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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