Greetings,
This week, an unprecedented thing happened when an ex-president was indicted. I’ll admit to a little jubilation… OK, maybe more than a little, but I’m not proud of it. Donald Trump hasn’t paid any price for debasing democracy and humanity, so it IS very satisfying to watch his first brush with accountability. The Rule of Law has been weakened until it seemed doubtful whether it could still work at all (and it hasn’t yet) but this indictment may be the beginnings of equal justice again. Schadenfreude may be misplaced but ‘satisfaction’ and maybe even ‘relief’ aren’t.
America’s founding idea, “all men are created equal”, is the radical aspiration that makes our country worthwhile. We’ve never lived up to it, but over the last fifty years some animals have definitely become more equal than others. Ford pardoned Nixon out of concern for the country, but it meant Presidential crimes would die after office. Barr weakened the check of Congress on Presidential powers when he shielded Reagan in Iran-Contra. When Obama “looked forward instead of backward” to let Bush off the hook he confirmed the US as a torture state. There might sometimes be legitimate reasons not to hold Presidents accountable, but power and position aren’t legitimate. Every time we make an exception it weakens all of us a little more.
Two-tiered Justice was hardened by the DOJ in 1973 when they decided a sitting President couldn’t be indicated… um, indicted. But that’s a DOJ rule, not a law, not a constitutional principle. It may even be good guidance… after all, police powers should require strong probable cause, especially against a President. Fortunately, courts and juries protect us against such ‘weaponization’. It may be a good rule while a President is in office, but once they’re out? They’re all created equal.
Sometimes Justice means the guilty go free. It’s not unequal justice if a prosecutor knows someone is guilty but decides they can’t prove the case, or couldn’t get a conviction if they did. Rodney King and OJ Simpson are cautionary tales but we also saw it as the House’s devastating cases against Trump died in the Senate. Lack of evidence is a legitimate, if frustrating, reason not to prosecute the rich or powerful, but to quit because you can’t win? No. Faced with overwhelming evidence of obvious crime, Justice requires us to make them stand to account whether they’re convicted or not. It’s dereliction of duty not to.
“Justice for all” doesn’t mean punishing every person, every time, for every tiny infraction. We need discretion in our laws to ensure Justice, but fear or greed are NEVER reasons to excuse ANYONE. The Trumpets screeching about the Rule of Law while insisting Trump not be tried don’t realize, or won’t admit, this. If a constitutional, properly functioning Justice system is faced with clear crimes and overwhelming evidence, then failure to prosecute is failure of Justice itself.
Victory for Justice doesn’t lay in punishing Trump for any of his crimes but in making him answer for all of them. In 1794 our first Chief Justice said, “Justice is indiscriminately due to all, without regard to numbers, wealth, or rank”. In December the 11th Circuit Court of Appeals repeated these words in a ruling on Trump’s (still alleged) theft of classified documents. We saw the principle applied this week to the shock of the entire world. We can only work together to make it true in the rest of his legal adventures.
Make a great day,
Digging Deeper
Concept of Justice and the Quest for an Absolutely Just Society, Robert Waelder in the Journal of Criminal Law and Criminology, vol 57, 1966
Watergate Scandal: Grand Jury Was Ready to Hit Richard Nixon With 4 Criminal Charges, Newly Released Documents Reveal, Ramsey Touchberry on Newsweek, Oct 2018
Ford Pardons Nixon, History.com
The Nixon pardon in constitutional retrospect, NCC Staff at the National Constitution Center, Sep 2022
Ford’s pardon of Nixon was a historic mistake. Trump is the beneficiary, Max Boot in Washington Post, Aug 2022
Bill Barr Is The Master Of Covering Up Political Scandals, Thom Hartmann in Trial Lawyer Magazine,
Criminal Complaint against George W. Bush, European Center for Constitutional and Human Rights
Obama Wanted to ‘Look Forward, Not Backward’ on Torture, But He Failed to Look Either Way, Dan Froomkin on Medium.com, Mar 2018
A Sitting President’s Amenability to Indictment and Criminal Prosecution, DOJ Office of Legal Counsel, Oct 2000
Can a sitting U.S. President face criminal charges? Jan Wolfe on Reuters, Feb 2019
Appeals court halts special master review of Mar-a-Lago documents, Erin Doherty and Shawna Chen on Axios, Dec 2022
The Long History of Presidents Getting a Pass, Chris Lehmann in The Nation, Apr 2023
Why Mueller said he couldn’t indict Trump, explained, Li Zhou on Vox, Jul 2019
‘You Can’t Stand on Fifth Avenue and Just Shoot Somebody’: Donald Trump Indicted – Legal Experts Respond, David Badash on New Civil Rights Movement, Mar 2023
At the heart of Trump’s indictment, an unprecedented test of American ideals, Jonathan Allen on NBCNews, Mar 2023
Justice Dept. said to have more evidence of possible Trump obstruction at Mar-a-Lago, Barrett, Dawsey, and Stein in The Washington Post, Apr 2023
The Observer view: Donald Trump deserves to face the full force of justice, Observer Editorial in The Guardian, Apr 2023
