The American justice system works well. It does not work perfectly. Like a well running, expensive automobile, a single malfunctioning part can result in minor inconvenience or, sometimes, disaster. Our justice system has several defective parts in it. At the least, they undermine confidence in our system. At worst, they can ruin your life — yes, your life.
They have been used against President Trump in an effort to destroy his effectiveness as president and even to seek his removal from office.
A few recent cases, well publicized, have provided an oil dipstick by which we can measure the threat.
One of them involves the Fifth Amendment to the United States Constitution. It states that, among other protections, no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.”
The ordinary, man-on-the-street interpretation of this, is that if someone is charged with a particular crime and acquitted, he cannot be charged a second time for that same incident — but there are several ways to get around that expectation. One of them is for a separate jurisdiction to file charges. Oftentimes, this means that if a defendant is found not guilty in a state court, he can then be tried by a federal court for essentially that same exact incident. The power to do this undermines the power of President Trump to issue pardons. Presidents can pardon only those charged with a federal offense, not with a state offense. This means that if President Trump pardons Paul Manafort, a state court can try him and convict him, sending Manafort to state prison and rendering the federal pardon inconsequential to Manafort. His political connection to President Trump, not the crime itself, seems to be the primary purpose of the charges.
Complicating the matter, there are borderline cases, involving something called “severance.” A single incident may violate more than one law. Robbery and assault, for example, can be charged as separate crimes, even for the same incident, especially if one law is state and the other is federal. The scandal is that severance can be selectively applied based on political considerations.
Over-charging is a common ploy in high profile cases. The practice of over-charging puts pressure on those accused to accede to plea bargains, even when the accused is innocent of any crime at all. It has been successfully used against both Martha Stewart and General Michael Flynn for lying to federal investigators. Of course, the crime is serious and deserves punishment, but in both cases, the prosecutors had ulterior motives. Ordinarily, such cases do not result in the level of punishment that occurred. Flynn was punished essentially as a means to harm the Trump presidency.
The same principle applies in the case of families who have paid bribes to college officials in hopes of obtaining college admissions for their children. The crime, no doubt, is serious, but prosecutors are seeking excessive penalties, including for mail fraud.
Apart from that obvious injustice, there is the issue of unequal application of the law. As Tucker Carlson recently pointed out on air, Chelsea Clinton, daughter of a former president, was admitted to Stanford, despite an utter lack of demonstrated scholastic ability commensurate with that required of her college classmates. Numerous other offspring of politically connected and influential parents are routinely admitted based on favoritism to premier universities such as Yale and Harvard. Each one of them displaced a more deserving student, whose admission was denied.
Perhaps the most unjust violation of all is that of prosecutors charging defendants whom they know to be innocent. One of the most egregious cases is known as the Duke Lacrosse Scandal. read more