But “no one is above the law” is different. It’s a mantra that seems to conform to our system of law, and to be non-controversial. But actually, presidents are ordinarily not eligible for criminal prosecution while in office, which makes them at least temporarily above the law. And prosecutorial discretion means that, while no one is forever “above the law” de jure (not even a president), plenty of people are de facto above the law. We’ve certainly seen that to be the case in terms of the politically favored, but it’s true even for ordinary people. In other words, prosecutors have tremendous power to make decisions about whom to prosecute and when, and they fail to go after some people who appear to be breaking the law while doggedly pursuing the conviction of others who seem to have broken the very same law.

It’s hard to think of a system where that would not be true. After all, there are so many laws that can be violated that there is no way on earth to try every possible perpetrator. Prosecutors must pick and choose, and at the moment we rely on them to be fair and objective in their choices. Obviously that is often not the case, and it most definitely is not the case here.