National Post (National Edition)
Trump's trial reveals sorry state of U.S. justice system
As Donald Trump's criminal trial opened this week in Manhattan, there are those who still marvel that his various prosecutions appear to have made him more popular, not less, at least among his most devoted followers. Such observers forget that for Americans, in a contest between the People v. Anyone, the safer option is to side with Anyone, given how politicized and corrupt the American criminal justice system is — and has been for a very long time.
It's a “communist show trial,” lamented Trump about his hushmoney trial in New York. Trump is wrong. Abuse of power, political considerations and prosecutorial misconduct are as American as hamburgers and French fries. Prosecutorial interference in elections may sound foreign, but it is entirely homegrown from sea to shining sea.
Including the Bering Sea. Remember that as recently as 2008 the federal department of justice took out Alaska's Ted Stevens, the most senior member of the U.S. Senate on charges of filing false records. Sound familiar? The justice department concealed exculpatory evidence. A federal judge would later call it “the worst example of prosecutorial misconduct I have ever seen.” And that was a Republican administration trumping up false charges against a Republican senator. Corruption of criminal justice is a thoroughly bipartisan affair.
The O.J. Simpson trial — being discussed again on the occasion of his recent death — was a key moment in bringing the sorry state of American justice to wider knowledge. The interest was immense. I watched the slow-speed chase in June 1994 on a sidewalk with dozens of others on a bank of televisions through an electronics store window, all channels carrying the same footage. I was on a plane when the verdict was announced in October 1995; the pilot came over the intercom to advise all of us of the acquittal.
It was a shock that a jury could acquit a man who seemed guilty because of the claim that racist cops had set him up. For white America, that was a common reaction. But Black America was accustomed for a very long time to white men being acquitted when they seemed guilty of killing Blacks. How many generations of whites had been acquitted of beating, even lynching, Blacks?
One juror would eventually say that the acquittal of O.J. was “payback” for Rodney King. The trial of the white police officers who beat King had been moved to a different county, the better to get a friendly jury to acquit them. They did and Los Angeles burned. The O.J. verdict was payback for a lot more than Rodney King, and for a lot longer.
O.J.'s trial taught broader lessons. Prosecutors and police work in a government bureaucracy, just like the postal service or procurement. A high level of competence is not to be expected. They do have enormous power though, and power unhappily tends to corrupt. They reflect the prejudices and political imperatives of broader society.
O.J. was found guilty of wrongful death in a later civil proceeding; damages of US$33 million were awarded to the family of Ron Goldman. Different charges, different jury, different result.
Later still, O.J. attempted, by force of arms, to “recover” some of his memorabilia in Las Vegas. He was convicted in Nevada of armed robbery, which is what he did, and, curiously, kidnapping, which he did not do in the way that ordinary people use that word. But it was payback time for O.J. and the prosecutors and judge inflated the charges against him, an absolutely routine part of American criminal justice. That led to a sentence of 33 years, which the judge apparently considered a cute symmetry with the civil damage award. That's how American justice works, and O.J.'s celebrity taught that lesson to an entire country.
Johnnie Cochran's refrain from the L.A. courtroom still echoes: “If it doesn't fit, you must acquit.”
America's prosecutocracy sees things rather differently; if the law doesn't fit, you must still convict.
It's that disposition that produces totalitarian-state levels of incarceration in the United States.
And so this week the Manhattan district attorney is bringing a felony case against Donald Trump for allegedly paying hush money to a porn actress to cover up an affair. Trump denies the affair. Paying hush money is not a crime. The law doesn't fit.
So Trump is charged with falsifying business records to disguise the payment as legal services. But that's a misdemeanour, not felony. The law doesn't fit. So now the payment is an illegal campaign contribution. You must still convict.
Meanwhile the Supreme Court heard this week arguments about whether the Jan. 6 rioters at the Capitol can be charged with violating accounting-fraud laws passed after the Enron scandal. It's absurd on the face of it, which might be an argument in favour, absurdity being a featured characteristic of the American criminal justice system.
Trump has deployed aggressive litigation for decades to advance his commercial interests, often enough against those out-of-pocket from his dubious schemes. So it is hard to be sympathetic to his current plight, when the law is being twisted to give him a taste of payback.
Yet the remedy for bad justice is not more bad justice. That was the lesson taught by the twin acquittals in the King and O.J. cases. That was the lesson taught, but not learned.
In New York the administrators of justice are using their power to tie up their principal partisan opponent in court in the middle of a presidential election on a misdemeanour matter that would not be brought against anyone else. If that took place in any other country, Americans themselves would disdain the erosion of democratic and judicial integrity, suitable for a “communist show trial.” It's not communism, but it does show the state of American (in)justice.