The fallout from the decision not to prosecute Hillary Clinton over her use of a private email server as Secretary of State has spilled over into the realm of legal theory. Legal experts, (what would we do without experts?) have opined with a supposed maxim of our justice system:

Not every bad act is a crime, and not all crimes are punished.

There is deep irony to be found in this maxim when we flip it around. Consider the converse:

Not every crime is a bad act.

America’s legal books are chock-full of crimes that can only be considered “bad acts” if one applies one’s own personal morality to others’ choices. Adultery, i.e. consensual sex between adults where one is married, is a felony in 3 states and a misdemeanor in 13 others. Possession of pot is still a crime in the majority of the states and at the federal level. Many forms of gambling are illegal (typically, when the state doesn’t get its piece of the action). These and others fall into the category of “consensual” or “victimless” crimes. Nannies, scolds, moralizers, and other creatures from the statist bestiary will dispute the “victimless” descriptor with tortured rationalizations and cause-effect chains, but at their core, they are about adults making choices for themselves. In a free society, there is no moral standard by which the state can prohibit the actions of individuals that do not infringe upon others’ rights.

But, even if you’re not convinced about the immorality of criminalizing consensual behavior, consider how many other nickel-and-dime laws are on the books nowadays, laws that can be used by creative or zealous prosecutors against just about anyone they target. Some of these laws are vague enough to allow their (mis)use for “crimes” other than what they were intended for. Some, including “blue laws” that restrict various “sins” (like selling alcohol) on Sundays, are relics of bygone times. Others, like a ban on selling milk in liquor stores in Indiana, are just absurd.

At first blush, these examples seem to fall into the category of “not all crimes are punished.” However, it remains that they are considered crimes simply because a bunch of politicians decided they would be. It falls to the discretion of prosecutors as to whether to actually enforce the laws that make illegal to ride an Indiana public bus right after eating garlic. When such laws are enforced, we should probably presume there’s an agenda involved, and that the target is unlikely to have power, wealth or political connections. Such laws are only for use against average citizens.

And there’s the rub. Were Clinton an average citizen, she’d have been prosecuted. FBI Director James Comey said as much in his statement. Some have argued that other average citizens who have committed similar rules violations haven’t had the weight of Justice brought down upon them. This particular line of rebuttal hasn’t proved compelling, especially given the extent of Clinton’s actions and given Comey’s statement, but it also fails another important criterion:

Those with greater power should be held to higher standards.

We invest power into public officials, including politicians, bureaucrats, and police officers. We cede some degree of autonomy when we place them in charge of certain aspects of our lives, and we provide them with tools and access that our civilian peers don’t get to have. In exchange, we expect them to respect the power and access that we’ve granted them, and to operate at a standard that shows that respect.

A President, a Congressman, and a Secretary of State should be held to higher standards than an average joe. Unfortunately, the converse is all too often true. Things that politicians get away with have shocked our sensibilities for so long that we don’t even blink any more. “All politicians lie” is a widely accepted assertion and widely embraced resignation, but it shouldn’t be. We simply assume that politicians are corrupt liars.

Actually, we often assume that the “other side’s” politicians are corrupt liars. Human tribalism and the lack of a leader that stands above partisanship combine to amplify the assumption that the worst politicians are those aligned with the other team. This is farcical, of course. There’s absolutely nothing to support the idea that either of the major parties, the “us vs other” in today’s political landscape, is one iota more honest and ethical than the other.

We pretend, however, that if we can simply get more of “our own” elected to office, if “our” party gets to run things, that all the power we’ve granted the government will be used more adroitly and less corruptly. We pretend this despite all evidence to the contrary, as much because we devolve to basic tribal dualism as out of any naive hope that “good” will crowd out “bad.” The reality is, though, that the only way to reduce the corruption, criminality and abuse of power at the top is to reduce the power and access that facilitates it all. The drafters of the Constitution realized this, which is why they set out to create a limited government that held in check the power that the powerful wield.

We don’t benefit ourselves or our nation by holding the powerful to far lower standards than the powerless. We don’t do justice to liberty when we criminalize consensual behaviors. Our sense of criminality has been flipped on its head – our powerful are granted presumptions that the masses would never hope to get. Because we’ve flipped criminality on its head, we have perpetuated this ugly, dysfunctional, corrupt, cronyist, elitist, and unaccountable miasma that is our modern government. Until we start demanding behavior from our leaders that stands above that of average citizens, we won’t see any good come out of government.

• About the Author

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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