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.”
The current reaction to FBI Director James Comey’s announcement that he was not recommending that criminal charges be filed against former Secretary of State Hillary Clinton provides an excellent illustration of the thesis of that article.
Director Comey had hardly finished speaking when social media and the twenty-four hour news channels exploded with condemnation of his callous disregard for the rule of law. Advancing examples of other individuals who were prosecuted for conduct similar to Clinton’s, critics:

  • accused Comey of failing to apply the law equally to all parties
  • mocked his declaration that Clinton’s conduct was careless but not criminal
  • held out his decision as typical of the Obama’s administration’s penchant for ignoring the law whenever it finds it convenient to do so.

Sadly, several of my fellow libertarian-leaning scholars issued similar condemnations.
Let’s step back for a moment and consider just how perverse this reaction is. The criminal law, after all, is the mechanism by which the power of the state is brought to bear against individuals. As such, we must ever be on guard against its overuse and abuse.
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.
The system is purposely designed to make it difficult for the government to obtain convictions because in the oft-quoted words of William Blackstone, “it is better that ten guilty persons escape than that one innocent suffer.”
We normally consider law enforcement agents and prosecutors who are more interested in obtaining convictions than in adhering to these restrictive rules as corrupt. The ethical law enforcement agent or prosecutor is 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.
Over recent decades, there has been an alarming trend toward “overcriminalization” as the government created new criminal offenses that punish those who act without ill intent. Citizens are now subject to a myriad of regulatory offenses that can be committed negligently or innocently or without knowledge that one is acting illegally. This represents a dangerous misuse of the powerful sanction of criminal punishment that should be reserved for those who engage in intentional wrongdoing.
Finally, recent decades have seen the unfortunate criminalization of politics. In the last few years, we have seen politically motivated prosecutors issue John Doe warrants against conservative political organizations, subpoena the records of climate change skeptics, and stretch the law to bring charges against politicians from the opposing party such as Ted Stevens, Tom DeLay, or Robert McDonnell. It is precisely the actions of such partisan prosecutors that undermine the integrity of the criminal justice system.
In this context, consider James Comey’s actions. We appear to have a federal 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.
Comey appears to be an all-too-rare example of a federal law enforcement official who is committed to the civil libertarian features upon which our criminal justice system is grounded. And yet, for remaining faithful to this commitment, he is subject to public calumny and abuse. Why?
Because of the myth of the rule of law.
Apparently, failing to bring charges against Clinton when others who behaved similarly were charged and convicted (an assumption, by the way, about which one should be highly skeptical) 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 of government documents or data, then Clinton should be subject to the same treatment.
Consider the nature of this argument. Its basic contention is that because citizens have been subjected to oppressive laws in the past–e.g., that they have been jailed for mere carelessness–the rule of law demands that citizens continue to be subject to oppressive laws. Apparently, the commitment to the rule of law entails a commitment to consistent application of oppression.
Is this really the type of argument those who support a liberal society should be making?
The fact that so many commentators make such an argument so facilely 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.”