The Fifth Stage

     The Comey announcement of yesterday has elicited hurricanes of commentary from coast to coast, and in other lands as well. Many persons have taken it as foreordained – i.e., that we should not have expected a criminal indictment against a Clinton, a member of the most notorious crime family with the broadest reach in the United States. Others have speculated about whether the FBI director had been “paid off” with an offer of a position at the Clinton Foundation, or “warned off,” such that he feared that the Clintons and / or their allies would take personal vengeance on him for recommending an indictment. Others have concurred in the assessment that this is merely one more indication that “Laws are for the little people.”

     My focus on the nature of American law inclines me in a somewhat different direction.

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     The central principle of American law is constitutionalism: i.e., that there is a Supreme Law of the Land knowable by all, and that all other laws must be compatible with it. No particle of the U.S. Constitution is more explicit:

     This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [Article VI, Section 2]

     Without a Supreme Law, no other law can be popularly evaluated for validity or justice. Of course, there’s more to it than that, for the Supreme Law itself is subject to evaluation, which is why the Founding Fathers incorporated a provision for amending it. In any case, the concept of a Supreme Law that has the “essential consensus” (Milton Friedman) of those over whom it rules, and with which all legislated laws must conform, has been fundamental throughout our history.

     The portion of our Supreme Law that’s of particular importance today is Amendment XIV: specifically, this portion:

     All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added by FWP.]

     Now, the clause above refers explicitly to the states, which in constitutional language exempts the federal government from its power. “Incorporation doctrine” has been variably applied by the courts, and usually downward, such that provisions at one time believed applicable only to the federal government became imperative against the states. However, no jurist has ever held that it does not bind the federal government. Girouard v. U.S. (1946) explicitly applied the Equal Protection clause to the federal government, nor have there been any rulings to the contrary since then.

     Along with the more common interpretation of “equal rights,” “equal protection” is supposed to mean equal enforcement: i.e., that no one shall be denied the enforcement of a law against another party simply because the accused party is “special.” In that regard it’s the Constitutional statement of the Rule of Law, which until then had been a part of American legal practice only by implication from our common understanding of justice.

     Comey’s decision not to recommend the indictment of Hillary Clinton under the National Security Act flies in the face of the equal protection doctrine. It openly mocks the Rule of Law as it’s been understood since the Founding. It disparages the Constitution (as amended) as the Supreme Law of the Land.

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     Many persons are authorized to access classified material. Before being granted access, all such persons are required to affirm that they’re aware of the provisions of the applicable laws. Those laws dismiss “lack of intent” as a defense for the mishandling of classified information. To this point, none of those brought to trial under the “gross negligence” provisions of the National Security Act and / or the Espionage Act have been deemed exempt from its enforcement. If she is not indicted and tried, Hillary Clinton will be the first.

     What justification can there be for such a departure? What could Comey or any of the others involved in this train of events say to those who’ve been punished for “gross negligence?” Is there any conceivable train of logic that could rationalize punishing some but not others for exactly the same offense?

     To these old eyes, it appears that Hillary Clinton is getting off because to the powers that be, she’s “special.” They regard her as “one of us,” and therefore exempt from the laws that bind those of us outside their circles. The Rule of Law as expressed by Amendment XIV is limited in its scope to those not admitted to the councils of the powerful.

     If Comey’s decision stands, it will be the first blatant announcement of an American aristocracy in my memory.

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     The late Elisabeth Kubler-Ross formulated a concept of grieving divided into five stages:

1. Denial of the onrushing loss;
2. Anger and a frenzied lashing-out;
3. Bargaining in an attempt to avert the loss;
4. Depression and disengagement from the rest of life;
5. Acceptance of the inevitability of the loss and preparation for it.

     There is some overlap between adjacent stages, but one thing is quite definite: the process is unidirectional. It cannot be reversed. No one retreats from bargaining to denial. No one can back away from depression to anger. Acceptance, the fifth stage, is final.

     Those of us who love freedom and have cherished the United States of America as its torchbearer have lingered in the third and fourth stages for some time. With the Comey announcement (and the high probability that no indictment will ensue), we tremble upon the border of the fifth stage: the acceptance that the country we have loved and have hoped to rescue from the pits of tyranny has “gone over the edge,” and cannot be rescued by any human effort.

     Once loss has been accepted, it is irreversible. No one ever retreats from the fifth stage of grief. What will follow is anyone’s guess.

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     Though he makes no explicit linkage to this travesty of justice, Dystopic’s essay of today offers a number of relevant insights. I highly recommend it.