DONALD TRUMP, THE DEVIL AND THOMAS MORE
Respect for precedent means treating like cases alike. Think what that means for democracy.
By
Harvey A. Silverglate
June 2, 2024 at 1:01 pm ET
Respect for precedent is essential to liberty and equal justice, for it decrees a simple principle: that a legal doctrine developed in one case must be followed in similar situations in the future. The same laws apply to us and to others, to our friends and to our enemies.
We find ourselves in a frenzy of prosecutions of Donald Trump and his associates. Mr. Trump won the presidency by a hair in 2016 and lost it narrowly in 2020. Having lost, Mr. Trump found himself the target of several state and federal prosecutors. (Disclosure: I am co-counsel for John Eastman, a co-defendant of Mr. Trump’s in Georgia.) Last week a New York jury convicted Mr. Trump of falsifying business records in a case involving his alleged attempt to cover up a $130,000 “hush money” payment made to a woman who testified she had a brief affair with Mr. Trump.
This being the first criminal conviction of a former president, it will be subject to study by lawyers and legal scholars for many years. I anticipate that when Trump-related controversies (and tempers) cool, Manhattan District Attorney Alvin Bragg will emerge as one of the more infamous practitioners of “creative prosecutions” in recent legal history.
All of this leaves a bad taste for several reasons. For one, Mr. Bragg used a convoluted legal theory to turn a misdemeanor into a felony. For another, a substantial amount of criminal conduct went forgiven to extract testimony from culpable “turned” witnesses. There is a saying among defense attorneys that such witnesses are taught by prosecutors “not only how to sing but also to compose.”
The bottom line is that the stretching of the law in these cases will forever taint them as political efforts to keep a controversial candidate out of the White House. It will also create legal precedents that will plague the nation for decades.
What is needed is a cooling-off period, during which partisans assess the systemic damage they are doing. The news media, too, can play a role by making special efforts to weed out bias in its reports. Judges should avoid even the appearance of partiality. The long-term goal is to have a recognizable, functioning democracy operating under the rule of law after the Trump era.
In Robert Bolt’s play “A Man for all Seasons,” Thomas More, England’s lord chancellor, refuses to bend the law to allow King Henry VIII a divorce. Royal sycophant William Roper urges More to accommodate the king, and More utters perhaps the most eloquent defense of the rule of law in Western literature. When Roper says that he would “cut down every law in England” to accommodate the king, More replies by drawing an analogy to the trees of a forest: “Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? . . . Do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
Those words apply with equal force today, even if the devil is Donald Trump.
Mr. Silverglate, a criminal-defense and civil-liberties lawyer, is author of “Three Felonies a Day: How the Feds Target the Innocent.”
Source: Wall Street Journal
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