The Untouchables

The Supreme Court has agreed to hear a case brought by Steven Howards, a Colorado man arrested by Secret Service agents when he confronted then-Vice President Dick Cheney at a shopping mall and told him he thought the Iraq war was “disgusting.” Howards happened to be in the mall when he noticed Cheney was there, signing books and posing for photographs with mall-goers: he phoned a friend and told him he was going to wait on line for a chance to pose with the Vice President and then tell him what he thought of the war: “I’m going to ask him [Cheney] how many kids he’s killed today.”

A Secret Service agent overheard him and put out an alert to watch for the man in the green t-shirt. Howards got in line, waited for his turn to pose with Cheney, and when it was his turn he delivered his message, to which Cheney replied, rather stupidly: “Thank you.”

What happened next is in dispute: the Secret Service claims he “pushed off” and even “slapped” the VP: Howards says he was merely patting the war criminal on the shoulder. In any case, Howards at first denied touching Cheney at all, later admitting he might have had a brief contact – and this was the pretext for his arrest. The agents followed Howards as he was looking for his son in the mall, and confronted him, as the Christian Science Monitor reports:

“Agent Virgil Reichle flashed his badge and asked to speak with Howards. Howards refused and attempted to resume the search for his son.

“The agent stepped in front of Howards and accused him of assaulting the vice president.

“Howards pointed his finger at Agent Reichle and said: “If you don’t want other people sharing their opinions, you should have him [Cheney] avoid public places.”

“According to the appeals court: “Agent Reichle became ‘visibly angry’ when Mr. Howards shared his opinion on the Iraq war.”

“The agent asked Howards if he ‘assaulted’ the vice president. Howards denied assaulting the vice president.

“The agent next asked whether Howards ‘touched’ the vice president. Howards, again, denied the agent’s accusation.

“Howards was taken into federal custody for assaulting Cheney. According to the appeals court, four agents ‘assisted in restraining Mr. Howards during his arrest.’”

No federal charges were ever filed against Howards: a state prosecutor did charge him, but the charges were dropped. Howards then filed a lawsuit against the two Secret Service agents on the grounds that his First Amendment rights were violated: that his arrest was in retaliation for the content of his speech. The agents claimed immunity from prosecution because they had “probable cause” to arrest Howards because he had touched Cheney and later lied about it: lying to a federal agent is a felony punishable by up to five years in prison.

This case epitomizes everything that has gone wrong with our corrupt society, because what it dramatizes is the corruption of our old republic into a bloated, decadent empire. You’ll note the two Praetorian Guards, who nowhere deny Howards’ speech prompted them to make the arrest, utilize as their defense the notion that the person of a government official of Cheney’s stature is, literally, untouchable. The mere act of brushing up against him is akin to sacrilege, and vitiates Howards’ First Amendment rights to the point of nonexistence. And that he supposedly lied about it – there’s another violation of the aristocratic prerogative of government officials, whose majesty is so great that it rubs off on their guards and hirelings, who must not be lied to under any circumstances.

In short, the Vice President and his retinue, because they are government officials, are granted immunity from the exigencies of life as it is experienced by ordinary citizens – which includes being lied to, and subjected to speech they may find unpleasant and insulting. Their persons are sacred – untouchable. In the eyes of the law, they are in a class by themselves, over and above the human herd: they are, in short, aristocrats, lords and ladies who must never be forced to endure the coarse obloquy heaped upon them by ignorant peasants such as Howards.

A federal appeals panel dismissed Howards’ Fourth Amendment claim of false arrest on the grounds that since there was physical contact, the arrest was justified – but refused to throw out the First Amendment claim, the Monitor reports, “noting that it is beyond debate whether federal officials are entitled to retaliate against a citizen who expresses an opinion with which the officials disagree.”

In our rapidly disintegrating society, however, nothing is “beyond debate” if it involves the historic protections afforded ordinary Americans against the depredations of unchecked government power: every one of those protections is under continuous assault by legions of government officials and their supporters, along with the Constitution itself, and this case vividly dramatizes what is at stake. The Howards case raises the question of what kind of a society we have become, or are in danger of becoming: a stratified caste system in which the Top One Percent are immune from the laws, the customs, and the righteous anger of the Ninety-Nine Percenters who make up the rest of the population.

You’ll note the ease with which government lawyers invoke the same legal theories that have driven our undeclared wars and made possible the usurpation of Congress’s war-making powers: the theory of the “unitary presidency,” which claims that the President, as commander-in-chief of the armed forces, has the sole power to not only make war, but to declare any American citizen an “enemy combatant” and detain him or her indefinitely and without trial or the proffering of charges. It follows from this that the Vice President, as a stand-in for the Unitary President, is imbued with the same exalted penumbra of power, which immunizes him or her from any sort of unpleasant interaction with us commoners – and, indeed, renders those interactions illegal, and grounds for arrest.

Indeed, there is plenty of “legal” precedent for the creation of this class of American Brahmins: for example, the punishment for killing an ordinary citizen can get you a range of charges starting with manslaughter and ending in first degree murder. If you kill a federal official, however, the penalty is much more likely death or life imprisonment. That’s because the lives of government officials and their servitors are considered more important, more valuable, than the lives of us serfs. An authoritarian society, whether it be an absolute monarchy or some other form of tyranny, affords special protections to its servants, who are imbued with the same aura of privilege and untouchability as their masters in Washington – and few dispute this.

The evolution of our legal system into a two-tiered structure, with one set of laws for the common people and another for the elites is the subject of a fascinating – and hugely disturbing – book by Glenn Greenwald, With Liberty and Justice for Some, which we excerpted a couple of weeks ago. I haven’t yet finished reading it, so I won’t go into detail, but suffice to say here that Greenwald makes a powerful case that, starting with the pardoning of Richard Nixon, our legal system has morphed into a bulwark of protection for the powerful even as it metes out increasingly harsh punishment to the plebeians for the smallest crimes.

How is it that high government officials – including especially Dick Cheney – can violate the law with impunity, authorizing torture (a crime under US law) and outing CIA agents who displease them, while the full force of the law comes down hard on any ordinary human being who crosses it? My answer is that equality before the law is impossible in an empire, and necessary to a republic, and the reason for this difference is to be found in the legal arguments advanced by the two Secret Service agents who claim immunity from Howards’ lawsuit. According to the legal brief filed by their lawyer,“The denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.”

Writing at the dawn of the cold war, the conservative author (and prophet) Garet Garrett espied a similar rationalization for the usurpation of the congressional war-making power:

After President Truman, alone and without either the consent or knowledge of Congress, had declared war on the Korean aggressor, 7000 miles away, Congress condoned his usurpation of its exclusive Constitutional power. More than that, his political supporters in Congress argued that in the modern case that sentence in the Constitution conferring upon Congress the sole power to declare war was obsolete. Mark you, the words had not been erased; they still existed in form. Only, they had become obsolete. And why obsolete? Because war may now begin suddenly, with bombs falling out of the sky, and we might perish while waiting for Congress to declare war.”

Garrett, in his usual wry manner, observed that “the reasoning is puerile,” and this is no less the case in the Howards case. In both cases, the executive and its supporters argued that there was simply no time to adhere to the constitutional protections against unchecked governmental power. These traditions, although encoded in the Constitution, had become archaic and dangerous – and therefore had to be discarded in the modern world. The President of the United States, as the commander-in-chief, must make a “split second” decision that could involve the fate of the entire Free World, and couldn’t be expected to consult some dusty old piece of parchment before making a life-and-death decision. We were at war – the cold war was, in effect, a condition of permanent war, similar to our current “war on terrorism” – and that meant the Constitution, the legacy of “horse and buggy” days, as Franklin Delano Roosevelt put it, had to be suspended, or at least amended (albeit not in the formal, legal sense), to accommodate the realities of life in the “modern” world.

We’re in a hurry – we can’t be bothered. That is the rationale accompanying so many of our “modern” legal innovations, and it works well in wartime, when practically everyone is willing to overlook the blatantly illegal actions of out-of-control government officials, who take every opportunity to fortify and increase their power over us.

Prediction: the Howards lawsuit will be thrown out by our pro-royalist Supreme Court. Howards appears to be some kind of atavistic throwback, i.e. someone who actually believes in the principle of equality before the law. He’ll soon learn how and why such a principle is merely the echo of a more innocent time.

Author: Justin Raimondo

Justin Raimondo passed away on June 27, 2019. He was the co-founder and editorial director of, and was a senior fellow at the Randolph Bourne Institute. He was a contributing editor at The American Conservative, and wrote a monthly column for Chronicles. He was the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement [Center for Libertarian Studies, 1993; Intercollegiate Studies Institute, 2000], and An Enemy of the State: The Life of Murray N. Rothbard [Prometheus Books, 2000].