Before we begin: My appellate practice was dedicated to representing indigents on appeal. I was appointed by the California appellate courts and paid through California’s general budget. I was in the trenches defending people who were among the most vilified by our society. My heart was broken every day but I did what I could, and I never gave up on rule of law—with all of its imperfections and frustrations—because the alternatives are far worse.
This page is meant to be read in order. Later responses build on earlier ones.
American Criminal Justice Until Yesterday
In 18th-century America (as elsewhere) criminal punishments were often cruel, including things like hanging, branding, and whipping. From Alexander Hamilton: The laws “partake of necessary severity . . .without exceptions.” Because there were no exceptions, justice could be meted out swiftly.
New England villages used stocks and pillories:
From the American Police Hall of Fame & Museum (edited and condensed):
Stocks and pillories were commonly set up in the town square. A major part of the punishment in stocks and pillories was to publically humiliate people who committed crimes. As the offender sat in the stocks, the townspeople would often pelt them with rotten food, dead animals, or stones while jeering, mocking, and ridiculing them.
While admittedly crude, throwing rotten tomatoes at someone in the stocks not long after the person commited the bad act probably gave victims an immediate feeling of vindication.
Our modern criminal justice system took form after the Civil War when white supremacists found a way around the 13th Amendment. The 13th Amendment prohibited forced labor except in the case of punishment for crimes after conviction. Their solution: Convict lots of Black men, put them in prison, and then put them in chain gangs.
It was super easy to put Black men in prison because states and local governments could pass whatever laws and criminal procedures they wanted. There were no limits on what police could do, so they often beat confessions out of innocent Black men.
Defendants were not given lawyers. If you couldn’t afford a lawyer, too bad. If the police wanted to stop and search you, they could. Juries were all white. Women were considered incompetent to testify in court—unless a white woman accused a Black man of a crime. Then she was taken at her word.
Criminal justice resembled a conveyor belt. A person could go swiftly from being accused of a crime to hanging from a tree.
Then along came Charles Hamilton Houston, his protégé Thurgood Marshall, Pauli Murray, and others who took it as their task to reform criminal procedures to create more fairness.
They understood that the law fell more heavily on Black men. Their idea was not to even things up by making it easier to inflict punishment on white people. Their idea was to make it harder to inflict punishment on anyone. They embraced jurist William Blackstone’s idea that it was better to let ten guilty people escape than to let one innocent person suffer.
Their goal was to turn a conveyor belt into an obstacle course. The idea was that more procedures, regulations, and checkpoints meant less chance an innocent person would be punished.
As a result of literally decades of work, reformers succeeded in getting the Supreme Court to declare it unconstitutional to do things like beat confessions out of people, stop and search people without probable cause, and arrest people on a whim. Jurors can no longer be excluded on the basis of race, people without money are appointed lawyers, etc. (I know a bit about this because I wrote a biography of Thurgood Marshall):
Most of these changes happened during the Warren Court (1953-1969), which was probably the only truly liberal Supreme Court in American history. It was the Warren Court that issued the decision in Brown v. Board of Education declaring racial segregation unconstitutional. The Warren Court also fundamentally altered American criminal law and procedure by giving us these holdings:
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- Gideon v. Wainwright, the case that stated that criminal defendants who cannot afford a lawyer must be given a lawyer at the expense of the government,
- Terry v. Ohio, the case that limits the ability of police to stop and search people without a reasonable belief that the person committed a crime
- Mapp v. Ohio, holding that evidence seized in violation of a person’s Fourth Amendment rights cannot be introduced as evidence in court.
- Miranda v. Arizona, holding that a person stopped by the police must be informed of his or her rights before the police can question that person.
American Criminal Justice Today
Our system resembles an obstacle course. One consequence of the hard work of people like Thurgood Marshall is taking power away from law enforcement and subjecting law enforcement (including prosecutors) to stringent rules. Federal Criminal Procedure is a full-semester law school course. It is mindbogglingly complex, but keep this in mind: The complexity is to create fairness.
Dear people who want the process to move more quickly: Be careful what you wish for. Giving more power to law enforcement (and prosecutors are part of law enforcement) might bring about the short-term results you want, but is not a good idea in the long run.
And now, for the kind of comments I get regularly, beginning with:
“Rich white guys are never held accountable!”
This is accurate: “The criminal justice system falls disproportionately on lower-income people and minority communities.”
This is also accurate: “Due to the hard work of criminal justice reformers over the past 80 years, the situation is much better than it was before the Warren Court. Largely because of women and BIPOC moving into positions of power, it’s better than it was several decades ago. We still have a long way to go, and people interested in criminal justice reform should find organizations that work on this and get involved.”
This is not accurate: “Rich white guys are never held accountable.”
Some of the inequity happens because some crimes are easier to catch than others. A shoplifter and a bank robber commit their crimes in public. A burglar commits the crime in someone else’s house. Crimes like money laundering and bank fraud are harder to catch because they happen in private without witnesses, and evidence can only be obtained by means of a search warrant, which requires probable cause of a crime. If the only evidence is buried in a person’s personal papers, it’s hard to find probable cause for a warrant.
Is there still a lot of injustice? Yes, of course. Does the law still fall more heavily on members of minority communities? Yes. This, however, is not the 3-step solution:
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- That poor person was treated unfairly!
- That rich person was not treated unfairly!
- To make things fair, that rich person should also be treated unfairly!
The solution is more criminal justice reform so that nobody is treated unfairly.
“A person in Texas was jailed for something trivial. A person in New York did something far worse and is out on bail. There is no fairness!”
Our current system is complicated by the fact that we have 51 separate jurisdictions (50 states and the federal government), each with its own laws. This fact alone confuses people who see discrepancies between, say, a punishment meted out in Texas and a punishment meted out somewhere else and think that the system is a failure.
Each jurisdiction has a different penal code, and states like Texas or Mississippi treat certain crimes differently than, say, California. Even within the same jurisdiction, results can vary. Given the complexity of our laws and procedures, each kind of case will have different factors to consider.
Judges, while constrained by rules, also have a lot of discretion. Therefore, much depends on the judge. Some judges aren’t very good.
Even good judges sometimes get things wrong.
The federal sentencing guidelines were an attempt to create uniform sentencing across the federal criminal justice system. As a result, the sentencing guidelines are complicated. If you don’t believe me, click here.
“The rich and powerful can just run out the clock using the court system. What’s to prevent Trump from playing a similar game?”
If you want to deny the right to appeal to rich white men you will also have to deny the right to appeal to everyone else. Are you sure you want to do that?
“Rich people can afford better lawyers so it’s all unfair.”
Look at some of the lawyers representing Trump. They are embarrassingly bad. I could rest my case right there, but I won’t.
Here is the reality: There are top criminal defense lawyers and there are lousy criminal defense lawyers. If you are in a small town, it’s very likely that you’re better off with the public defender (those are actually hard jobs to get, and come with benefits) than you are with some bozo who hung out his shingle and is looking for work because nobody wanted to hire him.
Public Defenders are usually hardworking and driven by idealism and a desire to use their law degree for good. Many are overworked and underpaid. The solution is to increase public funding for public defenders and to elect local officials who understand the importance of providing good representation to people who cannot afford to pay.
“There are never any real consequences for Trump and his circle.”
Variations:
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- “I am waiting for some accountability”
- “Given what I’ve seen over the past few years, I don’t expect anything to ever happen!
Republicans break laws because they don’t like the laws.
They don’t think the IRS should exist and they don’t think rich people should have to pay taxes, so they don’t care if Trump commits tax felonies. They believe the entire federal government put in place since the end of the nineteenth century Is illegitimate and unconstitutional.
Democracy always contains the seeds of its own demise. At any time, a majority of voters can elect officials who promise to dismantle the democratic institutions. Like it or not, the idea that the American federal government is illegitimate is a political idea. The idea that we should return to the way things were in the eighteenth or nineteenth century is a political idea. People believe those things.
This is from the Patriot Front white supremacy militia’s manifestos:
Such people want to destroy the federal government because of a “crisis of legitimacy” which happens when people don’t think the government governs on their behalf. See: “The Authentic Appeal of the Lying Demagogue.” They think the “political establishment” is favoring new groups over “real” Americans.
This is exactly what Laura Ingraham explained here when she said, “The America we know and love doesn’t exist anymore. Massive demographic changes have been foisted on the American people, and they are changes that none of us ever voted for, and most of us don’t like … this is related to both illegal and legal immigration.”
People who hold these views will not care if Trump breaks laws as long as he supports their vision of what America should be. “Make America Great Again” is a reactionary manifesto that directly reflects the Patriot Front manifesto.
The (mistaken) idea that harsh punishment deters crime led the United States to build the world’s largest prison system. Did you know the United States has the highest per capita prison rate in the world? In short: Americans are in love with prisons.
The United States also has some of the highest recidivism rates in the world. Recidivism rates prove that criminal punishment doesn’t deter crime. According to the National Institute of Justice (the research, development, and evaluation agency of the U.S. Department of Justice) almost 44% of criminals released return before the first year out of prison. In 2005, a whopping 68% of 405,000 released prisoners were arrested for a new crime within three years, and 77% were arrested within five years.
It’s almost as if criminal punishments make someone more likely to commit more crimes.
The National Institute of Justice concluded that “sending an individual convicted of a crime to prison isn’t a very effective way to deter crime” and “increasing the severity of punishment does little to deter crime.”
To put the matter in simple terms, some people are not deterrable because something is wrong with their brains.
Some people are not deterrable because they believe they are engaged in a political revolution against an unjust regime, so they view “punishment” as further evidence that the regime is corrupt.
Instead of “teaching criminals a lesson” prison often hardens them more.
So let’s take two examples. A judge found that “toxic” conditions in the D.C. jail were leading to further radicalization of the insurrectionists. It was reported, for example, that the Jan. 6 defendants have started their own jail newsletter.
I haven’t read the jailhouse newsletter, but I suspect that it isn’t about how they all need to learn to love liberal democracy and multiculturalism.
Another example of how indictments and jail time fails to deter: After more than 600 insurrectionists were charged or sentenced, a Trump supporter said this:
He wanted to use the guns after more than 600 insurrectionists were charged or sentenced. Six hundred indictments didn’t deter that guy from wanting to use his guns to control elections. A growing number of insurrectionists, after being arrested and went on to commit other crimes.
Paradoxically, deterrence does work on rational and law-abiding people. Story: One day my husband realized he’d gotten on the light rail but forgot his ticket. He was nervous until he could get off the train and purchase one. He was terrified of the embarrassment of being asked for a ticket and not having one. This meshes with the National Research Institute’s conclusion that fear of getting caught is often a bigger deterrent than harsh punishment. In other words, law-abiding people are likely to be more careful if they understand the consequences.
This is not to say that deterrence and prosecution has no effect. It’s hard for Trump to call up another armed insurrection when most of the guys who fought for him were prosecuted and Trump didn’t lift a finger to help them out.
At the same time, there are diehards who don’t care about Trump. They believe that they are rebelling against what they believe is an illegitimate federal government in the spirit of the revolutionaries in 1776.
You can’t punish crazy people into giving up their craziness.
“At least while they are in jail, they can’t commit crimes”
“I don’t care what you say, Teri. Trump is getting special treatment.”
Oh, I totally agree with that–but not the way most people on social media mean it.
He is getting special treatment because he has the country’s best prosecutors in the country working on his case. Most people get third-rate prosecutors who are more likely to rush investigations, make mistakes, and give defense lawyers a chance win.
He’s also getting special treatment in that the well-being and possibly future of the republic depends on the public perception that
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- Trump’s criminal trial was fair
- Trump was treated fairly, and
- the investigation was not politically motivated.
That is why Garland and Smith are being so careful.
- Want some stories about how defense lawyers can notch up wins when third-rate prosecutors screw up? Click here. (I put it on a separate page because my regular readers have already seen it. I basically cut and pasted the drugs-in-the-back-of-the truck example from a different page.)
Observation: Many of the same people complaining that Trump is getting “special treatment” were the same people who were frustrated that Merrick Garland insisted on following all the rules and treating this investigation like all other investigations. For what I mean, see this post.
To be clear: “The book” in this case means rules, procedures, and norms. These are the things that literally create a rule-of-law society.
If you throw out the book, what is left?
If both sides throw out the book, rule of law is literally gone.
The way to ensure that autocracy takes hold is for both sides to abandon rule of law. That’s why the argument that we can adopt authoritarian methods in order to save democracy is dangerous.
Variation: The Democrats are bringing a knife to a gunfight.
The Democrats are clinging to rule of law because someone has to. Here’s what’s wrong with “we need to fight like Republicans.” You cannot out-fascist the fascists. They will always cheat and lie and destroy better.
All we can do is cling to rule of law and hope enough voters stay with us. One way to destroy rule of law is for both sides to abandon the rules. Another way is for the voters to decide they prefer to elect lawbreaking officials.
All the pro-democracy people can do is hold on to rule of law and hope enough voters agree.
In a talk at the University of Chicago, Lisa Monaco said it is particularly important to abide by norms and laws in times of heightened division and polarization because that’s how we preserve them and keep them strong, and it is when we most need them.
When asked how the department would approach potentially investigating high-level officials from a previous administration, Monaco said, “The same way we investigate anyone. There is one set of rules.”
This is what Merrick Garland meant when he said, “Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy.” He also said that achieve justice and protect democracy the DOJ must do two things: (1) Hold accountable every person criminally responsible for trying to “upend a legitimate election,” (2) do it in a way with integrity and professionalism.
“Do it in a way with integrity and professionalism” means going by the book.
To be clear, anyone who advocates “throwing out the book” or abandoning procedures and rules is advocating authoritarianism.
The way to save democracy is with more democracy, not with autocratic methods.
A reader in the comments, Kaster, said he was reminded of this passage from A Man For All Seasons:
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!”
“So, how do we save democracy?”
The way to save democracy is with more democracy. For ways to do that, see this to-do list.
Thanks, Teri. This is a good split from your original FAQs.
I’ve always thought that the hierarchy crowd was more than a little bananas. Their obsession with being replaced is so very pointless for many reasons, but the biggest one is that nobody lives forever. Because of that, EVERYONE will eventually need to be replaced if what they are doing needs to continue in some way. Being somebody who ensured that people were all treated fairly and could thrive would be a far better way to be remembered than as somebody who had the most widgets when they died. After all, others will eventually have all of those widgets they worked so hard to acquire.
I was reminded of this quote from _A Man For All Seaons_:
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!”
Perfect thank you.
Teri. Given the state of our diminishing education system, beginning back 50 or 60 years, made worse by certain political actors (remember DeVos?), the prospect of encountering people with abbreviated language and comprehension skills, I’d say is imminent.
Great posts.
R
Perhaps it’s semantics, but the “no consequences” complaint lies in the lack of sentences. Most equate consequences with punishment. People have been charged, indicted & convicted, yet only a few have received fines, house arrest or jail time.
Thank you!
This is false. Go back to my list of people who have suffered consequences in my list. Look up how many were in jail or paid fines.
It’s not that they were not punished. It’s that they were not punished harshly enough to satisfy the person who says “not enough consequences.”
I am adding your comment to the blog post itself.
Good stuff and very informative, THANK YOU. I am guilty of a lot of this.
However, I am still left with unease over the timing. The 2024 election is only 4 years away. Trump, the MAGA squad, the Russians, etc have all learned from 2016 and are busy plotting the end of democracy starting in 2024. SO, we only have ONE MORE YEAR to stop them. Quicker justice for the suits sure would help the effort. The boots are being brought to justice, but they are easily replaced by the suits. NOW is the time to go after the head of the snake, the suits.
The DOJ, on principle, doesn’t look at a political calendar. We know from insiders working there (I have friends with friends in the DOJ) that people there are working around the clock, putting in incredible hours, moving as quickly as they can.
Also, as a matter of principle, it’s wrong for someone outside the DOJ to dictate timing to the DOJ (if the DOJ is actually paying attention.) See why? That instantly makes it political and makes it appear that the DOJ is doing political bidding instead of following the facts and the law.
This is why it makes me cringe when pro-rule of law people say, “The DOJ must do X.” Of course, it’s fine as long as the DOJ is ignoring the orders. But then what’s the point?
Thank you. So I will remain anxiously patient. But understanding makes it less stressful (a little bit).
I am very impatient !!! I hate waiting. I hate suspense.
But there’s nothing I can do, so it’s more like I’m resigned to the reality.
Anyway thanks for reading.
At the risk of belaboring the point: “Trump, the MAGA squad, the Russians, etc have all learned from 2016 and are busy plotting the end of democracy starting in 2024.” I offer this Twitter tread of a respected historian. Bone chilling.
https://twitter.com/TimothyDSnyder/status/1618309402427265025
Every week your blog posts help keep me on track, thank you. I have been pondering our system of imprisonment and how it actually hardens those imprisoned. I wonder if, instead of sending those convicted of insurrection to prison, we “sentenced” them to a serious study of history and required them to abstain from all “far right” media, would this make any difference? Then I think of all the Ivy League educated insurrectionists and am not sure my idea would help at all.
Some people seem to have forgotten (or just didn’t know) that Hitler was actually tried, convicted, and imprisoned for sedition and the attempted overthrow of the government.
So maybe that’s not a guaranteed solution to fascism.
Right. I’ve used that example myself.
What does these guys is in when they are perceived as losers, which explains why Trump will never admit defeat.
Pardon me, but how DARE you bring intelligence, nuance, and respect for a healthy legal system into this discussion?
What’s funny is that when I saw a notification that I got another comment, I cringed thinking, “Here comes some more hate” 🙂 (Mostly I get that online, but occasionally here)
Never considered all these arguments for and against. I learned a lot from this article.
Trust!
This is going to be hard.
I just subscribed. Thanks for this article; l see these comments all the time (and have been guilty of thinking them myself). You provide a better alternative here- be realistic, keep promoting the truth and hope for the best.
Thank you, this made me feel so much better. It also provided me with many things to chew over and some rebuttals for my right leaning friends.
Cheers!
For when you choose to make edits, please note these items
— Item #6, text in part reads: “If you are in a small down, it’s very likely that you’re better off with the public defender” Clearly you mean “town” instead of “down.”
– Item #15, is in part a recap of the subheadings for each prior item. However, you inserted several subheadings and changed the wording of another since current list in item 15 was last modified. I believe that block of text should now read as follows.
However, I believe that the following statements are untrue:
1. “There are never any consequences!”
2. “The consequences haven’t been harsh enough and that’s why Republicans keep committing crimes.”
3. “At least while they are in jail, they can’t commit any crimes.”
4. “If all lawbreakers are not brought to justice, it means rule of law in America is dead”
5. Using just the evidence available through public reporting there is enough evidence to convict Trump.
6. “The process takes too long which shows that the system is hopelessly broken.”
7. “Justice delayed is justice denied.”
8. “At least indicting Trump would provide some very solid schadenfreude.”
9. “The entire system is corrupt. Just look at _______ (example).”
10. “Trump has been committing crimes all of his life. Anyone else would have been in prison by now.”
11. “Just lock him up now.”
12. “Stop saying that we have a political problem. we have a law enforcement problem. Committing crimes is wrong and anyone who does should be punished harshly.”
13. “You can’t go by the book when the book is burning” or “Democrats / the DOJ is bringing a knife to a gunfight.”
14. “Nothing else matters if Trump is not indicted.”
15. Teri Kanefield argues that Trump should not be indicted.
THANKS FOR ALL YOU DO TO KEEP US WELL INFORMED AND FOCUSED!
Hi Teri–I just took a long, refreshing dip in your blog posts and this thread in particular and I feel SO much better. I did want to add a tentative #16 to your list of Q’s:
16. “B-b-but Teri!! Former US Attorney Rambo McWhizzney just said on MSNBC that Garland is moving soooooo sloooooowwwww!! That he’s scared to take on Trump and is going after little fish!! And Nicolle Wallace (er excuse me, ‘the moderator’) chimed in and agreed!! These are experts saying this! Eek!!”
I think you’ve sufficiently addressed this sort of mindset, but I’m left to wonder WHY former US Attorneys (or ‘former prosecutors’ or ‘former assistant prosecutors’ or whatever) are ringing this particular bell ad nauseam on TV. Is it careerism, i.e. making their bones as pundits? Are they brought on BECAUSE they won’t contradict a teevee host’s mistaken belief about delay? Do they think it makes them look tough, or savvy, or ‘better than’ all the people who counsel patience and faith in the process? Do some of them actually not know that Garland’s DOJ doesn’t, and hasn’t, leaked?
Would you care to mention any of the former prosecutors that you DO pretty much trust, who pop up on TV all the time? For me, a non-lawyer lacking ability to analyze their LEGAL points, it’s all too easy to align with the legal pundits that sound the most authoritative, even when they may well be pulling their reasoning out of their …. hip pocket.
Thanks again for all you do.
Joyce Vance. Elizabeth de la Vega (she isn’t on TV, but she has a Twitter account and I don’t think she’s ever been wrong.)
I may think of others.
I have a blog post on TV lawyers, I think it has “poppers” in the title. My blog has a search function. I think you’ll enjoy it.
Thanks, Teri, I get Joyce’s newsletter and always catch Sisters In Law. I’ve also enjoyed JWV pushing back at the “hurry up Garland” people when she’s on MSNBC. Will now search for Poppers. Thanks!
Thank you very much for this! I am a 90 year old, politically uneducated woman, reasonably intelligent but also relatively under educated, mother of ten, living alone, hoping to not live too much longer as I can see the gruesome route our country seems hell-bent on following. This is the first time I have had the pleasure of reading any of your articles. I find I may have to read more, many more in fact.
Damn, you’re good! My mind was hazy with many of these thoughts, especially about the speed of the DOJ. I can see clearly now the blog has come!
Your comments are very clear and insightful. I look forward to more education from the master of integrity.
I’ve just discovered your blog via Mastodon; I love it when smart people lay out coherent argument and clear thought, so I have loved this post and your ‘over the cliff notes’. Greatly appreciated.
These comments are purely editing and formatting notes:
#6 and #7(a) : formatting here is missing. (eg no indenting, and more)
#7(a) (high rate of conviction):
“The DOJ guidelines on when to indict or decline to indict are here.” – I think you missed a link there, and maybe an extra indent on the next paragraph.
#7(b) (entire system is corrupt) – I think this was meant to be #8? and subsequent numbering would therefore also be off by 1.
#11 (currently, probably #12 after renumbering)
“Here is a screenshot with the name of the former prosecutor removed (he is responding to something Aaron Rupar posted):”
I think you missed putting in the screenshot there.
I hope pointing these minor editing details can help spread your great thoughts 🙂
I suspect that, implicit in your 1st amendment right to freedom of speech is the freedom to read* or not read whatever you want as well, so I don’t think forced abstinence from any particular category of media could be constitutional there. (But IANAL and IAN even from or living in the USA.)
I’m not Swedish either, but perhaps your country and mine can learn from their system: https://www.theguardian.com/society/2013/dec/01/why-sweden-closing-prisons
*read – or watch, listen, whatever.
…however, thinking about media reminded me of this podcast episode: https://99percentinvisible.org/episode/the-divided-dial/ which is about how USA radio became absolutely dominated by right-wing extremism. I found it really interesting.
Sorry if this has been asked and answered. Is there any indication that certain members of congress and Ginni Thomas are being actively investigated for their parts in the coup attempt?
This is true. But let’s try it at least a second time, and course-correct when his prison term ends.
After all, it worked with Benedict Arnold.
If we are entertaining defenses against fascism, what exactly did work against 1930s Germany?
When you wrote ‘The Republican Party Does Not Reaction in a Normal Way to Consequences’ I think you meant ‘React’.