by Victor Davis Hanson
That once distinguished the United States from illiberal regimes following the Orwellian mantra “some are more equal than others” was the hallowed American idea of “equal justice under the law.”
The phrase is engraved above the entrance to the United States Supreme Court – an ideal that took centuries to achieve. Yet it is an ancient concept – what the Greeks called isonomia that distinguished classical democratic Athens from its anti-democratic rivals. Isonomia later became enshrined as the central criterion of all Western consensual governments.
Does it still exist in Joe Biden’s America?
In many ways, no – due both to state and private vendettas as well as state efforts to destroy rather than merely defeat political opponents.
Is the law equally applied at the border?
Ask yourself whether you are more likely to be hounded by the federal government for not being vaccinated if you are a citizen in the U.S. military, or illegally violating federal immigration law as you storm the southern border?
Who needs a passport to leave and enter the United States – a citizen or an illegal alien?
If you nullify federal law and refuse to hand over a detained illegal alien to federal immigration agents, are you more or less likely to be prosecuted than someone who likewise deliberately seeks to nullify federal law by bulldozing on his property a nest of federally protected squirrels?
What tradition of Western jurisprudence allows violent criminals in America’s largest cities to be released upon booking?
What law states they are instantly free to commit more crimes without worry of incarceration or punishment, while those accused of illegally parading sit in jail for years awaiting charges?
Is it a greater crime in this republic to walk peacefully through an open door into the Capitol, as at least some who were charged as a result of January 6 did, or to beat to near death an innocent bystander as many do who are released after arrest?
As far as that reprehensible, buffoonish January 6 riot, compare the treatment accorded to those hundreds – many guilty of “illegally parading or “demonstrating in the Capitol” – with some 14,000 who were arrested in 120 days of rioting, looting, arson, assault, and murder during the spring and summer 2020 riots.
Did the FBI spend over a year tracking down the names of those known from videos who torched federal buildings, murdered those in the street, sought to storm the White House grounds, and set up no-go zones in downtowns?
To incite the January 6 riot was prosecuted as a crime, but Kamala Harris, who was soon to be a vice-presidential candidate in the summer of 2020, could incite with impunity. Even more, she helped to raise bail for violent offenders during those riots and said of the summer-long “protests” shortly after the violent attempt to storm the White House grounds:
But they’re not going to stop. They’re not going to stop, and this is a movement, I’m telling you. They’re not going to stop, and everyone beware, because they’re not going to stop. They’re not going to stop before Election Day in November, and they’re not going to stop after Election Day Everyone should take note of that, on both levels, that they’re not going to let up – and they should not. And we should not.
What do those who had recently torched the historic St. John’s Episcopal Church take away from Harris’ adolescent greenlighting?
After all, Harris essentially promised continued protests, which she knew had so often turned terribly violent and descended into death and destruction. Were her insurrectionary calls a crime or at least worthy of a cell phone grab? A leg iron? A squad of FBI vehicles swarming her car?
Is questioning an election outcome a crime? Or even taking steps to challenge the elections?
That is, did a John Eastman have the power of former Senator Barbara Boxer (D-Calif.) and current January 6 committee chairman Benny Thompson (D-Miss.), who, with little or no evidence, took far more dramatic measures in 2004 to reject the Ohio electors and thus attempt to nullify that year’s presidential election results?
Did Stacey Abrams “undermine democracy” by touring the country denying she had been beaten in the Georgia gubernatorial election by some 50,000 votes? Did Hillary Clinton again undermine election integrity when she publicly urged Joe Biden not to concede the 2020 election if he lost the popular vote, or claim that Donald Trump was not the legitimate president of the United States?
Does Article 88 of the Uniform Code of Military Justice apply to some, none, or all retired high-ranking military officers?
What are we to make of retired lieutenant colonels who urged the military well before the 2020 election to remove Trump from office if they thought he questioned the election?
When generals and admirals called their commander-in chief a Mussolini-type character, a liar, like the Nazis, akin to the architects of Auschwitz, or wrote that the “sooner the better” he should be removed, were those violations to be prosecuted?
Did retired officers have their businesses or employers’ contracts with the Pentagon nullified?
Or was it only a more obscure retired officer, such as Lt. General Gary Volesky? He was a conservative who tweeted that the first lady (not the commander-in-chief) sounded hypocritical on the issue of abortion – and thus was fired as a Pentagon consultant. Was that equal administrative justice?
Is there really a Logan Act, the ossified 18th-century statute under which no one has ever successfully been prosecuted? It depends.
In 2016 James Comey’s FBI and the Justice Department interim head Sally Yates used that ruse as a pretext to set a perjury trap for National Security Advisor designate retired Gen. Michael Flynn. But did not former Secretary of State John Kerry meet stealthily with Iranian high officials during the Trump Administration to reassure them that the Iran Deal could be salvaged after the Trump tenure – a deliberate Logan Act subversion of his then government’s foreign policy?
Is it a crime to withhold presidential papers from the National Archives? Was that Donald Trump’s sin: that he did not more carefully and officially declare documents at his residence as unclassified or his own personal papers?
Was that a clumsy way of doing what George W. Bush did in 2001 when he simply issued an executive order allowing an ex-president or his heirs to veto release of presidential papers? Did FBI agents with guns enter one of the Obama mansions to discover why ownership of thousands of pages of his personal papers was still in dispute?
Did the FBI raid the home of the late Clinton-Administration National Security Advisor Sandy Berger to see whether he sought to hide or erase other documents, in addition to those he stole from the National Archives and destroyed? Was he ever frog-marched or put in leg irons?
What were minor celebrities and politicians trying to do in December 2016 when they cut commercials begging the electors not to follow their federally mandated roles in voting in accordance with their states’ popular votes? Were they pointing a “dagger at the heart of democracy”? Were they “insurrectionists”?
Conspiracy is a word that the Biden Administration reintroduced to the American discourse after a hiatus since the 1950s and 1960s. And the Left was eager to charge hundreds with conspiracy for storming the capitol or “colluding” with Russia to rig the 2016 election.
But Molly Bell in a 2021 Time essay proudly also used that word in the scariest sense in modern memory. She outlined how the Left, quietly with the DNC, unions, the anarchic left-wing street, and corporate help, all modulated the violent protests to ebb before the election and to be ready to flow again should Biden have lost.
She bragged how nearly $500 million of Silicon Valley dark money was funneled into key preselected precincts to essentially absorb the work of state and local registrars. She gushed how the Left conspired with Silicon Valley to monitor and censor any expressions and opinions on social media felt to be detrimental to the Biden campaign.
Did federal prosecutors pursue racketeering charges against any she named?
Speaking of “conspiracies,” was it legal for Hillary Clinton to hire a foreign national as a campaign helper to spread lies and dirt on her political opponent, even as she hid her role through the DNC, Perkins Coie law firm, and Fusion GPS? What did she have to hide?
Did James Comey’s FBI likewise conspire to interfere in an election by also hiring members of Clinton’s opposition hit team, specifically Christopher Steele and Igor Dyachenko, as FBI informants?
Was all that “democracy dying in darkness”?
That illegal effort to use the federal government to disrupt an election makes the clownish attempt of the Trump keystone cop team to question the electors look like child’s play. Will current National Security Advisor Jake Sullivan be pulled over driving home by an FBI fleet eager to seize his cell phone to ascertain fully his conspiratorial role in 2016 pushing the phony Trump Tower pings, Steele dossier, and collusion hoax to warp a federal election?
How about using equal justice in investigating supposed conspiracies and real violent demonstrations?
Did the FBI team, which monitored school kids’ parents to report back to Merrick Garland about their supposedly racist opposition to critical race theory, also ever monitor Twitter and Facebook to anticipate the next planned riot location of Antifa and BLM? Is it now investigating all the stolen money and diverted funds used for personal extravagance by BLM’s fraudulent leadership?
Donald Trump is continually audited for possible tax violations. Fine, but, given Hunter Biden’s laptop and the testimony of the Biden family co-grifters, has any Biden ever been under serious investigation for not reporting tens of millions of dollars in shake-down money, or gifting millions to Biden children?
How about lying under oath or to federal investigators? Are those activities still crimes?
Could a citizen swear under oath to IRS investigators, as James Comey did under oath to Congress on 245 occasions, that he did not know what was asked or could not remember?
In that context, what do ex-CIA head John Brennan, ex-Director of National Intelligence James Clapper, and ex-FBI interim director Andrew McCabe all have in common?
1) They all lied either under oath to Congress or to a federal investigator. 2) They all faced no criminal liability by committing such felonies. 3) Their animus and zeal in pursuing enemies were seen to be useful to the Left and thus they were rewarded by being hired as analysts at either MSNBC or CNN.
Is leaking or improperly possessing classified or confidential government information still a crime?
It seems that is one of the accusations against Donald Trump: that he had in his possession classified federal property that might have been insecure.
In contrast, was it a felony to leak to the media a rough draft of a confidential Supreme Court opinion – with the intent of helping to either undermine or change it? Was the unidentified, unprosecuted leaker a felon or a hero?
Were Trump’s boxes at home as insecure as the confidential, memorialized memos that James Comey wrote on FBI devices shortly after a confidential one-on-one conversation with the president of the United States, which he then deliberately leaked through a third party to the New York Times?
Was all that a conspiratorial gambit to fuel public pressure for a special prosecutor for the Russian collusion hoax? Was that not a clandestine effort that worked brilliantly in the appointment of his friend, former FBI Director Robert Mueller?
As special counsel, Mueller went on to waste 22 months and $40 million to prove that Russian collusion was a Clinton-FBI generated hoax as critics had insisted from the very outset of the appearance of the Steele dossier. Mueller was successful only in wounding an administration through the deliberate, daily leaked rumors that instantly became “walls are closing in” and “bombshell” media lies.
Is it a crime to threaten a Supreme Court justice?
Sen. Chuck Schumer (D-N.Y.) did just that in front of the Supreme Court doors, when he riled up protestors by threats to individual justices:
I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.
Had Sen. Mitch McConnell (R-Ky.) done the same and warned both Justices Sotomayor and Kagan that the two “won’t know what hit you,” what would the Biden Administration have done?
It is a felony to mass at a justice’s home, and threaten his person, in attempts to warp a judicial ruling? Attorney General Merrick Garland saw no problems when a left-wing mob descended on the homes of Justices Gorsuch and Kavanaugh. No one was arrested or indicted. No wonder an admitted would-be assassin later felt he could approach, with impunity, the Kavanaugh residence or that a mob could, with impunity, drive him out of a restaurant.
Again, would Garland have stood by had a MAGA crowd swarmed the home or the dinner table of Justice Ketanji Brown Jackson? For that felony, most would likely still be sitting in jail awaiting charges.
Is it a crime to destroy subpoenaed property?
Currently, that is one of many unproved charges floated to justify the raid on the Trump home. If it is, Hillary Clinton destroyed thousands of subpoenaed and likely improper or illegal emails. She even ordered her assistant to destroy devices that might have risked leaving electronic prints of them.
The Mueller investigation’s FBI team simply shrugged that its phone data of its employees under federal subpoena were “mistakenly” wiped clean. Were any of these miscreants tried for defying a court order? For obstruction of justice?
In today’s America, it is a far greater sin to illegally parade at the nation’s Capitol than to burn down a federal courthouse in Portland.
A policeman who recklessly puts his knee on the neck of an ex-felon suspect, contributing to his death in custody, will be known to the nation in 24 hours as the most hated man in America and destined for a life behind bars. To add that the suspect was high on fentanyl and methamphetamines, violently resisting arrest, apprehended after committing a felony, striking officers, and in the past a convicted home invader who stuck a gun to the womb of a pregnant woman is irrelevant.
But not the same case is a Capitol policeman, with his own record of reckless conduct, who lethally shoots an unarmed female suspect and military veteran, for the misdemeanor crime of unlawfully entering through a window.
Unlike the former, the latter will not be immediately identified. His picture will not be splashed over the media. The results of the investigation into his conduct will instead be suppressed for months. And his critics will be smeared as racists. And the deceased? She will be slandered postmortem as a nut and pervert, while George Floyd was memorialized with a halo and angelic wings.
So, what has happened to blind Lady Justice?
The new Antifa/BLM/Squad/socialist Left filtered into government and absorbed the Biden Administration. It knows it lacks majority public support, so it has weaponized the justice system to punish enemies and ignore the crimes of allies – all to be excused by its morally superior ends that justify the use of such discreditable means. And the Left wishes to send a message to Americans: We are serious and mean business. So, join us, and receive indemnity from the federal government; oppose us and watch your back.
The result of all this is that America is not quite America anymore. We are now a revolutionary society in decline that uses the courts, prosecutors, the administrative state, and the law itself to punish enemies, help friends, and declare such asymmetry “social justice.” There is no equality under the law, but simply “some are more equal than others.”
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Victor Davis Hanson is a distinguished fellow of the Center for American Greatness and the Martin and Illie Anderson Senior Fellow at Stanford University’s Hoover Institution. He is an American military historian, columnist, a former classics professor, and scholar of ancient warfare. He has been a visiting professor at Hillsdale College since 2004.
