You don’t have to love Trump to fear America’s partisan justice system

After a New York jury convicted former President Donald Trump of 34 felony counts, Trump’s slim lead in the polls over President Joe Biden remained largely unchanged. That means roughly half of the public is unfazed by the new situation of their favorite candidate being convicted of a felony. Maybe it’s even worse. As some commentators believe, the conviction could further boost Trump’s support by confirming his supporters’ belief that the nation’s justice system is rigged against him and by converting others to the same opinion.

Despite the widespread coverage, one aspect of this unfolding tragedy has received less attention: Trump’s transgressions and the questionable judgment of some of those pursuing him don’t tell the whole story. These developments stem in part from systemic and endemic American fragility: Long before Trump came along, the US criminal justice system was a disaster waiting to happen.

First, American law enforcement relies on overtly political experts. Prosecutors are often partisan figures who are elected to their positions and who aspire to higher office. (The United States appears to be the only country in the world where citizens elect their prosecutors.) Conservatives appeal to their supporters by promising to crack down on repeat offenders, for example, while progressives say they will eradicate racial inequality and end mass incarceration. So why not serve their constituents by promising to pursue and “hold” leaders of the opposing party accountable, as District Attorney Alvin Bragg did in solidly Democratic New York?

Justices are also often loyal to their parties, sometimes registered as Democrats or Republicans, and financially support their allies just like ordinary Americans. The Supreme Court is the most political, and while nominally not subject to such considerations, it is widely understood to be politically screened, and currently has an undisputed majority of six conservatives and three liberals. Trump has repeatedly referred to court appointees as “my judges.” Democrats are debating whether and how to increase Supreme Court staffing to redress the imbalance, while the Biden administration continues to overturn or ignore Supreme Court decisions. Conservatives would undoubtedly do the same if the need arose.

Politics puts pressure on the US system in another way. The electoral incentives facing state and federal lawmakers have led to a serious overcriminalization of the US. US lawmakers love to make things illegal. They disagree about which crimes are the most important, but they agree that there are far more that should be criminalized, and that the crimes they care about most should be punished more severely. In the US, the number of federal criminal offenses (to say nothing of other jurisdictions) seems literally uncountable. In 1982, the Department of Justice thought the number of offenses was around 3,000. Recently, a search of the tens of thousands of pages of the US Code for terms like “punishable by fine or imprisonment” turned up more than 5,000 results.

In 2009, Harvey Silberglate, co-founder of the Foundation for Individual Rights and Expression, published “Three Felonies in One Day.” A somewhat hysterical title, but still an intriguing and disturbing read. He highlighted not only the expanding world of crime, but also the startling vagueness of many of the burgeoning statutes. (What does it mean to give “material support” to a “terrorist organization”? What does “honest services fraud” actually prohibit?) Tim Wu of Columbia Law School, better known these days as the architect of the Biden administration’s approach to competition and antitrust, wrote about a game played by federal prosecutors in the Southern District of New York. The aim is to plausibly assign to randomly selected celebrities some obscure crime that carries a long prison sentence. “False allegations on the high seas” (five years each) perhaps? How about “damaging a mailbox”?

The expansion of criminal law has gone hand in hand with the rise of “strict criminal liability,” which has steadily erased intent as a necessary condition for crime. The newly created crimes tend to involve the violation of prohibitions, which are not wrong in themselves, like murder or theft, but are malum prohibitum (wrong because they are forbidden). There are hundreds of crimes involving fraud and misrepresentation. They are well suited to prosecuting people who simply do something forbidden, without necessarily knowing it was forbidden and without harming anyone. This underscores Silverglate’s point: in the United States, it is easy to commit a crime without realizing it.

The proliferation of poorly defined crimes means that most crimes go unprosecuted. They cannot be prosecuted. If they were, the system would break down. Thus, broad prosecutorial discretion is an inevitable feature of the system, and this discretion gives it power.

Prosecutors have other tools to give them even more power: if they decide to bring a case, they can lay out numerous charges and multiple counts (ideally with mandatory minimum penalties), and force reluctant witnesses to plead guilty to lesser charges or to cooperate in pursuing other suspects. Stacking charges and forcing confessions (so-called plea bargains) is standard procedure in the United States; nearly 98% of federal convictions are the result of plea bargains. In 2012, the Supreme Court stated that American criminal justice is “largely a system of plea bargains, not a system of trials” (this was once unique to the United States, but other countries facing similar administrative stresses on their justice systems are catching up).

The combination of an unusually powerful prosecutor and an unusually political prosecutor is always fraught with danger. The danger of prosecutorial abuse in the ordinary course of criminal justice is, of course, important in itself, and it is not easy to curb, given the way lawmakers approach legislation. But prosecutorial abuse used for overtly partisan purposes is a far more powerful threat. It destroys faith in the rule of law. Without it, the United States would not be in so much danger of becoming a banana republic; it would be one.

In politically important cases, prosecutors need to be, and appear to be, scrupulously impartial. The mere suspicion of twisting the law to neutralize a political opponent is harmful. While the legitimacy of Trump’s prosecution varies, New York’s 34 felony charges, brought in furtherance of a campaign promise, certainly seem worthy of suspicion. To the untrained eye, this is a partisan legal battle, not an impartial judiciary. Most worryingly, many Democrats are in favor of this because they must stop Trump at all costs. The problem is that a legal battle may not stop Trump, and the costs of using a legal battle for that purpose may be worse than its supporters think.

Copy story link

” previous