Poetic Justice and Legal Justice: More on Authoritarianism and the Rule of Law

Photo by Diego Caumont

Poetic Justice and Legal Justice: More on Authoritarianism and the Rule of Law

By Joel Levin

A great deal of literature, films, novels, histories and legends, myths and religious texts, the stories we tell each other in small gatherings on social media or online center on poetic justice. The bad guy or wrongdoer or evil character, seemingly getting away with terrible acts, time and again, to the consternation or even complicity of authorities, gets their rightful dues in the end. They are caught, trapped, or exposed, sometimes ending with arrest, but much more often, in most of the stories, killed, often suffering a long explanation as to why they are being executed before the end. Think of every action film made in Hollywood in the last 100 years. How many ended up with the lousy guy captured and sent to trial? That is different from the story we want to hear. Instead of poetic justice, we want to hear the person getting their dues, the evildoer being administered their stern and remorseless justice.

So, is that justice? Is poetic justice a form of justice? Is it justice in the way where things are set right in the world, balanced out, and returned to their proper order? As the Enlightenment philosopher Georg Hegel suggested, is that what is required to achieve justice? Or is something different going on? Is poetic justice just a mirror of legal justice, but outside the courts? I suggest that it is not. At best, it has some moral justification at the edges, the edges being when the legal system completely breaks down or disappears altogether. Otherwise, it is defensible (almost everything is morally justifiable under certain extreme conditions, the bend of time-space). It is a distinctly inferior product. It is the stuff of self-help, vigilantism, heroic action, and taking matters into one’s own hands: these are the grist of Greek myths, current films, and 3000 years of stories in between, but they lack a crucial component of legal justice, essential to any modern ethical system’s way of thinking. That critical element, unfortunately, is under severe attack in America today. It is the institution of the neutral fact-finder and rule interpreter. In America, it is the blend of judge and jury.

This is not the place – hardly anywhere is the place – to celebrate pure and simple American courts’ injustices. Courts have rushed dockets, faulty procedures, mediocre judges, reluctant juries, grandstanding lawyers, and an imperfect set of remedies at either the civil or the criminal end. Such things happen primarily because the search for the truth, the correct answer, or the proper conclusion is based on fact-finding, which has severe limitations. Limited resources and money, strict time constraints, and complex circumstances give an enormity to the task. It took decades before courts noticed that asbestos kills people, and decades before they figured out that lethal fact for cigarettes and any variety of pollutants. Often, there is not too much evidence, but not enough: the quick identification of a suspect, the conversation remembered differently, the momentary or distracted glance at the traffic light. These fragments must, one way or another, prove sufficient for a judge and jury to reach their conclusions. Yet, that sufficiency is too often not there. That said, the system lumbers along, achieving a surprising amount of justice for anyone who pays attention to what goes on in courthouses.

Moreover, it has no contenders that offer a better solution. Reform here involves strengthening courts, not attacking them, figuring out better, more efficient, and transparent legal procedures, elevating more able judges, and training and monitoring tempered and informed advocates. Poetic justice is a move in the wrong direction.

That, however, is precisely the move in fashion these days. To begin, we might think of the justice system as being a three-party affair: the first party being the wrongdoer (or “alleged” wrongdoer. We could add “alleged” to almost any scenario), the second party being the victim or their surrogates and supporters; and the third-party, anyone unaffiliated with the first or second-parties. Such a party might be a judge, arbitrator, mediator, or jury. What we have witnessed in recent times, the times of Trump, is a remarkable move. It is a move from attacking legal justice, essentially third-party justice, to second-party justice meted out at the hands of the victim (remember the caution of the word “alleged”). 

 There is a further move. The essence of Trumpian victimization is first-party pseudo-justice, where the wrongdoers themselves attack the notion of legal justice. The move or turn from 3rd to 2nd to 1st party justice, or more accurately, the blurring of the latter two, is, in fact, the authoritarian turn. All so-called victims are reduced to being the same: real victims would be victims and fraudulent victims alike. Ethical and factual, and legal realities collapse. The trauma of being shot is no different from the trauma of having to shoot someone, and the consequences of being a victim of a crime are no different from the consequences of being indicted and arrested for that crime. Everyone is a victim, and no one is a perpetrator. The nightmare fantasies of Kafka and Orwell become daytime realities.

A brief review, then, of what we might see as the Trumpian revolution, a revolution acting in the spirit of any number of others, beginning distantly, with perhaps Alcibiades in ancient Athens, but more recognizably in recent years by Mussolini, the Nazis, Mao, the Khmer Rouge, Rwanda and a variety of lesser (but still lethal to anyone in their way) players from sub-Saharan Africa to Latin America to occasional appearances in Europe. We see this as grievance politics, brought on behalf of those either with genuine pre-existing complaints against the system, the government, or groups in power (for example, ethnic minorities, women, residents of neglected areas of a country, or those impoverished) or those who have exaggerated, de minimus or illusory deprivations. 

 But grievance politics often leads to grievance law, and when it does, third-party justice quickly becomes highjacked into second-party justice. Matters need to be taken into their own hands, whether that means lynching, concentration camps, or simply widespread condemnation, with threats backed by promises of persecution later. We need only consider the recent legal events in Michigan centering around a group of Trump followers looking to kidnap and perhaps kill the Michigan Governor Gretchen Whitmer, allowing the victim (again, watch out for the word “alleged” being implied) to exact justice without the need for a third-party neutral. 

 Consider that that is precisely the scenario in Waco, whose 30th anniversary of the Waco Siege of the anti-government cult of the Branch Davidians will feature Donald Trump himself this weekend in Texas. Perhaps the most vivid example of this lawless authority in the recent American authoritarian playbook is the repetitive, never-ending, and viciously stated view of precisely what should happen to the highest political enemies of the new authoritarians: they chanted “Lock Her Up” about their 2016 roadblock to the White House, Hillary Clinton; and “Hang Mike Pence” about heir 2020 roadblock to their return to the White House in 2020.

 To some extent, this is less about destroying the legal system than simply avoiding it, although ultimately, it may be the same. Poetic justice calls for self-help measures. It looks for dramatic results. It remains obstinately oblivious to legal niceties. It is pure and straightforward second-party justice, the justice, vengeance, revenge, or vigilantism by the victim (or supporters or surrogates) against what is seen as the first-party wrongdoer. What we have been witnessing more recently is the inevitable authoritarian degradation of third-party justice now to first-party action. 

Consider the reaction to the prosecution of the January 6 insurrectionists and those who goaded them, and in a closely related way, to the legal jeopardy of Trump. A sampling from those who were first-party wrongdoers or their surrogates and supporters. 

 First, the prequel. Once authoritarians are in control, they have the first-party power as wrongdoers to excuse themselves. Such a cue would not be a wrong way to identify all authoritarian regimes, from pre-Biblical times to the present, as it matches precisely the Trump regime pardons; that is, pardons by the wrongdoers of themselves, witnessed in the last administration. Trump gave pardons or commutations to his national security advisor Mike Flynn (making false statements to federal officials), his chief campaign executive and White House senior counselor Steve Bannon (conspiracy to commit wire fraud and money laundering), his longtime advisor Roger Stone (convicted of lying to Congress and witness tampering among other things), Dwight and Steve Hammond (setting fire to federal property), Albert Pirro and Charles Kushner (relatives of his Fox News cheerleader/advocate/defender/publicist Jeanine Pirro and his son-in-law cum senior advisor Jarrod Kushner) and his lawyer and campaign manager Paul Manafort (tax fraud, bank fraud, conspiracy), among others. The regime in control pardoned its lawless members, their kith, kin, and fellow travelers.

This contempt for the law is even advertised within authoritarian regimes. Pick two examples. Trump said, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose voters. “He later told his followers at an Iowa caucus rally: “If you see somebody getting ready to throw a tomato, knock the crap out of them. I’ll pay the legal fees.” The analogy to 1930s brown shirt thugs turned fascists turned concentration camp commandants is too close to let pass unremarked.

 Out of power, first-party pseudo-justice takes a more direct shot at legal justice. We see this in the endless attacks on the third-party legal process investigating Donald Trump and potentially his regime allies. The former regime being investigated uses its first-party wrongdoer position to attack the third-party legal system. The attacks range from the ridiculous to the bigoted to the terrifying, but they all seek to allow the wrongdoers themselves to control the process. Let us briefly mention one example of the ridiculous and one of the bigoted, not because they necessarily technically implicate first-party attacks on third-party justice, but because they represent two tools in the authoritarian toolbox: false analogy and bigotry. 

First, the ridiculous: Indicting a former President makes America a banana republic. What do the following have in common, and what do their nationalities deny? Silvio Berlusconi of Italy, Nicolas Sarkozy and Jacques Chirac of France, Chen Shui-bian of Taiwan, Benjamin Netanyahu of Israel, Park Geun-Hye of South Korea, Jose Socrates of Portugal, Georgios Papadopoulos of Greece and Cristina Fernandez de Kirchner of Argentina. The answers are that these are all indicted heads of state, and they were from countries that are not producers of bananas, either figuratively or metaphorically. None of the states collapsed with the indictments or even had an uprising or crisis. Baseless analogies to fragile banana republics are rampant. They are meant to justify or excuse misbehavior because some vague comparison with reasonable behavior elsewhere is universal to all authoritarian regimes.

Second the biased. Those in the judicial system- including prosecutors who call a grand jury to investigate potential charges — are increasingly discredited because of guilt by association. The blame is associated with a Jew, George Soros. To choose one example, Manhattan Prosecutor Alvin Bragg is a highly able, well-educated, remarkably even-tempered, moderate New York prosecutor. His sin, which should disqualify him, is not that he took campaign contributions from George Soros but that he took those contributions from an organization that took donations from George Soros. Soros contributed to Color of Change, a not-for-profit civil rights advocacy organization with 7 million members. It has a sizeable executive group, one that does not include Soros. It is that organization that contributed to the minority candidate, Alvin Bragg. No one has claimed a whiff of pressure, quid pro quo, agenda, or anything else by that contribution. Nevertheless, George Soros is somehow behind all of the indictment mischiefs.

Governor Ron DeSantis has called Bragg a “Soros-funded Prosecutor.” At the same time, the Chair of the House Republican Conference, Elise Stefanik, wants Bragg to testify before Congress so that she can “hear his answers about funding from George Soros.” Steve Bannon said, “the Soros-backed DA has decided to pursue phony charges against me.” In contrast, Tucker Carlson of Fox has made the more significant claim that “Soros prosecutors refuse to enforce the law against protected groups.” Crime has been down dramatically in NYC since Bragg took office. Thousands of contributors helped Bragg. No one else is being tainted. Moreover, the taint is not policy driven. (What is Soros’ policy? Revenge? More crime? Jewish power?). Bigotry is a central feature of the authoritarian agenda. 

A look, then, at the central move from third to first-party action, from judges deciding the matter to the wrongdoers themselves deciding their fate, at least briefly. We begin in Georgia. Donald Trump and other regime players certainly had discussions to motivate certain Georgia officials to assess the results of the Georgia election quite differently than those officials saw as the absolute majority for Joe Biden. At least one tape records a conversation between Trump and Brad Raffensperger, the Secretary of State of Georgia. According to press accounts, at least two others exist. Moreover, others made phone calls or were somehow involved within the authoritarian regime, including Senator Lindsey Graham of South Carolina, Trump’s convicted and then pardoned National Security Adviser Michael Flynn, former Speaker Newt Gingrich, and Trump’s White House Chief of Staff, Mark Meadows. 

 The Fulton County prosecutor empaneled a special jury, given the extraordinary circumstances of the case. The matter is now for the regular grand jury and the prosecutor. Indictments may or may not follow. Such is the legal process in Georgia: investigation by the county, special grand jury, with findings approved separately by a judge, the evidence before a grand jury, and a necessity for a grand jury to present an actual bill before any arrest or criminal trial can begin. If so, there is a jury trial in open court with the rights of the accused to present evidence, know the charges, confront witnesses, remain silent, retain counsel, mount a vigorous defense, require proof beyond a reasonable doubt, be heard by a neutral judge and jury, and have an eventual right to an appeal. 

 The Georgia State House and Senate approved bills, although in slightly different forms now being reconciled, creating the Prosecuting Attorneys Oversight (or “Qualification” in the Senate version) Commission. Such legislative initiative is unusual and unique. The bill gives the Commission “the power to discipline, remove, and cause voluntary retirement of elected or appointed district attorneys or solicitors-general.” It would require the appointment of eight commissioners, presumably, all acceptable to the present Republican governor and the Republican state legislature. All signs show it passing, with the governor signing the bill. Essentially, a Republican Party, aligned by its majority (albeit with some dissenting members) with the Trump regime, would now delegate to itself the task of whether there ought to be any prosecution of members of the Trump regime. The present Fulton County DA, Fani Willis, would very likely be removed. Rather than adjudicating the law by someone from outside, neutral and without an explicit political agenda, any replacement would be politically but not democratically chosen.

 Indeed, prosecutors are from political parties, but their task, their role, and the oath they take is to neutrality. They run on this and often have experience as prosecutors leading up to it. Under the third-party legal justice view, they should be given the first cut at investigating wrongdoing. Here the legislature is saying that if anyone gets too close to a favored party or group, then, for the first time in Georgia history, they can be fired. There is no clear indication they need to be replaced, nor is there any assurance that someone would replace them with the temerity, in fact, the imprudence, to take the same view as the person just fired for holding that view.

 Then there is Manhattan DA Alvin Bragg. He has been summoned, although not compelled by a subpoena, to appear before the U.S. Congress by three separate, politically pro-Trump chairs of congressional committees. (They are Judiciary Chair Jordan, Oversight Chair Comer, and Administration Chair Steil). Bragg is to justify his conduct, reveal the evidence he uses, make public his strategy, and otherwise put everything that prosecutors, conducting confidential investigations, never reveal. Moreover, there is no semblance of justification, as Congress governs federal policy and federal courts, while Bragg is investigating New York State violations in New York State courts. 

 However, aside from this overt interference, one led by the Trump sycophant, Congressman Jim Jordan, effectively trying to substitute first party for third party action, there is yet another illicit attempt to support the wrongdoing regime, for the first party to pretend they are the second-party seeking poetic justice. Senator Rand Paul tweeted, “A Trump indictment would be a disgusting abuse of power. The DA should be put in jail”. To ask “put in jail for what” is to miss the point. The point is that the wrongdoer gets to continue the wrongdoing while attacking the process that otherwise put them in jeopardy because it would be determined by a third-party neutral. 

  That is, it is a head-on attack on legal justice. It is in accord with the radical reordering of the legal system announced by Speaker Kevin McCarthy. McCarthy said, in the face of all evidence to the contrary, that any action by Bragg against Trump would be “an outrageous, abusive power by a radical DA, which lets violent criminals walk as he pursues political vengeance against President Trump.” (Crime statistics are complex, contradictory, ambiguous and notoriously unreliable. That said, in the first year Bragg has been Manhattan DA, overall crime is up significantly in NYC, but both murders and shootings are down. No one can yet know why (or if any of that is so). He added that he is “directing relevant committees to immediately investigate if federal funds are being used to subvert our democracy by interfering in elections with politically motivated prosecutions.” Funding local police, tracking terrorists and their networks, interdicting drug sales and infiltrating dealer rings, stopping gang activity and turf wars, shutting down smuggling, and investigating spying and espionage in the area surrounding the United Nations: all of this would be just fine, apparently, with Speaker McCarthy. McCarthy, a first-party advocate seeking to remedy the first-party wrongdoing, allowing wrongdoers to choose what happens to them, responded to the DA, who is tiresomely wedded to legal justice, by threatening to halt the Congressional funds involved in administering and supervising these police and prosecutorial matters just mentioned.

 Where does that leave us? Legal justice, mediocre and with well-known faults, is best; poetic justice, with a certain purity and retributive satisfaction, is, nevertheless, a poor second; and allowing wrongdoers to choose their punishment is a disaster. None of this is complex, and all of it has been clear, at least since the founding of America. 

 The crucial Constitutional law decision, and to some extent, the vital guarantee of the rule of law in America, is the well-known yet sometimes the inscrutable case of Marbury v. Madison. In that case, without any clear Constitutional language suggesting its possibility, and with the weakest of precedents able to be drawn from the English courts, Chief Justice John Marshall declared a rather ordinary act of Congress, Section 13 of the Judiciary Act of 1789, to be (in part) unconstitutional. Why did he do that? How could he do that? These questions have troubled law students for 220 years, as they are required to read Marbury in their first week. It need not puzzle us. The essence of legal justice is that no one shall be the judge of their matter. If Congress has the final say on the Constitution, giving them the right to assess the legality even on the issues that concerned or covered or dealt with them, they would be judges of their actions, affairs, and legal conduct of the laws they birthed. Instead, that should be left to the neutral decision maker, the U.S. Supreme Court. We think this even for a court led by the morally compromised John Marshall, who personally owned slaves and judicially left Native Americans without rights. Although such a court could (and should) be fairer and does not always or very often reach a brilliant or even modestly acceptable solution, it does act in a manner usually far less dangerous than the other branches (Congress enacted slavery, and President Andrew Jackson forced Cherokees into the desert). More than any other part of the political landscape, Neutral courts keep us safe. Are we willing to give all that up to spare Donald Trump and his many colleagues, followers, sycophants, aides, hangers-on, and perpetrators?