The horizon is not so far as we can see, but as far as we can imagine

Justice, Law and Norms

Last week I wrote an article on the indictment of Trump in New York. I argued that charging trump had broken an elite norm: there is no question Trump broke the law, but ex-Presidents don’t get charged with crimes and senior politicians rarely do, though as a couple commenters pointed out, there’s already been some erosion of that norm.

It’s important to understand that a norm is a cultural rule. It’s not a law, usually, it’s something you just do or don’t do because your social group requires it or forbids it. For elites, a norm is that elites don’t get charged with most crimes, especially non-violent ones, unless that crime harms other elites in large numbers. Every senior executive at a bank or brokerage broke fraud laws and the Rico statute (they conspired) in the run up to the 2008 election, for example, but who was charged? Bernie Madoff. Why? Because Madoff targeted other elites.

Likewise senior politicians regularly get away with breaking election fundraising rules and various other white collar crimes (like bribery). They don’t charge each other, because almost all of them do it. What they do is against the law, but it isn’t against elite norms.

We all know what laws are, but justice is different from law. A law can be unjust. Everything the Nazis did was legal by German law, as a friend of mine loves to point out.

Another principle of justice is that laws are applied equally. The same crimes that elites commit without being charged for are laws that are usually enforced against non-elites. This is not justice. Likewise fines that are fixed rather than relative to income or wealth or a combination of both are unjust—they hurt people with less money more than those with more money.

Bringing this back to Trump, he is being charged for crimes that while illegal do not violate the elite norm of elite impunity for crimes that are normal among elites. If elites wanted to maintain their norms, he should instead have been charged with treason or sedition, for the Jan 6th attempted insurrection, because that violates an elite norm.

Justice, norms and laws are three different thing and understanding the difference matters.

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Week-end Wrap – Political Economy – April 2, 2023


Declining Birth Rates Are Good & Bad


  1. Willy

    Human elites aren’t subject to the same rules which non-elites are. This was apparently the rule I broke in the corporate world. I’m probably breaking it in my own family.

    I guess I can get the part where if somebody controls desirables like assets, love and status, others go along to get along regardless of the morality, hoping for some scraps. But Trump has many small donors which he’ll never recognize. It’s fairly well known that he pockets most of his whatever-cause fundraising cash.

    There’s an emotional component which elites recognize and tap into for personal gain. I mean, I worshipped Led Zeppelin when I was a kid but if they suddenly begged for donations and then pocketed the money, I probably would’ve tossed Physical Graffiti like frisbees.

    Of course there’s that part where most of Trump’s supporters think he’s on a mission from God. But why didn’t God choose a charismatic nice guy instead? I just don’t get it. Could it be that there’s so many emotionally needy idiots always being born that clearer thinking others just don’t stand a chance?

    I’d get into how constant warfare at the behest of socialized psychopaths might have reduced the gene pool for empathic rationals, but that’d be depressing. And it might not explain for me personally, the behavior of my own family.

  2. StewartM

    Trump may be charged with Georgia election tampering and also something linked to January 6th. The problem with the latter is, like Al Capone, it’s hard to get the mob boss who deliberately maintains a distance from what his subordinates do. Note how the Secret Service had everyone turn in their phones to be destroyed after the coup attempt so that the text messages would be irretrievable (that is also a breaking of norms and even laws, BTW). Likewise, they may be charges with document handling.

    (The classified document case would be the result of Trump’s own foot-dragging and lying about the raid. Politicos who discover classified documents in their possession and immediately notify the proper agencies for them to be taken away are generally not charged due to the way that the statute is written; although you could still rightfully claim that the small fry who mis-handle classified documents aren’t given as much leeway).

    If Trump is charged with other, more serious crimes, will you change your position on this, Ian? This one was the first maybe just because it’s the easiest to prove, because they already knew that “Individual 1” was the driver of the Stormy Daniels deal.

  3. Astrid

    Seems like a typical deep state slight of hand to me. I’ve seen analysis that state the charges are frivolous, difficult to prove, and at worst a misdemeanor conviction. It may simply be a stunt timed to distract the public from what’s happening in Bakmut.

    By leading with such transparently frivolous charges, this act could also be a warning shot to Trump, who has recently questioned the entire Ukraine venture. I suspect that he’s physically and legally too well protected to Kennedy or Wellstone, but they could go after his asset if he doesn’t shut up.

  4. Feral Finster

    Finster’s Second Law readeth thusly: “There is no such thing as law. There is only context.”

    The longer form version of this law is that “Laws are for little people. Policy is for People Who Matter, because policy determines when there will be a law in the first place, when that law will be applied, and to whom.”

  5. Forecasting Intelligence

    All the anti-Trump folks here are missing Ian’s main point.

    All future ex-presidents will get charged, including Democrats and ones you like. Its the path to political disintegration and quite possibly the eventual collapse of the United States.

    How foolish of the elites… I can see why some senior people in the Democratic Party are unhappy about what is going on.

  6. elkern

    At surface level, Trump is getting busted because he [“allegedly” 😉 ] broke Laws, but at a deeper level, he’s not being protected from prosecution because he broke Norms.

    If the DOJ – any other watchdog agencies – had actually bothered to enforce financial regulations, Trump would have been in jail decades ago, along with thousands of other white collar criminals.

    Trump bulldozed through the GOP Primaries in 2016 by “saying the quiet parts out loud”. The other GOP candidates were carefully repeating the Dog-Whistle phrases that GOP Think Tanks devised to motivate right-wingers without scaring away the Soccer Moms; Trump’s brazen style shriveled all the fig leaves, leaving the entire GOP leadership standing naked.

    The GOP – via FOX, etc – had been slowly normalizing more & more grotesque right-wing positions and language across the last few decades. Some Democrats had tried to expose this process, but most were restrained by their Big Donors because accusing Republicans of such evil might damage the cohesiveness of the country. (Note: this is exactly the reason that LBJ didn’t expose Nixon’s treason in 1968!).

    Trump’s brazen style made it impossible to keep pretending that US elections are civilized debates about policy options. US politics have been sliding ( / dragged ) towards a more warlike framework for a long time, but slowly, in a frog-boiling kinda way. Trump didn’t declare war; far worse, he inadvertently exposed the fact that we were already at war with ourselves.

    To put it mildly, this is gonna be extremely expensive for most US “elites”. Ergo, Trump loses the traditional protection provided by political control of DOJ.

    Sadly, Democrats seem to think that prosecuting Trump will end the war and return us to some imagined Good Ol’ Days when politics was about arguing in front of cameras in daylight and drinking together at night. But the GOP really is at war – with Democrats, with most Americans, with Government, and now with the basic structure of American society. They will shamelessly blame Democrats for “persecuting” Trump, because that’s the best – or only – way to regain control of Trump’s Mob.

  7. GlassHammer

    A massive shift in elite relations occurred in the early 2000s sparking the chain of crisis events we have been living through.

    Basically our capitalist found it increasingly difficult to grow the pie and share the spoils (buy people off) through regular profit based extraction methods. So to legitimize their seat at the table they fostered and funded militarism abroad for a decade plus. But none of that militarism worked for them as the nation stumbled from one failed war to another.

    So with militarism confirmed as a poor way to legitimize power they have shifted their focus to political power within the nation to justify their seat at the table.

    What keeps getting overlooked when it comes to elite relations and Trump is that he did commit a cardinal sin against our capitalist elites, he stole Nationalism is and it’s political power from them when he was elected.

    Trump took the thing they were building for their own use and trashed it so it could barely be used again. And they are livid that yet another path to power was wrecked before it could be fully exploited.

  8. NR

    All future ex-presidents will get charged, including Democrats and ones you like.

    If Democrats break the law, they should get charged.

    If Democrats don’t break the law and Republicans charge them anyway…. Well, first of all, they’ve already done that (look up Don Siegelman), and second, if Republicans are willing to bring false charges, they would have done that regardless of whether or not Trump was charged for his criminal acts.

  9. NR

    Also, what elkern said. Very insightful comment.

  10. Ché Pasa

    “And so it begins…” Yes, but come on. We can go back all the way to Washington and find that every president, with few if any exceptions, has misused power — let’s call it that — for what are arguably criminal objectives, and often directly for criminal players. Every. Single. One. So arguably, every single one of them could have been and should have been charged while in office or out. But something — what? — made it impossible. The Norms Fairy said “No!”

    So impunity ran rampant in the cushioned corridors of Power. And here we are.

    The idea that Trump should be the first to face The Law when it comes to the President seems somehow appropriate as he has lived his entire life under some kind of legal shield and protection while apparently committing no end of criminal acts in his pursuit of power and money. Some would say that everything he’s done in business is pretty standard in the Real Estate realm — norms, of course; laws not so much. He got away with it, the way most do, and in the process erected or preserved some remarkable properties, maybe a little gaudy, but are we the worse for it? Nah.

    As President he did things — and sometimes was prevented from doing things — that skirted or broke numerous laws and norms, and injected enormous amounts of chaos into the system of governance. Chaos that could not be prevented and which is still reverberating. The Presidency, like any royal/ruling institution, has accreted all sorts of protocols and practices, norms, over the years and centuries that must be followed. He didn’t follow them. He destabilized a system that’s now trying to right itself, but may not be able to. Is that what he is facing judgement for? I would say not. Or perhaps. Sexual impropriety has long been the key to punishing powerful individuals who get out of line. John Edwards has been mentioned recently as a prominent example. He proposed the unproposable economic program for the Little People and found himself prosecuted for payments to his mistress — his proposals were never heard of again. Ta-Da!

    And so it begins…

  11. Willy

    Over 6 years ago I attended a community meeting aimed at stopping an unnecessary (as we all saw it) local government overreach. As a registered independent I foolishly signed up for a seemingly innocent emailed newsletter, which over time presented pro-Trump content. After Biden was elected it quit coming.

    A few months ago the newsletter returned, at the very same time as many other newsletters from the cult conservative world, as well as lots and lots of scammy looking spam, some of it appearing to sell legitimate products but most of it obvious con artistry. I’m guessing that some pro-Trump organization sold my email (which I mostly kept private) to the dark grifter web for a bit of cash.

    As for Dems getting theirs and civilization coming to an end, it does feel like something’s about to break. But the odds aren’t in the Republicans favor. FoxNews is increasingly obviously contemptuous of their own loyal viewers, now clearly seeing them as suckers. Republicans increasingly obviously sell kooky culture. Trump’s greatest achievement is inspiring his most loyal supporters to get prison sentences. I really don’t think that most average Joes are quite that stupid. It seems likely that elites will be focusing on influencing the Democrats once again.

    As for Bakhmut, it bears a closer resemblance to Stalingrad than any 3-day welcome home party. Sadly for the warmongers, most Americans are losing interest in that ridiculous war, if recent MSM offerings are an indication. Maybe the incoming tanks will inspire exciting new episodes, at least more exciting than Trump making a fool of himself in court again and again.

    It might be a good time to realign the common culture to demand saner governmental representation, or at least better quality elites.

  12. StewartM

    Forecasting Intelligence

    All the anti-Trump folks here are missing Ian’s main point.

    All future ex-presidents will get charged, including Democrats and ones you like. Its the path to political disintegration and quite possibly the eventual collapse of the United States.

    I keep reading logically inconsistent points.

    One contends that Trump’s crimes (at least this first one he’s been charged with) are no worse than or less worse in their tangible effects than the “crimes” pursued by previous presidents. I put “crimes” in quotes as these were often deliberate policy decisions, that although unquestionably evil, would be difficult to prosecute (as there may be no statutory criminal law on the books forbidding this) or impossible to enforce (yes, Bush and Cheney and crew were guilty of starting a war of aggression, like Hitler, which would be against international law but unless the US gets conquered by the international community and they set up a Nuremberg court it sadly ain’t going to happen. We can’t even prosecute and convict our small-fry war criminals without them getting pardoned soon afterwards).

    So, the argument is what? That Trump should get off scott-free? This is an interesting contention made by many who also say that the bank bailouts of 2008 and afterward similarly just encouraged future bad behaviors because there were no consequences for bad behaviors.

    We have good legal cases against Trump involving statutory criminal law. If deterring bad behaviors by punishing them is important, why not prosecute him? If this results in other politicians being prosecuted and punished when they’re also guilty, isn’t that a good thing too? Especially from those of you who say “they’re all crooks as bad or worse than Trump”.

    Maybe, just maybe, that if politicos at the top start getting punished for bad behaviors, and if by mere association with a donor class that regularly commits bad behaviors,. for reasons of self-preservation alone they might want to distance themselves from these donor class goons to preserve themselves? Wouldn’t that too be a good thing?

  13. Feral Finster

    @Forecasting Intelligence: Good point, but Team D and the mainstream wing of Team R are betting that they will be in charge for the foreseeable future, and that a future disruptor will not be allowed to win or take office.

    Problem fixed!

  14. Feral Finster

    @NR: I can guarantee you that an aggressive prosecutor can find a pretext on which to charge anyone that the prosecutor wants charged.

    That goes double, if the target is involved in higher-level business or politics. Google “Three felonies a day”.

    So an aggressive prosecutor can always find that a democrat broke the law, if he wants badly enough to do so.

  15. Ché Pasa

    Just for the exercise, how many presidents have been assassinated?

    How many have survived assassination attempts?

    How many have died in office?

    How many were not elected in the first place?

    How many were elected under suspicious or fraudulent circumstances?

    How many became incapacitated in office? Who ruled in their stead?

    All I’m suggesting is that the presidency has been problematic from the outset. Our selection and electoral processes are a bad joke. The men who have served in office have been…. flawed.

    They may not have faced common trial law in the past, but a surprising number have faced other forms of punishment if not justice. It’s quite a shit show, no?

  16. BlizzardOfOzzz

    So … what was the crime, exactly? (You know, other than opposing the policies of the Gay-American-Empire (GAE) – can’t have that, can we.) Paying a woman to sign an NDA? If that’s the best they could dredge up, then he must be the most squeaky-clean man in America.

  17. Adam Eran

    Recommended reading: David Graeber’s “On Kings” — it describes how, even in “primitive” Somali societies, the elites believe they are God’s chosen ones, so they’re above the law, and behave worse than Trump.

    If the elites actually become available for prosecution, it might actually end the pseudo-monarchy that has been the American presidency.

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