Sanctity of law for U.S.

Now let me get this straight. The impeachment is not about sex. He lied under oath in proceedings growing out of a civil suit. The president is the chief law enforcement officer. When he lies, he not only subverts one particular legal effort, he sets a dangerous example for others. He must be removed lest the rule of law collapse.

These arguments have a stunning philosophical clarity. It is part of the deceptive charm that gives them such power. Law in its majesty marches on. Its dictates are clear. It demarcates good from evil. Without laws that are clear, that are steadily and consistently enforced, civilization itself collapses.

In the mid-17th century, amidst civil war in England, Thomas Hobbes gave us the starkest version of the law or chaos thesis. But interestingly enough, even Hobbes implied that law was not equal to its task. Law has the precision of geometry, but human beings and human society are murky and lack finely crafted edges. Men (and Hobbes would have said men) must make arbitrary distinctions in particular cases as to whether law applies. Answers are not always self-evident. To avoid anarchy, not only was law needed, but societies must be willing to entrust its interpretation to an unchallengeable sovereign.

Later generations of democratic thinkers doubted that the rule of law required the dictates of a single arbitrary sovereign. Americans became convinced that the sovereign could be elected and that thus law could become more reflective of broader needs. But we retained a belief that law itself could always be clear and could be consistently enforced.

Though we still harbor such a belief, law in practice is just as murky as ever. Because we Americans are so convinced that law is the solution of all our problems, the corpus of the law is vast. Prosecutors at all levels cannot undertake the menu of prosecutions available to them at any one time.

In many U.S. communities, citizens routinely drive a few miles per hour above the speed limit, illegally gamble on sports, engage in sexual activities before the legal age of consent, and even practice forms of sexual activity still outlawed. Prosecutors have a pretty good idea who is engaged in such activities and how they could be caught. Police and prosecutors almost never go after the first two violations but do face sporadic pressure to pursue sexual offenses in some districts. But everywhere, honest prosecutors invoke “prosecutorial discretion”: not all laws, even ones carrying the same penalties, are equal. And strangely enough, the republic and the law often survive the choice not to prosecute some offenses.

Prosecutorial discretion, just how and where it is exercised, tells us more about the workings of the law than a thousand jeremiads on the rule of law. Congress routinely allows presidents to bomb foreign nations without Congressional declarations, an act our Founding Fathers would have regarded as a high crime. Even now, despite the president’s transparent effort to divert attention from his other difficulties, it will likely not add the recent bombings to its articles of impeachment.

Just a couple weeks ago auditors for the Federal Election Commission declared that both Bob Dole and Bill Clinton had flagrantly violated the law by accepting soft (issue advertising) dollars in an effort to circumvent federal limits on campaign contributions. The auditors proposed multi- million dollar penalties.

No one doubts that both Dole and Clinton knew they were violating the spirit and intent of the law and that they were at best on the very edge of outright deceit. Nonetheless, the bosses of the FEC auditors, the Republicans and Democrats appointed to the commission, overruled the fines.

Political appointees to a commission designed to oversee the integrity of our political process have in effect sanctioned a campaign finance process that most Americans regard as the very antithesis of equity. They have overlooked actions that clearly skirt the intent of the statute writers.

Prosecutorial discretion takes some peculiar twists. I believe it is an inescapable aspect of any legal system, which will be designed by men and women to apply to complex and inevitably protean human affairs. But if the rule of law collapses, it is far more likely that the very liberal interpretations of overly generous campaign finance laws will be the culprit. Discretion in these cases encourages the further concentration of power in our republic. It thereby fosters the cynicism and despair that is the sure enemy of law and of democratic states. Perhaps because our current political leaders are such steady beneficiaries of abusive campaign finance practices we hear so little about the rule of law in this public realm. Far more convenient that the search lights be trained on intimate affairs than on affairs of state.

John Buell is a political economist who lives in Southwest Harbor. Readers wishing to contact him may e-mail comments to jbuell@acadia.net.