Donald Trump and the Standard of Evidence John O’Sullivan
https://quadrant.org.au/magazine/2023/07/donald-trump-and-the-standard-of-evidence/
The headline on the New York Times story of ex-President Trump’s indictment is a wonderfully unintentional guide to the topsy-turveydom of American life in the Biden era: “US Justice System Put on Trial as Trump Denounces the Rule of Law”. To start with, the front-page piece is not a simple factual report—“Trump Indicted on Thirty-Seven Counts”, say—but “news analysis” which signalled Schumpeter’s definition of Marxism (“preaching in the garb of analysis”) even before Wokedom tightened its grip on US journalism.
It’s worse now, of course, and relentless too. An accompanying report inside warns in another headline that “Trump Backers Unleash Wave of Violent Threats, Worrying Some Analysts”. The worries of analysts don’t usually make it into headlines, and we don’t learn about the reactions of “other” analysts. Presumably, if quoted in the NYT, those complacent fellows would argue that the threats—one of which is the simple word “Retribution”—were religious and military metaphors used by all parties at times but, when employed by Republicans, more worrying than the actual if “largely peaceful” riots of the Left.
To revert to the front-page headline, though, Trump did not in fact “denounce the rule of law” unless every indicted man who proclaims his innocence is held to be denouncing it. He said that law enforcement had been “hijacked” by the Democrats, including elected Democratic prosecutors, to take out the most formidable opponent they face in next year’s presidential election, namely himself.
In a few paragraphs I’ll deal with the thirty-seven charges levelled against the former President by the Special Prosecutor looking into, inter alia, his retention of classified national security documents in insecure conditions in his Florida home, Mar-a-Lago. These are serious charges and pose a real threat, namely a long prison sentence. But his claim that the Democrats had hijacked law enforcement to take him out of the 2024 election is largely true.
Largely? Well, Trump is probably not the most formidable challenger Biden could face next year. He may be the strongest candidate in the GOP primaries, but his negatives are so high with the full electorate that he would probably lose to the President where a challenger like Florida’s governor, Ron de Santis, would enter the race as the favourite.
There’s even a theory that the Democrats see the various legal challenges to Trump as a way to weaken but not destroy him electorally and thus more or less guarantee their victory. Those calculations are a little too clever and “nice” for comfort, and as we shall see, they risk creating more public sympathy for the man they hate and fear most. But the risk is real because there is no doubt that Democrats have not only weaponised the justice system to “get” Trump but have even boasted publicly that they would do so.
Both Letitia James, the New York State Attorney General, and Alvin Bragg, the Manhattan District Attorney, campaigned on their determination to charge the former President with crimes of which they had no evidence initially. Legally speaking, pursuing people rather than investigating known crimes is highly dubious, and it usually means that prosecutors are engaged in “fishing” expeditions in order to find something, anything, that they can pin on their target. And Trump is the very beau ideal of what the novelist Tom Wolfe called “the Great White Defendant” whom every Democrat prosecutor hopes to land, especially in Manhattan and Albany.
Sadly for Bragg, however, after six years of investigation, when he launched a thirty-four-count felony against his Great White Whale, even strong critics of Trump criticised the thinness of the case. “I believe President Trump’s character and conduct make him unfit for office. Even so, I believe the New York prosecutor has stretched to reach felony criminal charges in order to fit a political agenda,” said Senator Mitt Romney, who had twice voted to impeach Trump—votes which, if the impeachment had succeeded, would have prevented Trump from running for President in 2024.
Romney’s further remarks were, however, even more significant: “The prosecutor’s overreach sets a dangerous precedent for criminalising political opponents and damages the public’s faith in our justice system.” That amounts to an endorsement of Trump’s criticism of Bragg’s legal practices by a leading American public figure who can’t be suspected of political sympathy for him.
Much the same might be said of Letitia James’s legal pursuit of Trump’s business practices which began in 2019 and which so far has produced one successful prosecution of an accountant in the Trump organisation—a modest return on a four-year investigation.
Bragg and James received a consolation prize of sorts when Trump was found to have been guilty of sexual abuse in a civil case brought by a woman who claimed he had raped her in a New York city department store changing room twenty-seven years ago. The case could be brought only because the Democrats in New York had raised the time limit (the statute of limitations) for bringing such cases; the mixed verdict—he was found not to have raped the plaintiff—casts doubt on her overall story; and the case is on appeal.
The results in all these cases suggest that the usual presumption of innocence is weak and the standards of evidence flexible when Trump is concerned. Prosecutors are searching desperately for crimes (to the point in Bragg’s case of making them up) in order to validate their suspicion that Trump is a criminal. He may, of course, be the greatest villain unhung—which is what the progressive half of America believes—but that’s not how law enforcement should be conducted.
That sceptical judgment cannot be made of the charges of mishandling national security classified documents brought most recently by the Special Prosecutor and Biden’s Justice Department. Some of the best legal minds—Andrew McCarthy, a former prosecutor now writing for National Review, and William Barr, Trump’s former Attorney General—believe that these are serious charges, apparently supported by good evidence, carrying heavy prison sentences, and that therefore Trump is in serious peril. Along with them, others express surprise that Trump has put himself in this peril so recklessly when he gained very little by keeping the documents and could have safeguarded himself by quite simple steps. The mystery is essentially one of Trump’s personality. In almost any normal case, however, the former President would now be headed for prison.
Why might that not inevitably transpire? One obvious possibility is that once Trump’s lawyers get around to dissecting the prosecution case, they’ll find weaknesses not easily apparent even to experienced lawyers, let alone innocents-at-law like me. For instance, one commentator sympathetic to Trump, Michael Walsh, points out that using the Espionage Act as a basis for charges might be a good political move (because it seemingly validates the discredited Russiagate scandal) but a bad legal one. The Espionage Act—a First World War measure—is rarely prosecuted; it probably requires evidence that Trump intended to transmit the documents to a foreign power—for which there’s no evidence; and the judge in the Pentagon Papers case threw it out.
If that happens in this trial, the main basis for prosecution would be the laws on the safeguarding of presidential papers on which Trump’s lawyers could have a field day. I can scarcely believe this but I’m told that one federal ruling they might cite is something known as the “Clinton socks precedent” which allegedly held that when President Clinton placed confidential documents in his sock drawer, he automatically declassified them. We’ll see if that precedent protects a Republican President too.
And, finally, this trial will be a jury trial. The judge chosen to preside over it seems to be one who is not hostile to Trump. A friendly judge can quite honourably ensure that the selection of jurors is not biased against the defendant, especially in Florida where the jury pool will start out as quite balanced. And you can never be certain how a jury will decide. And if he is acquitted, Trump will be a strong favourite for the 2024 presidential election. All the legal attacks on him would redound to his credit. He would look like—he would be!—a wronged man unjustly pursued.
Let’s assume, however, that Trump is found guilty. At that point a grave national crisis would be threatened. Trump and his partisans would argue, with more than a little justice, that he had been found guilty of crimes more or less identical with crimes committed by people on the Democratic side of politics, notably Hillary Clinton, who were not even charged with their offences. Legally speaking, that is irrelevant: if you are found guilty of a crime, it’s no defence at all to argue or even prove that others have committed the same crime and escaped scot-free. Most criminals do escape scot-free, but that unfortunate fact can’t be a defence for criminals who are caught. Otherwise, criminals would never be punished and there would be no deterrence for crime.
Politically speaking, however, it would be a different matter entirely. Half the country would see his conviction as unsafe and vindictive. I won’t predict the social and political consequences of that in case the New York Times accuses me of unleashing a wave of violent threats and alarming analysts.
But I will say that Donald Trump was quite right to denounce not the rule of law but how law is selectively misapplied by Democratic prosecutors: to give up enforcing laws they dislike, to release dangerous criminals onto the streets without bail, to punish their political opponents and reward their friends, and to use their regulatory and prosecutorial powers to censor opinions they dislike and bankrupt those who express them.
Donald Trump is big enough to look after himself. What about the rest of us?
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