“Someone must have been telling lies about Joseph K., he knew he had done nothing wrong but, one morning, he was arrested.” – The Trial
An air of smug indignation that no one is above the law, resounded from media sites around the country, as news of former President Donald Trump’s indictment over his apparent mishandling of classified documents was handed down by a politicized Department of Justice. But few enlightened citizens accepted such gaslighting. The truth is, it is rare that anyone in the upper echelons of government is held to anything close to accountability. Instead, American officials openly operate under a system of “rules for thee, but not for me”. Along with a gross lack of transparency, the government and its officials seemingly enjoy unlimited immunity.
In America, the legal system was founded on English Common Law, where laws formed over time from cumulative judicial decisions help to ensure consistent and principled results. Added to that is a presumption of innocence, where a person charged with a crime is deemed guiltless until due process provides a verdict. Benjamin Franklin went further arguing "It is better that a hundred guilty persons should escape than one innocent person should suffer." In the West, protecting the innocent became a priority over punishing the guilty. To prove such guilt, the accused must have a mindset of mens rea (criminal intent). The law, then, was not meant to trap innocent people who had no intention of committing crimes. Therefore, abiding by the spirit in which the law was enacted, and not simply as it was written, is how our society must be judged.
Unfortunately, the expansion of the federal code has grown exponentially over the past several decades, often encroaching on areas left to the states. In addition to its surge in both size and scope, the law has become vague and less understandable, making it easier to be used against more people. More laws, in the form of regulations, continue to be enacted outside of Congress as well, where federal agencies regularly add to the US Code, which now totals more than 175,000 pages. Then, with federal judges appointed by political parties, including the attorney general, the top prosecutor in the country, there is a greater opportunity to use the law against political enemies.
In Frank Kafka’s 1925 novel, “The Trial”, Kafka tells the fictional story of Joseph K, a man who is arrested and charged with a crime, although they won’t tell him why. Written in 1914-1915 as a satirical tale about unaccountable bureaucracies, Kafka would be credited with foreseeing the rise in totalitarian dictatorships around the globe. Kafka, known not only as an important author of 20th-century literature, spawned the term Kafkaesque when it was adopted into modern parlance to suggest something absurd and illogical. In a parable of life and death, Kafka’s protagonist struggles to find truth in a nonsensical and corrupted system of government.
The Trial, however, was not about charges disputed in a formal courtroom, but instead, about Joseph K.’s day-to-day struggle with his irrational fears of being charged with a crime yet allowed to return to everyday life despite no resolution following his arrest. The authorities provided no indication of the charges against him, no evidence of wrongdoing, and no due process. While he seeks to represent himself and clear his name of the unnamed charges against him, he begins to wonder if there isn’t something he might have done wrong. Kafka’s tale of the paranoia of government, sometimes known as bureaucrophobia, and the unchecked power of the legal system in a totalitarian world, plays to our own crumbling justice system and growing disillusionment with the application of the rule of law. While we assume law and order exist for our benefit, it far too often seems to exist only for a few and against the many.
In fact, in the 2011 book, “Three Felonies a Day”, we learn how we are unknowingly committing crimes every day. When laws are written in vague terms, any crime can be twisted to trap individual citizens at any time. As such, many innocent people are then incentivized to plead to lesser charges to avoid more serious crimes and jail time. Although the nature of justice is to protect individual life, liberty, and property, bureaucrats instead expand their power by creating broader and more dubious laws to use as they wish. Now, as we move farther and farther away from the intent of English Common Law, innocent people are being targeted not only to control behavior but to serve as a warning to others.
When society accepts such behavior from its government, the government becomes more unaccountable to its citizens, leading to an increase in totalitarian rule. The court becomes above the law, using its authority as a tool of oppression, rather than a defense of rights. By this time, bribery and influence peddling become prevalent. Stalin’s secret police chief famously bragged, “Show me the man and I’ll show you the crime.” Today, we have seen the implementation of this Soviet tactic with January 6 prisoners who have been arrested and held for months and years without charge, as prosecutors look for a crime to pin on them.
Thomas Jefferson forewarned, “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” Unease over crossing paths with the government is no longer an irrational concern. As the rule of law continues to be eroded, the unlawful actions of government officials will only become more emboldened and depraved.
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