April 28, 2023
Donald Trump’s indictment demonstrates starkly what many Americans have long known through personal experience: the American judiciary is available as a weapon to punish innocent people. Like video footage recently released of January 6, showing judicial officials and members of Congress framing innocent Americans, the Trump indictment shatters any illusions that the American judiciary still dispenses justice.
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But we might suspend our indignation long enough to understand that this was allowed to happen because of similar injustices we have long permitted against ordinary Americans.
Even now, the political class of the right as well as the left say nothing about this and endeavor to cover it up. They throw up their hands at the Trump indictment and voice their astonishment “that such a thing can happen in America.” And yet their own words reveal that it happens because they themselves protect it.
Harmeet Dhillon, a conservative “civil rights lawyer,” says that “if they can do this to a former president, they can concoct false charges, without even articulating what the charges are, against any American for political reasons.” No, Ms. Dhillon gets it backward. This is happening to Trump because it has already happened to many other Americans. She is covering up more than she is revealing: “It should really be terrifying to all Americans that this is the current state of the law in New York City.” No again, not current law in New York. Similar and worse injustices reveal the state of the law for decades throughout the United States.
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Likewise, the establishment right’s favorite lawyer: “How does a judge get to take away the right of an American to speak out on their own behalf?” Sean Hannity asks Harvard professor Alan Dershowitz. “Tragically, judges have done that,” Dershowitz replies with chagrin. “They’ve done it recently.” No, they do it, and much worse, all the time to ordinary Americans.
Dhillon and Dershowitz, and their patrons in conservative media, are spinning the injustice against Trump to make it look novel and exceptional, when millions of Americans know that it is longstanding and routine. None of this would be happening — the entire coup d’état of the last three years would never have happened — if the conservative political class had paid as much attention to the judicial persecution of ordinary Americans as they now pay to their own interests.
Injustice and Repression in America
Injustices and outright repression in the American criminal justice system are real and serious. “Most Americans are unaware of the police state that is creeping up on us from many directions,” wrote Paul Craig Roberts and Lawrence Stratton 15 years ago in their exposé of judicial abuse. “Due process, the presumption of innocence … the right to counsel … and the ban on retroactive law” have all disappeared.
Feeding the world’s largest prison gulag is a machine of systemic in-justice. Law-abiding citizens are routinely harassed, plundered, dispossessed, ruined, incarcerated, and left homeless by a smorgasbord of judicial oppression: predatory lawsuits; the thievery of probate; rogue prosecutors who build their careers by railroading people into prison; knowingly false criminal charges and convictions; falsified and fabricated evidence; incarcerations without trial or record; mass confiscations of property; plea bargaining that amounts to extortion that has rendered the jury trial largely a thing of the past; neutered grand juries that do nothing to protect the innocent against unjust prosecutions; gag orders preventing citizens from proclaiming their innocence or publicizing judicial chicanery; family courts seizing control over the children and private lives of legally unimpeachable parents, whom they then incarcerate.
In short, judicial functionaries not only ignore, but themselves violate the very protections they are charged with upholding, including the entire Bill of Rights. Roberts and Stratton call it a “career-driven conviction mill.” It is the judicial apparatchiks, much more than their targets, who belong behind bars.
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“At all levels of American society … the idea that American courtrooms strive toward justice is no longer taken seriously,” the Wall Street Journal observed more than two decades ago. “The courts are greatly feared for their ability to ruin, but they aren’t much respected anymore by the American people.” Since then, the depredations have only become worse. Now they have culminated in a coup that has brought the extreme left to power.
The media likewise ignore it, both the left media and the right, decade after decade, with a blackout as serious as any today.
These depredations will never be reformed by Republican politicians appointing “conservative” judges. Though much of the chicanery takes place in state and local courts (where conservative Republican lawyers operate), it is protected by the federal courts. It is never scrutinized in judges’ confirmation hearings by grandstanding Republican senators (lawyers) or conservative pressure groups (more lawyers).
“Congress is criminalizing everyday conduct at a reckless pace,” writes Harvey Silverglate, and that is only the beginning. Many crimes are vague, defined by political negotiations. Many are legislated not by elected representatives as statutes, but by civil servants as regulations. Others are effectively legislated by judges and, effectively, by prosecutors, and some even by enforcement agents. The politicization of prosecution and weakening of legal safeguards, such as blurring the distinction between civil and criminal offenses, vague statutes that “lack clear-cut definitions” of what is a crime and what is not, and eliminating the principle that a crime requires criminal intent — all this undermines constitutional protections and makes it easier to imprison the innocent. Criminal penalties are legislated for liability laws and regulatory non-compliance. More and more crimes are federal rather than local, contrary to the U.S. Constitution.
Low-Hanging Fruit
Ignored by almost everyone, the vast preponderance of the injustices are suffered by the poor, and especially that much-despised but central figure in today’s American tragedy, the low-income African-American male. His degradation and emasculation by the welfare machinery renders him the easiest and most vulnerable target of predatory judicial officials whose existence he justifies and the least likely to be defended by anyone, left or right.
For him and other low-income defendants, American criminal courts are a nightmare underworld where young, poor, uneducated, mostly minority men are the victims of hideous injustices. They are coerced into plea bargains they cannot possibly understand, made in a matter of seconds during “mass plea hearings” in a system of “assembly line justice.” They then spend decades in prison, before being released on the streets where they constitute most of the homeless. Trials are so rare that they serve only to annoy judges and prosecutors. “A fair trial is considered an interruption.”
The standard excuse is that courts are “overburdened and under-resourced.” But it is in the courts’ self-interest to be overburdened, and they do everything they can to make sure their dockets are exploding with cases, since judicial salaries, like any other, increase with demand for their services. The courts are playing an old game of creating work for themselves. “The one great principle of the English law,” wrote Charles Dickens, “is to make business for itself.” Self-serving clichés about overcrowded dockets simply rationalize more money. Pointless and predatory litigation, both civil and criminal, is precisely what keeps the entire enterprise afloat.
The Bottom Line
Will the criminal investigation and prosecution of Donald Trump and citizens who support him inspire Americans to finally start rectifying the systematic injustice that leads poor black men in Louisiana to spend decades in prison without any semblance of a fair trial, plus numerous middle-class Americans and small businessmen facing judicial looting and incarceration? If not, it is just a matter of time before our willful neglect catches up to us and makes a free society impossible for anyone.
Stephen Baskerville is professor of political ptudies at the Collegium Intermarium in Warsaw and the author of The New Politics of Sex (Angelico, 2017), where these points are further documented.
Image via Max Pixel.
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