The economic benefit of the rule of law comes from its being a necessary condition for the security of private property rights and thus for prosperity, not to speak of individual liberty in general. This is clear both from economic theory and from history. No wonder that classical liberals have considered the rule of law as an essential institution. Even anarcho-capitalists or most of them recognize the importance of the rule of law by arguing that it would be discovered or generated by their proposed system. So does Anthony de Jasay, an unconventional liberal anarchist or perhaps a conservative anarchist, who invokes David Hume’s conventions. Without the rule of law, the state is Leviathan; or else a Hobbesian “war of all against all” rages.

If we ignore these considerations, it is difficult to correctly evaluate the significance of the indictment of Donald Trump—and other former heads of state in democratic countries, including France and Italy. In “law and order” properly understood, laws apply equally to ordinary individuals and to statocrats. Trump was wrong when, in his perspective, he wrote on his own social media—“Truth Social,” of all names (“Donald Trump Arrives in New York Ahead of Surrender in Hush-Money Case,” Wall Street Journal, April 3, 2023):

On Tuesday morning I will be going to, believe it or not, the Courthouse. America was not supposed to be this way!

America was certainly meant to be a country where laws would apply to everybody equally. Then, two minutes before entering the Lower Manhattan Courthouse yesterday, he posted (“Trump Arrives at Court for Arraignment,” Wall Street Journal, April 4, 2022):

Heading to Lower Manhattan, the Courthouse. Seems so SURREAL — WOW, they are going to ARREST ME. Can’t believe this is happening in America. MAGA!

He is not the only one to have been arrested in America. He would have been right to criticize the proliferation of laws that constrain and trap so many people, but he did not. It’s all about Narcissus. Lots of ordinary Americans, believe it or not, are indicted and brought to court. Another quixotic presidential candidate,  Allen Maldonado a.k.a. “Joe Exotic,” just reminded us of that from his jail. Some suspects cannot simply surrender, but are arrested manu militari. One out of 13 American adults has a felony record. Mr. Trump should not fear being alone.

In fact, he has generally argued for more laws and harsher enforcement, even suggesting that cops arresting suspects should not be too soft with them (see a video reminder). His pardons, on the other hand, often benefited rich or famous people, or his friends. Those people arguably are in less legal jeopardy than ordinary people who follow Donald Trump—or, for that matter, Joe Biden or Bernie Sanders.

QuantGov data give an idea (but only a partial one) of the problem of the multiplication of laws and accompanying regulations. At the end of 2020, the last year of the Trump administration, federal regulations contained 1,082,486 restrictions (measured by the occurrence, under certain conditions, of the words “shall,” “must,” “may not,” “required,” or “prohibited”), which is a bit (0.7%) more than at the end of the last year of the Obama administration. (Source: Patrick McLaughlin, Jonathan Nelson, Thurston Powers, Walter Stover, and Stephen Strosko, RegData US 4.0 Annual [dataset], QuantGov, Mercatus Center at George Mason University, Arlington, VA, 2021.)

The danger for the rule of law comes from the proliferation of legal obligations and bans, not from treating statocrats like ordinary individuals. The more laws, the easier to use them for persecution of disliked individuals or minorities.  Indeed, it seems a standard prosecutorial strategy to shower a suspect with a large number of felony charges in order that at least some of them stick or that he plea-bargains and admits his guilt to at least a few.

Equal justice under law is only possible with essential and parsimonious laws. James Madison wrote in the Federalist No. 62:

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.