The American justice system is in the process of hanging itself with a mechanism that it snuck in, in order to protect the powerful from – you got it – facing justice.It’s a problem that has cropped up elsewhere, with regard to the two-party system: one side is reluctant to accuse a member of the other of some particular corruption because they are doing it, too. If the corrupt actor is called out and maybe even punished, then it scares the giant flock of the corrupt Washington/New York class, also known as the “donor class” and they get upset and start threatening the money and re-election valves that are the life-blood of both parties.
For example, there is the long-dragging investigation of Donald Trump’s real estate/tax fraud, which appears to be designed to allow Trump to run out the clock on having fraudulently manipulated the claimed value of his property. A lot of Americans who don’t understand what is going on there are waiting for some New York attorney general or other to perp-walk Trump and begin the great courtroom-drama of trying a corrupt New York real estate mogul for doing what New York real estate moguls do: buy low, sell high, by inflating the high value when selling (or getting a loan against it) and deflating the value when the time comes to pay taxes on it. Everyone with valuable, or even crap, real estate generally does something like this, even me. When Clearfield County’s tax assessors decided that the building my studio is in was worth $250,000 (I paid $80,000 for it) I immediately fired off a series of letters saying, in effect, “if you think it’s worth $250,000 I’ll sell it to you for that price in a heartbeat!” Then, I documented that a) it needed a new roof that would cost about $30,000 b) it is full of asbestos pipe insulation c) it has no livable plumbing, just a single sink and a poorly rigged commode d) the floor tiles are also asbestos/linoleum and anyone selling the place in today’s real estate market would have to spend $100,000 abating toxins in order to legally sell it. They put the valuation back down around what I paid for it. But if someone offered me $400,000 for the place, sure I’d pocket the profits in a heartbeat. The difference between me and a Trump is that I don’t do that massive shift in claimed valuation overnight, literally saying it’s worth $90,000 while pocketing $400,000 for it. But that’s what real estate big shots do; that is why they are big shots.
The point is that the game is arranged by and for the big shots, so you’re not going to see any of them getting perp-walked into court to defend their actions because literally everyone who is in the New York real estate market is doing the same thing. It’s also what drives property values up! It’s speculative capitalism.
So, the system is arranged such that an AG that thinks a particular big shot is egregiously disgusting can start investigating them, loudly, and subpoena’ing various documents that help publicly establish the valuations and valuation-flux of their properties. Essentially, that burns them, publicly, so it’s hard for them to turn around and later sell that property they claimed was worth $50mn on a term-sheet, while claiming it was worth $12mn to a tax auditor. Guess what? The price is now permanently closer to $12mn than $50mn and a sort of “justice” has been done. Back in the old days, it would mean that someone didn’t make a pay-off in time, or got greedy. Nobody is likely to get perp-walked over any of that, but the Trumps’ New York portfolio has taken massive shots below the water-line from which it will never recover. That’s the point. And the other New York fat cats aren’t going to worry about it because some despicable parvenu got reamed; they’re up on their pay-offs and they’ll be a bit less greedy for a few decades and if you’re making 11%/year instead of 13%/year you can still live pretty well on that. No fat cat’s kids are going to go hungry, while they go to an ivy league school and stay in a dorm building with daddy’s name on it.
The key point is that the system is arranged so that there is a lot of leeway over who gets charged for what, and when. That’s built in, so that the powerful and the system can negotiate things behind the scenes, then, there’s a massive pawn-exchange in which nobody who matters or is ever going to matter again winds up facing a limited form of justice while the big shots behind the play walk free. Do you remember the whole torture scandal? That was a massive crime against federal and international law, which was covered up by the simple expedient of never investigating anyone, never charging anyone, and just walking right on by. Then when Gina Haspel is being promoted as CIA director suddenly everyone remembers what they already knew about her involvement in torture, except now it’s a nudge-nudge wink-wink like the endless scenes in American cop dramas where a cop beats up a suspect and of course that’s OK because a limited form of justice gets done eventually. Did you know that there is no statute of limitations on torture? In theory some FBI supervisory special agent could have taken it upon themself to walk up to Haspel and handcuff her and march her off to build a case. Of course that would never happen; that’s not how American justice works.
I’m writing this because I know well-intentioned liberals who think that the Jan 6 committee is going to work its way up far enough and Merrick Garland is going to have Trump arrested. Ha ha ha ha ha, really? That’s so funny. Here’s an alternate way of looking at it:
The republicans are OK with watching a bunch of Trump’s lumps, who attacked the capitol, go down in flames. So are the democrats. The Trump lumps are incompetent idiots, led by more incompetent idiots, and the entire process we are seeing play itself out before our eyes is to figure out the dividing line between the idiots that are taking the fall for their incompetence, and the idiots that are actually big shots and fat cats and who are, like Steven Seagal, above the law. The committee is exploring that line and right now it appears that the line is below the lawyers. Does anyone really think for 1/100th of a second that Cippolone’s wrists will ever be graced with handcuffs? No, that guy’s competent. Or Raffensberger, who smoothly and deliberately paid Trump back for pressuring him, by releasing incredibly damaging information about him, without ever having to field a question like “why did you even take a call when you knew it was part of a concerted effort to overthrow the election?” Raffensberger would have, if he was honest, said, “Trump’s crass and incompetent; in Georgia we know how to steal elections and have been doing it since the 18th century, I’m not going to have some New York johnny come lately trying to interfere with my competent election stealing machinery.” Or Kemp, who openly, obviously, and glaringly stole the election from Stacey Abrams – he’s not going to ever face any kind of investigation for that, not for a second. Kemp did it the way it’s supposed to be done, y’all, move on.
There are going to be a few high-placed casualties of the coup, but they’re just going to get shorn by other fat cats for a lot of money: Powell and Giuliani and Mypillow Guy, etc. Those are the lumps that were too stupid to even plan an exit strategy, like Pompeo and Barr did; their comeuppance is still in doubt but if it happens it’s going to be purely self-inflicted. Barr’s sentence appears to amount to a book deal worth a few million.
Let me explain this another way: there is absolutely nothing whatever preventing Merrick Garland from ordering Trump and his conspirators’ arrest and charging them with sedition and treason. Nothing. The fiction that was used while Trump was in the White House was “you can’t charge a sitting president” but that’s a tradition – probably a tradition that was, by some shocking coindidence, invented by a sitting president.
There are two problems. One is fun to contemplate and the other is disastrous. Let’s start with the fun one. Imagine if the decision was made to prosecute, and a series of arrest orders went out. Obviously, that would have to be done suddenly, and dramatically, and there would need to be some really interesting high-level push-me pull-you to get the Secret Service detail that still guards ex-presidents from engaging with the arrest team. But, then what? The crazy part is: nothing awful. There’d be a trial. Yes, there would be a lot of lawyers and it would be a great big circus but, so what? Get the evidence on the table and let the jury sort through it – that is, in principle, how these things are supposed to be done. I don’t see anyone arguing that Ghislaine Maxwell shouldn’t have been arrested and there shouldn’t have been a trial because the trial was going to be a circus. It was a circus and that’s the point: trials are a circus. All of the nonsense that we are witnessing is a solid indication that no justice is ever going to happen to anyone above the level of Trump’s lawyers’ water-bottle carrier. We don’t know that person’s name, yet, but people still remember Rose Mary Woods (*) and nobody, not anybody, is asking when Josh Hawley is going to be arrested. Because, nobody at Hawley’s level, or Cipollone’s, or probably not even Roger Stone (again) will get arrested. Did you notice they are trying to get Bannon and he basically gave DOJ the finger? There’s a pretty good chance, in my opinion, that good lawyers – the DOJ has a few – could actually put together a very impressive case against Trump for treason/sedition and use a RICO framework to pull in the republican funding-sources who paid for the logistics. But the day is not and never come when those guys have a day in court, because what they do is how the whole system works and the system cannot begin to clearly display itself as criminal.
That’s the other problem – the disastrous one. It’s fun to imagine what an utterly reputation-destroying circus the criminal case against Trump and his treason-mob would be, but it would be a disaster in every possible sense of the word. What is one of the leading indicators of a nation’s flipping into a totalitarian dictatorship? It is simply this: when one political party starts making other political parties illegal then it’s all over. I’m not a fan of the democrats; they are venal, incompetent, corrupt, and ineffective noise-makers pretending to be a political party. But they’re still doing it legally, within the framework of legal corruption that passes for American democracy. Since pretty much 100% of the republican party has decided to align itself with the coup, an actual trial with a jury would have to put the party elite in the defendants’ box – effectively meaning that the democrats had legally killed the republican party. It’s so tempting to imagine, though, isn’t it? Right before midterms, imagine if 10 republican senators and 20 representatives were arrested, in mid-campaign, to be tried for treason. I know we’re all expecting a slaughter at the midterms, but that would change the game entirely. And, it would work perfectly and easily. Then, the democrats could ram through all the stuff they want to ram through, including DC statehood, etc., and there would never be another successful republican candidate. Game over. And that’s why it’d be a disaster: we’d have just descended to the status of some of those CIA-ridden colonies that are not allowed to have functioning politics, in order to keep them from self-determination. Because I don’t believe for a second that, if the democrats started arresting the opposition, they’d stop before their caucus devolved into a whirling game of “in every back, a knife” that would weed out anyone weak, optimistic, or the slightest bit progressive. (I’m going to go with the trope that being progressive tends to mean you’re optimistic and not a complete opportunist, i.e.: weak)
Unfortunately, the US two-party system has resulted in a full-on cold war, in which the end-point will be the complete destruction of one party or the other, by means fair or foul – and, since the fair means have mostly been rendered moot, it’s going to be foul. Maybe the US should go out in the form of a big circus, bring on the clowns.
(*) Woods: amazingly, the fiction that Woods accidentally recorded over the tapes has been allowed to stand in spite of the fact that Woods apparently accidentally recorded over the tapes multiple times with a microphone wire wrapped around a flourescent light tube’s ballast resistor, which happened to be the then-standard CIA-approved way of wiping audiotape. It’s a pretty amazing set of accidents that Woods accidentally hit on that method for her accident.