The Heartland Institute has an article on Redstate about the Trump show trial entitled “Trump Trial Aftermath – GOP Must Implement Legal Reforms Preventing Political Bias.” It argues that when Republicans return to power, they need to implement reforms to save a hopelessly broken justice system. They got that right. The article explains that we need to address the root cause of sham trials like the Bragg/Merchan outrage. They got that right too. But then the piece claims that the root cause of our broken system is biased judges, prosecutors, and jurisdictions. That’s a swing and a miss. The root cause problem isn’t bias, it’s biased behavior. That may sound like “splitting hairs,” but it is an important distinction when seeking solutions. Beliefs can’t be regulated. Behaviors can be.
This misunderstanding leads the Institute to conclude that the country needs a mechanism (i.e., some unnamed authority) to prevent trials from happening in politically biased jurisdictions. Oh … hell no. That sounds suspiciously like the government’s solution to every problem – more government.
The article claims that some venues are simply too biased for trials that could affect elections. It proposes that defendants with a plausible claim of political bias, should have a means to seek a change of venue. But such a mechanism already exists – it’s called judges, and it’s not working. Does another layer of bureaucracy to oversee the judges who are overseeing the trial really fix anything, or just add another source of bias?
The article goes on to suggest that politically significant trials should not be conducted in cities that voted more than 70 percent for one candidate. What about 69.9 percent voting for one candidate – is that bipartisan enough? Who decides when a trial is political – another government bureaucracy staffed with Democrats? Derek Chauvin was convicted of murdering a man who actually died from a fentanyl overdose. Would his trial have been considered “political” enough to be moved out of Minneapolis, or are we only worried about justice for former Presidents? Shouldn’t we also be concerned about nonpolitical biases that could undermine the administration of justice (i.e., racism, alternative lifestyles, abortion, climate change, gun rights, etc.). Does the Heartland Institute’s advice fix our justice system, or merely hide its flaws by keeping the most politically charged cases out of the headlines?
The problem with most solutions currently being proposed by conservatives and Republicans is that they add more bureaucracy without more accountability. Let’s say we create a “politically charged” oversight board which is empowered to order changes of venue. In a couple of decades won’t we be discussing the critical need for reforms address the obvious bias of the people who oversee the judges – calling for oversight of the overseers? More oversight will fail because it is attempting to fix something that can’t be fixed legislatively – personal biases.
The root problem of our broken justice system isn’t biased beliefs, it’s biased behavior – which can be fixed legislatively. Biases are each person’s values and core beliefs. Changing the laws does not change what resides in the hearts and minds of men. But behavior can be regulated such that those inherent biases don’t adversely affect the rights of others. For example: federal statutes don’t limit racism. They limit racist behavior. It is illegal to consider skin tone in housing, employment, education, and public services – and there are consequences for violating those laws.
That’s why judges, lawyers, and law enforcement officers swear an oath to the Constitution, and are subject to standards of professional conduct – to regulate their behavior. For example: In New York it is illegal for judges to contribute to political campaigns. It is also a violation of ethical standards for a judge to oversee a case in which his family benefits from the outcome. Those rules exist to prevent a judge’s behavior from undermining his credibility or jeopardizing the rights of the accused. And yet Justice Juan Merchan donated to Trump’s opponent, and his daughter is financially benefitting from the trial – but still oversaw the trial.
We know what ethical legal behavior looks like. And yet Alvin Bragg and Juan Merchan violated their oaths, the Constitution, and New York ethical standards with complete impunity. Merchan agreed to preside over a trial which his daughter was using to raise funds for the Democrats. Bragg indicted Trump without telling him what his crime was. The judge denied Trump the ability to call expert witnesses. The judge even instructed the jury that their decision didn’t need to be unanimous – as the Constitution and Supreme Court precedents require.
The system created to regulate their behavior failed – not from a lack of oversight – but from a lack of accountability. Judges and prosecutors enjoy absolute immunity. They are not personally accountable for bad personal behavior in the conduct of their duties. They are the spoiled children who misbehave because they have never faced consequences. That is the root problem behind our new kangaroo criminal justice system. It is also something that can be fixed without additional layers of government bureaucracy.
The reform that would fix our legal system is quite simple: no statute of limitations, and no immunity for Constitutional violations. Prosecutors and judges are supposedly well versed in the Constitution. Compliance should not be a particularly high hurdle.
Consider this scenario:
- Juan Merchan is called on to oversee the trial of a former President.
- He knows that there is no statute of limitations for violating a citizen’s rights, and a conviction for doing so means serious prison time (18 U.S.C. § 242 Denial or rights under color of law).
- He has no idea what the political climate will be in 10-20 years (when he will be 70-80 years old).
- Does he risk his future by putting his thumb on the scales of justice to benefit a demented old fool, who is collapsing in the polls?
- Or does he play it safe, force the prosecutor to state the crime, allow the defense to call their witnesses, and instruct the jury that their decision must be unanimous?
Would knowing that today’s legal infractions, create lifelong personal risk change current judicial behavior?
Biased beliefs are a fact of life. It cannot be changed legislatively. But biased behaviors can be regulated with accountability – by imposing a terrible price on those who use the power of government to serve their biases. When the first judge is marched into prison for violating the due process rights of a defendant, I suspect the entire criminal justice system will suddenly become a model of “equal justice under law.” I wonder who President Trump has in mind for the next Attorney General?