After watching the celebrating by many Progressives and the Media after Donald Trump’s felony convictions last week in a Manhattan court, I was struck by the mantra of the left that the “rule of law” was somehow upheld by his convictions on all 34 felony counts. It made me wonder if they have any clue as to what the “rule of law” actually means. Regardless of whether you love or hate Donald Trump, everyone should be alarmed at the abuse of the rule of law and President Trump’s basic constitutional rights that occurred in this case.
Our American principle that the rule of law applies to all citizens is based on our English common law foundation and the United States Constitution. Our constitutional commitment to the rule of law is directly set forth in the Fifth Amendment, which promises that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment added that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Due process of law simply means that all legal matters be resolved according to established rules and principles. Equal protection of the law simply means everyone must be treated fairly by our judicial system. Any government action that violates these fundamental constitutional rights violates the rule of law.
Writing on this topic for the Tennessee Bar Association, Russell Fowler stated: “The most approved, precise, and useful definition of the rule of law is: ‘Political power must be exercised according to rules laid down’ and ‘the principle that government can exercise
authority only in accordance with written laws that have been adopted through a formal, established procedure.’ The purpose of the rule of law ‘is to safeguard against arbitrary action by the government.’”
Fowler traces the beginnings of the rule of law to Greece and Rome, and through the Magna Carta (1215), which guaranteed redress of grievances; fair, open and independent courts; trial by jury; controls on royal officials; etc. In sum, the Magna Carta limited government and sustained the rights of all, not just those of the ruling elite. The law now had its own separate sovereignty, might, and majesty, higher than even the king’s authority, to wit, the “RULE of Law.” In Federalist 78, Alexander Hamilton said that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedent.”
In President Trump’s trial, Judge Merchan was not constrained by long-standing due process rules, precedent, and the rule of law.
Fowler continued: “The rule of law became quite compatible with constitutional democracy, for both strive to constrain arbitrary power through written law. However, the rule of law is not always in agreement with majoritarianism, for the will of the people can be arbitrary. Like the Bill of Rights, the rule of law takes certain issues or means of governance off the table for majority meddling or experimentation, such as abandonment of due process and equal protection. Accordingly, the rule of law can shield a politically weak minority from abuse by the masses or what James Madison called ‘an interested and over-bearing majority.’ And so the rule of law is not identical to pure participatory democracy.”
There is no weaker minority than a Republican in a Manhattan, New York courtroom.
Former SCOTUS Justice Robert Jackson (a Democrat and former prosecutor), who also served as the United States Chief of Counsel to prosecute Nazi war criminals at the Nuremberg trials, stated that there were so many criminal laws on the books “a prosecutor stands a fair chance of finding at least a technical violation of some [criminal law] on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, rather, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”
What Justice Jackson warned against is exactly what has occurred to President Trump. Incredibly, before he was even elected, Manhattan DA Alvin Bragg campaigned on his promise to hold Donald Trump “accountable” for something. This is incredibly dangerous for our system of justice if allowed to stand.
President Trump was charged in New York state court with a federal crime of falsifying business records in an attempt to interfere with the 2016 election. The underlying state crimes were all misdemeanors and the statute of limitations had expired. Mr. Trump paid $130,000.00 to Stormy Daniels in return for a Non-Disclosure Agreement (NDA). NDA’s are perfectly legal transactions. Paying “hush money” to someone is not a campaign violation. Moreover, the payment itself was not required to be reported to the government until after the election was over.
Here are just a few of the ways President Trump’s due process rights and the rule of law were violated:
1. Judge Merchan instructed the jury that they did not need to reach unanimous agreement on all the elements of the crime. This violates clear due process requirements for unanimity on every element of a crime. Andres v US, 333 US 740 (1948). Other challenged jury instructions were ordered by Judge Merchan that favored conviction.
2. All criminal defendants have the due process right to clear notice of the charges against them. Here, President Trump was not informed of all the elements of the crime until the jury instructions were prepared after the trial had concluded. It is impossible to prepare for, and defend against, criminal charges if you do not know what the elements of the crime entail. United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); 6th Amendment.
3. It appears that Judge Merchan was not selected to handle this case with the usual blind draw process by which courts assign cases to judges.
4. A state prosecutor has no authority to bring, and a state court has no jurisdiction to hear, a criminal case based upon a federal criminal statute. Such a case must be brought in the federal court system. The underlying state misdemeanor charges against Mr. Trump could not be filed by DA Bragg because the statute of limitations had expired (another due process violation). So, Mr. Bragg improperly created a new crime for the same state charges based upon a strained interpretation of a federal statute. This federal law has never been used before in such a manner. The US attorney (federal prosecutor) refused to prosecute Mr. Trump under the same statute.
5. Judge Merchan denied President Trump the right to call expert witnesses to refute the government’s claim that he violated federal election laws. All defendants have the constitutional right to call witnesses to have them testify at trial. 6th Amendment.
6. Defense attorneys were prohibited from referencing, or arguing from, the actual jury instructions in closing argument. I have handled dozens and dozens of jury trials in both federal and state courts. I have never heard of such a thing. I always argue the language of the instructions to the jury. It would border on malpractice not to do so. For Judge Merchan to prohibit President Trump’s attorneys from discussing the jury instruction language directly with the jury is a clear due process violation.
7. I have never been involved in, or ever seen, a gag order placed on a criminal defendant alone. The few times I have seen gag orders, the judge always entered the gag order against all parties. This is a clear First Amendment violation, especially when the prosecutor and his key witnesses were allowed to continually and daily attack President Trump while the trial was being conducted.
8. It was highly prejudicial for Judge Merchan to allow the detailed, salacious, and completely irrelevant, testimony of Stormy Daniels regarding her claims of being sexually involved with Mr. Trump. Such repugnant allegations, even if true, are not criminal. Again, paying for an NDA is not criminal. This inflammatory evidence had nothing to do with the criminal charges against Mr. Trump and was clearly introduced by DA Bragg for the sole purpose of inflaming the jury against the defendant. This is one more clear due process violation.
I could go on with more due process violations, but any one of the above errors justify an appellate court overturning this verdict. This trial did not uphold the rule of law. Judge Merchan and the DA eviscerated the rule of law in their campaign to get Donald Trump at all costs.
The rule of law and due process protections are the bedrock foundations of our liberty. The essence of justice is that it must be equally applicable to all. Alan Dershowitz (hardly a right wing, conservative Republican) notes: “No one is above the law, but digging to find crimes in order to influence an election does not constitute the equal application of the law. If these abuses are allowed to stand against Mr. Trump, none of us are safe. Searching for crimes or manufacturing them is antithetical to our judicial system. It is not the equal application of the law to go digging to find a crime as Alvin Bragg did here.”
As Voltaire said, “If people can be made to believe a lie, they will live as if the lie were the truth.” Do not believe the lie that this trial and verdict “upheld the rule of law.” It did the exact opposite and all of us are at risk. Political differences are now the basis to create and bring criminal charges. Democrats should remember that they have now opened up themselves to this type of prosecutorial abuse.
Whether you are happy with the jury verdict or not, last Thursday was not a day to celebrate. This prosecution, trial, and verdict have completely undermined the faith of millions of Americans that our judicial system is fair and equal for all. This decision just further alienates, divides, and polarizes our country.
If this does not motivate you to get involved and work to vote out of office this November officials in Michigan who agree with Progressives like DA Bragg and Judge Merchan, do not complain to me when unscrupulous prosecutors come after you next.
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