The Search of Trump’s Home + the 5th Amendment
We must of course remain vigilant that laws not be used to harass or destroy political opponents. A Wall Street Journal editorial of this morning says as much. But this is not a reason for rulers or former rulers to be above the law like dictators.
The fear of Leviathan—the all-powerful state modeled by Thomas Hobbes—and a certain mistrust of those in power are inseparable of the classical liberal and libertarian tradition. A rule of law developed that is supposed to apply equally to government rulers. The constitutional structure is meant to prevent statocrats from treating the res publica as their private thing. (Res publica, which means “public thing” in the sense of “public affairs” in Latin, ultimately gave the word “Republic.”) Countervailing powers and institutions provide incentives to statocrats not to pursue authoritarian temptations. We have good reasons to think that controls over government have become much too weak. (Nobel economist F.A. Hayek has done important work in that area.)
The strongest argument against the state—all levels and branches of government—is that there is no way to prevent even liberal rulers from nurturing the democratic Leviathan, which will become impossible to control. (See Anthony de Jasay, The State.) As the Latin poet asked, “Quis custodiet ipsos custodes?”
When we live under a state, the truly dangerous abuse of power does not come from the constraints imposed on rulers and their agents. It does not show in the search of the home of a former ruler who is apparently suspected of stealing public documents related to his tenure at the res publica. It is instead the sort of abuse of power targeting ordinary citizens, who have come to be engulfed in a net of minute and complex laws and regulations. Looking at the federal government only, the number of restrictions and obligations (estimated by the number of the words “shall,” “must,” “may not,” “required,” or “prohibited”) contained in the Code of Federal Regulations has gone from less than 500,000 in 1970 (the first year the data is available) to more than 1.3 million in 2021 (according to the latest version of RegData developed by Patrick McLaughlin at George Mason University’s Mercatus Center). Some 8% of American adults have a felony record, which means they remain “convicted felons” for their whole lives (Sarah K.S. Shannon et al., “The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948-2010,” Demography, vol. 54 ).
Note that none of the recent presidents and very few politicians have done anything, or even indicated any intention of doing anything, about this evolution. Even the “law and order” types, overt of covert, target their toughness towards the groups of citizens they don’t like, not against the holders of power.
It is mainly rulers and government agents who need to be surveilled and controlled, including the Department of Justice and the FBI, as well as presidents for what they do (or did) during their tenure.
As I was putting the last hand on this post, the Wall Street Journal reveals that Mr. Trump has just pleaded the Fifth Amendment—probably repeatedly as his acolytes have often done in other proceedings—in an unrelated affair of “fraud” investigated by the New York Attorney General. Afterwards, Trump made a remarkable declaration (“Trump Invokes Fifth Amendment Rights in Deposition for New York AG James’ Civil Investigation,” Fox News, August 19, 2022):
I once asked, “If you’re innocent, why are you taking the Fifth Amendment?” Now I know the answer to that question.
Better late than never, but this guy was the president of the United States! Let us hope that the American institutions meant to protect individual liberty can withstand the 2016 election of Donald Trump.