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Don’t wake the sleeping giant                                                                                    

Posted at: Jun/01/2024 : Posted by: Mel

Related Category: The Law, Watching America,

A tragedy recently happened in America, and I am trying to determine how to fly the flag on my 25-foot flagpole. It's not the Challenger explosion that took place in 1986. It is not the Twin Towers in New York, which took place in 2001. Yesterday, the Justice System was used as a political weapon in New York. This perversion of our judicial system leaves me wondering. If I fly my flag upside down, I am signaling disaster and asking for assistance. If I lower my flag to half-staff, I am signaling the loss of someone or something important. If this is the beginning of the end for democracy, mourning is the right move, and my flag should be at half-staff.

If you were not paying attention, yesterday (30 May 2024), Donald Trump was found guilty by a New York jury on 34 counts of falsifying business records. The conviction of the former president in a Manhattan courtroom was preordained. The idea of a fair trial and an impartial jury were just words with no substance.

Much like Letitia James, Manhattan DA Alvin Bragg campaigned on a promise to “get Trump”. Neither one said what crime had been committed, only who they were “going to get” him (Trump). Once elected, they used their office to find any statute, regardless of how obscure to bring forward charges. To their credit, both fulfilled their promise. Letitia James found that Trump got too good a deal on a construction development loan. Alvin Bragg’s indictment argued that Trump violated state and federal election laws with how bookkeeping entries were made for legal expenses. Effectively Bragg argued that the supposed bookkeeping anomaly was done with the intent to do a higher-level crime. The real loser is the American people. The “Rule of Law”, a foundation of Democracy has been discarded.

The rule of law is a principle that all people and institutions are subject to and accountable to the law that is fairly applied and enforced. This means that no one is above the law; and that the law cannot be applied in an arbitrary or biased manner. The rule of law supports the equality of all citizens before the law and prevents the abuse of power by the government or other authorities.

In application, this means that the police and the prosecutors have historically pursued crime and attempted to identify the responsible criminal for prosecution. Now they are picking who they want to be viewed as a criminal and hunting for a crime. A saying is attributed to Lavrentiy Beria, the longest-serving secret police chief under Soviet Russia’s Joseph Stalin. Beria boasted that he could find criminal conduct on anyone, even the innocent. He famously boasted “Show me the man and I’ll show you the crime.”

Now we know that any of us are subject to prosecution if we offend someone in the judicial system. Image, a local DA could file charges against a city council member who did not give them the desired budget. In the worst case, I could be indicted if my words offend someone in a position of judicial authority. The real losers in these cases are the American people and the expectation for ethical integrity and equal justice for all. I know the liberal pundits argue that “Trump is a threat to democracy,” but this is the undermining of a fundamental democratic principle.

For Trump, there was no real crime. The Federal Elections Commission investigated these same charges years ago and refused to prosecute. Alvin Bragg took the same facts and found a conspiracy that appears to be factually impossible and unsupported anywhere in the criminal codes. Ultimately, an expired misdemeanor for a bookkeeping entry magically morphed into an active felony implying a potential conspiracy. This transformation is very similar to how my dog periodically becomes Harvey the 6-foot rabbit. It is unfair to blame the jury, their instructions said they did not have to be unanimous. As long as everyone on the jury found him guilty of something, he was therefore guilty of all things.

Our cherished constitutional principle of unanimity as specified in the Sixth Amendment has gone the way of the dodo. One of the best potential witnesses for the Trump defense was going to be Bradley Smith, a professor who is considered one of the leading experts on Campaign Finance Law and a former chairman of the FEC. Technically, Judge Merchan did not bar the defense from calling Professor Smith. But the Judge in pre-trial motions so tightly limited what Smith could be questioned on that there was no value in having him take the stand. Additionally, some of the rules for how to decide guilt or innocence in the Jury instructions were not shared until after the evidence phase and Trump was not informed that the alleged misdemeanors could be aggregated into felonious conduct and a conspiracy that has yet to be defined. Again, his constitutional rights were disregarded.

Bragg did not act alone. His accomplices were his co-prosecutors and Judge Juan Merchan. They disregarded the established rules of evidence, manipulated standards of admissibility to favor the prosecution, and sanctioned prejudicial testimony. They did successfully engineer the conviction promised so many months earlier. Merchan did all of this without conscience or regret.

There was never any direct evidence that Trump committed a crime. Statutes were perverted or ignored as the law enforcers became lawbreakers. Bragg’s scheme to exploit a pathological liar and convicted perjurer as his star witness was both devious and unscrupulous. Cohen lied to the jury, just as he had lied to everyone else. It was no surprise coming from a man who told Congress, "I have lied, but I am not a liar." There must be a twisted syllogism in that notion. The problem with liars is that, for them, truth has no meaning. They lie to themselves about their lies.

As with any sporting event, knowing the players matters. Bragg made it clear that he is a politician first and a DA somewhere down the list. It did not matter that campaign finance charges live at the federal level, once indicted, you have to appear. Acting Judge Juan Merchan made an excellent coconspirator playing the role of Judge. One can only guess as to why none of the fully seated judges in the pool would take this case. Maybe there is still integrity in the system, and it took selecting an ”acting” judge to do Alvin Braggs dirty work.

The result of the Trump trial is that Americans can no longer trust our justice system. If it can be weaponized against a former president, it can happen to any of us. We are all at risk. When a district attorney, who is a powerful force in government, abuses his position of trust to subvert the legal process, and when a judge acts in concert to dismantle the due process rights of the accused, our system of justice is threatened and any reverence to the rule of law is lost.

We are not all at risk. Only those who oppose the elitists who have risen to positions of authority are at risk. It seems many of our fellow citizens both accept and cheer, the inevitable loss of basic freedoms while branding patriots as a threat to democracy. No one is above the law, but our courts must not become a tool to be used against political opponents. This conviction also sends a terrible message to the wider world about the American justice system.

After the verdict was read DA Alvin Bragg in speaking to the press downplayed the nature of the case attesting that this type of case is often seen by his office though they have been unable to share an example where someone was charged and tried at a local level for perceived violations of federal election laws.

Most Americans are focused on living their lives and just dealing with the challenges of day-to-day life. Events elevated to high drama are mostly ignored because they seem to only excite the “talking heads.” This case is different because it means that you can potentially become a victim of a malicious prosecution just because you disagree with someone in power. While the disdain for the verdict has mostly raised the ire of the conservative right, legal pundits at CNN and ABC have also voiced concerns about the vindictive nature of the prosecution while ignoring many Constitutional protocols. As expected, there is a significant short-term backlash, it will be interesting to see how long it persists.

Predicting the future has never been one of my skills, but recognizing the “unintended consequence” of political action is not difficult. It is entirely possible that on November 5th, 2024 we will look back and recognize May 30th as the day that Alvin Bragg got Donald Trump elected President.

Shortly after the 1941 attack on Pearl Harbor planned by Japanese Admiral Isoroku Yamamoto, he is quoted as saying to one of his senior staff: “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” It will be interesting to see if the American people wake up to what just happened.

Without knowing for sure if the giant has awakened, I will fly my flag at half-staff to mourn the passing of an unbiased judicial system.

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