Immunity and Impunity

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(Children’s Television Workshop.)

I was stunned this morning to discover that during the 1970s, there was a TV series starring Gene Wilder as a superhero, with Zero Mostel as the villain and Joan Rivers as the narrator.

I was stunned because I grew up watching this series, which ran as animated shorts in the classic and still-awesome show “The Electric Company,” and had no idea who had done the voices. The shorts, called “The Adventures of Letterman,” featured our eponymous hero undoing the villainy of The Spellbinder, who could change reality with nothing more than language. Not to put too fine a point on it.

“Light” became “Night,” for instance, casting the world into impenetrable darkness. Not to put too fine a point on it.

Letterman saved the day (literally, in the story about night) by removing the always-apt letter from his chest to restore the word in question to its original form and the world to its previous state. Like so many heroes fictional and otherwise, his heroism was limited to preserving the status quo and restoring the previous order. Not to put too fine a point on it.

The rabbit hole that led me to Letterman was the distinction between immunity and impunity.

Immunity, so I quickly googled, is an expansive concept that, in a legal sense, addresses what society can do. Society cannot act against those with immunity.

Impunity is seen as a variety of immunity, focusing our attention on the individual actor, describing the result of granting immunity: The power to act without consequence.

Our civic discourse at the moment is orbiting immunity. But it’s important to turn our lens on impunity, as well.

D4FRFP¹ Donald Trump is asking the right-wing Supreme Court to give him immunity from the law. This would not only create impunity for his past misdeeds, it would free him in the future to act without fear of consequence, a fear that at least in theory once constrained him.

Unlike immunity, which lives primarily in the past and present, impunity evokes a future in which select people are free to act unrestrained. To put the “id” in idiocy and ideology alike.

But Trump is not unique in this. We’re seeing impunity for individual actions evolve into a broader untouchability for everything done by a tiny class of the powerful.

Thomas Jefferson School of Law Professor Marjorie Cohn wrote for Truthout last year about former Pres. George W. Bush and former Vice Pres. Dick Cheney escaping the consequences for their war crimes — and even their actual War that was of itself a Crime.

In their invasion of Iraq and prosecution of their so-called war on terror, they violated the UN Charter; the Geneva Conventions; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights. With, it turned out, an impunity they could not be sure of when they acted.

Impunity has applied to the front-page crimes of America’s most powerful, and to the historic crimes. But it’s also applied even to less-noticed crimes committed by America’s less-powerful-but-still-powerful. The reason a right-wing evangelical Guatemalan president could escape prosecutors was that American Christian politicians helped turn a UN anti-corruption task force into a band of refugees who had to flee the country. The name of the task force was the International Commission Against Impunity.

As Cohn notes, Bush in 2022 flashed a sign of a self-awareness seemingly at odds with his usual public demeanor when he gave history the fabulous Christmas gift of a perfect oopsy doodle while condemning Russian President Vladimir Putin and “the decision of one man to launch a wholly unjustified and brutal invasion of Iraq. I mean, Ukraine.” Adding softly, “Iraq too.” (Legal impunity does not confer immunity from one’s conscience, thankfully.)

And Pres. Joe Biden, also discussing Ukraine, marveled last year at “The idea that over 100,000 forces would invade another country — since World War II, nothing like that has happened.” Cohn points out that Bush did exactly that, but it was Putin to become the first world leader outside Africa to be charged by the International Criminal Court (ICC).

We now face another first. Unlike Bush and Cheney, who rolled the dice on whether they would enjoy impunity for their actions, Trump is seeking to act with impunity aforethought. The power to act, if re-elected, without whatever fears constrained Bush and Cheney or Trump himself the first time around.

And Trump is not alone. Axios reported yesterday that Israeli Prime Minister Benjamin Netanyahu is lobbying Biden to head off warrants from the ICC for his leadership of the Israeli war in Gaza, which has been rife with reports of individual war crimes and may yet be adjudicated as a war crime in and of itself.

A spokesperson for Biden’s National Security Council said, “the ICC has no jurisdiction in this situation and we do not support its investigation." In other words, there’s no mechanism for holding Netanyahu accountable, the U.S. is saying, even if he were guilty.

Nor are U.S. politicians content denying the ICC jurisdiction, they’re preparing to punish the ICC if it acts. Sen. Tom Cotton (R-AR) has introduced a bill to sanction any ICC officials who merely investigate America or its allies. 

It’s a bipartisan effort, with Sen. John Fetterman (D-PA) opposing ICC warrants and Rep. Brad Sherman (D-CA) publicly questioning whether the U.S. should remain a signatory to the treaty that empowers the ICC.

In other words, should we just call it what it is and go full Rogue Nation? If American presidents can enjoy impunity from American laws, why shouldn’t America itself enjoy impunity from international law? 

The problem isn’t Trump. Or Speaker Mike Johnson (R-LA) or Justices Clarence Thomas or Sam Alito. The problem is never the bad actors. Bad actors are a feature of history and human nature, the price of admission.

Functioning societies deal with them. Civilized ones do so less punitively, but the threat they pose and the harm they can do are mitigated or eliminated. If the rest of society acts. 

The problems arise when those in a position to police our norms and laws fail to do so. Pardoning criminal presidents. Failing to prosecute torture regimens. Subsidizing ecological serial killers.

What that means for us, those who lack both immunity and impunity, is not taking the law into our own hands. It means restoring the norms we once exalted by living them: Subordinating feelings to critical thinking. Acknowledging misdeeds without regard to party or tribe. Rejecting confirmation bias and the prioritization of personal comfort. 

Disliking something someone says, for instance, is not on its own a good reason for refusing to hear them. We’re supposed to care what other people think (it’s right there in the Declaration of Independence). Fear is not worth honoring without rational cause. National unity is worth no capitulation on what is right. Irrationality must be recognized apolitically, whether it’s anti-vaxx, karma, prayer, or crystals. Apocalyptic hyperbole about the results of presidential elections isn’t helpful.

We will survive, yes, even a second Trump presidency. And whether he outdoes his predecessors in expanding an authoritarian presidency, we the people will retain the power to oppose and if necessary undo it. It will be a fight. That’s what every day was always supposed to be. The price of freedom is eternal vigilance and all that jazz.

Keep calm. Carry on.

But before I go, a couple final thoughts about Letterman (who’s just one letter away from being Fetterman). His creator was an author named Mike Thaler who wrote riddle books and the Black Lagoon Adventures series.

Thaler died last month at the age of 87. That doesn’t make this a sad story, though. People bought 26 million of his books during his lifetime, and Thaler lived to a fine old age. Although his physical decline was difficult, he left this final thought:

“I believe creativity and love are the power of human beings — the power of the universe. I can now leave this life with a smile for I know my color and it is the color of sunshine, laughter and creative energy.”

Nice, right? An author chooses to uplift us from the reality of his own death by crafting words that can live on beyond him.

Oh, and the other final thought about Thaler’s logophilic series. That mischievous Spellbinder continued to do what he did because he was allowed without consequence to keep warping reality with language.

There’s a phrase for this, that involves changing just a single letter: Might makes right. But we can undo that.

Go get ‘em, kids…

1. D4FRFP = Disgraced, quadicted, fraudster, rapist, former President.