Scot-Free

What happens when power and responsibility become unmoored from each other? The political events of recent months have provided new clarity to this old question. 

On November 21, 2024, the International Criminal Court (ICC) charged Israel’s prime minister, Benjamin Netanyahu, and ex-defense minister, Yoav Gallant, with crimes against humanity and war crimes and issued arrest warrants for them. The ICC was founded in 2002 “to put an end to impunity.” It has struggled to do so: that same year the United States Congress passed the American Service-Members’ Protection Act, better known as the Hague Invasion Act, authorizing the president to use any means necessary to obtain the release of American or allied personnel from the ICC. The US has never been a member of the court, and the Biden administration repeatedly denounced the warrants. On February 6 President Trump, explicitly retaliating against the ICC’s “illegitimate and baseless actions targeting” Israel, issued an executive order announcing sanctions on it. As always Trump is blunt. But after two decades of bipartisan hostility to the court, other American politicians can hardly pretend they want to put an end to impunity. 

On December 1, despite his previous pledges to the contrary, President Biden pardoned his son Hunter, not only for the three crimes he had been convicted of and the nine he had pled guilty to, but also for “those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024.” As an injustice, it paled in comparison to an average Trumpian afternoon. But it further weakened the Democrats’ claim to represent the rule of law.

During the month of December 2024, twenty-four people were murdered in New York City. One of them, the CEO of UnitedHealthcare, made $10.2 million the previous year; federal authorities from multiple agencies collaborated on a five-day-manhunt across several states to find his killer. The shooter inscribed “delay,” “deny,” and “depose” on the cartridge casings—the first two of which are well known strategies used by the health insurance industry, which in 2023 spent $93 billion on administration and still generated nearly $25 billion in net revenue. A pre-pandemic study in The Lancet found that the private health insurance system leaves 37 million Americans uninsured, inadequately insures 41 million, and causes the unnecessary deaths of over 68,000 every year. The cost of the manhunt is unclear—but it was surely considerable. The other twenty-three murders doubtless did not receive similar attention.

On January 10 Donald Trump was sentenced for his thirty-four felony convictions. He received an “unconditional discharge” without a prison term, fines, or probation. Justice Juan Merchan, of the New York State Supreme Court, referred in his sentencing to the 2024 Supreme Court decision in Trump v. United States, which granted the president sweeping immunity from criminal prosecution, and argued that unconditional discharge was the only option “without encroaching upon the highest office in the land.” Ten days later, right after he was inaugurated, President Trump commuted the sentences of fourteen people convicted of crimes during the January 6 insurrection and granted a “full, complete and unconditional pardon” to anyone else convicted of any actions taken at or near the Capitol on that day. It’s an ouroboros of injustice: an immune criminal president granting immunity to criminals who attempted to overthrow the constitutional order while claiming to uphold it.

What unites these various events is the clarity of their message: some people can commit crimes, and others cannot. Some people can be harmed while others will be protected. Or, in the words of Frank Wilhoit—not the political scientist, but the classical music composer—there are some who the law binds but does not protect, and some who the law protects but does not bind. 

Impunity refers to the way a person treats society—specifically, how they exempt themselves from accountability. Immunity refers to how society treats a person—specifically, how it protects them from negative consequences. As Ben Tarnoff recently argued in these pages, publicly demonstrating one, the other, or both has become a way for American elites to assert and reproduce their status, from not paying taxes to avoiding prosecutions. To be a member of the elite is to not be held to account.

There are elements both of continuity and of rupture here. Disdain for the ICC, unconditional support of Israeli violence, and the shabby personal use of pardons have all spanned administrations and parties. The absence of pretense underlying Trump’s actions, however, suggests an exhausted imperial sovereignty. The American state can no longer reliably win its wars, or produce broad-based economic growth, let alone claim some normative global leadership role; all it can reliably do, it seems, is insulate its elites from accountability and protect them from the consequences of their extractive depredations. Now that the elite is unable or unwilling to deliver other goals to other constituents, the maintenance of unaccountability has become one of its core functions, along with the upward redistribution of wealth. 

Because impunity is so deeply ingrained in political life, inflection moments in the distribution of impunity tend also to be moments of constitutional crisis—if not changes in written constitutional documents, then tectonic shifts in the basic assumptions of how political institutions are run and how the norms of the political community are constituted. We are undeniably in the midst of one such shift.

The republican revolutions of the eighteenth century were in part disputes over who should be held accountable—and to whom. European writers like Montesquieu developed a political lexicon that was especially concerned with despotism. In Spirit of the Laws (1748) he warned that rule by arbitrary authority—constrained neither by a lasting constitution nor by intermediary bodies like the judiciary—would make for a servile, obedient, and isolated citizenry. “As fear is the principle of despotic government,” he wrote, “its end is tranquility; but this tranquility cannot be called a peace: no, it is only the silence of those towns which the enemy is ready to invade.” (The tranquility of surrender and submission, in other words—not a bad description of the state of the Democratic opposition.) The French revolutionaries were also obsessed with accountability. They produced new literary genres of autobiography and court testimony for people to give accounts of themselves and the virtue of their actions. 

The American revolutionaries associated despotism with slavery, drawing from the classical Greek word despotes, which refers to the authority that a head of household has over women, children, and slaves. It was also associated with ownership. In 1753 the English legal theorist Sir William Blackstone called property “that sole and despotic dominion” over a part of the external world. The Declaration of Independence accused George III of “a design to reduce [the colonies] under absolute Despotism,” indicating that arbitrary rule was not pure caprice but part of a plan.

The law professors Joseph Fishkin and William Forbath, in their book The Anti-Oligarchy Constitution, show that, from the nineteenth century onward, abolitionists, radical Reconstructionists, populists, New Dealers, and others in what they call “the democracy-of-opportunity tradition” have argued that the Constitution imposes obligations to block concentrated economic power and to redistribute wealth and political agency.¹ One member of that tradition, Eugene Debs, observed in 1918 that “the class which has the power to rob upon a large scale has also the power to control the government and legalize their robbery.” Viewed in this longer arc of history, the current irruption of oligarchic despotism is decidedly precedented, and the set of past resistances to learn from is considerable.

There are two principal expressions of arbitrary rule in contemporary American society: bureaucracy and billionaires. They appear to be at war with one another, as Elon Musk and his writhing band of anarchocapitalists and corporate raiders vandalize the state. But the drama and malevolence of their rampage obscures how bureaucracy and oligarchy mutually reinforce one another, as part of a project of class domination.

In his book The Social Production of Indifference, the anthropologist Michael Herzfeld argues that bureaucracy and the public response to it are crucial arenas for expressing and contesting accountability in modern society.² An ideal bureaucracy would be an obstacle to despotism. By routinizing and standardizing procedures, it would remove individual judgment and, with it, arbitrary decisions or bias; bureaucrats would be be loyal to their jobs, not to individuals or interest groups. The bureaucrat is supposed to be someone an oligarch cannot buy.

But any encounter with bureaucracy reveals these ideas to be hollow. Since the 1980s, bipartisan enthusiasts for market-oriented social policy have pushed to privatize the welfare and administrative state, replacing systems of civic accountability with a relentless drive for profit. Decisions were to be made not based not on rights, obligation, or humanity—but rather for shareholder value. 

The market acolytes who reconfigured social life in this fashion over the past forty years promised to reduce bureaucracy but instead they multiplied it. The most hectic labyrinth in the imagination of a Soviet Gosplan apparatchik would seem transparent compared to customer service at Comcast. The insurance company that Franz Kafka worked for in Prague was a model of sanity compared to UnitedHealthcare. Even the much-maligned public bureaucracies that remain have been heavily privatized behind the scenes; their regular functioning depends on Microsoft Teams, Amazon Web Services, and Cisco.

The market has become a central site of encounters with arbitrary despotism. Your insurance won’t cover the care you need; your company dropped your insurance with your doctor and switched to a different one; your plan “is no longer supported.” Private equity bought your child’s daycare and quadrupled the prices. Your bosses closed your office and used the revenue to buy back shares for themselves. You depend on the market for your basic needs, and therefore you are subject to its whims.

The sociologist Melinda Cooper, in her recent book Counterrevolution, tracks the emergence of a new class of oligarchs, who owe their power less to stewarding corporations than to accumulating personal and familial wealth—they are dynastic rather than managerial capitalists.³ This is not an inevitable outcome of the gears of capitalist inequality churning but the result of a set of identifiable policies. As Cooper shows, the rise of billionaire despots can be traced precisely to the progress of tax cuts and financial deregulation that began in the early 1980s. The 1981 Economic Recovery Tax Act (known as the Kemp-Roth Tax Cut) reduced the highest income tax rate from 70 percent to 50 percent and the 1986 Tax Reform Act brought that down further to 28 percent. Together these two Reagan tax cuts incentivized businesses to reorganize as private partnerships or unincorporated structures, generating pass-through income that would be taxed at the lower individual rate than the corporate rate.

Even publicly traded companies like Meta or Apple now pay their executives in stock options: in 2022 stock-related pay was 81.3 percent of CEO compensation. Since the 1980s those options have often been taxed at the capital gains rate, which for stocks held longer than one year is even lower than the personal income rate. The effect was immediate: between 1980 and 1994 the mean value of stock options paid to CEOs increased by 683 percent, while real wages remained largely stagnant. The consequences since 2020 have been almost incalculable.

To those legal changes we should certainly add the effects of monetary policy: from the 2008 financial crisis through 2022 the Fed expanded its balance sheet to $9 trillion, mostly through quantitative easing policies, inflating asset prices and thus enriching owners of assets, from landlords to private equity funds. Musk, Zuckerberg, and Bezos—the centibillionaires quivering moistly in their row at the presidential inauguration—are but the most recognizable examples.

Capitalism legitimates itself in part by evacuating responsibility from individuals to market forces. Writing in the early 1840s, the young Friedrich Engels used the term “social murder” to describe one way this happens. It was, he wrote, “murder against which none can defend himself, which does not seem what it is, because no man sees the murderer, because the death of the victim seems a natural one, since the offence is more one of omission than of commission.” The concept of social murder has proven useful lately, in a variety of settings where the prevailing language of human rights was revealed to be insufficient: it was employed to describe the 2017 Grenfell Tower fire in London; to reckon with the consequences of Tory austerity cuts, which have been attributed as the cause of some 190,000 preventable deaths; and to think about climate change. 

We need this vocabulary to understand our own oligarchy—not least because our judicial system is predicated on individual and intentional acts rather than on social and distributed ones. Yet by continually performing their impunity, the new oligarchs may be creating the conditions of their own undoing; their harms that can increasingly be identified, personified, and blamed. It is not the shareholders of Tesla who are strip-mining the federal government; it is Musk specifically. It was not only the pharmaceutical market that fueled the opioid epidemic; the Sackler family specifically profited. (Their company’s bankruptcy settlement, which was eventually struck down by the Supreme Court, would have shielded them from all future opioid-related civil lawsuits.) Inaction on climate change is not only a failure of collective action; ExxonMobil knew about the threat decades ago, and worked hard and lavishly to oppose regulation. Trumpian governance is an unambiguous display of familial power and personal fealty.

If the past is any guide, the response to impunity is to be found not in the courts. Fights for democratization—from the workplace to suffrage to anti-imperial struggles—have involved wrestling power away from elites rather than insisting they use it virtuously. The antidote to impunity is an active, organized, politicized working class. We need to remake and rediscover our infrastructures of dissent: unions, political groups, protests, and other forms of community predicated on the mutual recognition of a shared condition.

No elite shares your struggle: they are immune to it, and their actions will not have the consequences that yours will have. Accountability and responsibility are forms of power unamenable to market relations, and that is why we have lost them. Their rediscovery will surely be difficult, but probably not more so than their initial establishment in the struggles of the past.