What Is That Law That No One Is Above?

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If one were to look for a slogan that best expresses both the essence of American political system, and our pride in it, “no one is above the law” would be a prime contender. Every text on civics, every newspaper editorial red-hot with fiery indignation at the abuse of power, is anchored in that notion.

But is our reliance on the equality before the law justified?

Imagine the polar opposite of the American democracy – an absolute, autocratic monarchy. It is ruled by a king who does whatever he wants, while his subject – let’s call him Mr. King – can only do what the king allows him – or tells him – to do.  Is the king “above the law” just because he can boss Mr. King around? Not at all. The king is bound by a different law – the law of absolute monarchy that gives him the right to do that. Mr. King obeys the law in his subservience to the king – and the king obeys the law in trampling on Mr. King. When the law is tailored to a person’s position, “no one is above the law” means simply “no one is above one’s law.” Under such arrangement, there is no political system in which its member – be he the king or the Mr. King – is “above the law.” Being “above the law” is as impossible as being taller than one actually is. So, our proud declaration of “no one is above the law” is tautological – and hence, meaningless.

It would have meaning only if our political system did not tailor the law to one’s position, only if one person’s law was not above the other person’s law. As a non-lawyer I made a mistake of thinking that such was the case indeed, for it did not occur to me when I hired a lawyer to file a free speech/property case, Overview Books v. US that while no one was above the law, the law was not the same for everyone. It was only when I saw the amazing facility with which a federal judge made never-before-existing government’s argument suddenly appear in his ruling, and the other judge made the argument presented by my lawyer as magically disappear from the ruling – so as to allow them to decide my case the way they wanted to decide it, not the way they had to, and when I tried to sue judges themselves for fraud, that I discovered that the height of the law that no one is presumably above gets adjusted based on who it is applied to, thus making mockery of one’s trust in “equality before the law.”

Since my lawyer refused to sue judges who so fraudulently ruled in cases in which he represented me, I had to do it myself, “pro se” as the professionals call it – and learned in the process a good deal about the unequal nature of the law, used to sanctify any judicial behavior, no matter how shady or illegal.

What I called “judicial fraud” when I embarked on suing judges, turned out to be an existing legal notion, a part of the wider category of “fraud upon the court” – which is thusly defined in Hazel-Atlas Glass Co. v. Hartford-Empire Co.: “only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court.”

Observe that while “fraud upon the court” for attorneys and judges has been defined in the same sentence, how different is that definition! Attorneys are held liable for “fabrication of evidence” – but not judges, who are merely liable for bribery. “Fabrication of evidence” was precisely what the judges in my case did to me. “Fabrication of evidence” was in essence what I sued judges for. But judges are not bound by the same law as lawyers, though both are officers of the court; Hazel-Atlas does not punish judges for “fabrication of evidence” for which it punishes lawyers. So while neither lawyers nor judges are “above the law,” judges’ law is above lawyers’ law, allowing judges to get away with “fabrication of evidence” which lawyers can’t get away with, Per Hazel-Atlas, lawyers have to be honest, while for judges – per the very same Hazel-Atlas – honesty is optional.

Another gem of a similarly pliable “law” came in briefs of the DAs who defended the judges I sued, and is worth quoting in its lengthy full:  “In Pierson v. Ray, the Supreme Court explained: Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher. This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”

Since being immune from prosecution for a particular action is a dictionary definition of having a right to perform that action, Pierson v. Ray gives judges the right to act from the bench “maliciously and corruptly” – which is not the right that others enjoy. (The generally Orwellian nature of Pierson v. Ray is worth noting too, since it does the very opposite to what it promises to do: while it claims to be implemented “for the benefit of the public,” it deprives the public of the protection from arbitrary judging presumably granted us by the “due process of the law.” Indeed, how does it benefit us when judges act as parties to the case argued before them – which they surely do when they inject into their decisions their own, “sua sponte” argument? And Pierson v. Ray clearly serves as “protection or benefit of a malicious or corrupt judge” – which, by the way, is not in public interest either).

Yes, in America – as everywhere else – “no one is above the law.” But what’s the use of that equality before the law when, just as everywhere else, the law in America is not equal for all?

The opinions expressed in this article are the beliefs of the author only and do not reflect the opinion of Attorney at Law Magazine or its editorial staff. 

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