As the current ruling regime rapidly strays into increasingly extralegal territory, “Can’t he be impeached for this?” is a question I run across with increasing frequency. In order to understand why government officials are almost never held accountable for anything they do, let us begin with a quick trip down political memory lane…
It’s 1997, and Al Gore has clearly broken campaign finance law. His defense? That in spite of the fact that he is patently guilty according to the very clear wording of the statute, the law had not yet been tested in the courts. His sinister words reverberate to this day: "There is no controlling legal authority that says this was in violation of law."
This was far more sinister than some weakly nuanced argument about court cases, however. What he was really saying is that he knew he would not suffer any consequences because the person who could make or break the case against him, Eric Holder, was on his side. Case closed.
This is one example of a fundamental problem that libertarians have noted and written about for a long time: that the only thing that can hold government accountable is…itself.1 There is a reason why we don’t allow a criminal to decide whether or not he is guilty.
What’s that you say? We have “checks and balances”?
In theory, yes. In practice, when they are really put to the test, they don’t work especially well.
I do not want to give the wrong impression, so let me state categorically how impressed I am with the constitutional republic bequeathed to us by America’s Founders…how blessed we are to have had so many stellar men together at one time, in one generation, just when humankind needed them. When I read the Federalist Papers, I am stunned by the brilliance of their arguments. They anticipated so much, and came up with ingenious systems to handle every contingency they could think of. I could wax rhapsodic all day. And yet there are fundamental problems with any and all systems of representative democracy—yes, even ours—that may doom it ultimately to failure. This is a big and controversial topic for another time, but for now, let us just focus on the example we started with.
Let us say you have a government official from Political Faction A who has clearly and obviously broken the law. In order for this official to be truly held accountable, a wildly improbable combination of factors must exist.
First, understand that there is no political faction that is impartial and ‘solely concerned with upholding the law and the integrity of the system.’ The only person for whom that was even close to true was George Washington, and he is no longer with us. Even you do find a rare politician with that level of nonpartisan integrity, political party discipline almost guarantees that he won’t go after “one of his own” (and that if he does, he will surely regret it).
We also cannot delude ourselves with the belief that the courts serve this purpose. As we have seen from the political fights over the appointments of judges and justices, there is no such thing as an impartial judiciary. What we actually have are judges and justices who are on one side or the other, and then we have you crossing your fingers that a case important to you will be heard and adjudicated by someone from your side. There are exceptions and degrees of partisanship, but let’s not kid ourselves and pretend that the judicial branch is some sort of bastion of Olympian impartiality. It isn’t.
Thus, the first thing you need is a Faction B who are the political opponents of Faction A. Faction B must have the political will to pursue the case. Their foremost concern, being a political operation, is not for the letter of the law or the integrity of the system. Their first question, rather, is whether there is a political advantage in pursuing action against the transgressor from Faction A. Unfortunately for Faction B (and thus for all of us), there are usually far more disadvantages and impediments.
Faction B must make sure that none of their own are guilty of the exact same transgression. Can’t take the risk of exposing them.
Faction B must have a central figure—a leader with the courage and bravado to take the lead role in the prosecution…or at very least the lead role in talking to the media about it.
And then we get to the point where the rubber meets the road…Faction B must have the political strength (numerical majorities and support from the public) to see any such prosecution through. If not, then all else is moot—any such action will just be political theater, with no real consequences at the end. And if Faction A has enough of a dominant political position, then the notion of such a prosecution will never even be entertained.
But let us say that it Faction B meets all the above criteria. In order for justice to actually be done…
Faction B must first ask itself whether the prosecution is worth any potential political fallout. This means that the partisanship of the media and the voters is immediately involved.
AND they must have some reasonable hope of success,
AND they have to overcome that feeling that, as bad as whatever the transgression was, they are still prosecuting a ‘one of their own’—a fellow politician or agent of government,
AND they have to get past the knowledge that this is going to make it harder to work with people whose goodwill they will need in future…people who attend the same events and dinner parties…
AND they must fight off the media and public opinion, who tend to be fickle, get bored, and start to see the prosecution as just more “partisan politics,”
AND the prosecution must actually be successful,
AND they have to mete out a punishment that serves as a genuine deterrent to keep future politicians from committing the exact same offense next month. Something more than “reprimand” or whatever other political kabuki they all whip up to cover each other’s assets.
“No controlling legal authority” indeed.
We must also not kid ourselves that “the voters” act as some sort of prosecutorial body, serving as judge and jury on Election Day.
In 1983, a Republican, Dan Crane, was censured for having sex with a female page four or five times, in his apartment, ten years earlier. He went on to lose the 1984 election. That same year, Gerry Studds, a Democrat, was censured for having an ongoing sexual relationship with a 17-year-old male page. He went on to be reelected six times. In 2010, Charles Rangel was caught dead-to-rights in a series of crimes, and yet he was reelected for a 21st term with 80 percent of the vote.
When it comes to voters, “wrong” is in the eye of the beholder.
The Founders were not at all Pollyanna about human nature. They saw humanity as deeply flawed, and fully expected careerism, corruption, and factionalism to be a problem in politics. They created a variety of systems to mitigate this problem, but ultimately, they saw voters as the final check and balance. Yet, given the fickle, uninformed, and partisan nature of voters—not to mention an incumbency re-elect rate over 90 percent—voters are clearly not quite the check that the Founders had hoped. The power to vote once every couple of years is nothing in comparison to the power wielded by politicians and armies of unelected bureaucrats and officials…and the voters don’t use the one power they have particularly well.
We can build in all the systems we want. We can imagine voting to be a more powerful remedy than it actually is. It’s all whistling past a graveyard of very uncomfortable truths.
Who watches the watchers?
Who polices the police?
Who governs the government?
Answer: Basically no one.
Pixabay/OpenClipart-Vectors/license
See especially Hoppe, Democracy: The God That Failed and Rothbard, A Libertarian Manifesto.
Good article. But I believe there is one underused faction that should and could restrain Big Govt in DC -- namely our 50 state legislatures.
Now I'm virtually certain they're just as venal and corrupt as our federal govt with its 500+ federal agencies and departments. However, as Milton Friedman said, the challenge is *not* to elect the "right people". The challenge is to create a govt that will make it politically profitable for the *wrong* people to do the right thing.
Since 2015 I've longed for and written about a particular constitutional amendment that would change DC's behavior overnight -- with this amendment, Congress, the President, and the Judiciary would have to consider the reaction of the governed to every thing they want to do, as well as to what they've already done.
Read more at https://bityl.co/CKhd
Good analysis. I completely agree with your reverence for the Founders and their brilliant contributions to the dream of self-government. Also completely agree with your rundown on the reasons the guilty are rarely held accountable. When Nixon was on the verge of being impeached, members of his own party had started asking “What did he know and when did he know it.” That will never happen when the bad actor is a Democrat. 😒