“Sometimes You Have to Go Above the Law.” Really?

Poster for the movie Paradise Highway – Fair Use

Towards the end of Paradise Highway, recently shown at the Locarno Film Festival, a sympathetic federal agent (Morgan Freeman), lets an equally sympathetic truck driver (Juliette Binoche) escape with a previously sex trafficked girl. Freeman let them escape although Binoche and the girl were guilty of numerous crimes, including shooting a potential predator. In the romanticized ending, Freeman defends letting the two get away to his young assistant, saying he is a “rogue” cop and implies “sometimes you have to go above the law.”

In a panel discussion, I questioned the co-producer Claudia Bluemhuber, about the ending. To me, the concept of a benevolent “rogue” cop was misguided. When I think of rogue policemen, I think of Derek Chauvin, guilty of the death of George Floyd as a typical rogue cop. The job of a policeman is to have people respect the law, not to go above it. When I hear “rogue” cop, I think the worst, not someone being benevolent in the mold of Morgan Freeman.

Ms. Bluemhuber’s response to my question was about individual conscience. She insisted that individual conscience should be the final determinant of one’s actions, adding that Freeman did say that he was willing to accept whatever consequences arose from letting the two drive away. Bluemhuber implied that she preferred individual conscience to the rule of law.

My second question dealt with the idea that “sometimes you have to go above the law.” Ms. Bluemhuber is not American; she seemed unaware of the infamous declaration by Fawn Hall in 1987 when she testified before the United States Congress. Ms. Hall was a secretary to Lieutenant Colonel Oliver North on the National Security Council. She testified in the Iran-Contra affair that she had shredded secret documents and surreptitiously given others to North.

“I felt uneasy, but sometimes, like I said before, I believed in Col. North and there was a very solid and very valid reason that he must have been doing this. And sometimes you have to go above the written law, I believe.”

That phrase has now become synonymous with Donald Trump and his followers. It was not always so. Certainly, in the 1960s and 1970s people went above the law in their desire to protest for civil rights and against the Vietnam War. The question of merely obeying the law was unacceptable because the laws and policies at the time were deemed immoral. Many demonstrations such as those in the Great March on Washington in 1963 or the March on the Pentagon of 1967 are examples where many were arrested because of their conscience. People went above the law, but there was little violence.

Compare those two demonstrations with the attack on the Capitol of January 6 or the Unite the Right March in Charlottesville in 2017. All of the demonstrators in the four examples cited believed that their consciences led them to participate, but the Ku Klux Klan followers in Charlottesville and the rioters who overtook the Capitol went beyond acceptable protest. There was violence, destruction and death at the Capitol and in Virginia.

The significance of Fawn Hall’s statement is: How far can one go above the law? When Henry David Thoreau went to jail for not paying taxes to protest the Mexican American War, it was a question of conscience – above the law – but done peacefully and fully accepting the consequences – one night in jail. Mahatma Gandhi’s protests for Indian independence were non-violent, as were most demonstrations organized by Civil Rights leaders in the United States. Non-violence protest is an act of conscience that can be above the law but that accepts the consequences, such as arrest.

When Donald Trump and his followers act as if they are above the law, we question their consciences and motives. Trump continues to have problems with the law: with the New York Attorney General, with the FBI and the Department of Justice, with the Manhattan District Attorney as well as with the Fulton County District Attorney in Georgia. He continues to say that he has done no wrong, that he is being persecuted for political reasons. Undoubtedly, he also believes he is above the law. And many of his followers believe that as well, about themselves as well as about Trump.

Caroline Fredrickson editorializes in the New York Times: “Brazen lawbreaking is now a political asset for Republican candidates and operatives.”

The recent raid on Trump’s home in Florida reveals many of the challenges of believing “sometimes you have to go above the law.” As reported in the New Yorker: “David Laufman, a former D.O.J. prosecutor and senior official who has been critical of Trump, defended the search of Mar-a-Lago. ‘Having conducted and overseen multiple criminal investigations involving the mishandling of classified information, there is nothing unusual about the government executing a search warrant to recover classified material from a location where it is not legally authorized to be,’ he said. ‘The only thing unusual in this case is that the classified material apparently was under the possession and control of a former President of the United States who fancies himself above the law.’” (italics added)

Morgan Freeman, in the above film, is a federal agent. If most or all security officers decided what to do based on their consciences we would all be in trouble. The term “rogue” is not generally a positive label, especially for someone whose role is defend the law. Security officers must defend the law, not question it based on conscience.

While in the 1960s and 1970s the idea of non-violent protest based on individual conscience was popular and admirable, today it is associated with rogue actors and people who believe that they, individually, have the final say. Morgan Freeman’s benevolent act at the end of the film deserves reflection. The idea of going above the law should always be challenged even when it appears to be for a good cause.

Daniel Warner is the author of An Ethic of Responsibility in International Relations. (Lynne Rienner). He lives in Geneva.