No Consequences

There are generally no consequences for mistakes or abuses of power as long as those who make or commit them work for the government. Things are different in the private sector.

Business people are trained to think of risks and possible returns, of costs and benefits. We must constantly accommodate ourselves to the world at large when our fondest hopes are disappointed, as they inevitably are. We know that we are not likely to achieve perfect outcomes, and constantly strive to find a point of exchange that works for both sides. The balance of power between buyer and seller is that both must agree to a deal.

My mother used to say “You can be dead right, and still be dead” – a bit of wisdom that is a good deal more useful in business than many things that are taught in school. We sometimes hold our noses and settle a lawsuit even though the case stinks, because doing so is the right financial decision. Nobody will pay us for standing on principle.

We are constrained by knowledge of the potential consequences our actions: if we screw up badly enough, we can lose money, lose our jobs or cause our companies to go bankrupt.

Now let’s think about abuses of power by those in government.

Through scholarly articles like this one ( and notes on his blog (, Glenn Reynolds, Professor of Law at the University of Tennessee, has regularly focused attention on abuses of prosecutorial power; he also points out that because of the number and vagueness of our laws, virtually anybody could be convicted of a felony, which only augments the prosecutor’s power.

Abusive prosecutions may be undertaken for partisan reasons or simple self-aggrandizement. Many have pointed out that the convictions of prominent Republican politicians Tom DeLay and Ted Stevens shifted the balance of power in Congress toward the Democrats. Both convictions were later overturned based on judges’ findings of prosecutorial misconduct, but those reversals did nothing to remedy the shifted balance.

Relative to each of us individually, our government possesses virtually limitless means. If a partisan or self aggrandizing prosecutor (Eliot Spitzer and Rudy Giuliani spring to mind) decides to come after you with the awesome power of the government, you are in big trouble.

There are enormous costs to be bourn by the victims of such abuses, even if they should ultimately be acquitted. Few individual defendants have the money and the will to keep fighting until prosecutorial abuses are discovered. If the targets are businesses, they probably take the practical route, and settle quickly (that’s why it’s so easy for prosecutors to extort settlements from large corporations).

Abuses of governmental power needn’t be prosecutorial to be important. Lois Lerner, whose own emails indicate that she directed the IRS’s harassment of conservative organizations in the run-up to the 2012 election, may have changed the outcome of the Presidential contest through her actions.

She has been put out to pasture – retired – to get her out of the public’s eye. Prosecution for her misdeeds by the current Justice Department seems prohibitively unlikely, though; election tampering doesn’t seem to trouble Attorney General Holder if it was on behalf of his team.

And the murders of our consular staff in Benghazi have led to no serious consequences for those who made mistakes in planning, and no adverse consequences at all for those (including President Obama and Secretary Clinton) who made themselves scarce during the night-long attacks, or those who told lies about the attacks to the press. Indeed, Victoria Nuland, the woman who deleted mention of Ansar Al Sharia from the famous CIA talking points about the attacks before sending Susan Rice out to do the talk show circuit, was promoted.

There are generally no consequences at all to the abusers of governmental power, even after the abuses are discovered. At worst, abusers are retired quietly and shuffled off the stage. Maybe they get promoted. Mostly, nothing happens.

Don’t think that our prosecutors, our bureaucrats and our appointed officials are unaware of the lopsided power that their positions confer. They can behave like bullies with near-total impunity, and they know it; that’s why so many of them do behave in that manner. For some of them, I have no doubt, that’s why they went into government “service” in the first place.

“Quis custodiet ipsos custodes?” may be the most intelligent question ever asked.


M.H. Johnston 9/24/13

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