Americans must criticize our corrupt courts

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In the wake of his conviction in a New York court, President Trump has complained that the process was rigged against him, that the whole proceeding was a corrupt effort to persecute him with a view to influencing the 2024 presidential election. In response, many of his opponents have criticized him for undermining public confidence in our system of criminal justice and thus harming our democracy—a criticism that has been magnified by many in the media.

(Article by Carson Holloway republished from RealClearWire.com)

These critics, however, are missing the point and undermining a principle that is in fact essential to preserving our republic: namely, that criticism of the justice system when it errs or overreaches is necessary to preserving freedom under the rule of law.

Those who founded our nation were aware of this necessity.

Alexander Hamilton, representing the defendant in the famous libel case People v. Croswell, warned that “the most dangerous, the most sure, the most fatal of tyrannies” operated “by selecting and sacrificing single individuals, under the mask and forms of law, by dependent and partial tribunals.”

“Against such measures,” Hamilton continued, “we ought to keep a vigilant eye and take a manly stand. Whenever they arise, we ought to resist, and resist till we have hurled the demagogues and tyrants from their imagined thrones.” No sensible American would look back on these remarks and think that, by them, Hamilton was undermining democracy.

Hamilton’s great rival, Thomas Jefferson, acted on a similar view. As president, Jefferson pardoned publishers who had been convicted under the Sedition Act of 1798. Jefferson’s course of action here was inseparable from his belief that the Act was unconstitutional and that the courts of the United States had made themselves party to serious injustices by convicting defendants under it. Indeed, the pardoning power is included in the United States Constitution, and in many state constitutions, and is used routinely, precisely because prosecutors and courts can make mistakes and sometimes even willfully abuse their power over the lives and liberties of citizens.

These dangers are also recognized in federal law. Title 18 of the United States Code prohibits and punishes “deprivation of rights under color of law.” By its very terms this provision acknowledges that sometimes those entrusted with the administration of justice are themselves guilty of behaving lawlessly and abusively. The United States Department of Justice’s website observes that this provision may be applied not only against “police officers, sheriff’s deputies, and prison guards” but also, as appropriate, against “judges, district attorneys,” and “other public officials.” This important provision is itself an acknowledgment by the government that all the proceedings of our justice system are not entitled to uncritical acceptance.

Everyone conversant with American history knows that the problem of politicized and corrupt abuses of the justice system has not disappeared in the modern era, that it continues to rear its ugly head precisely when political passions run high and communities are inflamed against leaders for whom they harbor deep animosities. In the 1960s, Alabama state authorities brought Dr. Martin Luther King, Jr. to trial on charges that he had committed perjury in relation to his tax filings.

This prosecution was a transparently cynical attempt to deprive an important American political and social movement of its most effective leader. In that case, however, even the Alabama jury, composed exclusively of white men, perceived the abusive character of the case and returned an acquittal. Afterwards, Dr. King thanked the jury for their “fair, honest, and just verdict” and commended the Alabama judge for the “high and noble manner” in which he had conducted the case.

If criticism of prosecutors and courts is permissible and necessary in certain circumstances, the only important question at present is whether such criticism is justified in the case of President Trump’s New York conviction. Would it be reasonable for impartial Americans today to echo Dr. King’s words and congratulate the Manhattan jury for a “fair” verdict and commend Judge Merchan for his “high and noble” handling of the case?

For an answer to that question, we need not rely on Trump or his aggrieved supporters. We need only look to the evaluation of respected CNN legal analyst and former federal prosecutor Elie Honig, writing in New York Magazine: “Prosecutors Got Trump, But They Contorted the Law.”