‘Liberty and Justice For All’ – A Tattered Cliche?
Throughout history, the tyrannical abuse of governmental power has been a fearsome thing to behold. Wise men instituted laws in an effort to tame that abuse. The Constitution of the United States, for example, was framed in large part as a prophylactic against the coercive power of the state. The Framers witnessed the “long train of abuses and usurpations” perpetrated by the British crown and resolved to respond. The Constitution dealt with many other things, to be sure, but concern about tyrannical abuse of power by the government and its minions is patent from the opening paragraphs of the Declaration of Independence straight through the Constitution and its Amendments. The idea was that we Americans would live in a polity governed by “laws, not men.” That is to say, laws would be legitimately formulated, clearly defined, and administered impartially, so far as was humanly possible. How are we doing on that score?
Not so well.
The terms “administrative state” and “deep state” entered parlance only about seven years ago. The realities those phrases name long predate their currency, but Donald Trump was the lens through which worry about those legitimacy-devouring, essentially tyrannical phenomena crystallized. During the 2016 campaign, Trump’s chief strategist Steven Bannon raised eyebrows when he said that “deconstructing the administrative state” was a high priority. In the event, Trump’s success on that task was only a patchwork affair, but he did make an effort.
What prompts these thoughts is the spectacle, partly risible, partly terrifying, of the federal government’s ongoing vendetta against a single individual it cannot countenance. That individual, of course, is Donald Trump. And while the focus of its vendetta is against Trump the man—or, more precisely, Trump the presidential candidate—its animus has spilled over to embrace anyone tainted by association with the Trump phenomenon. Into this category fall the hundreds of people who had the misfortune to visit the Capitol on January 6, 2021.
Opinions differ about the state of popular sentiment when it comes to the current disposition of the United States government. I have by degrees joined the camp that has grave doubts about its legitimacy. I do not, for example, believe that the hallowed ideal of “liberty and justice for all” is these days much more than a tattered cliché, a pious nostrum without substance.
One of the great poster children for this erosion of public support—and, consequently, of political legitimacy—is the FBI. At a time when its operations are so patently partisan, it is hard to maintain confidence in its beneficence. Consider the news about Charles McGonigal, former head of Counterintelligence for the FBI, boss of FBI love bird Peter “Mr. Insurance Policy” Strzok, and vigorous investigator of the Trump Russia Collusion hoax. Wouldn’t you know it: the chap who went after George Papadopoulos and others in Trump’s circle was just fined and sentenced to four years in prison for—wait for it—colluding with Russia.
You might argue that McGonigal’s comeuppance shows that “the system works,” that the FBI can effectively police itself, etc. I would counter that it is yet another reminder that the deep-state, anti-Trump forces operate primarily by what the Freudians call projection, by being guilty of what they accuse others of. There is a hilarious video collage making the rounds of various pundits and politicians warning that the world, or at least our democratic republic, will come to a sudden and ignominious end if, heaven forfend, Donald Trump should be elected again in 2024. Trump will assassinate generals, you see, shoot visitors to the White House, suspend the Constitution, and kill democracy. It is an inadvertently amusing compilation but also a deeply depressing one since it underscores the sad and debilitating effects of Trump Derangement Syndrome.
Trump represents a threat to democracy, ergo he must be prevented from running “by any means necessary,” otherwise so many people might vote for that he would win. That’s the logic. Odd isn’t it? Person X wins in a free and open election. But you don’t like the person. So you declare the election “undemocratic.”
It is here that we must distinguish between “democracy,” which is what would be upheld if Trump were allowed to run, and “Our Democracy™,” that strange, oligarchical confect that can be maintained only by suppressing common, or garden variety democracy.
It is in this context, I believe that we must understand the unhinged legal campaigns unleashed against Trump in four separate jurisdictions.
I say “legal campaigns,” but really they are partisan political assaults masquerading under cover of legal procedures.
That is, they look like legal procedures from the outside; they employ all the paraphernalia of legal procedures. There are courts, lawyers, subpoena, judges. But the German Judge Roland Freisler (1893-1945) employed all that machinery, too. He presided over trials. But he always got the results he wanted.
And this brings me to the activities of Special Counsel Jack Smith, the anti-Trump fanatic and DOJ pit bull who has been charged with taking Trump down in Washington, D.C., where Trump is accused of trying to overturn the 2020 election by “obstructing an official proceeding,” etc., and in Florida, where he is accused of illegally possessing classified documents.
Smith understands that by far his best chance of getting Trump is in Washington—not, I hasten to add, because he has much of a case there but because he has an Obama-appointed anti-Trump judge Tanya Chutkan and a Democratic jury pool that can be counted on to convict Trump on anything he accused of. Andy McCarthy has published a thoroughgoing anatomy of the the legal niceties of the case. He is no friend to Trump, deprecates what he calls his “loathsome behavior,” but does say that he thinks Trump is “being denied due process.” He further acknowledges that the effort to use Section 1512(c) of the federal penal law against Trump will be a “tough case” that is likely to signal “trouble for Smith.”
It’s the opposite in Florida, where the judge is a Trump-appointed jurist and the jury pool is likely to be sympathetic to Trump. In my view, Trump’s possession of classified documents at Mar-a-Lago is no different from Biden’s possession of classified documents in his garage behind his Corvette. Rather, Trump’s case was less egregious than Biden’s. For one thing, Biden was never president. He had many more documents, in many more, less secure places. And remember: all modern presidents seem to have possession of classified documents after they leave office, but not all former presidents are Donald Trump.
Trump’s lawyers have appealed the Washington case and, in response, Smith has asked the Supreme Court to bypass the usual appeal process and take the case on an expedited schedule. Why? Because the Washington trial was set to begin on March 4, a day before “Super Tuesday,” at which Trump is likely to seal the GOP nomination. Smith hoped that an early trial would harm Trump with voters. So far, legal attacks agains Trump have had the opposite effect, increasing his standing in the polls. That is because voters understand that the legal challenges are legal in name only. At bottom, they are instances of bare-knuckle political warfare.
On Friday, The Wall Street Journal published an editorial whose slug got to the nub of the issue. “The special counsel,” it read, “tries to drag the Justices into his political timetable for the Jan. 6 trial of Donald Trump.” That’s it exactly. Smith wants the Court to decide now, today, so he can pursue his vendetta against Trump on the time table the election calendar has set. Most observers believe that the Court will be more circumspect. The writers of that editorial caution that “The wiser decision would have been to lay out the facts of what the special counsel found and let the voters decide. They chose to prosecute, and the damage has begun to unfold.”
I was talking to a friend about about Smith’s case. He responded “It sounds like the judiciary/prosecution is corruptly trying to interfere with an official proceeding, i.e., the election.” That’s pretty much what I think, too, though I don’t expect Jack Smith to be charged for the tort. Remember, there is one law for Donald Trump and his supporters. They can be harassed, prosecuted, and jailed. There is another law for the nomenklatura that does the harassing, prosecuting, and jailing.
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