Wall Street’s Third Worst Nightmare: Equal Application of The Rule of Law

by George Kennedy on October 31, 2011


Wall Street's Third Worst Nightmare:  Equal Application of The Rule of Law

As a reminder, the first two of Wall Street’s worst nightmares are Truth and Democracy (an article by Thomas Magstadt of Oct. 19, 2011 Reader Supporter News). The third worst nightmare has to be the idea of equal treatment (indictment and prosecution) under the law for felonies and other actions which, if committed by a citizen of the 99 percent, would be punishable by law – and rightly so.

Since his inauguration, President Obama’s edict to “look forward rather than to look back” with regard to criminal behavior of former Bush administration officials and Wall Street executives, the possibility of federal criminal indictments was substantially removed. This continues to rankle most Americans, the President’s personal popularity notwithstanding. State attorneys’ generals, however, have been more vigilant and less dissuaded by the fear of loss of millions in campaign contributions and pushback from corporate titans, Wall Street, and their handmaidens on Capitol Hill. These intrepid state officials live closer to the pulse of America than do their elected officials.

Ninety-nine percent of the population today lives on an emotional continuum from disappointment to disillusionment to betrayal to total outrage. They have been violated by the profiteers on Wall Street without the pleasure of seduction. At their emotional core are two harsh realities that stick in their craw and have finally galvanized them into action: they are victims of and within an economy that offers few to no prospects for a viable future, and, second, the depraved indifference of those that brought about the collapse of the world’s greatest economy in 2008 will – in all likelihood – never be brought before the bar of justice. Americans are barely surviving the first reality but, it is this second reality that could render permanently even the resilient fabric of American society.

I do not delude myself. There has been, and will continue to be, inequality because of an individual’s status, personal wealth, individual talent, opportunities available and, ultimately, personal accomplishment. Americans accept this; they always have, provided opportunities were expanding, not shrinking. That was the American dream. “The one exception was the rule of law.

When it came to the law, no inequality was tolerable. Law was understood to be the sine qua non ensuring fairness, a level playing field, and a universal set of rules. It was the non-negotiable prerequisite that made all other forms of inequality acceptable. Only if everyone was bound to the same rules would outcome inequality be justifiable” wrote author Glenn Greenwald (“With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful.”)

Greenwald makes another salient point that is practically in our DNA: “Adams and the other founders viewed the preeminence of law over individuals – all individuals – as the only protection against the tyranny that America had launched a revolution to abolish. For that reason, American political liberty was always inextricably bound to the notion that law reigns supreme.”

Even presidents were not above the law and only the threat of impeachment in 1974 led to the resignation in disgrace of President Nixon followed by a full and unconditional pardon from his successor. Since the Reagan era, a two-tier system of justice has emerged and is enshrined in contemporary practice. The 1 percent, protected by our political leadership, ascribes unto itself a privileged status that deserves – in their view – to be immune from law, from accountability to any entity for their actions.

This is a fundamental change that will have unforeseen consequences in this country. To the average citizen on the street “the fundamental requirement of the rule of law is equality: the uniform application of a set of preexisting rules to everyone, including the rulers.” Americans are taught this from childhood. This attitude of privilege exhibited by the 1 percent is so brazen, it practically begs for the guillotine. Their effrontery is the equivalent of the slap across the face without the gentlemanly glove.

The 1 percent was not content to pillage and ultimately wreck the economy, they did so with malice aforethought, with reckless abandon, and abetted by a compliant Congress and two Presidents. Apparently, trickle-down results suffice for them. Balancing national interests and national resources offered no reasonable parameters for their behavior. Here is the rub: Had the victims – and the 9-1-1 rescuers (taxpayers) – not been the 99 percent, the unequal status and egregious behavior of the 1 percent could have been tolerated, even accommodated. Perhaps I am overly generous in this assumption.

Moreover, the 1 percent now presume the right to privileged status and feel aggrieved they have become the object of our national scorn and derision. Think about it, the idea of constraints on their behavior is, in their view, practically unconstitutional. At a minimum, it would establish an unwanted precedent. The ice under their presumptive privileged position is so thin that any rational politician has to see the numerous danger signs at the heart of their argument.

As noted earlier, the threat on the horizon is coordinated action by state attorneys’ general to indict the leadership of the culpable corporate entities for the collapse of the housing market. It may spread from there. To restore respect for the rule of law, negotiated fines without acceptance of responsibility must be off the table as an outcome. Indictments must result, trials scheduled, and verdicts rendered. The stakes are high.

For the past 30 years, we have damaged a cornerstone of our Republic. The 99 percent want a major overhaul in the system and assurances their country will not desert them again on the altar of greed and crony capitalism.

Here is the real dilemma the Republicans, the Tea Party, conservative Democrats, and politically-timid leadership must address. Most of the metastasizing OWS movements across the country are populated by the desperate faces of the middle class, not the faces of the demonstrators for Civil Rights on the infamous Edmond Pettus Bridge in Montgomery, Alabama.

The graphic and riveting images of water hoses, police batons, pepper spray, teargas, and overweight policemen on 2,000 pound horses against unarmed and peaceful demonstrators exercising their Constitutionally-protected rights to free speech and freedom of assembly project precisely the wrong image on national and worldwide media. YouTube goes viral in milliseconds. Ask the politically-chastened Mayor of Oakland, California. I suppose some are asking if we are now the mirror image of the Arab Spring or the best hope for mankind.

The question for the John Boehners, the Eric Cantors, and the Mitch McConnells is: Who is their constituency? The increasing numbers of irate citizens on the street without recourse. Or, the 1 percent cringing in their police-protected offices and homes behind false, imperious bravado? At the end of the day, the residents of the communities that spawned these Republicans will render their verdict through the elections in 2012 and the 1 percent will reach an accommodation to ensure profits another day. I think the 1 percent are pragmatists at heart. They understand the deal and they understand real threats. They also want to survive as intact as possible and with as much of their privileged status as can be preserved. And, now the other side of the ledger.

Americans, I believe, are not prepared to abandon exemptions from law for the few while that same privileged few deny them the means to life, hope, and a future. Something has to give – and it will.

George Kennedy

George Kennedy is a retired senior Foreign Service officer with extensive international experience. He holds a B.A. from the University of Oregon and two graduate degrees from the Johns Hopkins School of Advanced International Studies in Washington, D.C. Mr. Kennedy was a political advisor to state and federal officials and has authored strategy pieces for Members of Congress and presidential candidates. He serves on the Advisory Board for the School of Social and Behavioral Sciences at the University of Arizona.

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