‘Justice’ and the fall of a republic

“What happens now?” The question flooded my inbox and what used to be called the Twittersphere. Why? Because shortly after 5 p.m. on May 30 came the verdict in America’s first-ever Stalinist trial: Donald J. Trump was guilty on all counts in the so-called “hush-money trial” in New York.
So now the proximate legal fate of Trump, former and very possibly future president of the United States, is settled. What happens next? Trump appeals, but that case is not heard until after the election. What happens then? As many instantly observed, Trump wins in a landslide.

As I write, the media is positively atwitter, though experts are divided on whether their chattering is more like a murmuration of starlings, an exaltation of skylarks, a commotion of coots, a trembling of finches, or a murder of crows.

In The Gondoliers, Gilbert and Sullivan offered a sage admonition that this jury, and this media, might have profited by.

In a contemplative fashion,
And a tranquil frame of mind, 
Free from every kind of passion, 
Some solution let us find.
Let us grasp the situation,
Solve the complicated plot — 
Quiet, calm deliberation 
Disentangles every knot.

That’s not what has been happening. Frenzy has been the order of the day, not contemplation, not quiet, calm deliberation. Perhaps, now that the verdict has been rendered, there will be some respite, probably more akin to what the French, in a somewhat different context, call la petite mortthan the gemlike, clarifying stillness that follows a violent storm.

Do you ever wonder what it was like to live through the fall of the Roman Republic? It took about a century. A sharp rise in street violence in the 130s and 120s BC was a warning sign, but even more ominous was the slow draining of public confidence in the state’s governing apparatus. That confidence is the currency that purchases the golden talisman of legitimacy: a big, abstract word that suddenly impinges like a hammer when the streams that feed it fail.

It can be difficult to get your bearings in that situation. You look around and, despite the revolution in public sentiment, most of the familiar social paraphernalia persist. See: there are the congressmen and the buildings they occupy. They were in session just last week. The president of the United States was talking, sort of, about… well, we can leave that for another day. But still, there are policemen, the IRS, lawyers — lots of lawyers — schools and colleges, courts and judges.

The difference is that none of them enjoys the level of public confidence — the measure, again, of legitimacy — of even a decade ago. Here’s the dirty little secret: no matter what happened to Trump in lower Manhattan, the prestige of American justice has suffered a serious attack of scrofula.

Almost every serious legal commentator — pro-Trump, anti-Trump, or Trump agnostic — has weighed in with handwringing about the unprecedented, overtly biased behavior of Justice Juan Merchan. Trump skeptics from Jonathan Turley to Alan Dershowitz have written about the case with a mixture of astonishment and alarm. Trump supporters have kept up a drumbeat of criticism. Only anti-Trump fanatics like the egregious Andrew Weissmann, the brains or at least the Semtex behind Robert Mueller’s two-year, $40 million Russian collusion delusion, can look upon the witch hunt with equanimity.

In our system, the judge is meant to be distinct from the prosecutor. Merchan effectively erased that distinction. The Babylon Bee exaggerated only slightly when it said: “Judge Instructs Jurors They Need Not Believe Trump Is Guilty To Convict Him.” As the Federalist’s Sean Davis commented, “This is both satire and also exactly what the corrupt New York judge has told jurors.” Immediately after the verdict the Bee weighed in with “Donald Trump found guilty of being Donald Trump.” I can’t improve on that.

What isn’t satire is the fact that notwithstanding the pullulating skein of legal maneuvering on the part of the half-prosecutor, half-judge amalgam that simultaneously presided over and prosecuted the case, no actual crime was specified. The jury was instructed to deliberate, to strive for unanimity, but according to Justice Merchan, a distributed unanimity (I bequeath this neologism to the world) would be enough.

Here’s what it means. Justice Merchan told the jurors that they did not have to agree on what the crime in question was. The case started with a possible misdemeanor charge that, through the alchemy of partisan animus, was ginned up to felony status. Since the underlying tort was like the Wizard of Oz, though, Justice Merchan said it would be fine if jurors disagreed about what the crime was so long as they agreed that there was one. Four might say it was this, four might say it was that, four might say it was some tertium quid. Just so long as they agreed that Trump was guilty — that was good enough for government work.

It can be interesting to spend time picking among the ruins of a once-great civilization. The ruins can be physical, as they are in ancient Egypt or Rome. But they may also be metaphysical, as they are when a society somehow outlasts its animating vitalities.

The United States was built on the ideal of equality before the law. The very words now ring with a mournful quaintness. Who still believes them? As we troll through the vacated monuments of our civilization, we’ll often be reminded of David Hume’s observation that it is seldom that freedom is lost all at once.

This article was originally published in The Spectator’s July 2024 World edition.