Weaponizing the Law for Fun and Profit

Double standards come for us all, at some point.

“For my friends, anything; for my enemies, the law.”
- Peruvian General Óscar Benavides

The journalist and fellow Substacker Radley Balko shared a story on Facebook a few weeks back about a pair of newlyweds.

The husband, Bradley Bartell, voted for Trump in November. He was accordingly shocked when, in March, his wife Camila was detained by ICE over a minor civil infraction as they returned from their honeymoon. She had overstayed a visa during the pandemic because she couldn’t get a flight home to renew it. Despite being legally in the country now, working toward citizenship, and the wife of an American citizen, she was detained in an ICE detention center for 49 days and was just released on $3000 bond this week.

Her husband had no idea when he voted for Trump that this was the kind of immigrant—not even an undocumented one, but fully documented—that the Trump administration would target. Muñoz is certainly not a criminal in the traditional sense. She has no ties to criminal groups or the drug trade. She has no criminal history at all, other than the single civil violation of overstaying a legal visa during a pandemic.

Predictably, at least one commenter on Balko’s original post shrugged and offered the response that Muñoz got what was coming to her.

She broke the law, after all. Shouldn’t she face the consequences?

A Nation of Lawbreakers (By Design)

In a perfect world, of course, that argument might hold water. In a world where laws are difficult to break and where they are simple and transparent, maybe we could hold the Camila Muñozes of the world accountable for minor civil infractions by separating her from her husband and detaining her for two months without being charged with a crime. I’m still not sure we could claim the punishment fits the crime, but at least we would have given her fair warning.

But that’s not the world we live in. And it’s important for all Americans to reflect on what it means to be a law-abiding citizen in a vast bureaucratic administrative state where violating the law is not only the norm, but it’s almost impossible to avoid as we go about our daily lives. Most of us break the law every day in multiple ways and I’m not just talking about civil infractions (like the one Muñoz is being detained for) like speeding, which all of us do.

A few years back the legal scholar Douglas Husak estimated that about 70% of Americans violate federal laws that carry prison penalties. Most legal scholars, right and left, agree with his assessment and see it as a serious problem. But really there are multiple problems, all interrelated.

First, there’s the problem of overregulation and an overzealous administrative and carceral state. We know, of course, that the United States incarcerates a larger proportion of its citizens than almost any other country in the world—more than Russia and China, in fact. The land of the free shares our high incarceration rate with the likes of Turkmenistan, Cuba, El Salvador, and Rwanda.

But even apart from over-incarceration, there’s a broader reality that’s often ignored in the U.S.: it’s very very very easy to break the law.

In fact, it’s so easy that most of us have no idea we’re doing it.

This is in part due to layers of local, state, and federal laws and regulations. It’s also due to the complexity of certain kinds of law - particularly immigration law, tax law, and administrative and regulatory law - that take specialized degrees to understand and navigate without falling into accidental criminal activity. A lot of Medicare and Medicaid “fraud,” for example, is due to the inability of people to understand what the law actually says in the first place. If you accidentally provide home health services to someone who should be getting hospice care, you could be violating federal law.

In my own research on Medicare policy I had to rely heavily on lobbyists to explain to me what parts of the administrative code actually meant. The fact that someone with a PhD in political science who considers herself to have at least slightly above average reading ability needed the help of lobbyists to understand the law points to a much bigger problem for everyone else.

But it’s not just that it’s very easy to break the law.

The second issue and perhaps the more relevant one for our deeply polarized time is the perverse incentives overregulation and excessive law-making create. It turns out that when you’ve built up a giant net of laws that many people don’t know exist and certainly have no idea how to navigate, bad faith actors can use those laws in all kinds of nefarious ways. Wealthy people use the tax laws to their advantage, politicians use city and state laws to strike corrupt deals, and as we’re seeing now, the Trump administration is using the complexity of immigration laws to target people whose views oppose theirs. It’s super easy to weaponize laws against your political enemies when it’s almost impossible to avoid violating the law in the first place.

Tribalism and Double Standards

But let’s be clear: this is an equal opportunity game.

Both Democrats and Republicans love to weaponize laws against those they disagree with. It’s a very old political game going back centuries. Trump advocates and even some moderates have argued that state prosecutions of Trump fall into this category. Leaving aside the question of whether Trump is, in fact, guilty of greater crimes, it seems likely that the kinds of things Democratic prosecutors charged Trump with are not the kinds of things they would have charged Biden with had the roles been reversed.

And that’s very much the point. We’re happy to overlook all kinds of legal gaffes on our side while we scream bloody murder about those on the other side.

This is, of course, human nature. My kids overlook their own violent assaults on their siblings while howling as though they’re being massacred if their sister touches their arm without consent.

James Madison, an astute observer of human nature, recognized this many years ago in Fed 10 when he addressed concerns about the dangers of faction. The most dangerous faction in a democracy is, of course, the majority itself.

Madison felt that the power of democratic majorities and their tendency to weaponize the law against opponents can only be prevented by splitting power vertically (federalism) and horizontally (checks and balances and separation of power) as well as via diverse classes of citizens to make it hard for any one faction to achieve majority status.

And that’s because when we weaponize the law - particularly very complex and convoluted laws like tax law or immigration law - we undermine key liberal democratic principles. Perhaps surprisingly for some, weaponizing the law doesn’t undermine democracy, per se. Democracy by itself is a majoritarian process for electing leaders. What worried Madison so much is that democracies have a long and storied history of whoever comes to power weaponizing the law against the other side.

What’s really at stake are liberal principles - the principles of limited government, the principles that prevent the government from disappearing you out of your house and locking you up in an ICE detention center without due process.

And one way faction rears its ugly head is by weaponizing otherwise banal-seeming laws in order to target vulnerable people or shut down dissent.

The Law Giveth and the Law Taketh Away

Law, like everything else in human nature, is a mixed bag. Good laws provide the guardrails for human coordination and cooperation. Good laws are what make human communities outside of small tribes possible. Good laws spur innovation, generate growth and lead to human flourishing. I am deeply grateful for all the wonderful gifts that good laws give me. As I point out to my students, the fact that I don’t even have to think about whether my 20 minute commute will end successfully or not is a testament to the network of rules and regulations including everything from traffic laws, regulations on bridge construction and maintenance, licensing laws for drivers, and laws against violent assault. People who have lived in less lawful countries know that even a 20 minute commute can raise existential fears most of us never contemplate. Those fears are much of the reason people like Camila Muñoz seek a better life here.

But even good laws, in the wrong hands, can be weaponized to harm the vulnerable, stifle dissent, and enrich those in power.

Even wealthy people stumble into violations that lead to imprisonment, as Martha Stewart found out. While many lauded her imprisonment on “eat the rich” grounds, there’s quite a lot of plausible evidence that she was a scapegoat for a larger prosecution. Even experts can’t explain what she actually went to prison for, which doesn’t bode well for the justice system. If all it takes is a zealous prosecutor with a grudge and a lot of time on his hands, none of us will come out clean.

Stewart is obviously doing fine now, because she’s rich and smart and handled the situation well. But there are lots of poor or otherwise vulnerable people who get caught up in our legal system who have no hope of getting out. And these people really do see their lives and futures entirely destroyed, sometimes for infractions of laws no one even knows exist and wouldn’t defend if they did.

And that’s why the law is such a dangerous thing. It’s absolutely necessary for creating conditions for cooperation and order, but it’s also a deeply dangerous weapon when wielded against people for political reasons, especially vulnerable ones with whom we might otherwise disagree.

Double Standards and Vicious Cycles

In addition to concern for the vulnerable, politically motivated prosecutions - even against the rich and powerful like Martha Stewart - create a vicious cycle that undermines liberal democracy in dangerous ways.

Democrats cried foul when Bill Clinton was impeached over perjury charges relating to his relationship with Monica Lewinsky and they cried foul again when Hilary Clinton was (briefly) investigated for her handling of classified information. And yet the same Democrats scream “felon” at Donald Trump while MAGA voters scream “lock her up” at Hilary.

Almost all of the legal scandals past presidents have been embroiled in were instigated by the opposition party. Often the actual charges brought forth, whether for impeachment or criminal conviction, have little to do with their activities as president and more to do with whatever laws can be dredged up to suit the opposition’s case. In both the Clinton and Trump cases, the crimes in question (at least the ones both were actually tried and impeached/convicted of) had to do with sexual activity and its fallout.

While I’m not arguing that presidents are above the law, I also don’t think it’s a good idea for us to go dumpster diving to find laws they’ve violated either. Doing so creates deeply dangerous incentives to weaponize the law in ways that create vicious cycles. These cycles undermine public faith in the law across the board. Both sides claim it’s a witch hunt and the average American shrugs their shoulders and become even more disillusioned with politics than they were already.

The point here is not that Clinton or Trump were/are particularly good presidents. And it’s not to claim moral equivalence between the two. It’s not even to claim that they shouldn’t have been prosecuted for something at some point. I leave those questions to the legal experts.

The point is that every time we laud a politically motivated prosecution, we’re digging liberalism’s grave.

When we as voters and citizens support a culture of weaponizing the law against people for political reasons it’s hard to find a principled place to stop.

After all, people shouldn’t break the law, right?

But when we live in a world where it’s impossible to not break the law, we have to find a different standard to apply. And we don’t have one.

Instead, we’re living in the equivalent of a knife fight in a knife factory. We have a lot of incentives to use those knives in illegitimate ways and we have a lot of material to work with.

This is a vicious cycle that bodes ill for liberal democracy; it undermines the very principles of limited government, undermines respect for law, and leads to “truthiness” about what constitutes law breaking that makes it easy for people to disengage entirely.

After all, if everyone is breaking the law and people are prosecuted mostly based on who their enemies are, it’s hard to tell which laws are actually important or worth defending in the long run.

We should all be highly suspicious about the way we apply double standards on both sides when it comes to infractions and who deserves the full weight of the law.

Both sides need to view the power of legislation and regulatory decision-making with deep suspicion. But very few people think about the law as double-sided in this way and as a result we as partisan voters support a lot of very ill-advised activity that undermines faith in the legal system, our law-makers, and the very laws themselves.

Thinking About Law in 4D

I’ll end with a principled, bipartisan and radically moderate call to be very careful about the laws you wish for—and even more careful about how you think those laws should be applied, especially when aimed at people you don’t agree with.

As citizens we can and should look with deep skepticism about the following claims:

1. “You just have to follow the law to be safe from government interference.” Structurally, that’s not how vast swaths of law work and it’s naive to think they do.

2. Before you utter “there oughta be a law” about your latest frustration with your neighbors or bad behavior on your commute, take a moment to explore the downstream implications of whatever law you’re pondering:

   1. How might that law be used by the worst kind of person to hold public office in the future? How would a Matt Gaetze or a Rod Blagojevich or a Donald Trump or an Anthony Weiner use that law? Who might they target? How might they use it to enrich themselves?

   2. How might that law interact with the hundreds of thousands of other laws out there? Is the law easy to understand and follow? Or does it join a dense net of other complex laws that catch people unaware? Does it contradict other levels of law? Can a small business owner understand it? Or does it require a dedicated legal team to figure out?

   3. What are the effects of that law on the most vulnerable among us? Can a single mother working at Dairy Queen afford the penalties of inadvertently breaking that law? What about a whistleblower? What about an immigrant and wife, like Muñoz, working to make her way in a new country that she loves?

If you can’t answer each of these questions with some degree of clarity, maybe back slowly away from the law-making table and do something else with your time. Go out into the community and help someone in need or plant a garden or learn a new language or just read a good novel. Almost anything else would be more productive, less dangerous, and less likely to feed our national past-time of making laws and then weaponizing them against the “other side.”

And almost anything else would be safer for the future of our fragile nation.

Your Turn!

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