Stalinizing our Legal Sytem
Trump’s allegedly impending prosecution by a Soros-funded Manhattan prosecutor confirms the late Justice Robert Jackson’s greatest fear - politicizing our judiciary and personalizing prosecutions
Today is, supposedly, “indictment day.”
This is the day former President Donald Trump tells us that Manhattan prosecutor Alvin Bragg will indict him on a felony related to paying “hush money” to a former porn star.
That’s probably not going to happen, at least today, but you know the story. “Stormy” Daniels. Michael Avenatti, her former lawyer and CNN’s endorsed candidate for President, is now in jail. Michael Cohen, Trump’s former and disgraced attorney who arranged the payment, is now out of prison.
Cohen is the prosecution’s lead witness, supposedly. A convicted liar makes for a convincing lead witness, said no one, ever.
Yada yada yada, we’ve heard this all before (especially from CNN, MSNBC, and Avenatti in early 2018) ad nauseam. Except the indictment of a former President matters. It’s never happened before. Especially when he’s an announced candidate for President. Politics are obviously at play. That puts a special obligation on the prosecutor - any prosecutor - to ensure he or she is not going after the person but the crime.
President Franklin Roosevelt’s then-Attorney General Robert Jackson - a future Supreme Court Justice - warned us about this 73 years ago.
Jackson - no relation to current Justice Ketanji “What is a woman?” Brown Jackson - addressed the Second Conference of US Attorneys on April 1, 1940. His speech resonates today and can be found on the Department of Justice’s website. Too bad current Attorney General Merrick Garland and most of the current DOJ are woefully unfamiliar with it. Here’s an excerpt:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendents. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should, rather than pick cases that need to be prosecuted. (Emphasis added). With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some sort on the part of almost anyone. In such case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.
It is here that law enforcement becomes personal, and the real crime be comes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (Emphasis added)
Talk about prophetic. Attorney General Jackson’s worse fears appear to have been realized, whether you like or dislike, support or do not support Donald Trump. I’m in neither camp. However, I am on the side of the American system of justice, which is evaporating before our eyes.
It reminds me of something Lavrentiy Beria, head of Soviet dictator Josef Stalin’s secret police once said.
Of course, Democratic talking heads reflexively and unthinkingly retort that “no one is above the law,” blithely ignoring evidence. Consider Hillary Clinton (33,000 emails kept on a private server, many classified and wiped with “Bleach Bit” with the blessing of FBI negotiators while she was Secretary of State), Joe Biden (scores of classified documents going back as many as 50 years illegally kept in a variety of locations), or a host of other Democrats who enjoy treatment for transgressions that don’t resemble anything others less politically connected have experienced.
Don’t get me started on the legal treatment (or lack thereof) of Hunter Biden’s laptop or the roughshod treatment of Mar-a-Lago in search for classified documents compared to the kid gloves applied to scores of documents found at several locations under the control of Joe Biden, before and during his presidency. The FBI was all too happy to take and share this photo of “classified documents” discovered under lock and key at Mar-a-Lago. However, I’m still waiting for those documents discovered in Joe Biden’s garage that were easily accessible by his Chinese and Russian-compromised son, Hunter.
Maybe the lighting was bad.
I have no idea whether Trump will be arrested, handcuffed, perp-walked, and mug shot by Prosecutor Bragg. I do know that Democrats want those visuals very, very much. They should be careful what they wish for. This works both ways, and once they set new rules, they are the rules.
This won’t end well.
Let’s hope that wiser Democratic heads are having serious conversations with Prosecutor Bragg. If I were New York’s Senior US Senator and the Empire State’s political godfather, Chuck Schumer, I might imagine a conversation with Prosecutor Bragg like this:
“Alvin, Chuck Schumer here. . . we’re off the record. . . I want you to think very carefully about prosecuting Trump under this circumstance, if what I read in the papers is true. Here me out and say nothing.
“I know how you feel. I feel the same way. Yeah, I know, he’s given me thousands of campaign dollars, but he was a terrible president and we have do everything we can to keep him out of office.
“This is not the way. This will destroy any ambitions you have for higher office. You’re setting yourself up for failure and you’re helping Trump.
“Listen to me. There are two more prosecutions, in Fulton County, Georgia, over his interference in their election and the special prosecutor looking as his handling of classified documents. Let them carry this burden. They might have better cases.
“Let this go. You’ve done your job. This is not a good case. You’re helping him politically. Trust me on this.”
I don't know if Schumer had a conversation like this with Bragg. If one occurred, it was likely through an intermediary since this involves a “criminal” proceeding. Politicians try to avoid those, rightfully, like the plague.
But if Bragg was given that advice, he should follow it.
Our legal system has already been corrupted enough. He need not add to it.
Having said all this, would an indictment - from Bragg, Fulton County, or the Special Prosecutor - hurt Donald Trump’s candidacy? Would an indictment or conviction prevent him from being nominated or elected?
The answer to the last question is no. Convictions do not prevent candidates from being elected to federal office.
I would know about that.
In 1984, I served as a regional political director for the National Republican Congressional Committee, the official campaign committee for House Republicans. I was in charge of helping reelect vulnerable Republican incumbents. That year, with a very popular Ronald Reagan leading the ticket, all my candidates were doing swimmingly - US Reps. Tom Ridge (R-PA), Chris Smith (R-NJ), Manuel Lujan (R-NM), Denny Smith (R-OR), and others.
In October of that year, I was informed that the NRCC’s estimable chair, the late Guy Vander Jagt (R-MI), had determined that Reagan might sweep the GOP to control the US House with his landslide victory. Every seat mattered.
As a result, Vander Jagt persuaded his caucus to suspend its rule not to support candidates convicted of crimes to help reelect the beleaguered and criminally convicted US Rep. George Hansen (R-ID) to his seat in Idaho’s Second Congressional District (he was appealing his conviction). I was told to pack my bags and spend October 1984 in Pocatello, Idaho.
I arrived less than a month out from election day to find Rep. Hansen, convicted a year earlier for ethics crimes for taking illegal loans from silver magnates Nelson Bunker Hunt and his brother while serving on a committee of jurisdiction, some 20 points behind in the polls, in debt and with no staff other than his son, Bill. Worse, polling showed a 2:1 net negative in job approval. “I’ve never seen an incumbent in a worse position,” then-US Sen. Jim McClure’s (R-ID) campaign manager told me.
I used a small amount of “coordinated” campaign funding (about $40,000) to cheaply produce commercials encouraging the inexpensive and heavily GOP district to vote for the “Reagan-Hansen” team over the “Mondale-(Richard) Stallings” team.
It almost worked. The GOP came less close to controlling the US House than Hansen did to reelection.
We lost by 170 votes. Over 200,000 votes were cast. Thanks to suspected shenanigans in tony Sun Valley, Idaho, Richard Stallings won and would serve two terms in Congress as one of its more conservative Democrats.
Had Hansen won, he would have been duly sworn in and served, conviction and all. Possibly, the House might have expelled him upon sentencing. Except the Supreme Court eventually overturned his conviction. It seems the law he was prosecuted under applied only to executive branch officials.
Hansen served despite being convicted not once but twice over ethics violations. While he successfully persuaded the US Supreme Court to overturn one of the convictions, he would return to prison for a third. Hansen passed away in 2014.
There is no prohibition from someone whose been indicted, convicted, and even serving in prison from being elected and serving in federal office. There might be political or logistical challenges, but no legal prohibition. You may lose rights as a convict, but never your citizenship or ability to serve in federal public office, short of treason. The House and Senate are the ultimate arbiters who may or may not serve, at least in their chambers.
As for a President, Democrats in the House and Senate could pursue impeachment and conviction independently and certainly would with Donald Trump, as they’ve tried twice before.
The question remains, how much drama are you willing to put up with? Is the cause worth it?
Given the increasingly political nature of the persecution and increasing degradation of our democracy and judicial system, the answer might be a lot, and yes.
Democrats had better realize before it’s too late that they're playing with fire by politicizing our judicial system.
Final words of wisdom from Jackson’s speech to federal prosecutors in 1940:
In times of fear or hysteria political, racial, religious, social and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities." They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a "subversive activity," such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to as "subversive" the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term "Republican" and the term "Democrat' were epithets with sinister meaning to denote persons of radical tendencies that were "subversive" of the order of things then dominant.
In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.”
Where is Attorney General/Justice Robert Jackson when we need him?