by Christopher Roach
When an elderly relative is dying and the inevitable finally arrives, it still hurts a great deal. From the beginning, I had no faith in the legal process that has convicted Donald Trump in New York. Taking into account the prosecutor, the charges, the venue, the biased judicial oversight, and the sui generis nature of the proceedings, it was pretty obvious the fix was in from the beginning. But his conviction is a depressing spectacle all the same. It felt like we woke up in a different country on Friday.
Until the news arrived, I had not completely lost hope. After all, it was a jury trial. Juries have previously defied both public opinion and threats of riots to do the right thing by defendants. In recent years, Kyle Rittenhouse was acquitted, as was George Zimmerman. Because of the unanimity requirement, there was always a chance that one or more of the jurors might hold out and create a mistrial, at the very least.
Plus, the burden of proof in a criminal trial is a high one; it is not merely a question of “more likely than not,” but “beyond a reasonable doubt.” If a juror is not sure a defendant is guilty—or even if he is pretty sure—he is supposed to acquit. In both situations, there is the presence of reasonable doubt. I had a small hope that the jury would do its duty and correct the many errors that led to this point, but my hope was misplaced. It seems the trial was over the minute the heavily Democratic Manhattan jury was selected.
There’s going to be a lot of solemn talk about the “rule of law” and “respecting the verdict” in the weeks ahead. CNN is now repeatedly describing Trump as a “convicted felon.” The tone is similar to other forms of heavy-handed propaganda we have endured in recent years. The goal is to make the highly irregular process Trump has been subjected to appear normal.
The rule of law means, above all, restraint, predictability, and equal treatment. It is supposed to ensure that no single branch of government has too much power and that the other branches, as well as mandatory processes, constrain the government and its personnel.
The rule of law is not merely a set of rules but a culture. Over many decades, that culture has broken down and become distorted due to the malevolent influence of legal realism, which has been amplified by the extreme partisanship of the law schools and the managerial class. Collectively, almost every holder of institutional power—the courts, the media, the military, and Congress, along with state and federal prosecutors—has deviated from its normal course to deal with the allegedly unprecedented threat from Donald Trump.
The fact there has been a trial and a verdict is not some vindication of the rule of law. Dictatorships also have laws, elections, and trials. In fact, they are infamous for their “show trials,” where the trial process becomes an exercise in propaganda and mythmaking for the regime.
What is unusual is that this kind of affront is happening in the United States. In other countries, when opposition politicians are prosecuted in unorthodox ways, we recognize it as a sign of lawlessness, authoritarianism, and political corruption. We sanction the participants and often refuse to recognize the corruptly installed leaders. Does the judgment change when it happens here?
Until now, various unwritten rules, the basic principles of discretion and restraint, and sensible fear of retaliation have limited partisan persecutions in our country. While politicians are sometimes prosecuted and convicted, normally it is for unmistakable and uncontroversial crimes, typically misuse of their office, taking bribes, and not some preconceived plan to “get them.”
The rule of law is not just a question of form but of substance, including the large admixture of discretion, judgment, and self-imposed restraint that previously characterized our institutions, particularly the criminal justice system. While no one should be above the law or treated as exempt from it, there should still be special considerations of necessity and social harm before the party in power goes after a rival. This norm is particularly important to uphold in the middle of an election year because the potential for abuse is so high.
New York prosecutor Alvin Bragg, on the other hand, apparently ran for office, saying he would take down Trump. He used a law in an unprecedented fashion to turn a bookkeeping error into a felony. He argued that Trump’s description of payments to disgraced attorney Michael Cohen as being for legal services was false, as the entries were made in the service of some other crime which has not been named to this day.
It is not clear how Trump’s conviction is going to affect the election. Understandably, Trump supporters have gotten angry, protested, pilloried this ruling on social media, and donated large sums of money to his campaign. They will now be more motivated to vote for him.
But how will this affect the middle of the road and undecided voters remains to be seen. I confess, I find these people somewhat hard to understand, considering my own long-term partisanship. But Trump’s enemies should consider the possibility that they have overdone it. If 2020 is any guide, a lot of people take a dim view of the criminal justice system and may feel sympathy for Trump along with annoyance that the game is being rigged for his opponent.
Trump’s poll numbers are up, but I think this is just the first of many steps to crush Trump. The judge was biased against Trump throughout the trial and there is some possibility he will actually imprison him for the remainder of the campaign after sentencing in July, even though in a normal case Trump would be released pending appeal. Whether this happens and whether this hobbles his campaign cannot now be known.
Trump campaign websites are all saying this is a dark day for the country, and they are right. What happened in New York was an inversion of the rule of law, using the forms of an ordinary criminal process in order to commit substantive injustice, persecuting an innocent man for partisan ends. Every patriotic American should be angry, worried, and motivated to reverse this injustice.
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Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida.
Photo “Donald Trump” by Gage Skidmore CC BY-SA 2.0.
