The The New York Times And The Wall Street Journal The editorial in the Trump investigative affidavit was more or less expected. The The New York Times Broadly argued that no one, including current or former presidents, is above the law. The The Wall Street Journal (which tried hard to love Trump for years but understandably failed) argued that any crimes Trump committed in keeping classified documents were a small thing compared to the Justice Department’s findings.
It is useful to view the matter in the light of the theory of law developed by economists since the mid-twentieth century. A theory identified with the law and economics movement or school is that law should be efficient, in the sense that it should weigh the benefits and costs of any legal intervention, including of course its effect on incentives (an unorthodox view is offered by David Friedman in his 2000 book Order of law) both The New York Timesof and The Wall Street JournalIts editorials seem to be consistent with this theory. They simply do not make the same assessment of costs and benefits—or the assessment of those on whom they fall—as would normally occur in a cost-benefit approach.
The other two major political-economy theories of law may seem less “scientific,” but this is mainly, if not solely, because the scientific claims of cost-benefit analysis are vastly overrated. A theory was developed by FA. Hayek, 1974 Nobel laureate in economics (see his Law, Law, and Liberty, especially Volume I, originally published by the University of Chicago Press in 1973, and my Econlib review of this book). The basic idea is that legal rules are those general, impersonal and abstract rules essential to the maintenance of a free society, that is, to a social order in which coercion is minimized and each individual can pursue his own ends. In this context, the question would be something like: Can we make public in a free society, the rule that the chief executive of government, in office or out of office, can document national security as he sees fit? Or does this rule only apply to one rule? organization The government says? If yes, leave Trump alone on this matter. Otherwise a search of his office and residence is initially justified.
The other major economic approach to the analysis of law is constitutional political economy, mainly developed by James Buchanan, winner of the 1986 Nobel Prize in Economics (see, for example, his 2006 book Why I am, too, not a conservative And my review Regulations)’s basic idea is that, accepting the axiom that all individuals are “naturally equal,” all politics must be based on and limited by general rules (“general” in the same sense as Hayek). Unanimously Able to consent or unanimous consent, by all Individuals of a society in a virtual social contract. Before giving his assent or opposing his veto, each person strikes a balance his own Benefits and costs. Given this, the question would be: Is it reasonable that all Americans, fearing Leviathan, would accept the social contract that allows a current or former chief executive of government to use national security documents as he sees fit? If yes, leave Trump alone on this matter. If not, a search of his office and residence is initially justified.
The answer to our question seems to be substantially the same whether we follow Hayek’s or Buchanan’s theory of law. The Hayek or Buchanan approach would apply to other current or former rulers who misuse classified information—although some misuses may be more criminal than others. Whether it should also apply to private parties leaking classified information is a different matter. However, one can’t help but wonder why Trump, while in office, hasn’t worked toward reducing the legal risks to those who use proprietary government data.
It is also important to remember that rulers are or should be tasked with maintaining a free society (Hayek’s view) or enforcing a consensus social contract (Buchanan). One would think that the law would hold them to a very high standard. As a citizen, a ruler has the same rights as other citizens; As a ruler he has to accept certain limitations. It was Donald Trump who protected Edward Snowden’s rights, not the other way around. “It’s hard to believe that a dispute over documents would lead to criminal charges,” he said The Wall Street JournalBut they are Talking about Mr. Trump! This reminds me of a historical example that another famous economist, Mankur Olson, reported (Power and prosperity, 2000, p. 40):
In Venice, after a dog who tried to make himself dictator was beheaded for his crime, the next dogs were followed in official processions by a symbolic executioner carrying a sword as a reminder of the punishment for any leader who tried to usurp dictatorial power.
A little economic exercise to go further: (1) What would be the criteria by which political elites would be judged under Antony de Jas’s “capitalist state”? (2) Did Mr. Trump work to establish this “capitalist state”?