“Show Me the Man, and I Will Show You the Law”

The Gray Lady endorses an old Scottish adage.

Long before Lavrentiy Beria or Jack Smith, Sir Walter Scott foreshadowed their legal philosophy in The Bride of Lammermoor. The novel is set in early 18th Century Scotland, when the powers of government were “delegated to the head of an aristocratic faction, rivalled and pressed closely in the race of ambition by an adverse leader. His brief and precarious enjoyment of power must be employed in rewarding his partizans, in extending his influence, in oppressing and crushing his adversaries.”

The administration of justice, in particular, was infected by the most gross partiality. A case of importance scarcely occurred in which there was not some ground for bias or partiality on the part of the judges, who were so little able to withstand the temptation that the adage, “Show me the man, and I will show you the law,” became as prevalent as it was scandalous. One corruption led the way to others still more gross and profligate. The judge who lent his sacred authority in one case to support a friend, and in another to crush an enemy, and whose decisions were founded on family connexions or political relations, could not be supposed inaccessible to direct personal motives; and the purse of the wealthy was too often believed to be thrown into the scale to weigh down the cause of the poor litigant.

There could not, of course, be any possibility of such a devolution in 21st Century America. Not at all, even if “America’s newspaper of record” now cultivates the root from which the old Scottish evils grew.

“The Morning”, a New York Times newsletter cum op-ed that shows up gratis in my email inbox each weekday, devoted yesterday’s lead commentary to a development that columnist David Leonhardt (often sensible by Times standards) views with apprehension:

It now seems likely that Donald Trump will be able to run for president this year without having faced any legal penalties for his effort to overturn the last presidential election. To many of his supporters, of course, this outcome is just. But it is also striking.

Most Americans believe that Trump committed serious crimes, polls show. He chose not to order the authorities to stop a violent attack on the Capitol, even when his vice president was in danger. And he directed state election officials to “find” him votes. Even so, Congress did not sanction him, and neither of the criminal trials related to his actions may even start before the 2024 election.

Mr. Leonhardt undertakes to “explain how this happened”. He passes right over a phenomenon even more “striking” than the possibility that the ex-President may not come to trial until after November 5, 2024: that a man whom “most Americans believe . . . committed serious crimes” is a serious contender for the Presidency. The current Real Clear Politics average of major polls shows him leading President Biden by a small margin in the popular vote and, more meaningfully, in every one of the most seriously contested “battleground” states. Do the same people who regard Donald Trump as a criminal also think that he is better fitted for the Nation’s highest office than the incumbent? Does that fact point to something that might interest a journalist?

Maybe, maybe not. If it interests the journalist who writes “The Morning”, he doesn’t let on. Instead, he deplores that Trump’s strategy of “Delay, delay, delay” – the newsletter header – is so far working.¹

He divides blame among Republican Senators (who didn’t join in impeaching the 45th President), Attorney General Merrick Garland (who “worried that an indictment of Trump would appear partisan and told aides to proceed with extreme caution”) and – you won’t be surprised to hear – “Republican justices” on the Supreme Court (who “chose an approach that benefited the Republican presidential nominee”).

The criticism of the Senators is beyond the scope of this post. The impeachment process is inherently political, and the political considerations range beyond strict questions of law. That is Mr. Leonhardt’s perspective as much as Senator McConnell’s. Neither of Trump’s actions or non-actions that “The Morning” specifically lambastes as impeachment-worthy is a crime delineated in any statute book. If failure to enforce the law carried a jail sentence, the prisons would be overflowing with mayors, police chiefs and prosecutors who looked the other way during the George Floyd riots, and Joe Biden would be consulting with his lawyers about how to defend against an indictment for turning U.S. immigration law into a nullity. Similarly, while it might well be illegal to “direct” officials under one’s authority to engage in unlawful conduct, hectoring people over whom one has no control is repulsive but entirely legal.

Punishment must in both cases must be meted out via politics, which means that it sometimes won’t be. That Donald Trump remains a viable candidate shows that his enemies have failed to present a sufficiently convincing case to public opinion. It might be interesting for Mr. Leonhardt to examine the causes of that failure rather than presume that it is adequate grounds for a criminal prosecution.

Let’s turn now from politics to law. The Justice Department pursued at a leisurely pace its investigation of what its leaders evidently see as a barely averted coup d’état. Some suspect that the purpose of going slowly was less to avoid the appearance of partisanship than to ensure its reality, namely, to enhance the probability that multiple court proceedings would distract the Republican candidate’s attention, drain his resources and hinder him from campaigning, as is in fact happening.

But perhaps Mr. Leonhardt has better insight than those critics into the attorney general’s motives. That a capable lawyer, a former federal judge, would, when confronted with the potential prosecution of a controversial politician for alleged crimes discerned only via “creative” and unprecedented interpretations of the law, wish to avoid the appearance of partisanship and “to proceed with extreme caution” isn’t unbelievable. If the target were Donald Nobody, it might even be viewed as admirable.

Why, then, does Mr. Leonhardt deplore it? If he would not favor partisanship and rashness in the case of a run-of-the-mill defendant, why should their absence be a defect when the defendant is this particular man?

We may gain insight from the third branch of Mr. Leonhardt’s complaint: that “the Supreme Court intervened . . . in a way that caused several delays”. In particular, it declined to bypass the Court of Appeals and directly take up Trump’s claim that he is immune from prosecution for the crimes charged in the special counsel’s “sixth of January” indictment. Then a majority of the Justices compounded the offense by showing clear signs during the oral argument last week that they “would issue a broad ruling setting a new precedent, which could take months”.

“On their own,” Mr. Leonhardt concedes –

each of these decisions can be defended. The overall approach, however, is very different from the one the court took in 2000 during Bush v. Gore. Then, the justices acted urgently, recognizing the political calendar, and said that their decision was a narrow one, applying only to a single election. This time, as Justice Neil Gorsuch put it, they seek a ruling “for the ages.”

Critics have pointed out that in both 2000 and 2024, Republican-appointed justices chose an approach that benefited the Republican presidential nominee. A fast, narrow ruling in 2000 stopped the vote count in Florida and let George W. Bush take office. A slow, broad ruling in 2024 may push the start of Trump’s federal trial past Election Day.

Yes, the Court “acted urgently” in Bush v. Gore, and there is a sense in which it took account of “the political calendar”. When the case was argued, the Constitutionally prescribed date for casting electoral votes lay four days in the future. Florida’s contested votes would decide the outcome. The alternative to hearing and deciding the case with the utmost expedition was – what? To ignore the Constitution and enjoin the electors from meeting until Florida completed a recount that was certain to be bitterly contested? To abstain and thereby uphold the ruling of the Democrat-appointed justices of the Florida Supreme Court that benefited the Democratic presidential nominee (and, in the opinion of seven of the nine U.S. Supreme Court Justices violated the Fourteenth Amendment)? To leave Florida in limbo and let Congress investigate the famous “hanging chads”? Sometimes judges must act urgently or abandon their duties.

The “political calendar” in Trump’s case is quite different. The supposedly dilatory Justices will at most prevent his trial from taking place in the midst of a Presidential election campaign. It is thus conceivable that Donald Trump – so unquestionably guilty that the decision about his fitness for office must be taken away from the voters – may evade justice through the underhanded trick of winning an election.

Can democracy survive such a blow? Can America risk allowing the case against this defendant to move forward in the same way, with the same judicial attention to Constitutional safeguards for due process of law, as any other criminal proceeding? Isn’t the law useless if it cannot be wielded to produce the desired political outcome? As Richard Lowry asks, “Our Institutions Exist to Oppose Trump, Right?”

I’m sure that Mr. Leonhardt has a firm grasp of the vital role of due process and a lively sympathy for defendants caught up in the meshes of the legal system. But all that is for others, not for Donald Trump. He has his own law, and at least one Times man (undoubtedly speaking for many) urges that Trump Law be executed with full rigor. A pity that he (they) have never read Sir Walter Scott.

1. Though not in New York City, as Mr. Leonhardt notes in passing at the end of his piece without commenting on whether the proceedings there are consistent with his thesis.