I am not a lawyer, buuut, it seems to me that the rule of law isn’t what it used to be.
Get Trump: One
Jean Carroll sued Donald Trump for an assault that allegedly occurred some 30 years ago. Unfortunately for Carroll, the statute of limitations had tolled, meaning she was barred from pursuing any civil action against Trump due to the passage of time. But wait! The Democratic legislators of New York State solved her problem by passing a law that extended the statute of limitations for such assault cases. With a wink and a nod, the legislators agreed that the new law would expire in one year, presumably after Trump had been safely charged. Carroll sued the very day the new law went into effect and ultimately won a $96 million judgement.
Conservatives don’t need to flood the zone with their own trivial lawsuits or lost cause impeachments.
This burst of civic energy came from a state that struggles mightily to pass on-time budgets. The legislative, executive, and judicial branches — not known for their comity or efficiency — worked together to bend the law against a single citizen. Could this have happened to any American not named Donald Trump?
Get Trump: Two
Trump instructed his attorney to pay Stormy Daniels $ 130,000 to keep quiet about their affair. Perfectly legal. He then re-imbursed his attorney, a transaction as common as rain. The Manhattan D.A., a Democrat, charged that the payment should have been recorded as hush money in Trump’s internal accounts, a misdemeanor under New York law, which, incidentally, was also statute barred.
Then, as if by wizardry, this misdemeanor divided, multiplied, divided, and multiplied itself into 34 felony counts carrying up to 136 years of jail time. The felony counts were made with reference to federal law, where the Manhattan D.A. has no jurisdiction — another act of wizardry. (The Biden Administration, which does have federal authority, passed on this case because it was too weak.) All this from a famously lenient prosecutor, who distinguished himself by pleading violent felonies down to misdemeanors. Is this Ok?
Get Trump: Three
Trump overstated the value of a property on a loan application. Deutche Bank, a gigantic multi-national bank with lots of experience in New York City real estate, reviewed the application with its own valuation team and, after considerable negotiations, made the loan. In other words, this was not their first rodeo. Trump re-paid the debt on a timely basis and Deutche Bank declared itself happy with the transaction.
The New York State Attorney General, however, was not happy. With no victim in sight, she created one — herself — and won an incomprehensible $345 million judgement against Trump. She then sought to seize his property and shut down his business in the state. Is this normal?
The Upshot
We have all seen ambitious prosecutors use high profile cases to make a name for themselves. Thomas Dewey convicted major mob figures on his way to the governorship and nearly the presidency. Rudy Giuliani became mayor of New York City behind the same strategy. Headline cases have always paved a time-worn path to higher office. But Dewey and Giuliani targeted violent criminals, not political enemies. The public benefited from safer streets and a reduced mob tax. I fail to see the public good in changing the law (for just a year) in order to charge a political rival, ginning up misdemeanors into felonies, seizing assets for victimless transactions — all with the blessing of bespoke judges. The recent decisions in New York have a more sinister feel, like the independent judiciary is unable to contain the political forces that have hijacked it from within.
I am not going to pretend that our justice system is always above partisan politics. As Mr. Dooley noted in 1901:
“th’ Supreme Coort follows th’ iliction returns.”
Fair enough. But the courts should not precede the election returns. Nor should they nullify the choice of the voters before they even get to the polls.
Approval ratings for Congress hover around 12 percent. In contrast, the state courts enjoy a 65 percent job approval rating. People can avoid our cartoon-like politicians, who are about as serious as professional wrestlers. They cannot avoid the justice system, which decides everything from parking tickets to capital punishment. What happens if partisan politics drag the courts down to the abysmal levels of our political class? What if people lose faith in the branch of government that touches them the most?
More serious, perhaps, is the chilling effect of prosecutorial overreach on the private sector. I spent nearly 40 years doing business in New York City. Entrepreneurs need a predictable body of common law to enter into the most basic transactions. They need an impartial judiciary to interpret, enforce, modify, and rescind contracts. Why would you put your time and capital into a deal that is not binding? You wouldn’t. Why would you build an office tower that can be arbitrarily seized by the state. You wouldn’t. The private sector also needs clear rules that set forth the consequences of criminal behavior. Without consistent (read non-political) guidelines on contract and criminal law, commerce becomes a very risky proposition. And without the free flow of commerce, society is impoverished, both financially and ethically.
Democrats claim that lawfare is necessary to keep Trump from the presidency, that they are really protecting the Constitution by any means necessary, that their hearts and hands are pure. Maybe. But it seems likely this is just an old-fashioned power grab, like Roosevelt trying to pack the Supreme Court in 1937. Maybe this is something new in America, where show trials are commonplace and a person’s guilt or innocence is decided by their politics, a Stalinist construct where naked power pre-determines truth, beauty, and yes, justice.
This is all very bad.
Some of the people know this. After suffering too many electoral setbacks in 2018, 2020, and 2022, Trump was left for dead. And then the trials started. Appalled at the corruption, the inequity, the bigoted excesses of blue state justice, Republicans rallied to him. As the presumptive nominee, Trump owes his comeback to fair minded voters who still have faith in the American system of justice and want to see it preserved.
The Republicans have plenty of issues to run on in 2024: open borders, crime, inflation, ruinous government spending, a doddering incumbent unable to comprehend a dangerous world. But let’s not forget the issue that brought Trump back to life: a core belief in an independent judiciary. Conservatives don’t need to flood the zone with their own trivial lawsuits or lost cause impeachments, which blur the distinctions between left and right. They need to give voters a clear choice between a left-wing banana republic empowered by bought-and-paid-for judges and right-wing respect for due process and the rule of law, which is both our inheritance and our legacy to future generations.
We can only gain from the comparison.
READ MORE from Kevin Brady:
Let Them Eat Cake: America’s Woke Elites and the Ancien Régime
Joe Biden Is No Dwight D. Eisenhower
College Presidents and the New Multi-Racial America
