by Don Mayer
May 21 2024
Some people in this great country of ours are truly sickened by the prosecution (or prosecutions) of Donald J. Trump; to them, he is being “persecuted,” not prosecuted under an objective application of the rule of law. This view is more popular by those who regard Trump as a kind of savior from a too-liberal, too-tolerant of non-Christians, immigrants, gays, lesbians, queers, and a government gone awry, a government now led by (God forbid!) a “Democrat.” (“Demonic Democrats” has a nice alliterative ring to it, right?)
Indeed, demonizing Democrats have become common practice among many admirers of Trump, and Trump is not sparing in his criticisms of Biden and the Democrats, many of whom demonize Trump and/or his followers. Given this vast, angry gulf between party partisans, it makes sense that one side sees his prosecution in the New York “hush money trial” as political persecution of the first order, persecution that needs not only to be reined in, but entirely reversed. And “the justice system” is now a target for those with that view, and many GOP politicians have exactly that view.
Because Trump is under a “gag order” from the judge in this case, numerous GOP leaders have come to NYC to support Trump, say what he is ordered not to say, and echo his claims of political persecution (“witch hunt” is a favorite meme, one that Trump used in both impeachment proceedings.). While the parade of GOP politicians coming to New York may look like more sniveling sycophancy for the party’s “leader,” but there is something far more troubling going on here: the proposed inversion of our justice system, which for many years has been a model for other nations as an exemplar of fairness. The jury system itself insures to a large extent that innocent defendants have the right to a fair trial, numerous opportunities to appeal wrong decisions by a trial judge, and unless all members of the jury agree that the defendant is guilty beyond a reasonable doubt, the defendant is free to leave the courtroom.
Richard K. Sherwin, emeritus professor of law at the NYU law school, recently wrote about Trump’s elected supporters in this way:
“If Trump’s allies are signaling loyalty, it seems reasonable to question what exactly they are demonstrating loyalty to. It is difficult to avoid concluding that their show of solidarity is meant to express support for Trump’s brazen, unsupported claim that he is the victim of a show trial orchestrated by his political enemies. As Trump put it at a recent rally: “Joe Biden and the fascists that control him are really the true threat to democracy. They use the DOJ, the FBI, our election systems. They rigged our elections and attacked free speech … [T]hey don’t go after the people that rigged the election. They go after the people that want to find out who it was that rigged it.”
“If, as Trump claims, ‘the genie’ is ‘out of the box,’ which is to say, if the rule of law already has been suspended, and the power of the Department of Justice is now being used as a weapon against political enemies, why not give the other side a taste of their own medicine? Trump has signaled his intent to do exactly that: ‘[I]f I happen to be president and I see somebody who’s doing well and beating me very badly, I say, go down and indict them, mostly they would be out of business. They’d be out. They’d be out of the election.’”
But this is not Russia, where even just speaking up against an unjust war against Ukraine is a punishable offense, and political opponents are jailed (or poisoned, or their lives ended in an “unexplained” airplane disaster).
[A quick aside here: the apparent affinity for Russia and Putin by some on “the right” is a bit hard to understand, given that many on the “hard right” are continuing the Big Lie about the “stolen” 2020 election and complain about stolen elections and political persecution, both of which Putin has honed to a fine art.]
No, this is still the United States of America, where we have a long and proud tradition of due process toward defendants, a process that works in the vast majority of criminal cases in our legal system, even though there are certainly a number of cases where prosecutors go too far, withhold evidence from the defense, pick a biased jury, and often lets guilty defendants off the hook when they can afford a gold-plated defense team (O.J. Simpson, Donald Trump, and many others), and jails a far higher percentage of minorities and poor people –– and for longer sentences than white collar criminals –– than overall fairness would allow.
As Sherwin concludes, and rightly so,
“The kind of political authority that Trump aspires to is utterly at odds with a liberal democratic understanding of power as flowing from the bottom up – from “We the People” who freely choose to delegate their power to (or withdraw it from) their political representatives. By contrast, in an illiberal democracy, power flows from the top down – from a supreme leader who claims that only he can make the people’s power real by virtue of embodying their collective will. This kind of personal assertion of sovereign power echoes in Trump’s authoritarian rhetoric: “I am your justice … I am your retribution.”
“So, when high-ranking politicians and wannabe power brokers show up in Trump’s courtroom to demonstrate solidarity with the former president, this is not politics as usual against the backdrop of a conventional criminal trial. These loyalists are signaling their willingness to validate an alternative, illiberal source of sovereign power, independent of the US Constitution and the rule of law. That source comes down to one man: Trump.”
With considerable chutzpah, the G.O.P. has claimed the mantle of “law and order” since Richard Nixon’s 1968 campaign in the midst of societal unrest; its many appointed jurists on the U.S. Supreme Court are also fond of looking to our Founding Fathers, to the original intent of the Constitution, with an eye to maintaining historical traditions. Yet Trump makes no secret now of proposing to upend over two centuries of legal tradition, and change our institutions to reflect his will, not the will of the people, and to scorn in advance the possible verdict of a jury he and his attorneys helped to select. Even in front of the Supreme Court in the immunity argument in April, his lawyer claimed that if a President does it, it’s legal (unless the President has already been impeached and convicted).
Sherwin has it right: the Founding Fathers, who railed against the one man rule of King George III, would be appalled that one of our two parties now seems to fully embrace a man who would be king.