“Lock him up?” It’s a question that Bernie Sanders and Joe Biden both addressed at the fifth Democratic primary debate (in Atlanta, hosted by MSNBC and The Washington Post). Moderator Rachel Maddow had asked Sanders if, given the MAGA enthusiasm for chants of “Lock her up!” (aimed still at Hillary Clinton, years and years on), he ought to be concerned when Trump is the target of a similar chant from crowds at the World Series, or at Sanders’s own campaign events.
The question ventured a kind of equivalency between Trump and Sanders rallies. The NBC News debate live blog described the “Lock him up!” chant as “a mirror of Trump supporters.” (Has a counterprotester ever been dragged out of a Sanders rally? If one has, Sanders neither cheered on the cops nor egged on the crowd.) “Why are we pretending it’s controversial,” Slate’s Ashley Feinberg floated on Twitter mid-debate, “for people to say that a president who openly and proudly admits to breaking the law should be in jail?” In spite of these open questions about Maddow’s inquiry, Sanders took the chance to say what’s become more obvious over the past few weeks: Powerful people like Trump believe they can evade the law.
“I think the people of this country are catching on to the degree that this president thinks he is above the law,” Sanders said. “And what the American people are saying, nobody is above the law. And I think what the American people are also saying is, in fact, that if this president did break the law, he should be prosecuted like any other individual who breaks the law.”
As utopian as Sanders is told he is, this is a completely conventional appeal to an equal system of justice. Cory Booker would point out later in the evening that marijuana has already been decriminalized for white people. If abortion were criminalized, Elizabeth Warren said, that would not stop wealthy women from getting an abortion. Sanders, undoubtedly, is aware of these truths. To ask that someone powerful be prosecuted “like anyone else” who breaks the law is an appeal to a standard that in practice does not exist.
Biden used his allotted time to scold the chanters, but also to argue for an independent attorney general and Department of Justice. This is something that should not sound particularly fantastical, but life under Bill Barr. “I would not dictate who should be prosecuted or who should be exonerated. That’s not the role of the president of the United States. It’s the attorney general of the United States,” said Biden, “not the president’s attorney—private attorney.”
The current president’s personal attorney, Rudy Giuliani, has indulged in some potentially criminal lawyering. As for the actual attorney general, Barr was out defending the near-absolute power of the executive branch only last week. “One of the ironies of today is that those who oppose this president constantly accuse this administration of ‘shredding’ constitutional norms and waging a war on the rule of law,” Barr mused. “While the president has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him.”
By the time Barr gave this speech at a Federalist Society gala, the House impeachment hearings investigating the president had wrapped their second day. “The fact of the matter is,” Barr continued, “that, in waging a scorched-earth, no-holds-barred war of ‘Resistance’ against this administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.” This must be why, after a brief coup, Merrick Garland now sits on the Supreme Court.
It would have been more illuminating to ask Sanders, or Biden, or any of the candidates, in this quest to ensure no one is above the law, who will you put forth to succeed Barr—or whoever is attorney general by then? Barr or no, the rule of law is still filtered first through every prosecutor’s discretion, including the nation’s top prosecutor. And while there are certainly some U.S. attorneys and state attorneys general out there who would relish the chance to take on the president, that leaves a question unanswered: If the aim is to prosecute the president like “anyone else” who broke the law, just who, exactly, is being invoked as “anyone else”? The white weed dealer? The woman who can afford to fly to wherever she can have an abortion? The former mayor of New York City?
This week, a member of the House of Representatives offered her perspective on how the justice system should hold a different man in America accountable—in this case, Patrick Carlineo, who threatened to assassinate her. In a letter to the judge (and shared online), Representative Ilhan Omar made a plea for restorative justice, for not locking him in a cage. “A punitive approach to criminal justice will not stop criminals like Mr. Carlineo from committing a crime again or prevent others from committing similar acts,” she wrote. “He should understand the consequences of his actions, be given the opportunity to make amends and seek redemption.”
The threats Omar has received throughout her tenure in Washington are inseparable from the anti-immigrant, anti-Muslim actions of the executive branch, from the wall to the travel ban. She is yet to have the opportunity to offer such guidance to those who may prosecute the president. So this is not to make suggestions on her behalf, but: How could any jail cell, even one for the president, hold anyone accountable for all of that?