Under Color of Law (KUNSTLER)

Under Color of Law

“The second-order and third-order damages of RussiaGate are incalculable. A murder of American democracy was committed.” — Mike Benz on “X”

James Howard Kunstler reports on Substack

Surely you’ve noticed the ominous cone of silence around the DOJ and the FBI as rumors of “accountability” mount against well-known figures who used government to make war against its own citizens. That is exactly what happened, by the way, in case you’re baffled by the news. The agencies aren’t leaking this time, especially not to the mendacious scribes that infest The New York Times and The WashPo, who function as vanguard to the corps of traitors in the rogue fourth branch of government called the Blob. So, the silence begs you to ask: Are they doing anything in there?

Yes, they are making cases. And they are not yapping idly about it in the news, legacy or alt. They are preparing evidence for grand juries that will decide if probable cause exists to indict those well-known figures — several of whom have become cable news performers, foolishly, if obliquely, advertising their own culpability for years now. You’ll just have to wait, though perhaps not for long. It is August, after all, the horse latitudes of the year when things go still.

You are lectured incessantly and sanctimoniously by these same suspects about the rule of law (in “our democracy”). Many of these characters are maestros in the dark arts of lawfare, which, paradoxically, is the practice of using law to pervert and dishonor the rule of law. Lately, you are introduced to a similar sounding phrase, under color of law, with a related meaning. Understand it and you will see what has been behind virtually all the mischief in our public affairs this past, vicious decade.

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Under color of law has deep roots in Anglo-American jurisprudence because law, by its nature, lends itself to abuse and nefarious misuse. The law’s “nature” is that it is a set of rules to decide matters of consequence, both personal and public, where much is at stake: ownership of property, liberty, life itself. At times, actions are taken in the name of the law to unjustly deprive persons of life, liberty, and property, usually for the benefit of other persons.

The phrase, life, liberty, and property, derives from John Locke’s Two Treatises on Government (1689), which argued that these are natural rights, God-given, and that it is government’s duty to protect these rights, government being the practical application of law. The phrase life, liberty, and property deeply influenced America’s founders. Thomas Jefferson changed it up a bit in the Declaration of Independence as “life, liberty, and the pursuit of happiness,” with a eudaimonian twist to inspire America to flourish on its own, off England’s leash. It was also Jefferson’s way of detaching the Declaration from the issue of slavery, where “property” could refer to human beings.

But the Lockean original, life, liberty and property, reappears in the Bill of Rights to the Constitution. It is in the Fifth Amendment, protecting persons from the arbitrary deprivation of these rights without due process by the federal government, and in the Fourteenth Amendment applying the same principle of law to state governments. Where lawfare comes in is under due process. Lawfare’s aim is to pervert due process, to use officers of the courts to act unfairly and unjustly in the name of the law, and thus, under color of law.

This is exactly what you saw in the several cases brought against Mr. Trump in New York State in 2024, a three-ring circus of process-abuse engineered by the “Joe Biden” White House, coordinated with Merrick Garland’s DOJ (through Deputy AG Lisa Monaco), with assists from NY AG Letitia James and Manhattan DA Alvin Bragg. Ditto the RICO case attempted in Atlanta under Fulton County DA Fani Willis, a spectacular botch. And ditto, the cases brought under Special Counsel Jack Smith in Florida and DC, also badly botched.

The slovenly ineptitude of these cases was really something to behold, including the sordid romantic complications around Fani Willis and her chosen chief prosecutor, “boyfriend” Nathan Wade, a divorce lawyer with no experience in criminal law. Throw in the disgraceful, self-conflicted antics of the Judges Kaplan, Engoron, and Merchan in the New York cases, and the oafish conduct of Jack Smith and his assistants in Florida and DC — and what you get is a demonstration of how crude an instrument sheer lying actually is in the practice of law, and how easily it breaks against the people using it.

Some of these characters are just now coming to grief: Letitia James faces a DOJ action on depriving Mr. Trump’s rights, and SC Jack Smith is under active FBI investigation for evidence tampering and other crimes of process abuse. It would be fitting for all the prosecutors and the three judges in the New York cases to face similar inquiries.

The phrase under color of law establishes liability for abuse of power for officials vested with the terrible authority for upending people’s lives. The phrase “deprivation of rights” appears explicitly in federal statutes primarily focused on holding government officials and others acting with apparent legal authority accountable for willfully violating an individual’s constitutional or legal rights. The most relevant statute is 18 U.S.C. § 242, which directly criminalizes such conduct. Additional statutes, such as 18 U.S.C. § 241, 18 U.S.C. § 250, 18 U.S.C. § 2243, and 18 U.S.C. § 2244. That’s where all this is going, even if all that’s coming out of the DOJ and FBI for the moment is that ominous silence.

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