So-called law vs. popular rage

Law in a democracy, (while tilted towards the wealthy and politically powerful, who can employ armies of lawyers to negotiate, wheedle and delay on their behalf, and also hire expert lobbyists to rewrite laws that are disadvantageous to them), is the final word on what is legal or illegal and who is accountable to the rest of us.  That’s why we often hear “the rule of law” used as a synonym for democracy. 

Clearly there are multiple tiers to our justice system, and the rich and powerful are not generally debased by being subjected to the strict laws that are generously applied against the lower and criminal classes.   Here, we make no distinction between… you know the rest.  Still, our laws, and justice system, which apply to all citizens, residents and non-diplomatic visitors, are what protect our American experiment in democracy. 

In autocracy, the autocrat can change and bend the law at will.  Crooks that help the autocrat are given positions of power, immunity from prosecution, sprung from jail if convicted, pardoned and restored to positions of power.  Autocracy, as scholar of fascism Ruth Ben-Ghiat points out, is always enabled by a conspiracy of powerful criminals who ruthlessly serve the autocrat.  Note that the rule of law applied in Nazi Germany also, though every judge, prosecutor, and defense lawyer was required to be a Nazi party member and the law was whatever the Führer said it was on any given day.  

Here in the USA, even a judge vetted for loyalty to a political philosophy (membership in a legal fraternity with a strict view of how the law needs to be changed) and appointed by a president with a bent toward authoritarianism, will not be able to rule for his benefactor without evidence.  The courts, (until you reach the Supreme Court, constrained by neither ethical rules nor weighing of actual evidence, and where a medieval scholar can be cited as unappealable proof that abortion is murder), are bound by the rule of law, limited in their decisions by the weight of the actual evidence presented.

In a case I followed, Trump, et al v. Boockvar [1], one of hundreds of lawsuits brought by Trump for President, Inc. and the RNC prior to the 2020 election, in a concerted attempt to suppress Democratic mail-in and drop box votes, a young Federalist Society judge, J. Nicholas Ranjan, appointed for life by the plaintiff himself, ruled that evidence of massive potential voter fraud and “vote dilution” and all the rest of the claims Trump made against Pennsylvania Secretary of State Boockvar  must be presented.  He then ruled that the evidence presented, hundreds of pages of printouts of opinion pieces by Breitbart, FOX and the like, did not satisfy the legal definition of evidence of concrete harm.  In dismissing the case, he wrote more than a hundred additional pages explaining the legal rationale for every one of his decisions and detailing the authorities he relied on, for the benefit of the federal appeals court he wrote was likely to get the case.  He made his decision appeal-proof, basically.

A great day for the rule of law and the burden of proof.  Here’s a link to the case https://casetext.com/case/donald-j-trump-for-president-inc-v-boockvar-3  and I suspect you’ll be as shocked as I was to scan, at the top of the judge’s long decision, the list of hundreds of people involved in litigating a case that went on for months before being dismissed for lack of evidence.  There is also, naturally, a scary wink at the Federalist Society’s best hope for changing the nature of our multi-racial democracy, another seed of the Independent State Legislature “Doctrine” [2].  This “doctrine” is teed up for a 6-3 decision next term on whether state legislatures have the ultimate authority to decide who won federal elections in their state, no matter what “majoritarian tyranny” might have to say at the so-called voting booth.

In a court of law (outside of the current Supreme Court), you need proof of your legal injury or your case gets dismissed.  In the court of public opinion, proof is not necessary for angry partisans who believe the worst of their enemies automatically.  You need to keep righteous outrage boiling and have people willing to physically threaten those who insist on the, like totally unfair, “rule of law.”  What to make of an outrageously unfair law like the one below?  Makes you want to holler, if you support the man millions are vindictively hoping will be finally prosecuted for it, and many other crimes he appears to have serially committed:

18 U.S. Code § 793 – Gathering, transmitting or losing defense information

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

and, most unfair of all, if you make money by legitimately selling so-called national security documents, that you honestly believed you owned and had every right to sell, or do whatever else you wanted with, they try to “legally” confiscate the money you made!  On top of fines and prison time!

(h) (1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. 

Take names (agents who conducted the partisan search and illegal seizure, the judge who allowed it, and their families!) and… let’s just say “kick ass”.  Shame if anything happened to this nice little democracy of yours.   If you’re thinking of weaponizing the Secret Service (SS) innocently not informing members of Congress of on-line chatter calling for their murder, by name (hi, Nancy), on January 6, until hours into the riot — think again!

[1]

In Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-966, 2020 WL 5997680 (W.D. Pa. Oct. 10, 2020), the Western District of Pennsylvania dismissed a legal challenge to election guidance given by the Secretary of the Commonwealth of Pennsylvania regarding manned security near absentee drop boxes, performing of signature comparisons for mail-in ballots, and a county-residency requirement for poll watchers.

[2]  from Ranjan’s decision:

But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials. See Andino v. Middleton , ––– U.S. ––––, 141 S.Ct. 9, 9–10208 L.Ed.2d 7, (Oct. 5, 2020) (Kavanaugh, J. concurring) (state legislatures should not be subject to “second-guessing by an unelected federal judiciary,” which is “not accountable to the people”) (cleaned up).

Donald J. Trump for President, Inc. v. Boockvar, 493 F. Supp. 3d 331, 343 (W.D. Pa. 2020)

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