The Rape of Lady Justice

Guest Post by Patrick Lawrence

This is an open-and-shut case of the judiciary being misused to keep Trump out of the political process. Unlike during the Russiagate years, liberal authoritarians know they are operating in broad daylight this time. 

It is getting hard to keep track of the charges lodged against Donald Trump since his indictment last week in Miami for allegedly retaining classified documents at his Mar-a–Lago estate after he left the White House in January 2021.

It is not at all hard to keep track of the destruction of the American judicial system — which is the real story here, the story in which we all figure and for which we will all pay the heaviest price.

Let’s begin with a count of the legal knots in which American courts are already binding Trump — a count so far, as there seems to be more on the way.

The Manhattan district attorney indicted the former president in April on 34 counts of falsifying business records related to his presidential campaign in 2016. This is the case of Stormy Daniels, the porn star who was paid $130,000 to keep quiet about a brief encounter she had (her account) or did not have (Trump’s account) in a Las Vegas hotel room 17 years ago.

Now we have a Miami grand jury handing up indictments on 37 charges related to the documents case. Of these, we must note, 31 counts come under the Espionage Act of 1917.

This escalates matters very considerably. A former president and a current contender for the presidency now faces the gravest charge for which American law provides.

Trump now keeps company with, among others, Eugene Debs, Emma Goldman, Alexander Berkman, Julius and Ethel Rosenberg, Daniel Ellsberg, Chelsea Manning, Julian Assange, and Edward Snowden — others charged under the Espionage Act since the Wilson administration passed this unambiguously unconstitutional law to silence those critical of America’s entry into World War I a century and some ago.

The D.A. in Atlanta is currently investigating, with a view to possible indictments, allegations that Trump interfered in Georgia during the 2020 presidential election.

Jack Smith, the special counsel running the Mar-a–Lago investigation, has another one going in Washington, where a grand jury is considering indicting Trump on charges he incited whatever the liberals are calling the protests of Jan. 6, 2021, these days — a coup, a riot, an insurrection, who can keep track?

These are criminal cases. On the civil side, there is the preposterous case of E. Jean Carroll, a never-heard-of-her writer who won a $5 million judgment last month based on her claim that Trump assaulted her in a Bloomingdale’s dressing room in (are you ready?) the early 1990s, yet 15 years earlier than the wholesome Stormy alleges she had her go-around with The Donald. Carroll, keeping the ball in the air, is now going for an additional $10 million in damages.

Leading Republican Candidate 

U.S. presidential debate, Oct. 22, 2020. (Screenshot)

I will no longer use “the former president” to describe the former president. From here on out it will be “the leading Republican candidate” to run against the enfeebled Democratic incumbent next year. Make that “the leading Republican candidate who handily defeats the enfeebled incumbent in every poll so far conducted.” How’s this for a succinct second mention?

There is most certainly a revenge factor behind this legal onslaught against the leading Republican candidate who handily defeats ….  Democrats have never got over Trump’s triumph over Hillary Clinton seven years ago, when history was supposed to end and orthodox neoliberalism was to reign without challenge as it is now and ever shall be amen.

Trump Derangement Syndrome lives, in short.

But we must look forward to understand events on the legal side over the past couple of months. What we now witness is an open-and-shut case of liberal authoritarians’ misuse of the judiciary to keep Donald Trump out of the political process because they are correctly uncertain they can defeat him by way of it.

I am all but convinced that the Biden Justice Department does not give much of a damn whether or not the cases against Trump end in convictions.

If I am right, the objective is to keep him tied up in judicial rope until the election next year is fought and won. We are already hearing from the nitwittier of mainstream commentators, Rachel Maddow among them but not alone, that it would be fine were Justice to drop all charges providing Trump commits not to run next year.

To put this another way, liberal authoritarians are in the process of depriving American citizens of an independent judiciary, which is supreme among the mediating institutions essential to any properly functioning polity. It does not get much bigger if we are talking about the final devastation of our battered republic, a point upon which I will shortly dilate.

Operating in Broad Daylight

Liberal authoritarians are well aware that, unlike a good deal of their chicanery during the Russiagate years, they are operating in broad daylight this time. Too many Americans remain stubbornly capable of seeing what is before their eyes as plainly as one sees a Technicolor screen in a movie theater.

Predictably, preemptive control of “the narrative” has been evident since the Miami indictments were made public last Thursday.

Let us watch as events are turned upside down, those subverting our institutions cast themselves as saviors. Get a load of this, from Peter Baker, The New York Times’s White House correspondent.

“History’s first federal indictment against a former president poses one of the gravest challenges to democracy the country has ever faced. It represents either a validation of the rule-of-law principle that even the most powerful face accountability for their actions or the moment when a vast swath of the public becomes convinced that the system has been irredeemably corrupted by partisanship.”

A validation of the rule of law? Even the most powerful face accountability? Are these people trying to make me laugh or do the other thing? I cannot quite tell any more.

Hillary Clinton, James Comey, James Clapper, John Brennan, Joe Biden, the last as vice-president and now president: This is an extremely truncated list of those who, since Trump’s election in 2016, have gone uninvestigated, untried and un-convicted as felons, and I use this term advisedly.

Clinton’s breach of security was vastly worse than the worst Trump is accused of. Clapper and Brennan lied to Congress under oath. Even according to the incomplete record available to us, an investigation of Biden’ Ukrainian and Chinese business dealings would almost certainly leave him in an orange jumpsuit.

These are a few of the countless replies available to us as we consider the equal-under-the-law argument the Democratic establishment now cultivates and Peter Baker summarizes.

Indictments Now Pending

Let us consider very briefly the indictments now pending against Trump.

The Manhattan D.A.’s case rests on the contention that a payment to a porn star made by one of Trump’s attorneys should have been accounted as a campaign expense. The Mar-a–Lago case turns on when Trump declassified documents and whether this counts as it ought to under the Constitution. Reminder: Any president in any circumstance can by law declassify documents without the assent of any other institution of government.

At worst, or best depending on your point of view, we are left with an accounting error in the first instance and a passing matter of bureaucratic ambiguity in the second.

The subhead on the Baker piece reads, “The former president’s efforts to defend against multiple felony counts by discrediting law enforcement pose a grave challenge to democracy.” Suggesting that it is dangerous to our democracy to assert that our law-enforcement agencies have discredited themselves: This is what I mean by upside down.

As of last weekend the Trump mess has taken on a new dimension, one we cannot miss if we are to understand our moment. Around the country various political figures of various stations reacted to the latest set of indictments by threatening what we will politely call extra-parliamentary actions.

“Eye for an eye,” Andy Biggs, an Arizona Republican in Congress, warned in a Twitter note Friday. Here is Kari Lake, a halfway-prominent conservative, speaking Saturday at the Republican state convention in Georgia:

“I have a message tonight for Merrick Garland and Jack Smith and Joe Biden—and the guys back there in the fake news media, you should listen up as well, this one is for you. If you want to get to President Trump, you are going to have go through me, and you are going to have to go through 75 million Americans just like me. And I’m going to tell you, most of us are card-carrying members of the N.R.A. That’s not a threat. That’s a public service announcement.”

What are we listening to here? I have no prediction to make as to how far these threats of “retribution” — a Trump family member’s term — will go. What is the thought beneath the inflammatory rhetoric? This is the key question.

My answer: This is what a society sounds like when it has lost the most essential of its public institutions. It sounds very violent. It sounds anarchic. It sounds like it is failing.

The American judiciary has been other than pristinely independent far longer than anyone alive now can remember. Any black American can tell you all about it. What we have watched in recent decades is the corrosion and corruption as it creeps upward through all our institutions. Chief among these is the judiciary.

Institutional Collapse

2000 presidential election recount in Palm Beach County. (Dtobias, Wikimedia Commons, CC BY-SA 3.0)

I recall thinking, after the Supreme Court stole the 2000 elections to hand it to George W. Bush, “This society has lost its capacity to self-correct.” I wish the confirmations of this that followed were not so numerous. Citizens United in 2010, when corporations were declared people — it is still strange to type that phrase — was a mile marker.

Lately, to skip across a long list, the Supreme Court has ruled that corporations have a legal right to seek damages from unions running strikes for their members’ rights.

These judicial rulings signal not only the destruction of public space in American society, which is alarming enough. They also tell us we, as citizens, cannot rely on the courts for balanced, disinterested, even rational rulings. At some point the judiciary ripped the blindfold off Lady Justice. Her famous scales are tipped.

I had better explain the gravity I attach to the Trump indictments and the brazen usurpation of the American judiciary at the hands of liberal authoritarians obsessed with power.

Many years back I spent time in Sri Lanka as a senior rapporteur for an Asian human rights commission. The brief book that came out of that sojourn is called Conversations in a Failing State: Sri Lankan Encounters. (It is tough to find at this point, unless you are in my cellar.)

The war between the Sinhalese majority and the Tamil minority was raging then in the north of the island. I went nowhere near it. I was interested in the root causes of the conflict, and I found these readily enough in Colombo, the capital, in the coastal towns, in the central highlands around Kandy, in the tea plantations, and in Nuwara Eliya, the crumbling British hill station.

The civil service, the legislature, the army, the public sector institutions: These had long earlier given way to the rot of corruption. It was when the judiciary began to go that “failing state” became the state of things.

The chief justice then was a man named Sarath da Silva. Sarath, as he was known, was not short of a terrorist in his pursuit of total power by way of total control of the judicial system. Enemies turned up dead.

He had judges in exile and judges hiding out in Nuwara Eliya, petrified he would find them. Ordinary Sri Lankans, especially the Tamils, could forget all about a justice as administered by the state. Resorting to either the police or the courts never even occurred to them. You took care of matters best you could on your own.

And it was the collapse in this way of the judicial system, the mediating institution of final resort, that lay as the root cause of the war up north and the near-complete collapse of Sri Lankan society.

No, Merrick Garland is not Sarath da Silva and the mess in our courts does not compare in magnitude with the mess I saw in Colombo’s: No accusations of hyperbole, please. But the lessons are there for us to learn from.

Problems of judicial imbalance and courts in the service of private or political interests have a long history in America, yes. What is going on now at Justice and the various grand juries it has convened are the straight-line consequences of the corrupt use of the department and its law-enforcement agencies during the criminal years of Russiagate.

This abuse of the judiciary, notably by way of the Espionage Act, went all the way to the top last week. This is the significance of our moment. Liberal authoritarians are now availing of the courts and the extremities of American law to eliminate a political candidate in the service of a Democratic president of failing competence — that is, to determine the probable outcome of an election.

Our corporate media become more Pravda-like by the day as the travesties mount, publishing perfectly obvious fallacies in naked-emperor fashion. I do not care how many buffoons the major dailies field of the Peter Baker or Maggie Haberman sort, who spend their working days producing this silly-but-frightening stuff. Nighttime is still dark, the daytime light. The corrupt and corrupting are still corrupt.

What is being done to our judiciary is as we see it. And it lands us in the gravest circumstance of my lifetime.

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