Worldwide some financial institutions are “too big to fail”, the economic version of George Orwell’s Animal Farm pecking order: all financial institutions are created equal but some are more equal than others. In the United States that “more equal” double standard is being applied to high crimes and misdemeanors, the “too big to jail” rule.
There are two standards when applying the rule of law to illegal, unlawful criminal acts. The first is the standard applicable to private persons, say Edward Snowdon now accused of leaking classified NSA documents or Daniel Ellsberg once accused but never prosecuted for the publication of the secret Defense Department study on the folly of the Vietnam War. The second is for government officials, either elected or appointed, who are held to a higher standard due to the trust that is commensurate with the power that has been vested in them.
The first rule is not constant; it changes from individual to individual depending on circumstance – today’s traitor is tomorrow’s hero. It is the second, the rule of law controlling the actions of government officials, either elected or appointed, that has now become subject to the too big to jail rule subject to a “get out of jail free Monopoly card”.
Last week the Obama administration brokered a deal with the Taliban exchanging five Guantanamo detainees for an American prisoner of war. I am not going to argue the pro and cons of the exchange. That is a policy foreign affairs question which is exclusively within the province of the Executive branch. What I am going to do is simply point out that the President has broken the law, apparently with impunity.
The National Defense Authorization Act requires that the Secretary of Defense to “notify the appropriate committees of Congress at least 30 days before the transfer or release of a detainee held at Guantanamo Bay”. Chuck Hagel, the Defense Secretary testified this week that he intentionally and knowingly ignored the law. When asked directly if the Obama administration had “complied with the law as written, Hagel responded ‘No’”.
Hagel evaded responsibility by pinning the crime on Obama. “We believe [that] … the President has the constitutional authority to do that” he testified, “[h]e had the authority to make the decision”, to break the law. You can break the law when you claim that “exceptional circumstances” so warrant. The President and his administration “did what we believe was in the best interest of our country, our military and Sergeant Bergdahl”, the law be damned. But that does not excuse Chuck’s individual responsibility to respect the law as it written and in force.
On March 12, 2013 while testifying under oath before the United States Senate National Intelligence Director James Clapper committed perjury; he out and out lied. What follows is the actual testimony:
Senator Wyden: “I hope we can do this in just a yes or no answer… Last summer, the NSA director [Keith Alexander] … was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘The story that we have millions, or hundreds of millions, of dossiers on people is completely false’ … So what I wanted to see if you could give me a yes or no answer to the question: Does the NSA collect any type of data at all on millions, or hundreds of millions of Americans?”
Clapper: “No, sir” [emphasis supplied]
Wyden: “It does not?”
Clapper: “Not wittingly. There are cases where they could inadvertently perhaps, collect, but not wittingly.”
Edward Snowdon’s “criminal” disclosure of classified NSA documents put the lie to Clapper’s testimony. Clapper continues to stand by his testimony: “[s]o I responded in what I thought was the most truthful or least untruthful manner by saying ‘No’”. Notwithstanding his perjured testimony Clapper still serves as the President’s National Intelligence Director.
Disregarding the law is not limited to the Executive branch; the practice is alive and well in the Judiciary. Supreme Court Justice Clarence Thomas’ wife was employed by the Heritage Foundation and Hillsdale College from 2003 to 2007 and was paid at least $685,000. The Ethics in Government Act requires officials, including Supreme Court Justices, to provided disclosure of their, their spouses’ and certain dependent’s income and liabilities every year. Failure to do so in a timely and truthful fashion makes the official liable for late filing fines, civil liability for willfully filing false information and criminal prosecution. Eric Holder, the Attorney General, turned a blind eye to this violation of law.
The financial disclosure law required Justice Thomas to disclose his wife’s income, the $685,000 she was paid. For 4 years Justice Thomas failed to disclose that income even after certifying “that all information given [including information pertaining to my spouse and minor or dependent children, if any] is accurate, true and complete to the best of my knowledge and belief.” He did so after being advised that “any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil and criminal sanction”. Had I failed to disclose my wife’s income on my Federal Income Tax returns Eric Holder’s prosecutors would have me answering a criminal indictment.
The 14th Amendment makes it clear that the state may not “deprive any person of life, liberty or property, without due process of law”. This has not deterred President Obama from authorizing and ordering extra-judicial execution of American citizens abroad.
These four examples come readily to mind but there are many other crimes that have gone unpunished. Why? We have been sold the bill of goods that some institutions like large national banks, are “too big to fail”. Making these institutions pay for their transgressions would invite disaster so we close our eyes and give them a pass.
The same holds true for US government officials that are deemed too “important to jail”. Can you imagine a Supreme Court Justice indicted for willfully failing to disclose his wife’s earnings? Or the National Security Advisor charged with criminal perjury? Or the Defense Secretary impeached for violation of law? Or a President charged with Homicide in the 1st Degree? Well I can, otherwise we can just abandon the idea of the rule of law.
Deyan Ranko Brashich, an attorney, writes from New York City and is a frequent contributor. He is the author of “Letters from America” and “Contrary Views” His contact and blog “Contrary Views” is at www.deyanbrashich.com.
 The “Get out of Jail Free” card is an important element of the American board game Monopoly and is commonly used to describe someone who is assumed to be above the law, because of their job, their nationality or their relationship with powerful people.