The American justice system has already failed on Trump
National Post, 19 August 2023
Prosecutors should have moved to bring targeted, clear indictments in a timely fashion
Is it possible that the bad situation of the post-2020 American election offences will be made worse by prosecution of same?
Former president Donald Trump’s dance card of indictments is now full. Four indictments at both the federal and state level, dozens of charges, an array of alleged conspirators. The stakes for him are high, the consequences for the American political system significant.
At the same time, as in every high-profile case, the criminal justice system itself is on trial. This column over many years has pointed out that the bloated American prosecutorial state produces results manifestly lacking in justice as a matter of routine. Levels of mass incarceration comparable to totalitarian states are not achieved by accident; a gargantuan complex of police agencies, sprawling justice department bureaucracies and correctional facilities are needed to grind up the poor — and occasionally the unpopular rich. The popular rich — Jeffrey Epstein comes to mind — get a pass until it becomes politically untenable.
How then will American justice face its highest profile test, the prosecution of a former president who is a leading candidate in the next presidential election?
It has already failed. What remains to be determined is how grave and consequential the failure will be.
The various Trump matters were urgent more than two years ago. Agile and professional prosecutors would have moved quickly to bring targeted, clear indictments in a timely fashion. Instead, by dithering for 30 months, and returning — especially in Georgia — sprawling indictments involving hundreds of thousands of pages of documentation, Trump will now be prosecuted precisely during his campaign for president. The Georgia indictment, with 19 total defendants, 41 charges and 30 unindicted co-conspirators, will take years to prosecute. That the Atlanta prosecutor claims that she can bring it all to trial in six months is simply laughable. The clogged wheels of American justice don’t move that fast, even in more simple cases.
The matters under indictment are serious and deserved prosecutorial attention. Yet the danger of politicizing — or appearing to politicize — the criminal justice system is always a serious danger. Hence prosecutors were required to be both disciplined and careful. They knew that Trump would accuse them of political motives; all the more reason to be scrupulous.
That would require though a different disposition than usual. It is absolutely routine for American prosecutors to stretch and reach and even contort the law to get their man. They are still proud of the fact that they got Al Capone on tax evasion: How clever! But outside the insular world of America’s legal clerisy, when ordinary citizens see the law being twisted, it brings the law into disrepute. Getting a mobster on tax evasion is a twofold failure; his more serious crimes went unpunished, and the citizens learned that the tax code could be custom fitted to the needs of prosecutors.
Trump’s payment of hush money to a pornographic film actress was morally repellant, but turning a state misdemeanor into a federal felony by treating it as a campaign finance matter is not clever, but a perversion of the law to get the man.
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