Tuesday, May 07, 2024

Dems use the legal system to target the right — yet give the left a pass

By Glenn H. Reynolds | New York Post

Former President Donald Trump in court for his "hush money" trial in Manhattan on May 6, 2024. Photo by Steven Hirsch-Pool/Getty Images - Photo by Steven Hirsch-Pool/Getty Images

“For my friends, everything; for my enemies, the law.”

This philosophy, announced by Brazilian President Getulio Vargas in the 1940s, is no longer just the favored approach of Latin American strongmen. It has become the openly practiced strategy of today’s Democratic machine.

Laws that hamper Democrats are ignored. Laws that might be used to hurt Republicans are enforced to — and often well past — the limits of the law.

One need look no farther than the absurd circus-clown show trial (one pundit prefers the term “goat rodeo”) in which the state of New York has gone so far in trying to turn Donald Trump’s (alleged) personal peccadilloes into business crimes that Gov. Hochul had to go out of her way to reassure other businessmen that this was a one-off, and that only Trump would be prosecuted under this novel approach to the law. 

As law professor Jonathan Turley noted in these pages, the New York statute in question has never been used this way before: “Even The New York Times agreed that it could not find a single case in history where this statute was used against an individual or a company that did not commit a criminal offense, go bankrupt, or leave financial victims.”

Nothing says “rule of law” like custom-made forms of liability designed for a single hated defendant.

And while prosecutor Alvin Bragg leaves no stone unthrown in his assault on Trump’s creatively designed “crimes,” he’s letting thieves, murderers and illegal immigrants who assault cops run free. 

He’s not policing the streets, he’s policing threats to Democratic power.

(Meanwhile, prosecutor Jack Smith, who’s after Trump for allegedly mishandling classified documents, had to admit to the court this week that his office had . . . mishandled those same classified documents, mixing them up in ways that disadvantaged Trump’s defense lawyers and then falsely representing to the court that the documents were exactly as they had been received.)

Of course it’s not just Trump. 

Former Trump White House official Peter Navarro is doing time for contempt of Congress after being prosecuted by the Biden administration. 

Obama’s attorney general and self-described “wingman” Eric Holder was also charged with contempt by Congress, but the Obama Justice Department — headed by one Eric Holder — gave him a pass. 

(Personally, I think there’s something wrong with anyone who doesn’t possess a fair amount of contempt for Congress.  As Mae West once said when a judge asked her if she wanted to be found in contempt, “Why no, your honor, I was tryin’ to conceal it.”)

And outside the world of Washington we see a similar two-faced approach. 

On campuses around the nation (well, around the blue parts of the nation, anyway), anti-Israel protesters are being treated with kid gloves by law enforcement in a way that no one believes protesters in support of right-wing causes would be.

Legal pundit Hans Bader has rounded up examples: In Baltimore, police declined to remove an illegal encampment at Johns Hopkins University because the city’s mayor told them not to.

No one has a right to camp out on private property in the exercise of their First Amendment rights — or, as the Supreme Court ruled in Clark v. Community for Creative Non Violence, on public property.  

But the same thing is happening in Philadelphia, where the Philadelphia police disregarded a request from the University of Pennsylvania to clear the encampment on Penn’s property. 

Similarly, DC police are refusing to remove protesters from the George Washington University campus. 

As Bader notes, the reason seems to be, again, that Democratic officials favor the speech of these protesters.

No one, he notes, thinks that right-wing protesters would get the same treatment. 

If they were pro-life, anti-election fraud or gun-rights encampments, the bulldozers would have been fired up at once. 

Yet the Supreme Court has made clear that officials have to be evenhanded in their treatment of protests, and can’t discriminate based on whether or not they like the viewpoint, something California federal judge Cormac J. Carney recently noted regarding selective prosecution of right-wing protesters vs. Antifa. 

But for all the talk about “rule of law,” they’re doing just that in all sorts of cases, all over the country. 

That needs to stop. 

For the longer term, we need to do something about policing prosecutors’ discretion to prosecute, and not to. 

Over a decade ago, before the madness of the Trump years, I wrote about this in the Columbia Law Review, in a piece titled “Ham Sandwich Nation: Due Process When Everything Is a Crime.” 

As New York Judge Sol Wachtler once said, any competent prosecutor can indict a ham sandwich, which appears to be what Trump prosecutor Alvin Bragg has done. 

We used to rely on the political process to discipline this sort of overreach, but with politics polarized as they are today, it’s not likely to work.

Even more dangerous, in a way, is the refusal of police and prosecutors to protect people whose lives or property are being threatened. 

Over time, that can only lead to cynicism, and to self-help.

In Brazil, starting in the 1960s and continuing on and off until the present, we wound up seeing “death squads” deal out vigilante justice that the legal system couldn’t, or wouldn’t deliver, with predictably bad results. 

We’re not in danger of that in New York, yet, but Alvin Bragg, both through his overreach aimed at Trump, and his no-prosecution approach to many genuine criminals, is moving us closer. 

That needs to stop, too.  But will it?

Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the InstaPundit.com blog.