The empire’s new clothes

May 11, 2022

But here’s the truth of our moment: the larger picture of American (in)justice has become far more damning than any case could be.

If you watched TV in the 1960s and 1970s as I did, you would undoubtedly have come away with the idea that this country’s courts, law enforcement agencies, and the laws they aimed to honor added up to a system in which justice was always served.

In those years, for instance, Perry Mason was a much-loved staple from coast to coast. In each episode, Perry, that intrepid, tall, dark, kindly genius of a defense attorney, would face off against Hamilton Burger, a small-boned, pointy faced, sanctimonious prosecutor — and justice would always be served. He had what seemed then to be an all-American knack for uncovering exactly the right evidence of misdeeds that would lead justice directly to the doorstep of the true perpetrator of any crime and bring him or her to account. The takeaway caught the mood of the time: the courts and the legal system were powerful platforms for serving justice, sorting out right from wrong, punishing the criminals, and exonerating the innocent.

A few years later, Colombo would portray a police investigator whose reputation resided in his ability to sift through misleading facts and intentional subterfuge, unearth reliable evidence as well as the true culprits in any crime, and — without fail — bring them to justice.

Those two shows caught the essence of how most Americans then felt about the justice system in this country.  We trusted it. Today, it’s not just that you can’t find such shows on TV anymore, it’s that trust in the legal system, fictional or otherwise, is rapidly fading, succumbing to the dangerous poison of this partisan moment and an ever more partisan Supreme Court. As Americans watch from the sidelines, the courts and the legal system continue to visibly fumble in the dark for legitimacy of any sort.

Yes, pundits and experts (like the rest of us) tend to focus on disastrous individual cases that interest them like the one in which those who plotted to kidnap and kill Michigan Governor Gretchen Whitmer managed to escape conviction or, say, the acquittal of the youthful Kyle Rittenhouse who used an assault rifle to kill two men at a Black Lives Matter protest. But here’s the truth of our moment: the larger picture of American (in)justice has become far more damning than any case could be. Ultimately, after all, the issue isn’t the outcome of any specific case, but trust (or increasingly, the lack of it) in the system that’s supposed to administer, adjudicate, and legitimate the law in America.

Despite the recent scandal over the Supreme Court’s coming decision to overrule Roe v. Wade, nowhere is this clearer than in the cases surrounding the January 6th Capitol riot.

The January 6th investigation

It’s hard to describe the Justice Department’s handling of the insurrection on January 6, 2021, as anything other than appalling. Nearly a year and a half later, despite more than 800 indictments of individuals involved in the assault on the Capitol, no charges have yet been filed against either former President Donald Trump or any of his close allies who helped plan, fund, and execute the attempt to overturn the results of the 2020 election. Instead, Attorney General Merrick Garland appears to have thrown up his hands in defeat, as if to suggest that the controversy around holding Trump and his associates accountable has simply been more than he can handle.

From law schools, lawyers, and legal theorists have called for the Justice Department to face that threat to democracy and act have only grown louder. In March, for instance, Harvard law professor Laurence Tribe and former federal prosecutor Dennis Aftergut urged Garland to appoint a special prosecutor to investigate the former president based on evidence already presented in other lawsuits. No such appointment has yet been forthcoming.

To underscore the mounting evidence in the public record against those former officials, Ryan Goodman, Mari Dugas, and Nicholas Tonckens at Just Security played prosecutor (as Garland hasn’t) and laid out their own timeline of dozens of incriminating acts, beginning a year before the riot, that could collectively justify charges against Trump and crew of incitement to violence. In April, according to New York Times reporters Michael Schmidt and Luke Broadwater, the House Select Committee to Investigate the January 6th Attack on the United States Capitol had “concluded that they have enough evidence” to make a criminal referral about the former president to the Justice Department, though they have yet to vote to do so. Meanwhile, a federal judge in California ruled in a civil suit that Trump “likely attempted to obstruct the joint session of Congress” meant to certify Joe Biden’s electoral victory, adding that “the illegality of the plan was obvious.”

Sadly, the Teflon coating on Trump and his associates has been striking. After all, in January, the House Select Committee voted to back contempt charges against former White House Chief of Staff Mark Meadows for refusing to comply with a subpoena for his testimony. To date, however, Attorney General Garland hasn’t followed up. More recently, the House Select Committee voted to hold in contempt former White House advisers Peter Navarro and Dan Scavino for a similar refusal to comply with subpoenas. The results will likely be the same.

Even where there has been some willingness to indict, the courts have been remarkably stymied when it comes to forward momentum on cases involving Trump’s crew. In November, for instance, Steve Bannon, one-time senior aide to the president, was indeed indicted on contempt of Congress charges for his refusal to respond to subpoenas from the House Select Committee. Bannon promptly pushed back, arguing that longstanding Justice Department memos held former presidential advisers immune from such congressional subpoenas. In March, a federal judge finally asked to see those memos. And so it goes — and goes and goes. And as time passes, so, too, does the likelihood that justice will ever be done.

As for the former president’s business affairs involving the Trump Organization, the process has faltered in a remarkably similar fashion. Earlier this year, Manhattan District Attorney Alvin Bragg dropped an investigation of the former president. He was reportedly convinced that, in the end, he wouldn’t be able to prove that Trump and his closest employees were motivated by theft when they lied about the value of his businesses. Bragg decided not to pursue charges against Trump despite the aggressive efforts of his predecessor, Cyrus Vance, to uncover just such a record and the opinion of a respected lawyer brought in to shepherd the investigation through who, in an outraged letter of resignation, insisted that Trump had indeed committed “numerous [financial] felony violations.”  (It had taken Vance years and a Supreme Court decision just to get the company tax records for his case against Trump.)

In early May, a grand jury that had been convened to consider charges against Trump expired. Now, it seems that New York State Attorney General Letitia James’s efforts to bring charges of fraud could crumble as well.

Of course, even a president who tried to mount a coup to cancel the results of an election should be able to avail himself of the American system’s legal protections and defenses. That said, in failing to hold Trump accountable for more or less anything, a message is being sent about justice in this century: that accountability is just not in the cards for American officials who commit crimes. (Of course, one can still hope that the special investigative Georgia grand jury just seated to look into Trump’s possible attempts to disrupt the 2020 election in that state might prove more effective, but I wouldn’t hold my breath.)

Police murders

Sadly enough, the incapacity of the courts and the legal system to administer accountability for terrible crimes is a phenomenon that’s hardly reserved for Washington politicians and their aides. Abuses of power throughout the country are regularly being overlooked, notably in the mounting examples of police killings of unarmed Black men and women. Across the U.S., courts have repeatedly proven unable to hold accountable police perpetrators whose racist actions had been videotaped and witnessed. Though there have been rare exceptions as, for instance, in the case of the killing of George Floyd, where police officer Derek Chauvin was found guilty of murder and three police officers were convicted of “violating his rights,” the impunity of so many policemen accused of killing Blacks has become a theme of American life. The list is long. Prosecutors in Kenosha, Wisconsin, for instance, decided not even to file charges against the officer who shot and paralyzed Jacob Blake in August, 2020; none of the police who stormed into Breonna Taylor’s house in Louisville, Kentucky, in March 2020 and killed her for doing nothing whatsoever were even charged; and no policemen in Minneapolis earlier this spring were held accountable for shooting and kililng Amir Locke. And that’s just to begin a list that goes on and on.

The war on terror

And let’s face it, when it comes to the slow erosion of justice and accountability in this country, there’s nothing new or simply Trumpian about that. In fact, there’s been a slow erosion of the viability of the mechanisms of justice and accountability for all too long. For two decades now, the offshore American prison at Guantánamo Bay, Cuba, has stood as a stunning symbol of American injustice, as well as of the inability to convict anyone for the attacks of 9/11 (as opposed to simply holding them endlessly in prison cells offshore of American justice). Nor has there been the slightest accountability for public officials, from the president on down, who gave the green light to a wholesale torture program at CIA “black sites” around the world. Nor, for that matter, were President George W. Bush, Vice President Dick Cheney, and other top officials of their administration ever held accountable for knowingly relying on a lie — the supposed existence of weapons of mass destruction in Saddam Hussein’s Iraq — as a pretext for invading a distant land.

For Bush, it was a matter of embracing horrifying misdeeds in the name of national security. For Barack Obama, it was a matter of not wanting to spend the political capital required to hold his predecessor accountable. As he famously said in the days leading up to his inauguration, this country needed “to look forward as opposed to looking backward” when it came to the Bush administration’s use of torture and warrantless surveillance in the war on terror. The ability of the CIA to function effectively in the future, he argued, should not be undermined. Merrick Garland’s profound passivity when it comes to January 6th may, in fact, just be an extension of that very philosophy.

So profound has the distaste for pursuing accountability been in these years that administration after administration and Congress after Congress have forfeited any trust in the federal courts even to try those accused of perpetrating the 9/11 attacks, leaving the case instead to the broken and incapacitated military commissions at Guantánamo. What would Perry Mason or Columbo have made of that?

Once upon a time

There was a time, not that long ago, when the courts still held accountable those in high office who abused power. A president and an attorney general, for instance, authorized a secret and illicit intelligence unit to spy on the Democratic National Committee, to break into Democratic headquarters, and then to cover-up that very break-in. For this, of course, President Richard Nixon and his top advisers were held accountable in the famous Senate Watergate hearings. Nixon resigned; 40 members of his administration were indeed indicted; many, including top officials, were jailed, among them the president’s chief of staff, his attorney general, his White House legal counsel, and some of his top advisers. Not only were they convicted, but they were found guilty in a timely fashion, the trials and guilty pleas coming within two years of the crime itself.

John Dean, a top Nixon aide convicted of obstruction of justice — he served four months for it — recently made a prediction that underscores the gap between then and now. His testimony at the Watergate hearings had been pivotal in exposing the administration’s cover-up of the break-in. This March, he weighed in on reports that Michael Cohen, Donald Trump’s former lawyer, had on seven occasions visited the offices of Manhattan prosecutors working on the criminal investigation into Trump’s finances. As Dean tweeted then, “From personal experience as a key witness I assure you that you do not visit a prosecutor’s office 7 times if they are not planning to indict those about whom you have knowledge. It is only a matter of how many days until DA Vance indicts Donald & Co.”

And yet the days went by and nothing happened until the case was dropped. Dean had miscalculated in thinking that the past was relevant to the present.

Still, is there any hope that, in the long run, he might prove correct?  After all, New York Attorney General Letitia James has not yet dropped her possible case against Trump and his company. Better yet, recently a New York supreme court justice found the former president in contempt of court for failing to comply with a subpoena to produce documents from his personal files. His initial appeal having failed, he’s being penalized $10,000 a day until the records are turned over.

So, between New York and Georgia,hope, however minimal, remains when it comes to holding Donald Trump accountable for something.  Still, there’s so much more at stake than the case of one president, many police officers, or even an ever more partisan and political Supreme Court. Whether most Americans realize it or not, the future legitimacy of the courts themselves are now in play. Without a functioning court system, one that can stand up effectively to illegal political machinations, as well as partisan and ideological attacks, the law belongs solely to those in power.

And it’s not just here at home that the legitimacy of the courts is coming into question. In the international context, too, the potential anemia of criminal courts is being challenged by the war in Ukraine.  Calls for bringing war-crimes charges against Russian President Vladimir Putin and members of the Russian military have been persistent. Reports of summary executions, the targeting of civilians, and mounting evidence of cruelties and atrocities have led to multiple accusations of violations of the laws of war. The chief prosecutor at the International Criminal Court (ICC) in the Hague has already joined with the European Union to conduct an investigation into possible war crimes. But as many experts have pointed out, it’s hard to say how long that investigation might take and whether or not charges will ever be leveled, no less brought effectively to bear. In this regard, Washington’s failure to hold its officials accountable in the past or even to join the ICC should be noted.

And that’s just one more arena where, on a planet increasingly pushed to the brink, the rule of law may prove to be ever more of an aspiration and ever less of a reality.

At the moment, we find ourselves at an all-too-dangerous crossroads. Without our courts and the system of law they represent being truly functional, citizens could be left to settle things for themselves in true Trumpian fashion. In the international context, war defies the courts and the rule of law. In the domestic context, unregulated violence plays a similar role. As it stands now, when it comes to our system of justice, its veneer of effectiveness is wearing ever thinner.

Merrick Garland and other Americans would do well to consider that it’s not just the cases before our courts that are at issue, but the future viability of the institutions of justice themselves. In the world we now find ourselves in, the very idea of a Perry Mason could prove all too once upon a time.