The criminal justice system cannot solve a political problem

When Trump is gone—and one day he will be—another would-be Trump will arise to take his place. We will have a DeSantis or Hawley or Stefanik.

If a major political party and half of the American voters want leaders who will defy the laws, you can’t solve the problem by putting all of their leaders in prison.

I hope that’s obvious.

In other words, the threat to American democracy isn’t because not enough GOP leaders are in prison (or because Trump hasn’t been indicted). The problem is that, even with everything we know, American voters might give control of the House back to the Republicans in the 2022 election.

If people think that it’s up to Merrick Garland to put an end to the threat of fascism, they’re likely to sit back and demand that Garland DO SOMETHING instead of understanding that saving democracy is up to all of us. (How? See this post.)

When I posted that sentiment on Twitter, someone told me I’m “dead wrong.”

Confusing “Rule of Law” with “fairness” or “justice”

That person, like so many others, is conflating “rule of law” with “justice” or “fairness.” People who conflate these things say things like, “If all the guilty people are not punished, rule of law will be dead.”

They think rule of law means “everyone guilty gets punished.” Or they say: “If guilty person X is prosecuted and guilty person Y walks free, it means rule of law fails because the laws are not applied equally.”

If that’s what Rule of Law means, why do we have the exclusionary rule, which literally allows guilty people go unpunished? Under the exclusionary rule, evidence obtained illegally cannot be used in court. If the only evidence against you was obtained illegally, you walk free.

If Rule of Law means everyone guilty gets punished, I spent my career as a defense lawyer undermining rule of law.😉

In fact, our legal system is premised on the idea that it’s better to let ten guilty people walk free than to punish one innocent person.

Letting guilty people walk free may offend our sense of justice and fairness, but it does not mean rule of law is dead. To be clear: I am not saying guilty people shouldn’t be punished. I’m saying that’s not what “rule of law” means.

Okay, Teri, so what DOES rule of law mean?

Will Rule of Law in America survive?

I don’t know. Do enough voters like it?

Here’s the thing about democracy. At any given time, the voters can vote to overturn it. All they have to do is elect leaders who promise to dismantle rule of law and create an autocracy.

But Teri. Why would anyone dislike rule of law?

1.  Some people reject rule of law when they don’t like the laws

If you don’t like the laws in a rule-of-law government, you have two options: Change the laws or dismantle the government.

When a government is as large and complicated as ours, changing the laws is a slow and cumbersome process. It can take more than a generation, so you may not live to see the fruit of your labor. Susan B. Anthony spent her life trying to change the laws so that women would have rights equal to men. She died before the 19th Amendment was passed and the modern women’s movement was far in the future. On the other hand, Thurgood Marshall, who set out in the 1930s to end racial segregation, argued the Supreme Court case, Brown v. Board of Education, that ended racial segregation.

Republicans break laws because they don’t like the laws

Once upon a time, the laws in America were primarily designed to benefit and protect White men. The nineteenth-century American society was a patriarchy, a social hierarchy with White men at the top and Black women at the bottom. Example: In the first part of the 19th century, slavery was legal in many places. In the second part of the 19th century, racial segregation was legal.

Another example: A court in North Carolina in 1868 refused to convict a man for beating his wife because the wounds he inflicted were not serious. (61 N.C. 453.) The court said that unless severe injury resulted, it wasn’t the business of courts or government to interfere in family life. The idea was that a man was entitled to rule his family as he saw fit.

Before the Civil Rights and women’s rights movements, all of our institutions were largely (and with few exceptions) run by white men: Universities, Congress, industries, state legislatures, etc.

The way we’ve been getting out of the patriarchy is by changing the laws governing things like racial discrimination and the legal status of women.

The Civil Rights and women’s rights movements further eroded white male power. A lot of white men resent the laws put in place since the civil rights and women’s rights movement. They think the laws are allowing them to be replaced by others. They think the laws put in place since the New Deal and Civil Rights movement are destroying everything good about the country.

If offered a choice between a Trump-style autocracy and a liberal democracy in which they have to give up dominance, many of them will choose the Trump-style autocracy.

2.  Some People Reject Rule of Law Because It Is Imperfect and they Can’t Tolerate Imperfection

Rule of law will never operate perfectly. A guilty person may walk free because the jury isn’t persuaded or the prosecution bungled the investigation or the prosecutor decided not to bring charges.

Judges can be (and often are) biased. Sometimes even good judges get it wrong.

People see these imperfections and have meltdowns and say, “The entire system is corrupt! It doesn’t work! It’s a failure!”

Examples:

See why I feel disheartened?

Where are the defenders of rule of law? Where are the defenders of democratic institutions? If everyone hates our institutions and nobody defends them, how will they survive?

If people who want fairness reject the system we have, what on earth do they think will replace it?

3.  Some People Reject Rule of Law Because It Moves Slowly and they want Action Now

The Queen of Hearts could say, “Off with his head!” Building a case with solid evidence that can stand up in court, following the federal rules of evidence, is much harder and takes much longer. Complex cases take longer than simple cases.

Autocracy is SWIFT and exciting and thrilling. The leader lands blows on the enemy and people cheer. The autocratic leader puts on a thrilling show.

Democracy and rule of law are boring.

Democracy is slow grinding work. Dividing power among lots of different parts of the government makes it harder for an autocrat to consolidate power (and in fact, that’s exactly what stopped Trump from keeping himself in office after he lost the election). It also makes it harder to get anything done. Gridlock become common.

I get the feeling that some pundits are impatient because they want something to talk about when they go on TV., so they bash the DOJ because the DOJ  is not letting them put on a thrilling show (under DOJ regulations, the DOJ does not conduct its investigations in public.)

This well-known lawyer who frequently appears on television as a legal expert frequently Tweets things like, “Come on, DOJ,” and “DOJ. Let’s go.”

The implication, of course, is that the DOJ isn’t moving and needs to be prodded. Tweets like these attract a large following. He riles people and gets them cheering. It’s fun! It’s thrilling!

Perhaps an inadvertent consequence is that it turns people against rule of law.

4.  Some People Reject Rule of Law Because It’s Complicated

We have a complex, sprawling government with 51 jurisdictions (state laws and federal laws). Something can be punished one way in Texas and another way in California. I’ve seen people get unglued over this and demand, “Where is the fairness?”

There are advantages to 51 jurisdictions. One state can try something, and if it works, others can imitate it. For example, a few states implemented 100% vote by mail and proved it works. Others can then follow. Changing the entire country to vote by mail at the same time would be almost impossible given the size of the country.

There are also disadvantages: The system gets complicated and people, even educated people, don’t understand how it all works.

Autocracy is simple. People are told what to think. They fall in line. They are fed lies and myths, but the lies and myths are satisfying.

Political psychologists tell us that one characteristic of the authoritarian personality is that they reject complexity (diversity is a form of complexity). Even people who are comfortable with nuance and complexity can get frustrated with something they don’t understand.

A person left this comment on my FAQ page:

At what point do we concede that this is all too complex?
Apparently our institutions are unable to educate a large segment of the electorate regarding the necessity of legal complexity. So, how might we simplify at least some of this complexity? Is it an issue of Justice or Politics?

This problem will only get worse. As the population grows and globalism causes us to become more entwined with other nations, systems will become more complex, not less. Will people be able to tolerate it?

5. Some people just like to bash

When Trump was president they bashed Trump. Now they are bashing Garland. They are attackers. It’s what they do. If you’re on Twitter you probably know of a few large accounts that grew large bashing Trump and then after Biden took power, they pivoted to bashing Garland.

I am not blaming the consumers of news who are frustrated

I’m blaming the pundits and rage-merchants who are stirring anger instead of educating people. The Facebook whistleblower testified that anger is the emotion that gets the most engagement. Anger gets engagement and stirring strong emotions gets engagement.

We’ll never silence the rage merchants. We need to educate consumers of news to recognize when their emotions are being manipulated.

Rejecting Rule of Law enables autocracy to take hold

Consider these tweets, in which the person essentially argues that the DOJ’s slow pace justifies a violent reaction.

The above tweets could be from a Russian troll farm trying to cause Americans to turn against their own government.

Or they could be from someone who listened to the pundits on the evening news slamming Garland for his slow pace.

It’s hard to tell the difference, and that’s a problem.

Q: Will rule of law survive?

A: It will survive if enough people want it to survive and do the work of defending it.

When I say that, people think I’m optimistic, but that’s because they miss the significance of the word “if” in that sentence.

And now, some dog content

“This is mine now. I’ve had enough of that doggie bed. I’m warning you. Don’t even TRY to get me out of here. YOU can sleep in the doggie bed.”

And no, it doesn’t work to try to share a bed with him. Apparently, he doesn’t think there’s enough room. It’s him or the people.

To be fair, J.J. does spend all day guarding the house while people sit there looking at screens, hardly even noticing when dangers like mail carriers or skateboarders get near the house. Why, then, do the people get the good bed? It makes no sense.