Thinking About Things: Societal Respect for The Rule of Law is in Trouble
January 10, 2022
John DeQ. Briggs
January 10, 2022
Many of our political leaders, and even more of our voting citizens, have not just lost respect for the rule of law as we have known it for centuries, but they seem committed to opposing it, even as it has proved robust in jury rooms and courthouses.
This has become increasingly evident since the summer of 2020, although the attitudinal seeds for this development were sown some time ago. It is the reaping of these seeds that has become so obvious over the past two years. Worse yet, the machinery of social media, coupled with intimidating social intolerance on all sides, makes it difficult to imagine the circumstance getting better before it gets worse. The solution, if there is one, probably lies in major political change, perhaps procedural, that empowers the center and disempowers both the hard left (Progressives and their fellow travelers) and the hard right (Trumpists and their fellow travelers.
I will refer in this article to some examples of the societal, and often political, distaste for and disparagement of the rule of law and the embrace of more situationally convenient rules. These are by no means intended to be exclusive, but rather more representative of this condition mainly on the left, but to a degree on the right as well.
Jussie Smollett. The demand for social justice and racial equity, whatever those terms may mean in the context of any particular event, seem generally to trump the legal system on social media and in the mainstream media, most obviously with regard to criminal proceedings. Jussie Smollett’s Hate Crime Hoax is a good an illustrative starting point as any. The whole hoax began with a narrative that was inherently incredible. At 2:00 AM on a freezing cold night in Chicago, Mr. Smollett purportedly felt the need to head out to Subway for a tuna sandwich. On the way, two white men with MAGA hats happened to be roaming the streets in this below freezing weather, and with a noose in hand. They supposedly attacked Mr. Smollett. This happened shortly after Smollett was supposedly the target of a racist letter threatening to lynch him. The letter was sent to his studio. It turns out he wrote the better himself. But I am getting ahead of myself. The police opened up a massive investigation into this “hate crime” and the Osundairo brothers were arrested.
In the aftermath of the purported attack, statements of support for Mr. Smollett poured in from presidential candidate Biden, then-Senator Kamala Harris, Nancy Pelosi, and a hoard of mainstream media professionals. Scores of political and media leaders echoed Nancy Pelosi’s theme that the attack was “homophobic and racist and an affront to our humanity.” And when the evidence mounted that this was a hoax and that Mr. Smollett had actually hired the Osundairo brothers, political leaders and media figures again lashed out at Smollett’s detractors as homophobic and racist.
In a nutshell, the facts as designed and presented by Mr. Smollett fit perfectly into a pre-existing mainstream political and media narrative thematically centered on radicalized white people, white supremacy, right-wing terrorism, structural racism, anti-Trumpism, and other such tropes that have emerged as staples of the progressive left. Given the perfect fit with this narrative, the facts were just too good for the media to check or challenge.
But even after the facts had been checked by the Chicago police and the hoax had begun to unravel, and after Mr. Smollett was indicted on 16 felony counts, the progressive County prosecutor Kim Foxx chose to drop all charges saying: “… after reviewing all of the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the city of Chicago, we believe [dropping the charges] is a just disposition and appropriate resolution to this case.” This was not the end, however. Evidently shocked by the dropping of all the charges, Judge Sheila O’Brien appointed a Special Prosecutor, prominent Chicago defense lawyer Dan Webb, who was charged with investigating Mr. Smollett’s claims and also why all the charges against Mr. Smollett were dropped back in March 2019. Almost a year to the day after the initial arrest, Mr. Smollett was indicted.
The trial itself turned into an effort by the defense to sell the progressive narrative to the jury and to achieve an acquittal not because of Mr. Smollett’s innocence, but in spite of his guilt. In other words, as the headline in The Hill put it, a-hate-crime-hoax-became a pitch for jury nullification. Put most simply, Mr. Smollett and his defense team were doing everything possible to prevent the application of the rule of law and to get off in honor of the social narrative described. The entire Smollett timeline can be found here. The whole episode may remind older readers of the 1987 Tawana Brawley gang rape hoax, which brought Al Sharpton into such permanent prominence, except in this case Mr. Smollett was playing the role of both Ms. Brawley and Mr. Sharpton. In that case, much as with Mr. Smollett, a spokesperson for the black community wrote that the purported victim had “been the victim of some unspeakable crime. … No matter who did it to her – and even if she did it to herself.”
Meanwhile, it came out at trial that CNN anchor Don Lemon had texted Mr. Smollett early in the investigation advising that the Chicago police did not believe his story about what happened with and otherwise providing general support. And after the jury found Mr. Smollett guilty (amazingly it was something of a surprise to the media that the jury followed the evidence and applied the rule of law and did not accept society’s invitation to nullify the law), the media dropped the story after a day or two. The message was sort of: Let it go. Forget it. Leave it alone, the lesson of the event is that it could have been true in this country and that is the important thing
Kyle Rittenhouse. The anti-rule of law role of politicians, media personalities, and citizen mobs on social media had a similar, and in some ways more disturbing, visibility in the Kyle Rittenhouse affair. In the beginning, not long after the riots and shootings in Kenosha Wisconsin, presidential candidate Biden linked Rittenhouse to white supremacists and condemned him. A more prudent candidate might have waited for the facts to develop or for a trial verdict, but not Joe Biden. No benefit of the doubt or presumption of innocence for him. No patience for the rule of law here. Before the verdict was handed down, the media reported that the trial would “peg” whether Rittenhouse is a “hero” or a “reckless gunman.” Such a framing did not address guilt, innocence, or law, but rather treated the trial as spectacle – gladiatorial blood sport. This zero-sum coverage was typical of much reporting on the event without actually increasing public understanding. This is one reason why, especially on the left, there was such shock at the verdict. Few knew the facts or followed the actual trial, and the facts did not matter anyway. Somewhat similarly, for many on the right, including Tucker Carlson and others, this was not about the rule of law or law at all; it was about politics and theater.
President Biden did not do any better after the acquittal verdict came down. The BBC headline was: Biden angry after teen cleared of shootings. Vice President Kamala Harris also condemned the verdict stating that “I’ve spent a majority of my career working to make the criminal-justice system more equitable, and clearly, there’s a lot more work to do.” When our highest elected officials express distaste for our justice system and dishonor the rule of law (while at the same time furthering the politicization of the Supreme Court by supporting the packing of the Court), it should hardly come as a shock that the narratives of the left and the right to take over. Perhaps uniquely, the Rittenhouse verdict became a sort of political Rorschach test. Post-acquittal, the left media was virtually unanimous in its condemnation of the Judge, Kyle Rittenhouse, and the legal system in general. Joy Reid, along with other people of color, seemed to believe that Mr. Rittenhouse had shot and killed two young black men when in fact, he shot and killed two white men. MSNBC led the pack making the strange claim that there was “… nothing in place to prevent white nationalists from using the Rittenhouse verdict to attack Black Lives Matter.”Real Clear Politics article here. The MSNBC host lambasted the judge for being biased and prejudiced and slammed Rittenhouse himself for using “white male tears” like Brett Kavanaugh and being a “Karen.” This was unhinged rage at a verdict that was plainly correct to anyone paying attention to the facts.
The editorial board of the Madison-based Wisconsin State Journalslammed Rittenhouse’s acquittal, arguing that state law was skewed in favor of shooters who claimed self-defense and needed to be changed. The verdict, the editorial said, is “sure to embolden militant people who seek to take the law into their own hands” adding “our state should be discouraging standoffs with guns, rather than encouraging more people to arm themselves out of fear or revenge.” The editorial board might well be correct in its mildly hysterical conclusions, although it should not be a surprise that if government cannot maintain social order in the streets, people will take things into their own hands. But no matter how correct the editorial board’s concerns might be, finding an innocent man guilty should not be a preferred solution to those concerns in any civilized society, yet that seems to be exactly what they were saying should have happened.
All of this would seem like overblown madness absent the context of America since the summer of 2020. As Eddie Glaude Jr., Chairman of the Department of African-American studies at Princeton University said in an op-ed piece for the Washington Post: “Since he killed two men and wounded another in what he claimed was self-defense [in this phrase rejecting the jury verdict] Kyle Rittenhouse has become of the poster child for a general feeling among some in this country that white America is under siege. Rittenhouse defended himself, this argument goes, and white America must do the same.” His larger point was “that no Black teenage boy walking around a protest with a semiautomatic rifle, no Black teenager who kills two people … would be treated, no matter what the law says about self-defense, like Rittenhouse. He would be dead.” This might be correct in some instances. But it seems to frame the argument in a strange way: since young black men with guns are sometimes or often denied the benefits of the rule of law, so should white people like Kyle Rittenhouse be denied those benefits.
While Mr. Glaude may be on to something, he is certainly not calling for the primacy of the rule of law, but for something quite a bit more revolutionary. He is instead accusing society – by which he means white society, by which he means all of society excepting a subset of people of color – of “hiding behind the law, social mores and assumptions about the capacities, moral and otherwise, of those we treat unjustly. This allows us to find a way around the evidence that reveals we are not who we say we are.” To my ear this sounds like a Jacobin cry to man the barricades, start a new revolution, and upend the rule of law.
January 6. The Trump-inspired assault on the US capital has exposed the hard right disrespect for the rule of law and an affection for self-help and even violence. My own initial reaction to the event was that it had more in common with the various 1968 student takeovers of collegiate administration buildings than it did with the 1923 Beer Hall Putsch in Germany, which was a failed coup d’état by Nazi party leader Adolf Hitler. Nearly a year later, I’m not so sure. But I am sure that the communications between Republican leaders and various Trump supporters that have come out thus far are disturbing and I am sure that the ongoing defense of those who participated in the assault (I do not think it could possibly qualify as an “insurrection”) by Conservatives in politics and the media represent a complete and total disregard for the rule of law. And this is true on two levels. First of all, the assault is not truly subject to any rational defense. And second of all, as best I understand it, the “defense” proffered by the hard right is a flavor of “whataboutism,” in this case “what about the stolen presidential election.” In other words, much of the hard right believes, or claims to believe, that the presidential election was stolen, and therefore those who assaulted the capital were justified in trying to bring about the true and correct result of the November election. This line of argument is madness and antithetical to any semblance of a just society governed by neutral rules of law.
Abortion, Immigration, and Voting Rights. I have neither world enough nor time in this article to delve into such sensitive controversies other than to say that the debate on both sides of these issues tend to trample the rule of law. The debate on voting rights is a faux debate designed to stir up the political bases on the right and the left. The Progressives are in favor of counting harvested and unpostmarked ballots and not requiring voter identification. Conservatives in general favor a secure voting system that has built-in indicia of trustworthiness, even at the expense of some voters who for some reason might not have identification papers. At bottom, this would seem to mean strong voter ID laws. The immigration debates have been going on and in circles for decades. Progressives wish to allow illegal residents to vote, as they now can in New York, and are perceived by the right as wanting open borders to secure elections. Conservatives want to close the border to illegal immigration. There is much room for rational compromise but that would take away useful political talking points and weapons that fire up the political bases. Abortion is a religious war and while it is fought in the courts, where the outcome is a zero-sum game, that is because the federal legislature is unable or unwilling to legislate a political solution, as virtually all other Western democracies have done. I am not aware of any other country that has found abortion to be a fundamental legal right without legislative embrace of that notion. Absent a political resolution, which would probably look a lot like Roe v. Wade, the politicians and the citizens get to blame the courts, thus moving further in the direction of anti-rule of law and rule by a mobocracy.
Progressive Prosecutors. The citizens of many large cities have elected so-called “progressive prosecutors,” some of whose campaigns have apparently been funded by progressive billionaire George Soros. This has happened in Boston, Chicago, Detroit, Los Angeles, Milwaukee, New York, Philadelphia, San Francisco, and several other cities. One fairly obvious result has been a spectacular breakdown in law and order. It is not just the prosecutors and those who elect them, but also the legislatures, which in California have made it merely a misdemeanor to steal less than a thousand dollars’ worth of goods from a store. As a result, we see chilling videos of “smash and grab” gangs inundating department stores, small shops, and everything in between. This does not seem to have resulted in any prosecutions of note. This is the sort of thing that during the summer of 2020, when it occurred during riots, was described as “mostly peaceful rioting.” As a podcast I listened to recently put it, the culprits are people who “came for the social justice, but then stayed for the looting.” But what may have begun as “looting for social justice” has evolved into organized crime brought into place by government policy. Actions no longer have consequences. The rule of law has been replaced by pure anarchy in many urban neighborhoods.
One might surmise that, in the beginning, the evolution of the new progressive prosecutors was an arguably good faith reaction to the over-incarceration of nonviolent black youths and the failure of many prosecutors to hold police departments accountable for shootings of civilians, especially black men. These were after all issues that even Mr. Trump sought to address during his administration. But the BLM movement accelerated the transmogrification of prosecutors from tough on crime to tough on law enforcement. And the warrant of these prosecutors has greatly expanded, as a mere perusal of the articles about them (many defending them vigorously) demonstrates. Googling Progressive Prosecutors. Their power to ignore criminal laws they do not like is immense, and very different from the run-of-the-mill prosecutorial discretion. To be sure, there is a spectrum of progressive prosecutors. Some are radical, others not so much. Some seek alternatives to massive incarceration for nonviolent crimes; others seek to undo what they see as centuries of white supremacy and racial injustice. Kimm Foxx in Chicago, Larry Krasner in Philadelphia, Karen McDonald in Detroit, George GascÓn in Los Angeles, John Chisholm in Milwaukee, Chesa Boudin in San Francisco have all had an enormous impact in their local communities, much of it hugely negative. Recall campaigns now threaten several of these officials.
Philadelphia’s Larry Krasner has become one of the poster children for progressive prosecutors run amok. He was a defense lawyer who prior to his election as Philadelphia’s District Attorney filed some 75 lawsuits against the Philadelphia Police Department. Under his regime, of Philadelphia has experienced some 550 homicides so far this year, 200 more than in the entirety of 2019. Gun robberies are up almost 30%; retail theft and auto theft are up 20% and 15%, respectively. Armed robberies are occurring in the lobbies of Five Star hotels such as the Four Seasons and elsewhere in the upscale center city neighborhood. Just last week, the US representative Mary Gay Scanlon was carjacked and robbed at gunpoint. Two men drove away with her personal and government cell phones, as well as her car. Mr. Krasner brags that the county jail population decreased 40% in his first three years in office. But as the Philadelphia Inquirer reports, Krasner’s office has lost 261 attorneys out of a staff of 340, including 70 prosecutors hired under his tenure.
Another poster child is San Francisco’s Chesa Boudin, the son of Brink’s robbery police-murderers who was raised by radical Weather Underground leaders Bill Ayers and Bernadine Dohm. Perhaps the voters of San Francisco are simply too young to remember anything about these people, or perhaps they have a drunk the Kool-Aid of BLM, CRT, white guilt, systemic white racism, and the entire encyclopedia of progressive thought. In either case what we have seen in San Francisco, and more than a dozen other cities, is a retreat from the rule of law and the advancement of the rule of immense prosecutorial discretion to ignore law and to substitute for law dictatorial fiat. It is, more or less, legal autocracy superintended by people who believe in something not distant from actual anarchy.
Last week Alvin Bragg assumed the office of Manhattan’s District Attorney. Within days of taking office he issued a memorandum to his 500 prosecutors creating what the Wall Street Journal describes as a Sanctuary City for Crime. He has instructed prosecutors in the Manhattan VA’s office that they should ask for jail or prison time only in the most serious offenses: murder, sexual assault, and economic crimes involving vast sums of money, unless the law requires them to do otherwise. Robberies and assaults will no longer result in jail time, even armed robbery. Gun possession in cases where no other crimes are involved will not involve incarceration. Here is the actual Bragg memorandum. This is, of course, all about social justice and racial equity. If one wisjhes to have similar statistics for young black men as for young white men, then reclassify the crimes as non-crimes and eliminate any punishment. Voilà. Equity. While New York has gone laws that are extremely strict, it seems increasingly pointless for individuals in at risk neighborhoods not to carry their own weapons given that those who would do citizens harm have zero incentive not to carry weapons and not to use them to engage in all manner of theft. Oddly, this places Manhattan’s DEA completely at odds with Erik Adams, the newly elected law and order Democratic mayor of New York City, which includes Manhattan. A dogfight will ensue as more people will flee Manhattan.
Most of these progressive prosecutors are elected, although some (federal US attorneys, for example) are appointed by the President. But whether elected or appointed, they are all Democrats. As a result, the Democratic Party is solidifying its reputation as the party of crime and is paying a very heavy price in the polls. One result of this is that even the mainstream media, normally supportive of most things Democratic, have turned against the lawlessness engendered by progressive prosecutors. See for example Newsweek: Time to Stand up to Progressive Prosecutors, although NPR is still supportive, or at least equivocal.
Why This Matters. Nearly two years agoI wrote about Jonathan Sumption’s book Trials of the State And the Decline of Politics. I adapted the following from the first sentence of that book, which is highly pertinent in the current circumstances.
In the beginning, there was chaos and brute force, a world without law. In the mythology of ancient Athens, Agamemnon sacrificed his daughter so that the gods would allow his fleet to sail against Troy. His wife murdered him to avenge the deed, and she in turn was murdered by her son. Athena, the goddess of wisdom, put an end to the cycle of violence by creating a court to impose a solution in what today we would call the public interest: a solution based on reason, on the experience of human frailty and on fear of the alternative. Aeschylus in the Orestieia trilogy had Athena justify her intervention in the world of mortals as follows: Let no man live uncurbed by law, nor curbed by tyranny.
Is There a Way Forward? It is not clear that there is a way forward that leads back to a widely accepted rule of law in this country. But if there is, it must involve a political solution that the radical elements of both the left and the right accept more or less equally. In the absence of a political system that provides equal respect to the values of the left and the right, and some accommodation to each, it is hard to imagine the long-term survival of a stable American society. While some say we have been here before, we have returned from the brink and we will not go over the edge this time. Perhaps, but we have never before had the radicals of the left and the right so empowered by social media and their own echo chambers. Until the late-night comedians of the left begin to take on the bloviation and hypocrisy of the left, and until the late-night comedians of the right can take on the bloviation and hypocrisy of the right, there seems to be little hope of a return to the rule of law.
But humor nonetheless goes a long way to puncture bloviation. It is therefore good fortune that Dave Barry’s “Year in Review” is again broadly available. While 2021 does not yield as much humor as past years it is nonetheless a good thing to read at the end of the year as a reminder that we can all laugh at most anything, including ourselves, especially when they are handled with a light and deft touch, as they are by Dave Barry.