No, Trump's prosecution isn't harming American justice

But the former president and his backers put us at risk in their unfounded attacks on the American legal system

The threat of injustice isn’t what the ex-president claims it to be. (Photo by Tingey Law Firm on Unspla)

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As corruption goes, it was minor, and, honestly, I was an unwitting beneficiary. In a suburban night court some years back, where I had been summoned after a speeding ticket, I waited my turn — perhaps two hours, as one fellow miscreant after another stood at the bar of justice. Only after my name was called at the very end of the night and I stepped up to the bench did I realize that the black-robed judge was someone I vaguely knew.

“What are you doing here?” she said.

“I was apparently speeding, Your Honor,” I replied.

She turned to the young prosecutor. “Mr. Smith here is the editor-in-chief of the Times Union,” the judge noted.

“Your Honor,” the young lawyer said quickly, “in the interest of justice, the People move to dismiss.”

“So ruled,” she said, with a little tap of her gavel.

And so was justice miscarried. It didn’t seem to me at the moment to be an especially potent example of the maxim offered by the late comedian Lenny Bruce, “In the halls of justice, the only justice is in the halls.” But the guy just before me might’ve been annoyed at the unfairness of what he saw: I think he paid a $60 fine and got points on his license. I drove home scot-free.

It became clear to me long ago that the notion that we’re all equal before the law is often shaded by nuance. When the scales of justice are imbalanced, they’re likely to tip in favor of folks like me — an older white guy with at least a veneer of respectability. Still, in a career that often intersected with the law — in which I covered a courthouse for a couple of years, then came to count as friends lawyers of all sorts, and got to know judges pretty well at about every level — I concluded that American courtrooms are generally places where the foundation of democracy is protected. That is, for all the individual missteps on the path toward justice — which good journalists expose regularly — the legal system is structured with checks and balances that generally prevent gross malfeasance. Thanks to a lot of people with high ethical standards, America’s system of laws is mostly applied fairly.

Don’t try to sell that idea, though, to the most famous defendant in America just now, Donald J. Trump — who is like me in that he’s an older white guy who used to hold a respectable job, but who obviously does not share my respect for the system of justice in the United States. Trump regularly howls that he is a hounded victim of selective prosecution — and that, likewise, the people who attacked the U.S. Capitol on his behalf on Jan 6, 2021, bludgeoning cops and trying to find and hang the vice president, are “hostages” of a “partisan witch-hunt.” What baloney.

Trump has had a lot of experience in court. In 2016, USA Today reported that Trump and his companies had been involved in at least 3,500 legal actions in federal and state courts over the prior three decades, making him by far the most litigious candidate in American presidential history.¹ Even before the four criminal cases now pending against him, Trump was keeping courts across the country busy — with little success, and with a record of not paying his lawyers — in what a federal judge in 2022 cited as “political grievances masquerading as legal claims.”

Now, as aggrieved defendant, he has drafted virtually an entire political party into his circle of victimhood, and with the supplicant politicians have come millions of Americans, convinced by their leader that the courts of America are hotbeds of partisan corruption.

Two decades ago, two-thirds of Americans considered our justice system to be fair; last year, a Gallup poll found that support had dwindled to under half. Like much of public life, there’s a partisan divide on this question: A separate survey released four months ago found that three-quarters of Republicans believe that the federal election subversion case against Trump — the one involving his effort to overturn the 2020 results — is being conducted unfairly.²

Maybe that encouragement from the broad Republican base is what convinced House Speaker Mike Johnson this week to stand outside a Manhattan federal courthouse where Trump is on trial in an election fraud case and denounce as “corrupt” the entire U.S. justice system. Johnson was just one of a phalanx of Republican officials who showed up during the most dramatic week of testimony in Trump’s criminal trial, in which he’s accused of deceiving voters in 2016 by buying the silence of one of the many women who say they had sexual encounters with him.

At least Johnson is consistent in his contempt for the application of American law. After the 2020 election, he helped shape Trump’s effort to overturn the voters’ choice. So it’s unsurprising that he now calls the cases arising from those acts, and others in which the ex-president is a defendant, a “borderline criminal conspiracy.” Echoing Trump’s familiar refrain, Johnson says the justice system is “weaponized” against Trump, and because of that, Americans are “losing faith” in it.³

Consider how odd this is — because it is not how politicians have typically spoken of America. Until the Trump era, the default rhetoric of candidates was borderline jingoistic: America was the greatest country in history, its democratic systems strong and admirable. Now high-ranking Republicans are expected to line up behind their twice-impeached former president and assert that our nation’s justice system is corrupt, and that part of the government held by Democrats failing. It’s hard to avoid the conclusion that Trump, Johnson and the other Republicans who showed up at the Manhattan courthouse this week — dressed like Trump, incidentally, in blue suits and red ties — have given up on our democracy. And it is unsurprising, then, that their political followers would follow them down that destructive path.

But if the loss of faith is fact, it’s more likely the fault of Trump and Johnson and their ilk than it is the people who are bringing charges aimed at upholding the law, and the judges hearing the cases. Loose talk like Trump’s and Johnson’s can’t help but yield disrespect for the law in general. After all, Trump disciples may think, if someone as rich and powerful as Donald Trump can’t get justice in America, what hope does an ordinary citizen have? It calls into question the whole notion that our government is, as Abraham Lincoln asserted, “of, by and for the people.”

If last week presented any legitimate cause to question the fairness of our legal framework, though, it might be seen a few steps higher in the system than the Manhattan criminal courtroom where Trump faced the testimony about his tawdry behavior. On Trump’s day off from the trial, fresh questions emerged about the ethical standards of our nation’s highest court, making it reasonable to wonder if Trump hasn’t been actually the beneficiary of selective justice, rather than a victim of it.

The New York Times reported this week that in early 2021, as the Supreme Court was weighing whether to take up a case about the election, a flag symbolizing solidarity with Trump flew on a pole outside Justice Samuel Alito’s home. An upside-down American flag — universally viewed as marking the Republic in distress — had become by then a typical banner in crowds backing up Trump’s claim that he was cheated from re-election. The inauguration of Joseph Biden was just three days away when Alito’s neighbors snapped photos of the inverted flag at his home.⁴

There were no stated ethical standards for Supreme Court justices in 2021; it was only six months ago that the court belatedly adopted its first-ever code of ethics. Among other provisions, it requires that justices avoid activities that “reflect adversely on the Justice’s impartiality.”⁵ Did a pro-Trump banner waving at home signal that a justice on the nation’s highest court might have been anything but impartial as he reviewed a case involving Trump’s election claims?

Not at all, Alito said. In response to the Times story, the justice dodged responsibility by blaming his wife: It was her decision to hoist the flag, he said, and it was a response to a mean sign erected by a neighbor.

Coincidentally, surely, this week another Washington spouse got blamed for an alleged misdeed: The lawyer for U.S. Sen. Robert Menendez, a New Jersey Democrat on trial for the second time for bribery, said his wife was responsible for it all — the gift of a $60,000 Mercedes, the hundreds of thousands of dollars in cash and home furnishings and the gold bars found in a bedroom closet.

In blaming a spouse and denying any ethical or legal foul, both Alito and Menendez are following what might be called the no-pillowtalk defense offered last year by Justice Clarence Thomas. Thomas’s wife, Ginni, a conservative activist, was a leader of the infamous “Stop the Steal” campaign to overturn the 2020 election results; she attended the Jan. 6 rally near the White House, and called Trump on the phone to urge him to keep fighting to stay in the White House. Notwithstanding the political advocacy of his wife, Thomas declined to recuse himself from ruling on the legitimacy of that advocacy.

True, you can’t draw a straight line from Thomas and Alito dodging accountability for their dubious claims of independence and nonpartisanship to the current distrust of the Supreme Court. Only four in 10 Americans say they like how the court is handling its job, a near-record low. That could be driven as much by anger about the Dobbs decision overturning abortion rights, certainly, as the ethical questions about justices that have been repeatedly raised over the past year. Not that the overturning of Roe v. Wade was corrupt, incidentally; it was simply an unpopular act by judges who were appointed by presidents who got to the White House without winning the popular vote.

But what ought to concern us now is the combination of ethical transgressions that justices are unwilling to admit and cynical attacks on the rule of law by current officials and one ever-so prominent former official. There’s every risk that the consequence of that two-fronted attack — the justices conceding no evil, the former president and his claque counterfeiting it — will be a growing disrespect for the law that won’t be easily restored.

That’s the trade-off that Donald Trump’s Republican party apparently is willing to make in exchange for dutiful conformity to its leader’s claim of victimhood. It is a sacrifice of honest patriotism for partisan conformity, and if that’s not a mark of true corruption, I can’t imagine what is.

1. https://slate.com/news-and-politics/2023/05/has-anyone-been-sued-more-than-trump.html

2. https://news.gallup.com/poll/511820/views-supreme-court-remain-near-record-lows.aspx#:~:text=Line%20graph.-,Americans'%20trust%20in%20the%20judicial%20branch%20of%20the%20federal%20government,year's%2047%25%20record%20low%20reading.

3. https://apnews.com/article/donald-trump-speaker-mike-johnson-court-09aef3de395fa77843f2600f40da6ac3

4. https://www.nytimes.com/2024/05/16/us/justice-alito-upside-down-flag.html

5. https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf

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NEWSCLIPS FROM THE UPSTATES

Dispatches from our common ground *

Wherein each week we look around what we call the nation’s Upstates — those places just a bit removed from the center of things — to find illuminating news and intriguing viewpoints, which you might not otherwise see.

This week, we share reporting published here:

• Westborough, Mass. (The MetroWest Daily News, metrowestdailynews.com)

• Topeka, Kan. (Topeka Capital-Journal, cjonline.com)

• Bremerton, Wash. (Kitsap Sun, kitsapsun.com)

NOTE: The complete “Newsclips from the Upstates” section, and The Upstate American Midweek Extra Edition, which is sent to email boxes on some Wednesdays, are available only to paid subscribers. Thanks for your support!

MASSACHUSETTS

Att last, some good news about turtles

More than half of the world’s 360 species of turtles and tortoises are threatened with extinction, scientists say. But in The MetroWest Daily News, Jesse Collings reports some good news: the rare northern red-bellied cooter is coming back. Forty yers ago, there were only about 200 alive in the wild; now, thanks to a partnership with schools, museums and environmental groups, there are at least 2,000. The freshwater turtle, which measures up to a foot in length, has been a subject of a Massachusetts effort to save the species. Each year the state collects turtle eggs an distributes them to the cooperating schools and groups, where the turtles are hatched, raised in captivity for eight months, and then released into their native habitat.

KANSAS

Evel Knievel Museum is moving to — where else? — Las Vegas

Who even knew that there was a museum honoring Evel Knievel, and that it was in Topeka, the capital of Kansas? But now, Tim Hrenchir reports in the Topeka Capital-Journal, that (somewhat) popular attraction in Kansas has set its closing, so that it can reopen in the arts district of downtown Las Vegas. The museum shares photos, videos, memorabilia and information detailing the life of Knievel, an internationally known motorcycle stunt performer who died of pulmonary disease at age 69 in 2007. Incidentally, it’s unclear why the museum was in Topeka to begin with; Kneivel was born in Montana and died in Florida.

WASHINGTON

Many Bob Fergusons were running for governor, until they weren’t

The Washington State attorney general, Bob Ferguson, was one of two Democratic candidates in the primary for governor — two Republicans are also running — until one day last week, when it turned out that two more candidates were entering the Democratic primary. Both were also named Bob Ferguson. Jerry Cornfield of Washington State Standard, a nonprofit newsroom, reports in the Kitsap Sun that the two non-AG Bob Fergusons were recruited by Glen Morgan, a conservative Republican activist with a record of harassing opposing politicians. Morgan even paid the filing fees for the two obscure Bobs, and the ballot suddenly seemed sure to be crowded. But then the original Bob — who is, remember, an attorney — threatened the new Bobs with prosecution for violating an 81-year-old state law that makes it a felony to challenge someone with the same name “and whose political reputation is widely known, with intent to confuse and mislead the electors.” So the obscure Bobs both withdrew. Bob the First said he figured they got duped by Morgan into doing something they didn’t know might be illegal. For now, then, the race is down to a Mark, a Dave, a Semi and just one Bob.

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DOWNLOAD OR LISTEN NOW: MORE FROM THE UPSTATE AMERICAN

IF YOU’RE A READER who wants to hear more of Rex Smith’s views, check www.wamc.org for his weekly on-air commentary aired by Northeast Public Radio. Here’s a link to the latest essay. And if your interest is specific to American media, you can download the podcast of The Media Project, the 30-minute nationally-syndicated discussion that Rex leads each week on current issues in journalism. In the states where Northeast Public Radio is heard, the program airs at 3 p.m. each Friday, and is rebroadcast at 6 p.m. Sunday. You can tune in live, too, at www.wamc.org. It has been called “a half-hour of talk about finding and telling the truth.” It’s often worth your time!

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NOW, LEARN TO WRITE OP-EDS

If you’d like to learn how to write opinion essays — for newspapers, audio or digital platforms — check out the live class Rex co-teaches that is offered by The Memoir Project. Click below for information. Our next class is coming up on Wedmesday, June 12 at 7 p.m. Eastern. Lots of our students have been well published — and you can be, too. Join us!

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THANK YOU for reading The Upstate American, and for joining us in the conversation about *our common ground, this great country.

-REX SMITH