More Equal than Others

One spring, just before the end of the Cold War, my wife and I visited Riga. On a walk, we stumbled upon an informal street market. The goods set out on the pavement and the appearance of the vendors told us that times were tough in Latvia. A young man with very bad teeth standing behind a rickety folding tray with a row of rusty fishhooks on it told me in a mixture of German and English how the Russians had polluted the Gulf of Riga so badly that the fish caught there were not safe to eat.

Suddenly, an olive-colored truck with a tarp stretched over the back rumbled into the market and struck a pedestrian, knocking him to the pavement. The driver of the truck stopped, jumped out, walked over to the guy, who seemed tipsy, yelled at him, smacked him around a bit, then got back into the truck and drove off. The guy sat there for a moment, wiped some blood from his face, got up slowly, and limped off. I looked around. No one offered to help. No one wrote down the license number of the truck. No one looked the least bit surprised. The fishhook seller looked at me and shrugged.

* * *

The social contract can be understood as a deal. You are obligated to act within the law. As long as you do, society is obligated to protect your rights. Should you act outside the law, your rights are subject to forfeiture, which means society can take your property, your liberty, or, sometimes, your life. Even though you didn’t sign the social contract, that’s the way it is, like it or not. (In reality, it’s not so simple, of course, but this thumbnail description will do for now.)

A crucial clause of this unwritten contract is that everyone in society is bound by its terms. Everyone is obligated to act within the law. Whoever you are, should you act illegally, your rights are subject to proportionate forfeiture. On the flip side, society is obligated to protect the rights of everyone. Whoever you are, provided you act legally, society must protect your rights. This is sometimes called equality before the law. Without this clause, the social contract can be said to be void, which means it does not exist. Put another way, this equality clause is a sine qua non of the social contract. (Again, it’s more complicated than that, but that’s close enough.)

In a way, then, there are two kinds of inequality before the law. The first occurs when society fails to protect the rights of someone who has acted within the law. This tends to happen to people who are socially and politically powerless. The second occurs when someone acts outside the law and society fails to impose any consequence, or a proportionate one. This usually happens to the powerful. Only when such a failure on the part of society to protect or to punish happens because of the status of the person in question is it a clear example of inequality before the law. Both kinds of failure result in what is sometimes called a miscarriage of justice.

"Thirty Years on Death Row," a 60 Minutes episode first aired on October 11, 2015, provides a good example of the first kind of miscarriage of justice. Glenn Ford was convicted of murder in 1983, then spent 30 years in solitary confinement on death row in Angola prison before the real killer was identified and Ford was released, only to die a few years later of cancer. Marty Stroud, the prosecutor who sent Ford to prison, confesses that he pressed his case at the trial to get a guilty verdict when he knew that some of the evidence was dubious. He admits that the prosecution was successful only because Ford was a poor black man facing an all white jury. He knew at the trial that the defense team had never tried a criminal case, much less a capital one, and that they were hopelessly overmatched, in both experience and resources.

In 1962, the young, drunk scion of a wealthy family in Maryland angrily struck a barmaid with his cane. She died. The killer was fined $625 and served a six-month prison sentence. This is an example of the second kind of miscarriage of justice, where society fails to punish proportionately. The inadequate sentence prompted Nobel Laureate Bob Dylan to write the song "The Lonesome Death of Hattie Carroll." She was the black barmaid. Society failed in its obligation under the terms of the social contract to adequately punish William Zantzinger, the rich white guy who killed Ms. Carroll.

The distinction between these two kinds of miscarriages of justice can become blurred. Some consider the deaths of Michael Brown and Freddie Gray to be examples of society’s failure to protect the rights of the powerless, while others see them primarily as examples of society’s failure to punish their empowered killers. Still others see the deaths as tragedies or simple misfortunes, but not examples of injustice. Similarly, some think that the rights of Mary Jo Kopechne were not protected by society when Edward M. Kennedy was given a two-month suspended sentence for leaving her to suffocate in a submerged car, waiting nine hours even to report the accident. It has also been said that his real punishment was that he never got the keys to the Oval Office. Did O.J. Simpson escape the consequences of his illegal actions because he was a wealthy celebrity, or was he hounded by the system because of his race? Or is the fate of his wife the greater tragedy? Each purported miscarriage of justice is different and, as has been said, these matters are complicated.

That Secretary of State Hillary Clinton installed a private, unsecured email server in the basement of her house in Chappaqua to conduct both private and government business is not disputed. Neither is the fact that through this server she exchanged emails with people both inside and outside the government, including President Obama. That these emails contained a variety of classified information, including some at the very highest level, is a matter of record. Everyone agrees that a Romanian hacker, who says he breached the server, revealed to the world that it existed and that the secretary tried to cover her tracks. Testimony shows that laptops and Blackberries were destroyed, that the server itself was digitally wiped clean, and that tens of thousands of emails were permanently erased. A few of the emails that were recovered reveal parts of this clandestine effort. (It seems that Hillary Rodham learned a valuable lesson when she helped the House Judiciary Committee prepare the case against President Nixon in 1974: when they ask for the tapes, burn them, especially the 18-and-a-half minute bit about yoga lessons in Benghazi.) A few of her underlings negotiated immunity deals with the FBI, the Fifth Amendment right against self-incrimination was invoked at least once, and the Secretary herself repeatedly said, “I can’t recall.”

I take it as a given that Secretary Clinton broke federal law. Tens of millions of Americans think so, even many of her strongest supporters. I’m pretty sure that FBI Director Comey thinks so, too. And Secretary Clinton certainly knows that she did, unless, of course, she forgot. If you don’t accept this premise, it is suggested that you read the statute in question (focus on Section [f]) and a chronology of the events surrounding the server. If, after reading these, you still think that Secretary Clinton did not act outside the law, well, bless your heart.

On July 5, 2016, Director Comey recommended that the Secretary not be indicted, saying,

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”

Let us do a little thought experiment. Let us say that you sent and received top-secret documents to and from people both in and out of government over your very own unsecured basement server. Let us say that a guy in Romania tipped off the FBI and you tried to destroy the evidence. Where do you think you would be right now? If you answered, “I would be tightly lodged in the slowly grinding wheels of the vast criminal justice system,” you have a firm grasp on reality.

So why did Director Comey conclude that no reasonable prosecutor would indict Secretary Clinton? What factors was he weighing when he decided not to bring charges against her? The evidence of her wrongdoing is certainly strong, there are mountains of evidence, much of it relating to her use of classified documents. It couldn’t be that. The intent to communicate classified government information outside secure, authorized channels is clear. Couldn’t be that. The intent to destroy evidence and obstruct justice is clear. Not that, either. While she probably didn’t intend to share her emails with foreign governments, we know that her negligence makes it entirely likely that she inadvertently did. And since the intent to commit espionage is not required for the statute to be violated, what factors was the director, in fact, weighing?

Now, I don’t know James Comey and harbor no ill will toward him. I do, however, wish to explore the possible motives behind his surprising July 15 decision. In doing so, I may give the impression that I am bringing into question his character. I’m not. I’m simply trying to answer this question: why did he do it?

Could it be that Director Comey realized that Secretary Clinton is not some television cooking show host like Martha Stewart, whom he threw the book at for being less than candid with the FBI about a stock tip a friend had given her? He sent Martha to the big house for her fib, but this is different. After all, Hillary Clinton is the former first lady, the former senator from New York, the former secretary of state, and the current Democratic Party nominee for the presidency of the United States. It makes perfect sense. What reasonable prosecuting attorney would bring charges against someone with such power? That would be an obvious consideration. Why, the wrong choice could end careers: hers, her underlings’, or the prosecuting attorney’s, or, even worse, the career of the director of the FBI.

Or was he thinking back to his time as special deputy counsel to the Senate Whitewater Committee, when he and his colleagues concluded, after thousands of hours of exhausting legal work, that despite the fact that Hillary Clinton had engaged in a “highly improper pattern of deliberate misconduct,” the evidence uncovered just wasn’t enough to ensure a conviction, and it was reluctantly decided not to indict? He probably knew she was guilty, but even then she managed to slip the net (“I can’t recall”). Who’d want to go through that again? Or could it be that he was thinking of how a similar situation was handled in the past, when the secretary’s husband was investigated and charged by Special Prosecutor Kenneth Starr, who was lampooned on every late-night talk and comedy show, who was targeted by mocking books and bawdy stage productions, who was keelhauled by every major media outlet in the country? Could it be that the director glimpsed a Kim Philby-like future, living in exile in some god-forsaken red state, scribbling self-justifying memoirs that the New York Review of Books would never deign to crack?

Or could it be that he had to consider the hierarchical context of the actions in question? Let’s see. Comey’s boss is Attorney General Loretta Lynch. Lynch’s former boss was President Clinton. Her present boss is President Obama. The president appointed the former secretary of state. The former president is the husband of the former secretary of state. Is it possible that Director Comey was gazing at the organizational chart of the USG when he made his responsible decision to let her slide?

Or maybe Director Comey’s considerations were loftier. Perhaps he was looking at a wider context, his gaze fixed upon some greater good. Maybe he realized that if he were to recommend the indictment of the Democratic nominee, he would be increasing the probability that the successor to President Obama would be Donald J. Trump. And maybe, just maybe, he considered that outcome to be less than desirable. If so, consider his dilemma: his clear duty as the director of the FBI was to recommend indictment (ask any FBI agent), but he may have decided that his higher duty as a loyal American was quietly to induce a miscarriage of justice — to abort justice, so to speak, just this once, to prevent a much greater evil from being born. Many would sympathize with this dark impulse.

Could he really have thought that preventing this electoral end would justify these extralegal means? If it is unbelievable that Director Comey consciously considered this, is it just possible that these #nevertrump prejudices could have given his other rationalizations for letting the secretary skate that last little, but necessary, subconscious nudge? The NPR radio piece, “How the Concept of Implicit Bias Came Into Being,”broadcast on Morning Edition, October 17, 2016, lays out the latest science that explains how the director’s decision could have been guided by forces of which he was not even aware. Seriously. You can listen to it here.

But no, to assign these motives to Director Comey would put him on the ethical level of John Wilkes Booth, who was sure that Providence had sent him to smite the tyrant with his own hand. To suggest that the country’s top cop adopted the ethics of the assassin, putting himself above and outside the law, might be unfair. And if his sole motive was to stop Trump, it wouldn’t be a very good example of inequality before the law, would it? Sure, failure to punish would still make him a bit of a weasel, but it wouldn’t, strictly speaking, be because Secretary Clinton’s power was shielding her from the law so much as because Director Comey feared Donald J. Trump more than he feared her. In any case, motives are often mixed and hard to discern, as Director Comey can, and perhaps will, testify. But I rant.

What now? In a more perfect world, Secretary Clinton would call a presser, preferably before Election Day, and say, “I did it.” This would be the right and proper thing to do. But while Secretary Clinton may surprise us all and be a very late bloomer in the personal integrity department, it is unlikely. So it falls to Director Comey to man up and say, “She did it.” You are not advised to hold your breath.

Here is the way the cookie will crumble. Come January, Hillary Clinton will look the compliant Chief Justice Roberts squarely in the eye and swear to him, under oath, mind you, that she will defend the Constitution of the United States. At that moment, tens of millions of Americans gazing at their gigantic flat screens will blink. And in that instant, the world will change, for they will realize that, in this country at least, there is no longer equality before the law. There will be a loud crack, as the social contract is broken. And there will be a loud pop as that contract ceases to exist. The mutual obligations it stipulated will disappear like so many emails in a vat of BleachBit. And what will happen then?

Let us hit pause here and reflect that no one has to die for a miscarriage of justice to occur. In 1992, the policemen who had beaten Rodney King were acquitted. Many thought that this was a miscarriage of justice that violated the terms of the social contract, rendering it void. They believed that their obligation to act within the law had ceased to exist. The riots that followed resulted in 55 deaths. The 2011 Occupy Wall Street movement was fueled by the perceived injustice of banking executives, the people who were thought to have caused the financial crisis, successfully slipping the net. Tens of thousands demonstrated in various ways all around the country. Thousands were arrested. It was felt that the powerless had lost their homes and fortunes while the government busied itself bailing out the powerful who had caused those losses. We are the 99%.

When people feel that there is no longer equality before the law, and the social contract has been broken, the result might be a demonstration, a riot, or even a revolution. The March on Washington and the Los Angeles Riot of 1992 were about equality before the law. The American Revolution itself was in large part about the British subjects in North America being treated differently from those in England. The grievances in the Declaration of Independence are a litany of this unfair and unequal treatment. On a personal note, I was in Beijing in 1989, and in Tiananmen Square a few days before the massacre. It is underreported today that one of the key grievances of the students who started the demonstrations was that the children of powerful Communist Party leaders were afforded wealth, privileges, and opportunities that no one else could even dream of. As those children were also often lazy, overweight, and incompetent, they were mockingly called “rice bags,” as they were only good at consuming, not producing. The problem with these “princelings” continues to be a sore point in China today. There is one law for them and another law for the powerless masses. And where there is no justice, there often is no peace. Hit pause again.

What will happen when Hillary Clinton says, “so help me God”? I don’t think that there will be a revolution, do you? I mean, are you going to man the barricades? No riots, either. There may be a demonstration or two, but it won’t amount to much. No, what will happen is that tens of millions of people will see the law as less important than they did the day before. The small voice that says not to break the law will be harder to hear. The pang of guilt that is felt when the law is broken will be less sharp. On a scale of one to ten, that pain will fall from an 8 to a 2, give or take.

Then, when the law comes between one of these millions of people and something he wants, whether it’s a little illegal protection against Freedom of Information Act requests or a charitable donation from a foreign potentate buying a favor, or even a simple fraudulent tax deduction, he will be more likely to follow the example of his leader and break that law. Taking his cues from his president, he will weigh not the legality of the act but the probability that charges will be brought. Then, if he is caught breaking the law, he will do everything he can to destroy and conceal the evidence, and, if questioned about the alleged violation, he will lie as necessary. And should this citizen be placed under oath, he will follow the example of the leader of the free world and say, “I can’t recall.” That is what will happen.

* * *

Looking out from the top floor restaurant of the Intourist Hotel in Riga, my wife and I spotted a church spire less than a mile east. It looked like it had been plucked out of Chicago. We set out on foot. It turned out to be a late 19th-century Lutheran brick church ringed by a cobblestone traffic oval, surrounded by six-story Germanic townhouses of about the same age that had fallen into disrepair. Across the street from the front of the church, occupying one of the old townhouses, was some sort of military headquarters, with olive-colored Russian jeeps in front. Disappointed to find the arched doors of the church boarded up, we decided to walk around it.

On the side of the church, under another arch protruding from the basement, was a small door that was ajar. Pushing the door open, we stepped into a dark, vaulted hallway that turned immediately to the right. There was a dim bare bulb 20 or so feet ahead, with a poster behind it in Latvian that showed a fist, if I remember it right. It might have shown manacles being broken. I’m not sure. Hearing muffled voices, we turned left and found ourselves at a counter, behind which were 20 or so people working at poorly lit tables under a low groin-vaulted brick ceiling. A young man with an emerging mustache approached us, asked something in Latvian, quickly gave up and left, only to return with a young woman who spoke some English.

She explained that they were preparing for the election of a shadow government that would be ready to step up if the Russians were to grant independence. I think she said that it would oversee the drafting of a new constitution and the creation of a new democratic government, as opposed to a democratic people’s republic. She gave us a roster of the candidates, with names, photos, nationalities, and other information. I remember that some were Russian. There were two collection boxes on the counter. One was to help pay for the election, the other to help restore and reopen the church. I asked if she really thought that the Soviet Union was going to leave and allow the Latvians to be free. Her eyes teared up as she said, “We have to believe this.”

I remember thinking: here, in the dimly-lit basement of a boarded-up church under the shadow of a foreign regime whose bizarre idea of a social contract is based on fear, power, and obedience, with no rights worth mentioning, a regime whose historical resume is long on serfdom and autocracy and short on democracy and freedom, these people are attempting to forge an authentic social contract. Here, they are daring to bring back to life a country that has been smothered by decades of injustice, and occupied by foreign powers for centuries before that. They want to create a country where the people make the laws and the people act within the laws, knowing that society will protect their rights and enforce those laws, knowing that when someone, anyone, no matter how powerful, acts outside the law, society, in the name of the people, will fulfill its obligation to punish that person proportionately. I thought: they are sick and tired of living in a country where miscarriages of justice are so commonplace that when they occur people simply shrug.

I had not been so moved since Old Yeller died. I broke my long-standing policy of not donating to religious or political causes and put some money in both boxes. Not much, but some.

* * *

Today, I had to go to Google Earth to find the church, because I couldn’t remember its name. It is St. Gertrude’s Old Church. Here are some photos. Have a look. Go ahead.