Trump, Barr, Stone and the Rule of Law

Trump, Barr, Stone and the Rule of Law
By Joel Levin

The barely disguised intervention of the President and the Attorney General in what is, in many ways, the ordinary legal process criminal case of Roger Stone seems troubling, but we have some difficulty seeing just why. Surely we want prosecutors to be overseen, even reigned in, by their superiors, particularly if they appear overly harsh or unduly aggressive, and that is what Attorney General Barr claims to be doing. He serves at the pleasure of President Trump, who also proclaims an injustice in need of a second look, so where does the trouble lie? Not by scrutinizing harsh sentencing, or bringing superiors – the President or the AG – to account for what their agents do. Of course, Mr. Trump is hardly unbiased, but people cheered in the film, Green Book, when Attorney General Bobby Kennedy called the governor of a southern state and requested (with no authority) the release from jail of his friend who had clearly violated the state sodomy laws, a request met with startling success.

Yet the uneasiness persists. Why? I want to suggest it is because the actions of Trump and Barr strike at the two most basic, most important, most indispensable principles of any legal system worth respecting: no person shall judge his or her own case and every person shall receive equal treatment under the law. Our system survives abusive prosecutors, meddling executives, cowering AG, even indifferent judges and inattentive juries. It does not survive even a mildly successful undermining of these two principles.

The premise of any legal system is no one should be the judge of their own case. If I hit you or breach my contract with you or claim property you think to be yours, neither of us, nor anyone aligned with us, ought to decide the matter. We want our dispute tested by a third-party, either one alone or in a group such as a jury, a third-party who is neutral, fair, learned and just, although we realize these aspirations are frequently, one might say constantly, unmet. But some modest realization of them by that neutral defines a legitimate legal system, not because justice is guaranteed – it isn’t – but because the possibility of civil peace is. Self-help, vigilantism, feuds and blood feud, tribalism and tribal warfare are the alternatives, and to achieve peace, the core value of any legal system, such neutrality is necessary.

How does that figure here? Roger Stone’s judge, Amy Berman Jackson, a well- respected jurist, appointed by President Obama, not Trump or Barr, is seemingly the individual who will decide Stone’s fate. Of course, Barr’s meddling and Trump’s pardon loom, but neither of these men are the judge. 

For Roger Stone’s case, that all might be true, but unleashing an unrepentant geriatric trickster on the public is not the real concern here. This is because, as we mentioned, we are saddled with a mediocre system, with justice an early victim. We also have a thicker and fuller system of a third-party neutral than merely one judge. Who gets prosecuted, what charges are brought, what excuses count in gaining an advantageous plea, what friends and allies and family are also pursued, and what punishments are sought: these matters, often the critical matters, are tied to the idea of a neutral decision-maker. They limit, circumscribe, push and pull, and overwhelmingly dictate who is invited to the judicial party. Once there, mediocrity may or may not reign, but most of the criminal system is firmly in the hands of prosecutors. When those prosecutors have a personal stake, not just a stake as a person playing a role, neutrality is impossible and peace unachievable. The judge is now a party, and legal integrity is gone.

The independent, but hardly unrelated, principle of equality before the law is only slightly less important. Like cases should be treated alike, whether we are dealing with experiments in cell biology or parties in a courtroom. The penalties Roger Stone faces for legal process crimes – perjury and witness tampering – may seem draconian. No one was frightened, hurt, killed, lost money or property, or any of the other usual horrors visited upon victims of crimes. That may be. These are not crimes against individuals in any normal sense. They are attacks on democracy (lying to Congress) and the legal system (intimidating a witness). In trying to find the proper punishment for such crimes, we may be required to ask how much we value institutions (Congress) central to our democracy and institutions (Courts), central to our due process rights, and compare them to embezzled bank accounts or injured bodies. How much do we value each, or value their loss?

However, that is not the problem here. Trump and Barr are not arguing the penalties for Stone are too harsh as a general matter – the frontline prosecutors used the federal sentencing guidelines to recommend 7-9 years – rather they suggest they are too long for Roger Stone and only Roger Stone. He deserves special consideration. Why? The only reason anyone can articulate is because Roger Stone is a friend of Trump’s. He is being treated differently for no relevant, rational, justifiable, universalizable or fair reason. Treating like cases differently is irrational in science, medicine, education, finance and, not surprisingly, in law. It is also taken to be ethically unfair, as it undermines the principle of the inherent equal respect due all people. Thus, political intervention undermines the second basic principle of the rule of law.

We must remember the paradigm cases of societies were these two principles faltered. Stalinist Russia stacked the prosecution to tilt and crash any neutrality, so as to allow Stalin to savage and murder his enemies, or much more commonly, those entirely innocent but perceived to be his enemies. Nazi Germany treated certain individuals – Jews, socialists, Romani, gays and the disabled, among others – differently, and worse. Going down the road of eroding these two fundamental legal principles is going down the road toward these infamous societies in mid-20th Century Russia and Germany. It underlies, I think, the profound anxiety felt by so many Americans.

This is just the legal commentary. As a matter of politics, this situation suggests a return to the spoils system that first thrived under Donald Trump‘s favorite predecessor, Andrew Jackson, but  was severely restricted by Trump’s New York predecessor, Chester Arthur, with the enactment of the Pendleton Civil Service Reform Act of 1883. The Constitution puts no restrictions (other than to protect the Vice President and so-called Article III Federal judges) on the power of the Chief Executive to hire, fire, promote, demote and manipulate federal employees. Jacksonian democracy proved that. The merit system challenged the practice, and the increasing professionalism of federal employees – from the Pentagon to State to Justice to Interior to NIH – promote a neutrality, rationality, integrity, evaluation of evidence and search for truth, the Enlightenment virtues shared by our Founders, not possible in a spoils system. Even if Trump was not intent on undermining the rule of law, this betrayal of our history and politics would be sufficient to cause us the gravest of concerns.

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