AMAC Exclusive – By Daniel Berman
For nearly two and a half centuries, the United States justice system has provided a legal framework for the most prosperous and successful society the planet has ever seen. Americans have not yet begun to process the true costs of sacrificing the integrity of that system to achieve short term political ends.
The judicial system in the United States is composed of a mixture of democratic elements in the form of elected state prosecutors and ordinary juries, appointed or elected judges, and a professional police force. Thanks to this structure, it managed to maintain the two elements essential to the provision of justice in an impressive balance: sufficient independence to allow it to defy temporary public sentiment in order to uphold the law, but enough public legitimacy to ensure those decisions were respected and the democratic branches of government did not encroach on the powers of the judiciary.
Every work of political theory at the time of the founding, and the vast majority of what has been produced since, suggests this system should not have worked. Requiring jury trials for criminal cases should have turned them into lynch mobs, as it sometimes did in the Jim Crow South. Electing judges or allowing elected politicians to appoint them would ensure they would be susceptible to those momentary passions of the people. The election of prosecutors would produce a politized judicial system in which local strongmen turned the law against political rivals, carving out one-party dictatorships. The act of allowing jury trials in civil cases was madness itself.
The irony is that with some exceptions, including the tragedy of the Jim Crow South, most of these fears went unrealized.
The reason was the American people themselves. All of the tools of abuse were provided to them. Had they chosen, they could have used the judicial system to persecute their enemies and protect their friends. Carved out homogenous enclaves. Waged economic warfare against unfavored companies. Thrown out any judge who made an unpopular ruling, and targeted jurors who let off unpopular but innocent defendants. But by and large, they did not.
Prosecutorial and judicial elections existed, but until recently they often went uncontested. Individuals could remain in office for decades, only being challenged and defeated when they were either incapable of fulfilling their duties due to age or had ceased to fulfill them due to corruption.
This was reflected in the fact that most prosecutorial elections were non-partisan, and the trend toward partisan elections, pushed by both parties in regions where they are strong, has undermined the system in different ways.
Nonetheless, what made the system work was the commitment of the political class to make it work. In some ways, there was a de facto truce in which Democrats and Republicans agreed that when it came to issues involving the other party, they would “recuse” themselves.
This abstention required two things. First, it required both sides to mutually agree to play by the rules. If one side refrained from prosecuting Hillary Clinton or her senior advisors for mishandling their finances or classified materials, the other should respond in kind.
Second, it required an approach akin to the line about Caesar’s wife when it came to political cases. Upon returning to Rome, Caesar learned his wife had attended a party where indecent behavior took place. Upon being informed he was divorcing her, she challenged him as to why. No one had accused her of doing anything inappropriate herself. His response was simple: “Caesar’s wife must be above suspicion.”
If retaining the independence and integrity of the legal system required both sides to agree to play by the rules, then it furthermore required both sides to believe the other was playing by them.
It may well be that the Watergate, Iran-Contra, and Whitewater investigations were seeking real crimes and were conducted by professional figures, but their consequences could not help but promote partisan ends: the targeting of a president.
Therefore, it was not a sufficient defense for Ken Starr in the 1990s or those investigating Hunter Biden today to merely insist they are acting within professional norms. They need to convince the country they are doing so.
That is where the true judicial failure has occurred over the last few weeks with regard to the differential decisions to prosecute Donald Trump to the full extent of the law (and arguably beyond it), and to allow Hunter Biden to walk after pleading to a lesser set of charges.
It is not enough for the Hunter Biden plea bargain to be defended on the basis that while unusual it is not unheard of for prosecutors to offer similar deals. Or to suggest that the charges against Donald Trump are within a reasonable interpretation of federal statutes.
The American justice system does not depend on technicalities and loopholes, which is the game many Asian countries play to stay theoretically within the law while coincidentally ensuring that all the unusually soft choices favor the ruling party, and all the unexpectedly aggressive charges land on those who might challenge them.
The lesson the public draws from this type of situation in other countries is that it is best to be in power. Politicians and parties, in turn, are taught that they best not leave it, even if retaining it involves some creative electoral tricks, lest they find themselves on the wrong end of tax audits, or worse.
In fact, in much of the world it is the norm for defeated leaders to be investigated and even imprisoned for “corruption” while in office, which can range from urging a Minister to look into a merger after being asked by a donor at an event, to approving projects which turned sour. A former president of South Korea sits in prison today, and another, who served from 2002 to 2007, killed himself while under investigation. Taiwan’s first opposition president, Chen Shui-Bian, who served from 2000-2008, ordered audits of the assets the formerly ruling KMT had amassed while in power. When they returned after 2008, he found himself in prison. Three of Benjamin Netanyahu’s predecessors found themselves in prison, which explains his jitteriness over a box of cigars.
The issue here is not whether these leaders are “guilty.” The problem, as commentators, including liberal Democrats, have noted with regard to the Espionage Act under which Donald Trump is being charged, is that when it comes to compliance with every regulation, it is, as Louis Antoine Saint-Just remarked, “impossible to reign innocently.” Ron DeSantis is now facing allegations that an individual with business with the state paid for the installation of a golf simulator in the governor’s mansion which will remain after his departure. The current allegations against Supreme Court Justices amount to the suggestion that highly successful people, with highly successful friends from school, are somehow engaged in corruption if they visit with them.
Which brings us back to Hunter Biden and Donald Trump. There are almost certainly technical differences between the cases. Donald Trump did adopt a more suspicious and adversarial attitude toward the Department of Justice than did Hunter Biden.
But when it comes to the optics, the “Caesar’s Wife” standard, those do not matter. Donald Trump had every reason to be more suspicious of the Department of Justice. The DOJ is now controlled by the man who displaced Trump, an individual who has called Trump’s continued presence in politics a threat to democracy, and who has suggested the remaining mission of his life is to keep Trump from returning to the White House.
By contrast, it makes perfect sense for Hunter Biden to cooperate with the DOJ. They, after all, work for his father.
Most relevantly, everyone else knows the DOJ works for Biden, and that Biden is in turn dedicated to “getting” Donald Trump. It does not matter whether the charges in each case were technically within the scope of what the law allows, or even if the White House is telling the truth and Joe Biden did not say a word to the prosecutors involved in either case. He did not need to. Everyone involved in both investigations knows exactly who is president, who his son is, and what he thinks of Donald J. Trump.
The “technical” defenses of the DOJ threaten to unravel the American legal system because it has never run on the technical rules but on the good faith of those involved. There is nothing “technically” illegal about Soros-backed prosecutors deciding not to prosecute entire categories of crimes.
The alternative to the system we have had for two centuries is pure power. If the Democratic electorate would prefer a Democratic president to appoint judges who will pursue a Democrat Party agenda, and a Department of Justice which will treat Republicans as a threat to the Constitution and treat Democrats with kid gloves, then the only recourse is for Republicans to take power. At that point, the only check Democrats can hope for on the inverse will be Republican voters being more merciful.
This brings with it the prospect of what we are seeing: a wholesale embrace of winner-takes-all politics at the national level, where the entire apparatus is replaced whenever the party in control shifts. That will make safety for national politicians dependent on national power. For everyone else, even this will not save them. In safely Democratic or safely Republican areas, only staying on the side of the right party, and in practice the right type of Democrat or Republican, will secure them justice—or rather, safety.
At least in authoritarian states there is one side to appease. America has two parties, which means chaos and conflict, unless one side wins permanent control – an outcome corporate America and too many other desperate Americans will begin to call for.
Ironically it is the collapse of norms here which is producing the great threat to democracy that so many on the left and center bemoan. They can cite obscure statutes to justify treating Trump and Biden differently. But that is not the requirement. They need to convince Americans they are being treated the same.
Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.