity, can only enforced if there is a specific statute that allows citizens to enforce it, or by political means, i.e. voting or impeachment. Otherwise, the nation’s courts do not recognize the right of citizens to have standing in a court of law to sue their government unless the government grants that right.
A few examples put this disparity into perspective.
A Navy officer took photographs of a nuclear submarine he worked on and was imprisoned for improperly handling national security secrets. During the same time period a presidential candidate maintained an illegal a secret server in her home that illegally received classified security information and by not properly protecting it the security secrets were obtained by other governments. Because the presidential candidate was closely tied to the sitting president, she was not ever seriously investigated; yet alone prosecuted.
The Federal Bureau of Investigations investigates the alleged criminal activity of one presidential candidate but not the alleged criminal activity of the other presidential candidate who had the backing of the sitting president.
The Department of Justice (“DOJ”) files misleading and dubious applications with a national security court and obtains a court order to spy on American citizens, a felony, if falsely obtained. DOJ and the court both refused to even investigate these illegal actions. If any of us filed a false application with any court we would be subject to criminal prosecution.
Congress issues a subpoena to the DOJ for information on false filings before a national security court. The DOJ refuses to provide Congress with the documents to avoid embarrassment and likely the acknowledgement of criminal activity. By refusing to provide such information the constitutional checks on the other branches of government are eliminated. Imagine what would happen to any of us if we refused to comply with a federal subpoena?
And there is a story in the Washington Times about a senior FBI official who lied to the DOJ Inspector General about accepting free tickets to a professional sporting event. He told the FBI he paid for the tickets, yet he received them free. The DOJ decided not to prosecute, yet several citizens working on the Donald Trump campaign were prosecuted for lying.
The moral of this article is that the government has truly separated itself from us. Government operates in a netherworld of secrecy, deceit, arbitrariness, and finding targets to attack. The government can usually act any way it wants to act, and there is little we can do since we are barred by the doctrine that the “government can do no wrong” and the courts will not grant us standing since they believe we have not been harmed by government’s actions. We are merely citizens without the ability to hold our government accountable.
We, the people, only have control over the parts of the government we elect. We need to fully embrace the only real power our founding fathers gave us, the right to vote which is a legal mechanism for revolution. With our votes we can vote out all elected officials over four years and hope that the new government officials will establish a government that willingly stands before us as accountable servants of the Constitution. Unfortunately, such accountability, under the current legal structure, is voluntary.
This article was first published in The Reality News, November, 2018.