Trump’s persecution has put the rule of law itself on trial
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The civil and criminal cases brought by the New York Attorney General and the New York County District Attorney against Donald J. Trump raise the question: what is the role of law? Is law a ritual for, or a restraint on, the exercise of power in New York?
The rule of law is an ideal and an ideology that defines, delimits and restrains the exercise of power by the powerful. With roots in Aristotelian thought, the rule of law entered Anglo-American legal traditions with the Magna Carta in 1215, which established written constraints on the King’s exercise of his power.
Then, in 1636 when Sir Edward Coke, a judge appointed by the King of England, informed his King that judges schooled in the “artificial reason” of the law, and not the King himself, interpret the law. Coke established for the first time that law is independent of the King’s will; law is not whatever the guy with power says it is.
One hundred and forty years later, our Founders took Law one step further, enshrining in our founding documents the idea that each man was created equal, under God only, and endowed with rights that are not subject to the King or any other earthly power. In the US model, God vested sovereignty directly in the People, empowering ordinary people to form a government of and by equals to serve the People and secure their Freedom, instead of ruling over them.
The flaw in the Rule of Law is that it’s still a human exercise, prone to the virtues and vices, passions and perspectives of the ordinary people in the system. There are more than 3,100 judges and justices in the New York State Unified Court System who wield the state’s power either by election or appointment; not all of them have Sir Edward Coke’s chutzpah, wisdom or persuasive skill at the “artificial reason” of the law.
Which brings us back to New York’s cases against Donald J. Trump and the question these cases raise as America and the world watch: Is New York a rule by law or a rule of law State?
In her civil case, the Democrat Attorney General Letitia James sought, and the Democrat judge imposed, fines and punishments intended to essentially bankrupt the billionaire Trump. These punitive measures were justified by real estate valuations that, if and to the extent they may have been wrong, fooled and hurt no one, while also making it practically impossible to appeal.
Not a good look for New York, and so the appellate courts, more institutionally concerned about the state’s reputation and standards, made it easier for Trump to appeal the civil judge’s extraordinary order and breathtaking fines, slashing by more than two-thirds the bond required for an appeal.
Now we are at the start of a criminal trial brought by a single county’s prosecutor against the former president of the entire United States – and lawyers everywhere are reading the indictment and Statement of Facts, scratching their heads and wondering: how can the judge let this case go forward? On its face, the indictment appears to have fatal flaws.
For example, the indictment was filed and the case was commenced more than 5 years after alleged crimes occurred, which is the statute of limitations for felonies in New York. The indictment alleges a business enterprise records violation for checks written on, and recorded in, a personal account not a business account.
The indictment does not make clear how the “intent to defraud” element of the charged crime is satisfied, nor is it clear what second crime the alleged inaccurate business record was intended to further or obscure.
The Statement of Facts suggests that perhaps the checks written in the amount of the Cohen invoices were intended to obscure a violation of Federal campaign laws, but these facts have long been known, and the bodies responsible for enforcing those laws did not allege Trump violated those laws. Prosecutors also appear to suggest that the payments violated state tax laws, but in what way is a payment that increases net tax collections by the state a fraud on the state?
Digging further into the record, Trump’s lawyers made these obvious arguments and others in a motion to dismiss last year, which the judge dismissed two months ago. To be diplomatic, I found the opinion unconvincing and conclusory. Read the opinion yourself – how would you characterise the Acting Justice’s reasoning?
This is a huge case, and it’s not just about Donald J. Trump. The elected and appointed officials who are bringing and hearing this case on behalf of the People of New York should understand that New York and its legal system are on trial too. The world is watching, everyone knows Trump is the Republican nominee for President and that these Democrats hate Trump with a sometimes blind passion, so the ordinary presumptions of fairness and regularity are under the microscope.
New York is a global commercial center because of its legal system, and the wisdom of Judges now long passed such as Benjamin Cardozo and Learned Hand. Millions of contracts and trillions in transactions depend on New York law because it has been stable, commercial, neutral and clear, and to New York courts to enforce those laws in a fair, impartial, intelligible and predictable manner. The rule of law in New York has deep roots and broad reach, but it’s still a human enterprise that will thrive or wither based on the reason and courage of the people who comprise the system.
Don’t screw it all up just to screw Donald J. Trump.
Richard Porter is a lawyer and a Republican National Committeeman from Illinois
