Pardon Me, Sir, The American Rule?

There was no federal anti-lynching law for the many decades large numbers of people were being lynched in the USA. This was because a sizable block in the Senate truly believed that certain people needed to be dragged off, tortured and strung up, or mutilated and set on fire while still alive. Legally sanctioned terrorism was a way of life in certain areas, an integral part of maintaining “law and order”.

If there was not even a federal anti-lynching law for so many years, why would you expect an anti-discrimination law to stop the racist application of government programs? It was not until after the assassination of John F. Kennedy, during the upheaval of the “Civil Rights” Movement (Malcolm X, El-Hajj Malik El-Shabbazz, correctly called these Human Rights) that federal anti-discrimination legislation, like the Fair Housing Act of 1965, was signed into law to halt some of the more pernicious practices of genteel, wealthy racists.

The wealthy, genteel or not, have always seen to making laws that enforce their privileges. That’s why having money in the United States is often the difference between a long life and a short one. My father, born into terrible poverty, was part of a generation of American veterans of the Second World War who were able to get a free college education and a low cost housing loan and, with hard work, emerge from poverty into the middle class. The program was called the GI Bill.

I read recently that in New York State, of the thousands of these GI Bill housing loans and low-cost mortgages that were made to veterans who bought houses (and amassed an inheritable estate), only a handful (11, I think) went to black veterans. Black veterans applied for these benefits, they were legally entitled to them, they just didn’t get them. Renting a decent place to live was the same way, no law really prevented a racist owner from telling black or brown people (or anyone else he simply didn’t like the looks of) that the vacant apartment they’d looked at was, unfortunately, no longer available.

Donald Trump’s father made the bulk of his fortune exploiting the post World War II home building explosion. He was an expert at profiting from government subsidies that incentivized the building of affordable housing, he made many millions from these government programs. The government put conditions on these highly subsidized deals, the housing had to be affordable, widely available to working people. There was just a wink, an understanding, about renting to what were then called Negroes, Spics (Puerto Ricans), Kikes (poor Eastern European Jews), Wops (darker Southern Italians), “Ethnics’ of every stripe. Trump’s father had a policy against renting to such ‘unsavory’ types and there was no law against it, until the Fair Housing Act.

Donald was 19 when the Fair Housing Act became law, already (having successfully dodged the draft and the deadly jungles of Vietnam) being groomed to take over his father’s empire (an empire he’d sell at a loss after the old man died, in violation of the dead man’s wishes, but that’s another story).

The younger Trump sat next to his father during the government’s case against Trump Properties and watched an unscrupulous master (eventually, too late, disbarred and indicted) named Roy Cohn work his magic. Cohn first countersued the Department of Justice for defamation of the Trumps (who, although they honestly hated the people they refused to rent to, arguably had every legal right to be selective in processing tenant applications). Eventually the Trump’s signed a settlement with the government, admitting no wrongdoing in marking applications “C” (for “colored”) and rejecting every applicant with a “C” on their folder, and agreeing to allow supervision by federal authorities to ensure future compliance with the Fair Housing Act, a law they did not admit they had violated.

It was an eye-opening, intoxicating victory for the young Donald Trump. He went on to become possibly the most litigious man in history, with over 3,500 lawsuits (before becoming president) and literally hundreds since (at least 300 prior to the 2020 election and, at last count, 43 since — his record in those Stop The Steal! cases is 1 win, 42 losses).

The simplest explanation for why Trump is involved in all this protracted litigation is The American Rule. We learned about this in law school, and many of us were shocked to learn it, though, after you think about it for a moment, it makes perfect sense.

In most countries, if you bring a weak lawsuit designed primarily to vex, harass, cow, intimidate, delay, bully, pauperize, manipulate, exploit or outright cheat another person, and you lose the case — or withdraw the suit after bankrupting your opponent with legal bills or otherwise proving your point — you must repay the legal fees of the person you brought to court. In most places this repayment of what can sometimes be vast legal bills is part of the principle of making the person “whole” after they suffer a legal injury. The American Rule is all about “fairness”– each side is responsible to pay its own costs in court and the winner may not be compensated by the loser for legal fees, except in specific, fairly rare cases.

As the inheritor of vast wealth, Trump, history’s greatest beneficiary of the American Rule, has never had any problem financing every possible lawsuit imaginable. Many of these expensive lawsuits are deductible as business expenses and, over decades, he has profited handsomely from the delays, favorable settlements and the bankrupting of hated adversaries. As the sitting president, and rightfully feared head of the Republican Party, he no longer has to finance his own lawsuits, that burden falls on we the taxpayers (for cases brought by Sessions’s and then Barr’s DOJ), his donors and the Republican National Committee war chest.

There are many things in life that are plainly wrong, although not, strictly according to the written law, illegal. Men like Donald Trump are experts at exploiting the fact that it is impossible to write down enforceable prohibitions of every form of evil and abuse.

The Supreme Court ruled against Richard Nixon when he claimed executive privilege in his attempt to withhold evidence during his impeachment. They ruled the same way against Bill Clinton when he tried a similar thing during his impeachment. Trump, advised by the equally unscrupulous Bill Barr, made the same arguments Nixon and Clinton lost in their attempts to hide evidence of their wrongdoing. Trump’s many defenders said Trump was only doing what other impeached presidents had done (conveniently omitting any reference to the legal outcomes or the elemental principle of justice behind them).

The Supreme Court would eventually have to rule against Trump’s absurdly broad claims of limitless immunity too. Only in Trump’s case — delay was the key. What he did in openly obstructing the impeachment may be found, in the end, to have been unlawful, but it worked! When the Supreme Court eventually rules that it was illegal for Trump to block all legally issued subpoenas for testimony by his employees, current and past, on the grounds of an inviolable expansive blanket protective presidential immunity (Barr’s genius concept), Trump will be involved in some other lucrative scam (or in prison for tax-related crimes).

Presidential pardons are about to burst forth in a gusher. The president’s right to grant pardons is practically unlimited, though self-dealing pardons may be subject to review, particularly the pardon of a presidential co-conspirator in federal crimes, like Louis DeJoy. Or the faithful Rudy Giuliani, if he survives COVID-19, for his role in the long pattern of mutually beneficial shady, illegal political shenanigans/business deals in Ukraine that led to his old friend’s impeachment.

Jared Kushner, perhaps the greatest walking illustration of Hannah Arendt’s ‘banality of evil’ (a completely ordinary idiot can do very evil things, if he has the power to do them), will be at the front of the line for a full presidential pardon. Jared is totally innocent, the president will announce, but because the sick, vindictive radical left Democrats are so intent on revenge after stealing the election, nothing Jared did while in power, no profits he personally made while a government employee (a reported $82,000,000 last year, along with First Daughter Ivanka), may be investigated, no crimes, even if evidence is found, prosecuted. The pardon will most likely protect Jared in all related federal lawsuits — good luck in state courts, JK.

The most unprincipled and stupid of Trump’s accomplices will all certainly get pardons– as long as they’ve been loyal to their famously disloyal boss. Pardon me, folks, but this is just another expression of the American Rule.

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