How Governments Break Their Own Laws: A Study

There have been several instances of governments breaking their own laws, which has sparked intense debate over the limits of presidential power. For example, the Trump administration's attempts to dismantle independent agencies, granting private individuals access to sensitive government systems, and unprecedented federal employee buyouts have triggered legal challenges. The government's ability to act above the law has raised concerns about the erosion of human liberty and the rise of tyranny, as seen in the case of the Proud Boys, where FBI agents admitted to surveilling communications without a search warrant.

FBI and CIA lawbreaking

While the CIA and FBI are both members of the US Intelligence Community, only the FBI has law enforcement functions. The CIA is prohibited from collecting information on US citizens, resident aliens, legal immigrants, and US corporations. On the other hand, the FBI is a primary law enforcement agency for the US government, responsible for enforcing over 200 categories of federal laws.

There have been several allegations and instances of lawbreaking by the FBI and CIA. For example, in 2023, an FBI agent revealed that the agency had been surveilling the communications between a Proud Boy defendant and his legal team without a search warrant, which is a federal crime. During the trial of five members of the Proud Boys for sedition, an FBI agent also inadvertently admitted to further wrongdoing.

In the 1970s, former CIA officers were involved in the burglary of the Watergate headquarters of the Democratic Party, which President Richard Nixon tried to use the CIA to cover up. Nixon and his chief of staff, H. R. Haldeman, ensured that the ranking officials of the CIA communicated to the FBI Director that the FBI should not follow the money trail, as it would uncover CIA informants in Mexico.

In 1994, the CIA discovered that many of its sources for its analyses of the USSR were based on Soviet disinformation, and in some cases, the CIA suspected the sources were compromised but still sent the information up the chain as genuine.

In addition to these instances, there have been allegations of the FBI and CIA using illicit methods to fortify cases against unwitting defendants, such as creating plots to make themselves look like heroes and overcharging defendants to avoid jury trials.

Government overreach

In a democratic society, the concept of government overreach is closely tied to the idea of limited government and the protection of individual rights and freedoms. The concern is that if a government accumulates too much power, it may infringe upon the rights and liberties of its citizens. This can lead to a concentration of power that can be misused or abused, potentially resulting in authoritarianism or tyranny.

There are several examples of government overreach that have sparked debates and criticism. One notable instance is the attempt by former US President Donald Trump and Elon Musk to shut down the US Agency for International Development (USAID). Legal experts argued that this move was illegal, as USAID was established by an act of Congress and could only be disbanded by Congress. This incident sparked concerns about executive overreach and the limits of presidential power.

Another example of government overreach is Missouri's proposed "eHarmony for babies" bill, which aimed to create a registry of pregnant women "at risk" of abortion. This legislation raised bipartisan concerns about government interference in the adoption process and the potential cost to state revenue. The bill was criticised for potentially infringing on data privacy and granting the government excessive control over the adoption process.

Furthermore, there have been instances where governments have been accused of breaking their own laws, particularly in the realm of national security and law enforcement. For example, in the aftermath of the 9/11 attacks, the US government, under President George W. Bush, authorised surveillance of American citizens without warrants and condoned the use of torture to extract information, both of which are violations of constitutional rights and federal laws.

Unchecked power

The United States, for example, has seen numerous instances where government agencies have broken laws and violated the Constitution, often in the name of national security or political gain. The George W. Bush administration's response to the 9/11 attacks is a notable example, where the government was accused of systematically disregarding the Constitution, authorising surveillance on Americans without warrants, and condoning torture.

The FBI, in particular, has faced scrutiny for its use of informants and its involvement in crimes. In some cases, FBI agents have ""authorised"" informants to commit federal and state crimes, with no subsequent prosecution. This sets a dangerous precedent and fosters a culture of entitlement to break the law.

Furthermore, the Trump administration has been accused of violating rules, laws, and the Constitution on multiple occasions. From attempting to dismantle independent agencies to granting private individuals access to sensitive government systems, Trump's actions have triggered intense debates over the limits of presidential power.

Unchecked government power can also lead to the persecution of individuals or groups who hold negative views of the government. For example, the Proud Boys have faced prosecution for sedition, yet some argue that they have not caused any harm and are simply exercising their right to free thought.

When a government is allowed to operate without checks and balances, it can lead to a breakdown of the rule of law, the violation of human rights, and the erosion of democratic values. It is essential to hold those in power accountable and ensure that no one, not even the government, is above the law.

Prosecution of thoughts

The prosecution of thoughts, or "thought crimes", is a concept that has been explored in various works of fiction, such as George Orwell's *Nineteen Eighty-Four* and Philip K. Dick's *Minority Report*. In these fictional worlds, governments possess extensive surveillance capabilities and can monitor their citizens' body language, speech, and facial expressions through telescreens. While these stories are dystopian narratives, they prompt us to reflect on the potential implications of living in an increasingly digital age, where our online activities and expressions can be easily tracked and scrutinized.

In reality, the prosecution of thoughts alone is generally not considered a criminal offense. The "Act Requirement" in criminal law stipulates that an action must be taken for an act to be considered a crime. However, the line between thought and action can become blurred in certain situations. For instance, if an individual writes down their thoughts about committing a violent act and shares them publicly, the expression of those thoughts could be perceived as a threat, which is a criminal offense. The interpretation of such cases can be complex and context-dependent.

The right to freedom of thought is considered a fundamental human right, protected by various legal frameworks, including the First Amendment in the United States and the Ninth Amendment, which states that the government shall not deny or disparage natural rights. However, there have been instances where governments have been accused of breaking their own laws, particularly in the name of national security. For example, in the aftermath of the 9/11 attacks, the government of President George W. Bush was criticized for authorizing surveillance of American citizens without warrants, potentially infringing on their freedom of thought and expression.

While the prosecution of thoughts alone may not be legally permissible, the interpretation and application of laws can vary, and there is a risk of government overreach. As technology advances and our digital footprints become more extensive, the potential for monitoring and interpreting thoughts and intentions may increase. This raises important questions about the boundaries between personal freedom and state intervention, and underscores the need for robust protections of civil liberties and transparency in government actions.

Entrapment

While the government is not exempt from the law, there are instances where governments have been known to break their own laws. One such instance is entrapment, which is a complete defense to a criminal charge. The federal entrapment defense is based on statutory construction and the federal courts' interpretation of the will of Congress in passing the criminal statutes.

There have been several cases where entrapment has been claimed as a defense. In Sorrells v. United States, the Supreme Court unanimously reversed the conviction of a North Carolina factory worker who gave in to an undercover Prohibition officer's repeated entreaties to get him some liquor. The Supreme Court also overturned three out of four convictions based on the doctrine of entrapment by estoppel in a case where individuals refused to answer questions, claiming their right against self-incrimination. In another case, United States v. Russell, the Court upheld the conviction of a man for manufacturing methamphetamine, even though an undercover agent had supplied some of the ingredients.

While the use of undercover agents or informants by the government is not inherently a due process violation, the Supreme Court has left open the possibility that outrageous government conduct could reach the requisite level of outrageousness to constitute a due process violation. However, no court of appeals has held that a predisposed defendant may establish a due process violation simply because they were induced to commit a crime by an undercover agent or informant.

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