There’s something we all need to acknowledge to each other and to ourselves. While equal justice under the law may be correct as an ideal or as a goal, it’s a long way from being fully realised in the United States. White people are not routinely summarily executed by law enforcement. Bail is a bothersome inconvenience for the rich and powerful and a formidable barrier to freedom for the poor and powerless. The famous and influential get the ankle bracelets and soft prisons, the voiceless and unknown get hard labor and long sentences. By any sane definition, there is no equal justice under the law.
That’s just the way it is and that’s just the way it’s going to remain for a very long while. We need to say that part out loud. When we demand equal justice under the law it goes with an unspoken appeal for it to be true, not as an ongoing and obvious right that says it is true. Because you and I know it’s not true.
“Equal justice under the law” is different from the notion that “no one is above the law.” In no law in the United States is it codified that anyone is above that law. Nowhere do we find written laws giving specific passes to specific persons. Laws usually begin with a clause stating to the effect that ANY PERSON committing that specific crime SHALL BE given a certain specific range of punishments or consequences. Even a sitting president is subject to the same laws we all are — as written — as soon as they leave office.
So when attorney general Merrick Garland says that no one is above the law, he never says there is equal justice under the law. He is very careful not to conflate the two and that is why he never does. What he’s saying in code every time he says that publicly (I believe) is that, very specifically, Donald Trump is not above the law. In other words, if he finds reasonable evidence that Donald Trump is guilty of a crime and he believes he can win a case in court and see him convicted of that crime he will indict Donald Trump, same as anyone else.
But he also understands that in most other ways Trump’s case is a very different case from any other case. Millions of Americans and people around the world are watching. Millions of Americans are heavily prejudiced in favor of Trump, and millions of Americans are heavily prejudiced against Trump. It will be impossible to try him outside the Jupiter-sized gravitation of bias. And it will be difficult to try him without the threat of inspiring civil unrest. And it would be unwise to indict him within 60 days of the 2022 midterm elections.
In other words, Donald Trump is not above the law, but, for Trump, there is no equal justice nor can there ever be the pretence or expectation of equal justice. He is handled very differently because his circumstances are very different. He may eventually get equal justice, but the path to that justice is going to be very different from what the path to justice would be for you and me under the same charges. Therefore the outcome could also be very different.
In a recent article in the Atlantic, the author refers to the indictment of Donald Trump as inevitable. He talks about how exceptionally careful Merrick Garland is and why it’s taking him so long to indict Trump, but the indictment will come. That could be true, but let’s not kid ourselves. The path to that indictment is not equal and it doesn’t pretend to be. And once indicted, I can guarantee without looking that Donald Trump will never sit in a courtroom wearing an orange jumpsuit and shackles. He will arrive at court in a chauffeured limousine surrounded by powerful lawyers and thousands of fans.
We are a long, long way from Trump in prison. Will he ever go to prison? Perhaps. But don’t expect the path he takes to get there will ever be anything like the path you and I would take. And remember, however attractive the idea of equal justice under the law is to us, we are a very long way from achieving it. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.