One Law For Us And One Law For Them – Divided We Stand United We Fall

The societies we live in rely on rules and laws to function correctly. We all need to know what is acceptable and what isn’t. If we don’t have one agreed set of rules, we’d be reliant on everyone making their own personal judgements on what is reasonable and what isn’t, which would be a recipe for confusion at best. Some people may think it’s perfectly acceptable to “forget” to scan an item during self-checkout, while others see it as clear theft.

That’s why we have laws that we’re all meant to abide by, but do you think it could be acceptable for some laws to apply differently to some people?

Obviously, reality tells us that laws already apply differently to some people. We’ve seen before that black people in prison populations make up a larger proportion than black people in the general population. Another potential source of difference in the way laws are applied is wealth.

There are a couple of obvious reasons why the wealthy might enjoy lighter-touch application of punishments when they do break the law. The first is simply that the legal system is set-up to treat the wealthy with greater respect and a sense of deference. While it may not be systemic, do you find it hard to imagine that such bias isn’t a factor at least some of the time?

Whether or not such bias is a factor in any individual case, one guaranteed point of difference is the ability of the wealthy to buy the best possible legal representation and to fight any charges to the full extent possible under the law. This makes them a less attractive target than those reliant on the legal representation supplied to them by the system.

Not only are the best legal experts going to make it harder to win a case, when funded by a wealthy person, they’re also going to be able to appeal any conviction as far they can possibly go.

When faced with a situation like this, it must look tempting for prosecutors to just get a deal and move on to a case where the poor sucker defendant can’t afford to defend themself.

Just a few weeks before I wrote this, the British billionaire Joe Lewis pleaded guilty to insider trading in a US court. Having originally been charged with 16 counts of securities fraud and three counts of conspiracy, a plea deal was agreed in which he pleaded guilty to two counts of securities fraud and one count of conspiracy to commit securities fraud.¹

Apparently, for every violation of insider trading law, a person can be fined up to $5 million and imprisoned for up to 20 years.² So for the 16 alleged violations of securities fraud alone, to me that looks like a maximum of $80 million in fines and 320 years in clink if all were proven.

And what did Mr Lewis get as a result of the plea deal? A fine of $5 million and no jail time.³ I should mention that the lack of jail time was partly due to poor health, which shouldn’t be a great surprise in the case of an 87-year-old defendant. Surely someone would have had to have committed a heinous crime to warrant prison at that age, and I personally don’t think insider trading fits the bill.

However, $5 million dollars and three years probation. Do you think you or I would have been treated so lightly? For perspective, Mr Lewis’ wealth was reported as $6.2 billion, meaning $5 million represented just 0.08% of his wealth. So it’s like we divided all his wealth into 10,000 equal piles of cash and took away just eight of those piles, leaving the other 9,992. Does that feel like a particularly harsh penalty to you?

“You’re a very, very naughty boy, Joe, now go and stand in the corner and think about your naughtiness for five minutes.”

If you’re not sure, let me add some more context. As this case was in the US, the average income in 2022 was apparently $37,585. So if you earned $37,585 and were fined 0.08% for being a bit naughty, it would cost you just $30.07.⁴ Would that put you off a life of crime? The Uber to and from court would cost you more.

It’s hard to believe it would have a deterrent effect on other heffalumps. On the contrary, it looks more like an invite to do what they want, because if they are unlucky enough to get caught, any kind of punishment will just be a gesture to show the masses that the rich aren’t above the law, when they might as well be.

There’s something about this case that really struck me as illustrative of the heffalump attitude. According to the BBC, one motivation for his actions was that he felt bad for never making any retirement plans for his pilots.

In that case, wouldn’t a simple solution have been to pay to set up pension schemes for his pilots? I’ve seen one site state that the average US pension is $75,020 per year and another suggest a 67-year-old would need a pension fund of about $900,000 to pay that. Had concern for the welfare of his pilots in retirement been so significant, his massive wealth meant he could easily have provided for them. Instead, he saw a way to gift them money without it costing him. Leaving those pilots facing the possibility of a criminal conviction and an unknown punishment at this time of up to a $5 million fine and/or up to 20 years in prison.

This doesn’t seem to be such an unusual pattern, unfortunately.

In the UK, The Post Office paid Fujitsu a wopp-off load of cash to produce a complex computer system called Horizon that would be used by all their branches to keep track of all transactions. Between 1999 and 2015, some 900 postmasters (franchisees or branch managers) were convicted of financial crimes based on data from the Horizon system.⁵

From the start, Fujitsu knew the system was buggy. The Post Office definitely knew the system was buggy by mid-2013 as a result of an audit they commissioned, but it’s claimed that some staff also knew about the problems from the start.⁶

Despite the known bugs potentially being the cause of each financial irregularity, it seems the bugs and their potential for being the source of irregularities were never clearly acknowledged in the prosecutions of those 900 people. To be convicted, each defendant had to be proven beyond reasonable doubt to have committed the crime. Obviously, that would have been nearly impossible if the presence of the bugs was revealed. 236 of those accused were sent to prison, at least four killed themselves and others faced bankruptcy and family breakdowns.

Early in 2024, more than 10 years after the Post Office’s own audit revealed the bugs, little more than 11% of the convictions had been overturned and more than a third of those eligible for compensation had not received their full settlement.

At the same time and despite it appearing to be clear that employees of the Post Office and Fujitsu let these prosecutions go ahead while knowing the system could be at fault, with some potentially having committed perjury and/or perverted the course of justice, not one of those people has even been charged.

When it came to the little people, justice seemed to move quickly enough, but when it comes to those serving big businesses who threw 900 people under the bus rather than risk damaging the reputation and, probably more likely, the profits of those businesses, there seems no great eagerness to hold anyone to account.

It’s not just big businesses in the UK that seem to be free to act how they like at the expense of little people.

The Boeing 737 was designed in the mid-1960s and started flying commercially in 1968, back when being close to the ground was seen as being an advantage. In the decades since, engines have grown larger to make them more fuel-efficient and with the creation of the fourth generation of 737 aircraft, the engines had to be positioned in such a way that they interfered with the aircraft’s aerodynamic stability in some situations, forcing the nose up. Boeing dealt with this by introducing a system called MCAS that was designed to automatically push the nose down again in such situations.⁷

It’s reported that Boeing’s motivation for adding MCAS to these planes was to reduce the need for pilots to undergo more training before being able to fly the new planes, which would help to keep the costs lower for their buyers. So, it was effectively a commercial decision intended to benefit Boeing and their shareholders.

In late October 2018, one of these 737 models crashed killing 189 people as a result of MCAS going whack. A week or so later, Boeing informed airlines using the aircraft of the existence of the MCAS system and also how pilots should handle a situation where the aircraft tries to kill them. Unfortunately, that wasn’t enough to prevent a second 737 flying itself into the ground less than five months later killing 157.

In 2016, two Boeing test pilots discussed concerns over MCAS with one saying he had effectively lied to regulators. Despite initial specs for MCAS requiring it not to be able to prevent pilots recovering from a dive, it caused two crashes because it did just that. A review after the crashes found that Boeing did not provide the Federal Aviation Administration with adequate and up-to-date information about MCAS during the certification of the aircraft and Boeing failed to thoroughly test MCAS before releasing it into the wild.

Two mass killings and no-one has faced any charges for the events that led to those 346 deaths. The CEO of Boeing during that period, Dennis Muilenburg, was eventually sacked, but still got a payout of $62.2 million.⁸

Does that feel right to you?

Let me share two quotes about this, the first from Zipporah Kuria whose father Joseph died in the second crash.

“Nobody gets their benefits when they’ve screwed up this much. Muilenburg and my dad are, were, the same age. Two people, and one is a privileged person who gets away with having such a big part to play in the death of so many people, and the other who trusts a product and dies for it.”

And this is from Senator Elizabeth Warren.

“346 people died. And yet, Dennis Muilenburg pressured regulators and put profits ahead of the safety of passengers, pilots, and flight attendants. He’ll walk away with an additional $62.2 million. This is corruption, plain and simple.”

It’s Okay, Everyone Does It

As a Brit, I know very little of Tucker Carlson, but I know I wasn’t impressed by his comments in one interview. I’ll get to that, but I did also recognise his name from reports of how he had interviewed Vladimir Putin in early 2024. Having read some negative reports of that interview, I was interested to see how that played out and I’ll share some thoughts on that later in Fake Journalism.

Back to the matter in hand.

President Joe Biden, President Donald Trump and Vice President Mike Pence have all been found to have retained confidential documents in their private possession at different times.

Under The Presidential Records Act⁹, all records created and received during a Presidential term in line with Presidential duties are the property of the US government and by extension are the property of the American people. They’re not the property of the President, or the Vice President as the act applies to them also. During the term, records shouldn’t be destroyed without consulting the National Archives and Records Administration (NARA) and at the end of the term, all records should be handed over to NARA.

So all three men broke the law. It’s more serious than that though as there were classified documents among the documents each man had illegally retained. The single biggest job of these three men is to keep the US and its people safe, yet they’re handling classified files like they’re a magazine in the doctor’s waiting room.

Don’t you think if you or I were caught with files we shouldn’t have, we’d be charged? It would be the right thing too, wouldn’t it?

Yet Tucker Carlson seems to have a different point of view, he doesn’t think any of them should be charged because every “high-level official in history” has broken the same law.¹⁰ It’s a bold claim, though certainly every administration going back to the 80s has apparently done similar.¹¹ Maybe if the first few cases had been prosecuted, this would have stopped happening a long time ago.

Everybody speeds when they drive, don’t they? So does Carlson think we should all be let off if we get caught speeding because everyone does it? It’s the same argument, isn’t it?

How about people who self-report tax? Surely they’re all fiddling their figures. Does Carlson think they should all be free to avoid paying any tax? If he’s the kind of person who appears to suck up to powerful public officials, is it too much of a stretch to think he’d suck up to the wealthy too? Even if that meant that the poorest people would have to make up the shortfall…oh, hang on, that’s already how it works, isn’t it?

The President of the USA presides over a democracy and their role is to serve the people. It’s not an autocracy like Russia where the people serve the President and if they don’t, they end up in a miserable prison or dead. The documents that Biden, Trump and Pence took were the property of the American people. They might never get to see them, but they own them nonetheless.

At the end of their administrations, they had an obligation to hand the documents over, but not one of them took their responsibility to the American people with the seriousness they should have.

So, what I wonder is, why did they keep all those files? Remember, the files aren’t their property, they’re the property of the American people.

What possible reasons could they have had for keeping the files?

I can only think of a few reasons that make any sense.

Maybe there’s something in there that they’re embarrassed about. We’ve both done embarrassing things, haven’t we? Surely you must have at least one embarrassing karaoke story.

For me, it was an office Christmas party. You join me as I’m nearing the end of an unconventional version of Jingle Bells.

“Ding dong, ding dong, ding dong, I’ve got a great big schlong. Ding dong, ding dong, ding dong, it’s longer than this song. Yayyy!”

Then into the final chorus that we all know and love, only rejigged to “Great big tits, great big tits, great big, great big tits, great big tits and girly bits, we love those great big tits!”

Reprise, and finally close in profile while striking an Elvis pose, left arm curled up, right arm pointing straight out and slightly downwards, to finish with “I just want to be your teddy bear, aha,” lip curl, mic drop and the audience go completely bemused!

Then this lady stood just in front of the stage, quite a stern-looking lady, looks up at me and demands, rather loudly, “who are you, you don’t work for us, why are you singing karaoke at our office Christmas party?”

What a good question.

Anyway, that was embarrassing.

If I’d been President of the USA at that point in time and that had popped up in some confidential documents, I can imagine I might have been tempted to snaffle them. However, sometimes we just have to put on our big-boy pants and suck it up. If there was something in those files that Biden, Trump and Pence were embarrassed about, too bad.

However, if it had been embarrassing content, surely they’d have just destroyed them, rather than keeping them.

So, if it wasn’t something embarrassing, then what else could have been the driver for keeping possession of all of those documents?

We’ve seen already how status is important to us all. It would be easy to imagine that a child might hold onto classified documents so that they had something cool that they could bring out to show guests. However, it seems rather less plausible that an ex-President or ex-Vice President of the USA would hold onto secret files for such a reason, doesn’t it?

Which leaves me with protection or profit. As ugly as these possibilities are, it’s hard to see any other practical uses the documents could serve. Surely none of the men would have kept them as scrap paper to be recycled for writing notes on and doodling? Possessing classified records specifically could afford the holder of them some protection against the US government by having leverage that could be applied. Quite clearly, the documents would also be desirable to enemies (and probably some friends) of the USA, so they would have value.

I may be missing something obvious and maybe you’re seeing it, but I can see no practical and legitimate reasons for Biden, Trump or Pence to have held onto classified documents or any records that were ultimately the property of the American people.

If you or I were found with classified documents that we shouldn’t have, I don’t imagine there would be a moment’s hesitation before we were charged.

And, in a spirit of honesty, Carlson did raise another objection to the men being charged, namely that he didn’t believe they’d committed a “real crime”. I believe it’s only a crime to have classified documents at an unauthorized location if they were taken intentionally.

With Trump, it seems pretty clear-cut as one of his lawyers had signed a statement claiming all classified documents had been returned before an FBI search found more files.¹² Is it unreasonable to assume the lawyer would only have done that if they’d been assured the statement was correct by Trump?

For Biden and Pence, it may be less clear their actions were intentional, particularly as both voluntarily returned files and allowed searches, but shouldn’t that be a decision for a jury of normal American citizens to decide, rather than high-ranking public officials? It would look a lot more transparent and more like the treatment any other normal American citizen would receive.

In this regard, I agree with Trump’s supporters that he’s been treated differently, though we should note that he’s also behaved differently. However, unlike his supporters, like Tucker Carlson, I don’t think the answer is to let him off when there appear to be reasonable grounds to suspect a crime has been committed – I think the answer is to prosecute everyone where there appears to be reasonable grounds to suspect they’ve acted criminally, regardless of whether they enjoy the privilege and status of life at the top of society’s pyramid.

Long Live The King

I wrote the rest of this chapter a while ago, but yesterday in one of the rare occasions in modern history when the Supreme Court has sat in July, they passed a judgement on whether Presidents of the USA should enjoy immunity from prosecution.¹³

The Justices were divided on the judgement and, who’d have thought, lots of people are also divided over the rights and wrongs of the decision.

Presidents and ex-Presidents of the US now enjoy full immunity from the law when conducting their core official duties and presumptive immunity for all remaining official duties, but it’s for courts to decide as required it seems. They do not enjoy immunity for unofficial duties.

So what does that mean?

In 2011, three days after the assassination of Osama Bin Laden, the man behind the 9/11 attacks, a US drone strike in Yemen narrowly missed killing the US citizen Anwar al-Awlaki.¹⁴ A second drone strike in the autumn of the same year succeeded. It seems that if the new ruling had been passed before then, Obama would have been guaranteed immunity for giving that order and no-one could have attempted to prosecute him for that act. An act in which an American was killed by American forces without being charged with or convicted of a crime.

As it was he didn’t have such protection, but it didn’t seem to matter. A later attempt by the father of al-Awlaki to get a US court to rule on the constitutionality of the killing was dismissed in 2014, but even that case didn’t necessarily present any specific threat to a US President.

Still, in the case of a President ordering the killing of someone or indeed in ordering any action, isn’t it right that they should be subject to prosecution in cases where they may be deemed to have acted illegally, whether they’re acting officially or not?

In this case, the target was specified as a clear enemy by the US intelligence services.

But who gets to choose who is an enemy of the United States of America?

In 2018, President Trump stood beside Russian President Putin and stated he believed Putin’s claim of Russia not trying to interfere in the 2016 election, despite the CIA, NSA, FBI and the Office of the Director of National Intelligence all concluding there had almost certainly been interference by Russia.

So should Presidents be free to make their own calls on who is an enemy of the US, regardless of what proof or otherwise may exist? And what could be more official than a President acting against enemies of the US?

If President Biden wants, can’t he now name Trump and numerous Republicans as enemies and order their assassinations, knowing he can’t be prosecuted when he leaves office?

More chillingly though, if the people were then to protest in the streets against those killings, couldn’t Biden also order the US military to fire on those protestors in his official duty of protecting the republic, knowing he would be free from any future prosecution?

This is of course dependent on Biden being able to find the people to carry out such commands. It’s quite feasible that orders like those might be refused, but we should remember that Presidents also have the power to pardon people convicted of any crime, so there’s also a route to protect anyone carrying out what could be an illegal act on behalf of the President.

Many people will guffaw at the idea of any scenario like that ever playing out in reality. It’s a clearly fantastical notion or I hope it is. But if a German newspaper had published an article in 1930 claiming that Germany was on a pathway to murdering more than six million Jews in the next 15 years, how do you think that would have been greeted?

“Oh please, I appreciate that you disagree with the policies of Mr. Hitler and the National Socialist German Workers’ Party, but writing such ridiculous and overly dramatic articles about their intentions does nothing to advance the political debate in Germany today. You’re just dividing people and making it harder for anyone to engage in reasonable and considered debate with your exaggerated scare-mongering. Really, six million Jews will be murdered by the German people in the next decade and a half! Be honest, you don’t even believe that yourself, do you?”

The few guffaws in response to such an article would have been drowned out by the sheer volume of hysterical, uncontrolled laughing.

Anyway, I’m sure that all nine judges enjoy great intellects, but intellect and common sense can and often do live independent lives. In one of God’s great comedic acts, so often the most intelligent among us are also functionally the most daft.

The worry for me is that the Justices indulged their own desires to address what would clearly be a historic decision as much for it being a fascinating mental exercise, rather than because of an immediate pressing need for a resolution to the question.

Presidents have assumed the position for more than 200 years without needing such clarity. Why now just because one President is facing prosecution in multiple jurisdictions?

There are two ways to explain why Trump is facing a number of court cases. One is that he may have committed crimes worthy of being tried. In that case, it would seem that the court’s intervention will have at least delayed justice being served.

The other is that it is just a malicious political action and if that is the case, then he will either be acquitted by a jury of his peers or he can appeal any conviction, eventually up to the Supreme Court who can then make a decision. And if a cycle of malicious prosecutions after each Presidential inauguration does start, then no doubt someone would again ask the Supreme Court to weigh in on the question of Presidential immunity and then they could intervene.

It seems the concurring Justices believed that pressing action was required to prevent such a vicious cycle of Presidential administrations pursuing malicious cases against their predecessors, despite there being no evidence right now that will be the case.

But whose rights are more important? One person enjoying the immense privilege of the role of President or the more than 330 million American citizens who choose that President?

And yes, I also appreciate the concern of the Justices that without judgment on the question, a President could effectively be hamstrung into inaction, unable to do their duty for fear of future prosecution. Yet 45 other Presidents have held the position without running into that problem, at least one of who openly executed an American citizen who hadn’t been convicted of a capital crime. This case looks to be an outlier.

Later, in Bolluchs Economics, I’m going to touch ever so briefly on prospect theory, but I need to describe the concept of loss aversion here too. We naturally assume that 1 = 1 every single time. On paper it does, but in the real world, where humans roam free, that isn’t a universal truth. It depends on the context.

The now discredited utility theory informs us that 10,000 spondoolix always equals 10,000 spondoolix and so our decision making process will be the same whether we stand to win or lose that 10,000 spondoolix.

However, in the real world, we feel loss more intensely than gain. The pain of losing 10,000 spondoolix is greater than the joy of winning 10,000 spondoolix. In the two situations of losing and winning our decision-making process does vary, in effect, the value of 10,000 spondoolix is different in each case.

Obviously, that makes no sense on paper, but it is the reality of the real world. I fear the Justices merely concerned themselves with expressions on paper with little regard for the greater complexities of reality.

It’s applying one-dimensional thinking to solve a three-dimensional problem.

Intellect vs common sense. Common sense knows that throwing out a partially formed ruling that doesn’t attempt to fully frame the constraints of the immunity it offers will surely at some point lead to untoward real-world consequences for the people the law is meant to protect. Intellect simply doesn’t care.

Whether Biden or Trump abuse this newly affirmed immunity isn’t relevant now. The genie has been released from the bottle and the thought is now floating through the ether that a competent lawyer will be able to argue immunity for one individual for actions that should be indefensible.

Our knowledge of human nature informs us that at some point someone will test the extremes of the judgement and the implications of that are likely to be extremely costly for at least one person and perhaps a vast number more.

Hopefully, one day in the future, the Justices won’t find themselves reflecting on a tragedy for American democracy and wondering whether their decision on immunity played a part. Should it ever occur though, no doubt they’ll hold up their hands in exasperation and ask “how could we ever have known this would happen?”

Because history has screamed at us time and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again that when we offer the powerful an inch, they grab a mile and care not if they damn a whole generation or more in the process.

If I was plotting out a novel around this, no doubt in some years hence, I’d have one of those Justices staring into the soft velvet darkness, their back pressed to a cold wall, and dwelling on the part they played in their own destruction as the order to fire is barked at their executioners. Autocrats always seek to destroy the old establishment to strengthen their own grip on power. Past utility is quickly forgotten.

Of course, that firing squad scenario is unnecessarily melodramatic. We need to remember that the American political system was designed to comprise interlocked checks and balances to prevent any one person or group from gaining too much power. One shift in the balance of power today doesn’t condemn American democracy to an inevitable death.

But if the Supreme Court can take one misstep, how many more times could they repeat that mistake? And if they can, then how many others could take missteps that open a door for someone to steal the democratic freedoms from the American people that the Constitution was meant to protect?

One of the three Justices who disagreed with the Court’s decision said the President is “now a king above the law”. And the Supreme Court has given the President a legal right no other American citizen has.

There could not be a clearer illustration of the fact that there is one law for them and one law for the rest.

I wonder how Thurgood Marshall, the first black justice on the Supreme Court, would have felt about the court’s decision on Presidential immunity. This quote might give us an idea – “Where you see wrong or inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on.”

If you were an American citizen, or perhaps you are, would you feel comfortable with the current and future Presidents having such freedom over how they deal with you? Doesn’t it feel a bit like the power that autocratic leaders enjoy over their people?