The world continues to be riveted by President Trump’s legal cases. It is easy to sit back and watch it all, and think that this happens only in the gamesmanship of Washington politics. Unfortunately, what the nation is witnessing happens every day, in some way, all across the country, deliberately, by mistake or mismanagement, from local county circuit courts, all the way up to state supreme courts and beyond, in ways big and small. (Federal circuit judge Richard Posner, nominated by President Reagan, said he eventually resigned over the way many litigants were treated in the court system.)
The legal machinery of our justice system, combined with detailed rules of procedure, generally keeps a lid on the corruption becoming absolute, or unable to be challenged and corrected. That’s a good thing. But the dangerous part, as in all human institutions, comes from the people in that system and how the legal machinery can be “hijacked” or taken far off course simply by ideology.
The “Bar and Bench,” or the lawyers and the judges, and the prosecutors, have a tight lock, or monopoly, on the courts that they rule over. Unknown to most of the public, however, is that the attorneys are officially “Officers of the Court,” which means they have a formal, regulatory “duty” to uphold the integrity of the law, and the court system, above any other role they may play. This includes a mandate by the Bar association to instill public confidence in our laws and legal system through their right behavior and professional conduct.
This all sounds good, and such standards do contribute to making our legal system often one of the best in the world. But it can still be easily corrupted and compromised, because politics and special interests can, without much trouble, penetrate the Judiciary and the Bar. It’s also because judges are indeed “merely human,” and their legal reasoning is really not at all different from everyday thinking, which means that it is full of personal beliefs, bias, emotion, interests, suggestion, and wishful thinking. Judges are also government employees, and that means that a strict government hierarchy of authority, incentives, and influence is always present.
One of the best books ever written on the American legal system is Courts on Trial. It was published in 1949 by Jerome Frank. Like Trump, he was a New York City native. Frank was a working commercial lawyer for nearly 20 years in Chicago, then a federal judge, law professor, and chairman of the SEC. The focus of his book is the nation’s trial courts, where their primary responsibility is fact-finding. In this, according to Frank, they usually fail, contrary to our assumptions.
Frank’s fundamental criticism is that our court system operates in a closed manner, with its own, effectively private, rules and understandings. It often consists of a casual, colluding culture of lawyers and judges, with the public standing outside it: intimidated, uniformed, and uninvolved, which is apparently how the courts and lawyers would like it to remain.
So what the American public is seeing in President Trump’s courtroom difficulties is not something that happens just to him. It isn’t an exception; it is merely an expansion and enlargement of the corruption and failures that are already latent within our legal institutions. It only took a little more influence to nudge some courts into acting as pure political weapons.
This brings me to the central point that I’d like to make: President Trump has stated on the record that he is fighting for individual rights, and for our Constitution, and for a constitutional form of government. Such a government doesn’t just happen on its own; our rights are not on “autopilot.” You have to be part of the constitutional order, as an individual, and you have to stand up, and be an advocate for your individual role in that order, even, or especially, in the legal system itself. George Bernard Shaw put it this way: “I say that a man’s first duty is to learn to fight. If he can’t do that, he can’t set an example; he can’t stand up for his own rights, or his neighbors’.”
Trump was just down in the “boiler room” of law — in a trial court with a judge and a jury, and a national public audience. That is the true public law forum going back to ancient Greece. In the big cities and suburbs that most of us now live in, however, that vital “public square” and res publica, one where we used to interact more in person, can be easily abandoned in our private lives, and now in our digital world. Trump breaks through this mirage and illusion and helps to “shock” the passive public square back to life.
He is showing everyone what legal reform takes: citizen involvement, resolve, and perseverance — and fighting the good fight through your own power of personality.
Matthew G. Andersson is the author of the upcoming book Legally Blind, concerning ideological effects on the Judiciary and legal education. A former CEO, he has been featured in the Wall Street Journal, the Financial Times, the New York Times, the Washington Post, Time Magazine, the Guardian, the National Academy of Sciences, and the 2001 Pulitzer Prize report by the Chicago Tribune. He received the Silver Anvil Award from the Public Relations Society of America and has testified before the U.S. Senate. He attended the University of Chicago, Yale University, and the University of Texas at Austin, where he studied with economist and White House national security adviser W.W. Rostow at the LBJ School of Public Affairs. He is a native of Queens, New York City.
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