"The sense among ordinary Americans has been that the law does not apply to members of the ruling class in the way it does to everyone else"

 

Here’s a litmus test for Democratic presidential contenders in 2028: Where do they stand on elite impunity and bringing justice to lawbreaking Trump officials and the “Epstein class”? 

Back in 2009, after nearly a decade of Republican misrule, there was a lot of talk about “accountability.” With the economy in shambles and the country embroiled in two quagmires, many were hopeful the Barack Obama administration would reverse George W. Bush policies and hold those responsible for the devastation accountable.

Writing for The Nation, attorney and Watergate-era Congresswoman Elizabeth Holtzman implored the new president to investigate the rife “constitutional and criminal misbehavior” of his predecessor. “To fully restore the rule of law and prevent any repetition of Bush’s misconduct,” she said, “the abuses of his administration must be directly confronted.”

In The New York Times, prominent human rights attorney Michael Ratner argued, “Unless government officials know that consequences follow from such abuses, they will break the law again.” High-ranking members of the president’s party in Congress similarly called for investigations and “truth commissions” to look into the many alleged constitutional violations and human rights abuses that had been sanctioned by senior Bush officials over the previous eight years. 

Nothing ever came of these demands. Under the leadership of Attorney General Eric Holder, the Obama Department of Justice failed to criminally prosecute any of the high-level government officials involved in authorizing illegal torture and surveillance programs, just as it failed to prosecute a single Wall Street executive after the 2008 financial crisis. 

Despite widespread demands for accountability, the Obama administration ultimately chose a posture of forgiveness and closure. Fast-forward almost a decade, and the folly of Obama’s “look forward” doctrine is unmistakable. By declining to pursue accountability more aggressively, the Obama administration did not close a dark chapter in American history; it simply left the door open for even more egregious abuses in the future. Just as many critics had warned at the time. Few imagined just how egregious those abuses would be, or how faithfully the next Republican president would embody George W. Bush’s worst instincts. 

While the parallels between the Trump and Bush administrations have been evident for some time, President Donald Trump’s decision to launch a war with Iran earlier this month effectively cemented his place in history as the second coming of Bush. In “politics as well as policies,” observes Michael Lind in UnHerd, “the Trump administration increasingly looks like a continuation of the post-2000 Republican norm: pro-war, pro-business.” 

The main difference between the two administrations is not in policy or politics but in style. As Lind notes, Trump’s “bizarre and abrasive style … couldn’t be more different than that of the Bush dynasty.” The president and his top officials are also far more brazen and shameless in their misconduct than the “Bushies” ever were.

Compare Bush’s defense secretary, Donald Rumsfeld, to the self-styled secretary of war, Pete Hegseth. While Rumsfeld authorized war crimes behind closed doors and then denounced those crimes as “un-American” after they were brought to light, the current defense secretary has openly endorsed war crimes in his public speeches, vowing to show “no quarter” and “no mercy for our enemies.” 

Hegseth hasn’t just advocated war crimes in his blustery speeches. His alleged order to kill all survivors of the shipwrecked boats struck by American drones in the Caribbean last year was a brazen violation of international and U.S. military law. He also bears responsibility for the bombing of a school in Tehran that killed 175 civilians, most of them young girls.

As ProPublica reported, the secretary shut down a program to reduce civilian harm last year as he made “lethality” the military’s top priority, reorganizing national security around the principles of “more aggression” and “less accountability.” The former Fox News host has deplored “stupid rules of engagement” and called for “maximum lethality,” advising U.S. soldiers that their job is to “kill people and break things.” 

Hegseth has shown little concern about exposing himself to legal risk by publicly endorsing and privately ordering war crimes. And why should he? No senior U.S. official has ever been criminally prosecuted for war crimes or human rights abuses, despite the large body of evidence implicating past officials like Rumsfeld. The defense secretary flaunts his lawlessness, confident that he will never face any kind of consequences for his actions. 

This sense of inviolability is evident across the entire Trump administration — from the Pentagon to the Homeland Security Department to the Justice Department — and ultimately reflects the president’s own belief that he is above the law. 

The sheer scale of criminality and corruption on display in the U.S. government today would have been inconceivable in an alternative timeline where powerful government officials had actually faced repercussions for their actions. The Obama administration’s unwillingness to prosecute the architects of the Bush‑era abuses bred a dangerous moral hazard, much like the failure to punish white-collar criminals for their role in the financial crisis. 

Trump’s own evasion of accountability for his attempt to overturn the 2020 election continued this trend of injustice. 

While the Biden administration at least pursued criminal charges — a meaningful departure from the Obama precedent — the case was ultimately doomed due to the apprehensions of main justice and the “maddeningly slow” pace of the investigation. Under Attorney General Merrick Garland, who waited nearly two years to appoint a special counsel to investigate the former president, the DOJ approached the case with little sense of urgency and a “wariness about appearing partisan.” As one commentator later observed, it was clear that Garland had “little desire to investigate and potentially prosecute Trump.” 

America’s accountability crisis has entered its terminal phase, with the rule of law itself on life support.

Since Trump’s reelection, America’s accountability crisis has entered its terminal phase, with the rule of law itself on life support. While the Justice Department has been weaponized against the president’s foes, the administration has further undermined any efforts to hold political and economic elites — the so-called Epstein class — accountable (unless those elites find themselves on the president’s enemies list, of course). 

Trump himself has mounted a one-man assault on the rule of law, employing his pardon power to further entrench elite impunity. Just one year into his second term, he has already issued twice as many individual pardons as Joe Biden did throughout his entire four-year presidency, not including his mass pardon of the Jan. 6 rioters.

The recipients of Trump’s pardons have mostly been elites, whether corrupt politicians or white-collar fraudsters. Altogether, over half of Trump’s second-term pardons have been for white-collar crimes like money laundering, bank fraud and wire fraud. In just one year, these pardons have wiped out as much as $2 billion in fines and restitution for victims.

One thing is clear at this point in Trump’s second term: As long as the president and his circle remain convinced of their own impunity, their abuses will grow more audacious. This makes it all the more urgent for Democrats to show their real commitment to holding officials like Pete Hegseth and Kristi Noem accountable this time around.

Last month, author Cory Doctorow proposed that congressional Democrats form a “Nuremberg Caucus” to signal their seriousness about accountability. In Doctorow’s conception, this caucus would maintain a public archive documenting the full body of evidence for any future prosecutions of Trump officials: “Each fresh outrage, each statement, each video-clip — whether of Trump officials or of his shock-troops — could be neatly slotted in, given an exhibit number, and annotated with the criminal and civil violations captured in the evidence,” Doctorow wrote. 

Ever since the 2008 financial crisis, the sense among ordinary Americans has been that the law does not apply to members of the ruling class in the way it does to everyone else. The Jeffrey Epstein revelations have hardened that perception, with Trump standing as the most recognizable face of this untouchable elite. Almost 20 years after Obama’s ascent, the Democratic Party needs a new kind of promise — not hope, but accountability.

-Conor Lynch, Truthdig