Opinion: 'Equal justice under law' really needs an asterisk

Chiseled in stone above the front entrance to the US Supreme Court building are four words, “EQUAL JUSTICE UNDER LAW.” A profound concept efficiently expressed. The other side of the same coin is the often-heard expression, “No one is above the law.” Both sides of that coin express the same fundamental premise that ours is a constitutional democracy and a nation of laws, where the law applies to everyone equally. Flip that coin as often as you want, and the result is the same.

That premise is demonstrably not true in real life.

Start with the wealth gap that exists across the country. The wealthy, charged with an offense, have the capacity to hire the very best defense attorneys out there. Those of more limited means (disproportionately people of color), have the well-known right to legal counsel, and a court will appoint a licensed attorney to represent the poor. If there were no difference, everyone would opt for court-appointed representation. There is a difference, with no intended disparagement of those attorneys who accept court appointments and do the best they can for the sake of indigent clients. That difference alone, however, demonstrates likely UNequal justice under law.

It gets worse. Presidents have the power to grant complete pardons to anyone charged with any kind of violation of federal law, as well as commutation of the sentences of those already convicted of violating federal law. Virtually every president has exercised that power. President Donald Trump granted 70 or more pardons, many of those in the waning days of his presidency, and a similar number of commutations. One notable pardon went to Steve Bannon, a long-time political ally of Trump. People charged with conspiring with Bannon to defraud investors in a contemplated wall to be built along our southern border (that was supposed to be paid for by Mexico) were convicted and sentenced to prison. Bannon dodged that outcome thanks to the presidential pardon, and he got the benefit of unequal justice.

Moreover, if people in his inner circle are to be believed, Rudy Giuliani was marketing presidential pardons for $2 million apiece, to be split between him and Trump —the ultimate intersection of wealth and political connection to achieve decidedly unequal application of the law.

But it gets still worse. Consider the justices of the US Supreme Court, particularly (most recently) Associate Justice Clarence Thomas. He has for decades accepted lavish, annual vacation travel from a politically conservative billionaire. Imagine having that kind of regular, annual access to a beholden justice of the US Supreme Court, reinforced by the sweetheart purchase of Thomas’ mother’s home and its renovation, and further reinforced by paying the private college tuition of a dependent of Thomas who was being raised as his own son (according to Thomas).

The latter sounds very similar to what put Allen Weisselberg (the chief financial officer of the Trump Organization) in New York’s Rikers Island prison. There is no accountability to the full Supreme Court, and the impeachment remedy, which requires a two-thirds vote of a Senate almost evenly divided along partisan lines is impossible as a practical matter. Essentially, no accountability. he same lack of accountability is true of all members of the court. It has been accurately said that anyone without any accountability should not be trusted. It’s true.

I recall, as a law clerk for the 8th US Circuit Court of Appeals, the judge I worked for commented with some regularity that his was a lifetime appointment. And, it was. We clerks would quickly, and somewhat naively, add that his comment was true only “during good behavior.” Our qualifier never seemed to soak in. In real life, as a practical matter, the judge was not accountable to anyone. As it happened, he was a good judge with a high level of intellect and integrity, but that would not be the case with every federal judge. He was able to be UNequal under the law, much like the justices of the US Supreme Court. Unaccountability is a synonym for UNequal justice under law.

We’re all familiar with the asterisk (the little star symbol on the keyboard); we see them at the end of warrantees and other claims, calling our attention to the “fine print” at the bottom of the page that limits the warrantee or otherwise qualifies what appears to have been said in the text. What we appear to be missing when it comes to “EQUAL JUSTICE UNDER LAW” and “No one is above the law,” is an asterisk similarly engraved in stone, citing the foregoing exceptions. Those premises are aspirational — not real.

Perhaps the most important test currently is the pending and perhaps impending indictments of the twice-impeached former president of the United States, who has openly flouted the criminal and civil law for pretty much all of his entire adult life, to see if there is any truth whatsoever to that aspirational goal of equality under the law. Time, and the slow-moving justice system, will tell.

Jonathan Wilson is an attorney practicing in Des Moines.

This article originally appeared on Des Moines Register: Opinion: ‘Equal justice under law' really should have an asterisk