Tuesday, February 18, 2020

'Justice' dispensed by an autocrat is the worst case scenario for our Republic

The Legal Information Institute at Cornell introduces “equal protection.”

Equal Protection refers to the idea that a governmental body may not deny people equal protection of its governing laws. The governing body state must treat an individual in the same manner as others in similar conditions and circumstances.

The Fifth Amendment’s Due Process Clause requires the United States government to practice equal protection. The Fourteenth Amendment’s Equal Protection Clause requires states to practice equal protection.

Equal protection forces a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights.

Loyalty to an autocrat, a dictator, or a monarch is not a “legitimate governmental objective.” Yet that is exactly the criterion applied by the United States’ highest legal officers. Steve Benen (MSNBC/MaddowBlog) reviews that judicial malpractice in Trump, Bill Barr, and the arrival of the worst-case scenario. When it comes to the politicization of the justice system, we appear to have arrived at the worst-case scenario.

After a week in which the politicization of federal law enforcement jolted much of the political world, many are understandably concerned about highly unusual threats to the nation’s justice system. Indeed, there’s a temptation to imagine a worst-case scenario and wonder whether we’re likely to reach it.

But what if those fears are misplaced – not because the threat will never arrive, but because it’s already here? What if the worst-case scenario is not a hazard on the horizon, but rather, the point at which we’ve already arrived?

What if the justice system we fear might buckle has already been beaten into submission by those who see the rule of law as politically inconvenient?

Donald Trump pressed federal law enforcement to go after Andrew McCabe, the former acting FBI director who authorized investigations into the president’s Russia ties. Soon after, the Justice Department did, in fact, target the longtime FBI official, looking in vain for some kind of crime with which to indict him. Prosecutors convened a grand jury, but couldn’t find wrongdoing.

We learned late last week that Judge Reggie Walton, a George W. Bush appointee, told prosecutors he saw what was clearly going on.

“…I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted,” Walton said. “I just think it’s a banana republic when we go down that road, and we have those type of statements being made that are conceivably, even if not, influencing the ultimate decision. I think there are a lot of people on the outside who perceive that there is undue inappropriate pressure being brought to bear.”

Benen provides other instances of political interference in the cases of Michael Flynn, Roger Stone, Michael Cohen, Lev Parnas and Igor Fruman.

And let’s not overlook the cases we don’t yet know about.

Over the past two weeks, the outside prosecutors have begun grilling line prosecutors in the Washington office about various cases – some public, some not….

A New York Times report added yesterday, “Mr. Barr installed a phalanx of outside lawyers to re-examine national security cases with the possibility of overruling career prosecutors, a highly unusual move that could prompt more accusations of Justice Department politicization.”

Ya think?

The pattern is hardly subtle: on cases of interest to Trump, we see the president’s attorney general, trying to steer prosecutorial decisions in ways consistent with the White House’s wishes. We’re left with a dynamic in which there are two parallel systems: one for cases that the president cares about, in which Barr plays a direct and personal role, and another for the rest of the justice system.

A Washington Post report added yesterday that Barr’s Justice Department “has repeatedly tasked U.S. attorneys from far-flung offices to parachute into politically explosive cases,” which has raised “concerns among current and former officials that agency leaders are trying to please the president by reviewing and reinvestigating cases in which he is personally or politically invested.”

All of the recent reporting has been extremely valuable, though I take issue with the word “concerns.” Given the circumstances, it’s hardly unreasonable to believe we’re past the point of “concerns,” having arriving at the point of emergency conditions without modern precedent.

We’re not supposed to have a system – in fact, we cannot expect to maintain a system – in which the attorney general essentially tries to fix federal cases the president cares about.

As Rachel [Maddow] put it on Friday’s show, “Prosecutorial decisions are now being made under the direct supervision of the attorney general, specifically to benefit the president and to respond to his demands, to punish his enemies and try to free his friends. It’s not that there’s a threat of this; we are now living with a justice system that has been made to work this way.”

The president, unconcerned with legal constraints, is unembarrassed by these conditions. In fact, Trump appears eager to flaunt it – both as a way to signal support to his allies, and as a way to warn his perceived foes that he has a Justice Department at his disposal, and he’s prepared to abuse his power and corrupt the system as he sees fit.

Rachel added on Friday, “The rule of law is no longer in effect when it comes to criminal cases that have anything to do with the president or his perceived interests.”

It seems like a good time to stop fearing the threat of the worst-case scenario and start acknowledging that in a nation that takes the rule of law seriously, this is the worst-case scenario.

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