How are the public meant to trust the rule of law? A ‘single and proper standard of justice’ has not been scrupulously, or even half-heartedly, applied to the Trump-Russia story Roger Kimball
You have to hand it to the New York Times. They certainly know how to spin a story. Yesterday, Attorney General William Barr answered some questions about the ongoing criminal investigation into the so-called ‘Russian collusion’ inquiry conducted by Robert Mueller and other people in the FBI and the Obama administration. He did not expect, he said, ‘based on the information I have today,’ that either President Obama or Vice President Biden would be the subject of a criminal investigation. ‘Our concern over potential criminality,’ he continued, ‘is focused on others.’
Perhaps that acknowledgment would be grounds for sighs of relief from Martha’s Vineyard and wherever Joe Biden’s basement is. But what do you think of this headline from the Times: ‘Barr Dismisses Trump’s Claim That Russia Inquiry Was an Obama Plot.’ Is that what Barr’s statement meant?
Not exactly. Here is part of what he said:
‘What happened to the president in the 2016 election and throughout the first two years of his administration was abhorrent. It was a grave injustice and it was unprecedented in American history. The law enforcement and intelligence apparatus of this country were involved in advancing a false and utterly baseless Russian collusion narrative against the president.’ (My emphasis.)
Run that through your cerebral cortex. Does it mean ‘Barr dismisses Trump’s claim that Russia inquiry was an Obama plot’?
How about this:
‘The proper investigative and prosecutive standards of the Department of Justice were abused…in order to reach a particular result. We saw two different standards of justice emerge, one that applied to President Trump and his associates and the other that applied to everybody else. We can’t allow this ever to happen again. The Durham investigation is trying to get to the bottom of what happened, and it will determine whether there were any federal laws broken. And if there were, those who broke the laws will be held to account.’
‘Those who broke the law.’ Did President Obama? I do not know. I speculate that he abused his power. But, as Mr Barr also noted, ‘there’s a difference between an abuse of power and a federal crime. Not every abuse of power, no matter how outrageous, is necessarily a federal crime.’ We do not, Mr Barr went on to say, perpetuate justice by making this a game of ‘tit-for-tat.’
Let’s grant that. At the same time, if Mr Barr is in earnest about stopping this ‘vicious cycle’ and breaking free of ‘a dual system’ of justice then we need to ‘make sure that we scrupulously apply a single and proper standard of justice for everybody’. As of this writing, that has not been done. As proof, I ask you to contrast the treatment of people like Michael Flynn, Carter Page, Paul Manafort, George Papadopoulos, Roger Stone and Donald Trump, on the one hand, and James Comey, John Brennan, James Clapper, Andrew McCabe, Peter Strzok and Lisa Page on the other. One group gets dawn raids from SWAT teams, indictments, fines, and prison terms. The other group get lucrative contracts with CNN, MSNBC, and other media outlets, not to mention plump book contracts and speaking fees. So far, a ‘single and proper standard of justice’ has not been scrupulously, or even half-heartedly, applied.
Indeed, just yesterday we learned that the Treasury Department under Obama was surreptitiously rifling through financial records of Gen. Flynn, Mr. Manafort, and various members of the Trump family and members of Congress. According to a former senior Treasury Department official, Obama’s Treasury Department ‘regularly surveilled’ Flynn’s financial records and transactions beginning in December 2015 and well into 2017. According to the whistleblower, the surveillance ‘was not tied to legitimate criminal or national security concerns, but was straight-up political surveillance.’
Maybe the surveillance in question will play into the Democrats’ plans to open new impeachment hearings against President Trump. The Dems told the Supreme Court that they need grand jury evidence from the Russia probe because they failed to remove the President from office in their last go around and they want another shot at the target.
They didn’t put it like that in their filing, but that’s what their new inquiry into ‘possible obstruction of justice by the President’ amounts to: an abuse of prosecutorial standards, as AG Barr put it, ‘in order to reach a particular result’.
The Attorney General’s comments about prosecutorial probity are well taken. As an insightful friend of mine observes, the courts should not be in the business of dispensing poetic justice. Prosaic justice, for which demonstrable evidence of criminal activity is necessary, is the court’s purview.
That said, it is worth keeping the element of trust in mind. The rule of law depends upon public trust that, so far as is humanly possible, there are not ‘two different standards of justice’ at work. That trust has been grievously and repeatedly violated by the ‘unprecedented’ and ‘abhorrent’ ‘grave injustice’ visited not only upon Donald Trump but also upon the American people by ‘the law enforcement and intelligence apparatus of this country’ which assiduously advanced the ‘false and utterly baseless Russian collusion narrative against the President.’
In my view, those espousing a ‘higher loyalty’ to the intoxicating perfume of their own supposed virtue, as opposed to a prosaic loyalty to the rule of law, have made themselves fit candidates for the astringent scrutiny Mr Barr spoke of in his invocation of ‘single and proper standard of justice for everybody’. That standard has been willfully, indeed ostentatiously, disparaged. It is time to resuscitate it publicly for all to see.
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