Over twenty years ago, I published an article that argued that the rule of law was not only a myth, but an extremely dangerous one that causes people “to be willing not only to relinquish a large measure of [their] own freedom, but to enthusiastically support the state in the suppression of others’ freedom as well.” (John Hasnas, The Myth of the Rule of Law, 1995 Wisconsin Law Review 199, 232 (1995)). The current reaction among many of my libertarian-oriented colleagues to FBI Director James Comey’s announcement that he was not recommending that criminal charges be filed against former Secretary of State Hillary Clinton reinforces my belief in the thesis of that article.

The advent of Facebook and other social media allow us to record and publish our reactions to events almost instantaneously. This has allowed me to see, within one day of its announcement, committed libertarians mocking Comey’s characterization of Clinton’s conduct as careless but not criminal, decrying the lack of equal application of the law by advancing examples of other individuals who were prosecuted for similar carelessness, and holding Comey’s decision out as another illustration of the Obama’s administration’s flaunting of the rule of law.

Step back for a moment and consider just how perverse this reaction is. When they are thinking abstractly, libertarians are civil libertarians. They are aware that the criminal law is the mechanism by which the power of the state is brought to bear against individuals, and they are ever on guard against its overuse and abuse.

Going Against their Own Normal

Ordinarily, they argue that the glory of the American system of criminal law is that every citizen is entitled to the presumption of innocence and may be deprived of his or her liberty only if the prosecution can establish each and every element of a criminal offense beyond a reasonable doubt. They are typically quick to point out that the rules are purposely designed to make it difficult for the government to obtain convictions and delight in quoting William Blackstone’s aphorism that our law is based on the belief that “it is better that ten guilty persons escape than that one innocent suffer.” They usually consider law enforcement agents and prosecutors who are more interested in obtaining convictions than in adhering to these restrictive rules as corrupt. They regard the ethical law enforcement agent or prosecutor as one who will not bring charges and put citizens through the ordeal and obloquy of a criminal trial unless they are sure that they have the evidence necessary to meet their burden of proof on every element.

Ordinarily, libertarians rail against over-criminalization. Not with Hillary.Ordinarily, libertarians rail against over-criminalization, decrying the advent of criminal offenses that punish those who act without ill intent. They usually condemn the rise of the myriad regulatory offenses that can be committed negligently or innocently or without knowledge that one is acting illegally, and argue that the powerful sanction of criminal punishment should be reserved for those who engage in intentional wrongdoing.

Ordinarily, libertarians oppose the criminalization of politics. They oppose the effort to use criminal prosecution as a weapon in the struggle for political power, and excoriate prosecutors who issue John Doe warrants against conservative political groups, or subpoena the records of climate change skeptics, or who stretch the law to bring charges against politicians from the opposing party such as Ted Stevens, Tom DeLay, or Robert McDonnell.

And yet, despite these abstract commitments, many of my libertarian colleagues mock or decry James Comey’s recommendation that charges not be brought against Hillary Clinton. Why? Because of the rule of law.

Double Standard

Apparently failing to bring charges against Hillary Clinton when others who behaved similarly were charged and convicted (an assumption, by the way, which is almost certainly not accurate) is a violation of the rule of law. The rule of law demands that the law be applied objectively and impartially to all parties, so if others were subject to criminal punishment for the careless mishandling government documents or data, then Clinton should be subject to the same treatment.

Libertarians’ reaction to the Hillary ruling speaks to the power of the myth of the rule of law.Do libertarians really want to make this argument? Do they really want to contend that the fact that citizens have been subjected to oppressive laws in the past–e.g., that they have been jailed for mere carelessness–demands that citizens continue to be subject to such laws? Do libertarians really want to argue for the consistent application of oppressive measures?

In this case, we have a law enforcement official who recommends against prosecution on the grounds that his agency could not secure evidence that would prove a crime beyond reasonable doubt. Further, he admonishes against criminalizing merely negligent behavior pointing out that there are other, non-criminal sanctions that can be imposed on such conduct. Finally, he suggests that it would be inappropriate to let Clinton’s status as a candidate for President affect his judgment on whether to recommend that criminal charges be filed.

I would think that libertarians would want to praise this all-too-rare example of a federal law enforcement official remaining faithful to the civil libertarian features built into our system of criminal justice. The fact that many do not is a testament to the power of the myth of the rule of law and its ability to cause people “to be willing not only to relinquish a large measure of [their] own freedom, but to enthusiastically support the state in the suppression of others’ freedom as well.”

Even Hillary Clinton Has Civil Liberties
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