Following a suite of charges in connection to business fraud and campaign finance violations brought by the New York state district attorney in April, a federal grand jury in early June issued former US President Donald Trump a second indictment relating to the mishandling of classified documents and obstruction of justice, among other things. 

“It is hard to overstate the gravity of the criminal indictment”, the New York Times editorial board wrote on 9 June, noting Trump’s “contempt for the rule of law”. It is a test of this the rule of law, we are told, that no-one, not even a former commander in chief, is above scrutiny or beyond accountability. That is partly what is at stake in the case, whether Trump is found guilty or exonerated. We are also informed, again and again, that the situation is “unprecedented”—no previous president, sitting or former, has ever been indicted. 

Yet reading the federal prosecutor’s forensic documentation and the allegedly incriminating transcripts of recorded and recalled conversations, one can’t help but be struck by a question: “Why?” Why has no other president faced charges? This seems the most extraordinary thing—not that Trump is the first, but that Trump is the first.  

It is notable, for example, that the two recent indictments bookend extraordinary and damning findings published in May by the Watson Institute for International and Public Affairs at Brown University. Researchers estimate that US-led post-9/11 wars, initiated by President George W. Bush and continued by his successor Barack Obama, have resulted in at least 4.5 million direct and indirect deaths. Not all those deaths can be pinned on US governments (others such as Syrian dictator Bashar al-Assad also have much blood on their hands), but most can.

Why, then, are there no indictments? Why is there no uproar in the US liberal press? No demands for the perpetrators to be summonsed to The Hague to answer some pointed questions? Is it because the US was one of only seven countries—along with China, Iraq, Israel, Libya, Qatar and Yemen—to vote against the 1998 Rome Statue establishing the International Criminal Court in the first place? Maybe. This strident defender of the “international rules-based order”, and intoner of the “rule of law”, refuses to recognise the court precisely to avoid its military and officials being charged with war crimes. 

As another Watson Institute paper (“Legacy of the ‘dark side’: The costs of unlawful US detentions and interrogations Post-9/11”) notes, the Bush administration “brazenly flouted international and US law” through its program of torture, secret detentions and extraordinary renditions, which were used primarily against Muslim men around the world during the first decade of this century. “The detentions without charge and other abuses at Guantánamo, as well as many counterterrorism operations in other countries, also violate these laws and several appear to be war crimes.”

As this was happening in 2002-03, the administration was, according to Human Rights Watch, pressuring states around the world to sign agreements not to hand over US citizens to the court. “The goal of these agreements is to exempt US nationals from ICC jurisdiction”, the organisation’s 2003 World Report noted. “They would lead to a two-tier rule of law for the most serious international crimes: one that applies to US nationals; another that applies to the rest of the world’s citizens.”

It’s the land of the free, all right. People once said that Bush was exceptional and “unprecedented” too. But while prisoners are still caged and denied trial in Guantánamo, the 43rd president now does the rounds on liberal talk shows, where hosts promote this cuddly old chuckler who paints portraits of the soldiers he is responsible for maiming.

Bush’s successor and Trump’s predecessor, Democratic President Obama, continued the abuses.

“A few sharp-eyed observers inside and outside the government understood what the public did not. Without showing his hand, Mr. Obama had preserved three major policies—rendition, military commissions and indefinite detention—that have been targets of human rights groups since the 2001 terrorist attacks”, Jo Becker and Scott Shane wrote in a generally uncritical New York Times retrospective. 

And that was before he was even sworn in. Once in office, more drone strikes were carried out in Obama’s first year than in both of Bush’s terms in office, according to the Bureau of Investigative Journalism. And he expanded the special operations established by the “war on terror” from 60 to nearly 140 countries. Then there was the mass system of domestic surveillance that Obama oversaw, along with the aggressive prosecution of whistleblowers from inside the national security apparatus.

When it was discovered in 2012 that the president maintained a “kill list” and that there was still a secret system of detentions and executions, Amnesty International’s US executive director, Suzanne Nossel, offered a stinging rebuke:

“International human rights and humanitarian law spell out the rules for when a government may use lethal force or lawfully detain a suspect. Instead of abiding by these standards, President Obama seeks to further entrench a framework of a permanent ‘global war’ as a license to kill or detain without charge or trial anyone, anywhere, anytime based on a secret US determination that the action is justified.”

Obama did all this on the back of being awarded a Nobel Peace Prize. His enduring contribution was to provide a legal foundation (subsequently bequeathed to Trump) for many of the “exceptional” abuses of the Bush era—and his own—thereby satisfying those obsessed with the rule of law paradigm. That’s one way to avoid an indictment.

All this doesn’t even begin to approach the criminality of the United States in the twentieth century. But it nevertheless ought to be remembered the next time Trump is portrayed as uniquely prone to abuse. Gross human rights violations and egregious breaches of “norms” are standard American exceptionalism. In Trump, there’s no great rupture with this tradition, just an outlandish embodiment of the principle that might is right—a code that has guided US imperialism and its leaders since at least the colonisation of the Philippines.