Is Lady Justice still blind? (part 2)

Last week, I raised the question of whether our cherished American justice system was still intact.  Or are we witnessing the emergence of a two-tiered administration of justice, one for the favored and another for the disfavored? My answer was, and still is, that our most valuable, and essential asset, our national treasure — our legal system’s commitment to “equal justice under the law” — is in deep peril.

I fear that the concerns raised in my last column about how we, as citizens, are rending the social fabric of our common societal life are amply demonstrated in the wide range of comments generated by the column itself.

The accusation and the dismissal that I am “a Trumpster,” for instance, is ludicrous on its face. I am on record that former President Trump was my last choice in the 2016 primaries and in 2020, I was a part of the legion of “reluctant” Trumpers who had to choose between the undeniably pro-life President Trump and the radically pro-abortion Joe Biden in the general election. I have never cast my vote with less enthusiasm than in the last two presidential elections.

Concerning the 2024 election, President Trump is once again my last choice (with the exception of former Gov. Chris Christie). Frankly, at present my first choice is Sen. Tim Scott of South Carolina. In last week’s column, I deliberately quoted critics of the Justice Department’s actions toward former President Trump who were clearly not Trump supporters (i.e., Alan Dershowitz, Jonathan Turley, Tulsi Gabbard). I fear that “Trump Derangement Syndrome” is indeed a diagnosable condition that probably should be included in the DSM-5-TR.

Let’s keep our eye on the ball here. This is not about partisan politics, or at least it shouldn’t be. This is about the fair, equal administration of justice and the behavior of the Biden Justice Department is extremely disturbing to many people who have never voted for Donald Trump and never will (Dershowitz, Turley, etc.). Even Megyn Kelly, someone who would never be accused of being a “Trumpster,” has expressed grave reservations about the latest indictment and the threat it poses to all attorneys that in the future they may be charged by the government for providing what the government considers to be “bad legal advice.”

The words of former Supreme Court Justice Robert H. Jackson are extremely applicable to the current situation. Justice Jackson was an extremely prominent and esteemed American jurist who served on the Supreme Court from 1941 until his death in 1954. Jackson had earlier served as Solicitor General (1938-1949) and Attorney General (1940-1941) under Franklin Roosevelt. In addition, he was appointed in 1945 by President Truman as U.S. Chief Prosecutor at the International Military Tribunal (Nurenberg) and served there while on leave of absence from the Supreme Court.

Speaking as Attorney General in 1940, future Justice Jackson issued the following warning in speaking to the Justice Department’s U.S. Attorneys:

Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted….a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case….it is a question of picking the man and then…putting the 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 becomes 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.

Justice Jackson’s warning should raise the hairs on the back of every fair-minded American’s neck. I know mine are raised.

When I see the way the Justice Department is treating former President Trump compared with the “kid glove” treatment they have afforded President Biden, his son Hunter, and the entire Biden family (let’s be generous and call it a “conglomerate”), it is very disturbing. Personally, I believe former President Trump’s greatest legal exposure is in the “documents” case. Yet, even there, President Biden had unauthorized possession of national security documents dating from the time he was just a senator and had no authority to have these documents, period, stored in far less secure conditions than Mar-a-Lago.

It's very interesting that just this week, The New York Times, no less, published an op-ed by Harvard Law Professor Jack Goldsmith, clearly in the anti-Trump camp, which shares several of the concerns expressed in last week's — as well as this week's — CP columns. 

Goldsmith acknowledges "this deeply unfortunate timing looks political." He explains, "it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into the G.O.P. primary season."

Goldsmith acknowledges the "perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter" ... Goldsmith then addresses what appears to be grave concerns about the "criminalization of politics."

The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. These practices will probably be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.

Goldsmith's concerns both discourage and encourage me. I'm discouraged because his fears reinforce mine. I am encouraged because Goldsmith's concerns illustrate that even many influential people on the Left share my concerns about the threats to the rule of law in our country.

From the other side of the political aisle, Wall Street Journal columnist Kimberley Strassel has also warned of the potentially devastating impact of special counsel Jack Smith's "novel" legal approach. Strassell concluded, "If lying politicians can be prosecuted for ‘fraud,’ we’ll need a lot of new prisons."

And frankly, on a more granular level, the prosecutor in this case, Jack Smith, does not inspire either confidence or reassurance.

I keep thinking about former Virginia Governor Bob McConnell, who served in that position from 2010 to 2014, having been elected by a 17-point margin. When he left office in January 2014, he had an approval rating of 55% approval vs. 32% disapproval.

One week after leaving office, former Gov. McConnell and his wife were indicted on federal corruption charges and were convicted the following September. He was free on bond pending appeal and on June 27, 2016, the Supreme Court overturned his conviction unanimously 8-0 (Justice Scalia had died). Jack Smith’s prosecution (or was it “persecution”) of Gov. McConnell was so overly zealous that it provided an extremely rare unanimous Supreme Court repudiation of it. Bob McConnell’s legal expenses amounted to a devastating $27 million.

Jack Smith has not earned my trust and I don’t think the American people should trust him either. To me, Jack Smith and his superiors in the Justice Department give great evidence of behaving in exactly the way Justice Jackson warned us U.S. prosecutors must not act.

Personally, he reminds me more of Les Misérables’ Inspector Javert than a Justice Department attorney. I believe we must vigorously demand that our government behave itself and prosecute people fairly and equally.

I believe there are two things we should do that would help to guard against prosecutorial overreach. First, we should adopt Alan Dershowitz’s proposal that we divide the Justice Department into a political division and a legal, prosecutorial, and criminal division which would be set apart from the partisan political process. This is what they do in the United Kingdom. This would guard against Attorney Generals like Eric Holden declaring himself President Obama’s “wing man.”

Second, given the enormous, ruinous, financial burdens imposed by defending yourself against the enormous power of federal prosecution, I believe we should pass a law that states that if you are prosecuted by the federal government and you are acquitted, or your case is overturned on appeal, you are reimbursed by the federal government for your legitimate legal costs. This would help to redress the legal balance of power and would help keep federal prosecution from becoming a financial death sentence.