Roper, Ness & Barr, the death of Justice

Trump follows in the footsteps of Al Capone, subject to an ‘ends justifies the means’ prosecution, that poisons the system.    The rot set in with Eliot Ness, and now dominates the whole system.  The fact that Trump is targeted because a prosecutor dislikes what he did/does as a politician, sets him apart, but starting with a desired target, and then looking for an excuse to indict them, is the cancer.  The overwhelming strength of the state should only ever work from initial evidence-of-crime (or possible crime) to investigation to conclusion.  Ness, and Barr are falling into the Willian Roper trap:

William Roper: “So, now you give the Devil the benefit of law!

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: “Yes, I'd cut down every law in England to do that!

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

Robert Bolt put it better than I can.    The problem is not simply the high profile cases, thought they are often what drives the erosion of the proper processes, the problem is everywhere in the US system. Take RICO, the ‘Racketeer Influenced and Corrupt Organisation’ law that suspended the normal rules, allegedly so that the authorities could tackle modern day Capones likely to intimidate witnesses etc.  When going through congress, opponents were assured that the law would not be used in ‘normal’ cases.  But Rudy Giuliani used it against Michael Milken  & Drexel Burnham Lambert, who pioneered junk bonds.  Tall poppy Milken was given a choice: plead guilty to reporting violations, or spend the next decade plus as a full time defendant.  Whether or not one thinks he was guilty of reporting violations, he was no Al Capone, there was no possibility that he would send machine-gun wielding heavies to intimidate witnesses, it was not the sort of case that RICO was allegedly passed for.  The case did not begin with evidence of a reporting error coming to light, it began with Rudy Giuliani setting his sights on a high profile scalp, looking for anything that might be an excuse to charge Milken, and using RICO as an excuse to deny Milken the normal due process.  There must be tens of thousands of unsung Americans that are victims of this system, people who have accepted a plea bargain, not because they were guilty, but because they faced a system that was out to get them, and they lacked the resources to fight.  And, as DA’s offices & police departments are not staffed exclusively by saints (misguided or otherwise) don’t let’s kid ourselves how grubby the process can be.  We will have our share of Uriahs, targeted because their Bathshebas attract the gaze of some official.   If hypocrisy is the tribute that vice pays to virtue, the depth of the systemic problem is shown by Mark Pomerantz’s book.  Pomerantz, an assistant DA to Bragg, does not even attempt to pretend that they worked from evidence to conclusion, he celebrates the fact that he began with the objective of getting Trump, and scorns those old fashioned prosecutors that lacked his Trumpphobic teleology “It was frustrating to feel like we were about to march into battle and were strapping on our guns and equipment, but when we looked around at the rest of the platoon we saw a lot of conscientious objectors”.    Society is not doomed when its leaders are adulterers & drink drivers, this is the usual state of affairs, but doom may be imminent when they celebrate their adultery & drink driving, rather than being ashamed of it.

Once one realizes that the authorities don’t necessarily begin with any evidence of a crime being committed, but may simply have an animosity towards someone, it is a reminder that the bill of rights is ever more needed, and that freedom is not served by the executive branch being able to act as judge, jury, & executioner, as they can currently with civil asset forfeiture, and no fly lists.  And the twitter files highlight the need for an addition to the bill of rights to hold the government accountable for any actions that they procure or induce a third party to commit: getting Twitter to remove an account, or YouTube to de-monetise a creator, or a bank to close the accounts of a customer, or a telco or other utility to withdraw service, or to share DNA records, should require a suspect-specific court order, further to an open court hearing in which the affected parties have an opportunity to argue their case.

We may not like Al Capone or Donald Trump, but, like Roper, we risk harsh winds blowing all our rights away when we allow dislike of an individual to metastasize into disregard for due process.  Let us not make Caiaphas’s mistake of thinking that the ends justified the means.   (and not just because, like Caiaphas, we are prone to have to great a confidence in our assessment of the ends)

Happy Easter

Christ is Risen !

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