The Great Bob Mueller Seduction

Blood is in the water: the president of the United States appears to have committed ‘obstruction of justice.’ We know this because a ‘legal dream team’ headed by a special prosecutor, a former head of the FBI, is conducting a long, expensive, and detailed investigation of all the president’s men. The nefarious activities suspected to have been undertaken are varied and detailed; like most Americans, I’m entirely unsure of the precise particulars of the tangled web that is being unwoven for us. But those details seem unimportant; for at the end of it all lies deliverance, the impeachment of Donald Trump, the eviction of the carpetbaggers currently occupying the White House.

For some time now, via television and talk show and social media, we have been treated to the spectacle of–I do not think I exaggerate–millions of Americans salivating over the legal particulars of Bob Mueller’s investigation: how detailed and thorough its collection of evidence and marshaling of witnesses is; its skillful deployment of carrot and–a very big and threatening–stick in making legal plea deals; and so on. An entire cottage industry of tweeting experts has sprung up to inform us, in hushed and breathless tones, of how legally significant the latest development is and just how much shit is currently splattering various fans; these tweets go viral, urged hither and thither, as if merely by talking about how bad things are going to get for Trump and his men, their end can be hastened. There is much gleeful talk of how those  working in the Trump administration will be bankrupted by their legal fees as they are subpoenaed till the cows come home; you cannot escape the clutches of the ‘ace prosecutors’ that this paragon of virtue–a former FBI head–has lined up.

The worst features of our  legal system are on display: the staggering legal fees; the unfettered power of prosecutors. Give ’em hell, we say, because we know the legal system can destroy your life in all these ways; we’re just happy these big guns are turned against our political enemies. (Even if they have never been turned against the corporations that rule the republic’s roost.) It is a strange business for a nation which plays host to the moral and legal atrocity called ‘mass incarceration’ to be so cheering on a bunch of prosecutors–a demographic unfettered in its legal power, and persistently accused of misconduct. It is a peculiar business too that the FBI–whose investigations into political activists have, historically and currently, marked it out as anything but apolitical–is being hailed as the savior of the American Republic and our political knight in armor.

What Mueller’s investigation has done, of course, is turn political resistance to Trump into a spectator sport: we sit back–indeed, many have said just that–grab the popcorn and watch the shit show go down, and the superheroes, er, special prosecutors, will come to our rescue, ridding us of this blight. The legal system and its investigations appear to be working as a sponge, soaking up the political will and energy of Americans who otherwise might have been engaged in serious thinking about their political options. Instead, they have handed over their political agency to a bunch of lawyers appointed guardians of the state and our polity.

But it isn’t the lack of law that got us here; it is that plenty of institutional deformations are written into our laws and therefore respected; they demand for themselves a prima facie legal obligation, because they are burnished by the aura of the law, which is being enhanced by the ‘legal investigation’ under way. But the undemocratic Senate is legal; gerrymandering is legal; Supreme Court rulings that lock particular interpretations of the US Constitution into place are legal; the Electoral College is legal. Governments can be shut down legally; the US Senate can legally–under one interpretation–refuse to even consider a President’s nominee for the Supreme Court. The blocking of Obama’s nominations to the Federal Courts by the Republican Party and the corresponding stuffing of the Federal Courts by Federalist Society nominees was all legal. No dictator need abuse any legal American institutions in order to become a totalitarian despot. (This point has been made, quite eloquently, several times over, by Corey Robin; here is one variant of that claim.) That despotic power is built, legally, into American political institutions, all ready and ripe for hijacking by bad actors. Those bad actors are here, and they’ve hijacked the polity.

We are witnessing an old maneuver, one oft-repeated: take an existing political or social problem, subject it to the law, and pretend it has been solved. The authority of the law, its ideological entrenchment is reinforced, but the social or political problem remains unsolved. What will Bob Mueller’s team rid this republic of? A president, and very optimistically, his vice president too. Mueller cannot impeach the Republican Party (which will, in any case, not impeach Trump.) How then, will this nation’s political crisis be resolved? Mueller’s actions will not bring the Republican Party’s nihilism to heel. Indeed, an even worse hangover awaits us, if as is likely, this entire expensive legal investigation will end only with Trump riding out his term unscathed and going on to greater riches ‘outside.’ When the smoke clears and this prosecution is over, we will be left with the same severely compromised republic we had before. No team of special prosecutors can bring that to heel. We have outsourced the hard work to someone else, expecting to be rescued from a mess we made ourselves. This is ours; we have to clean this up.

That Sneaky Cur, The Defense Lawyer

A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?

We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.

These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.

This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.

Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.

Hating On The Phrase ‘All Lawyered Up’

You’ve heard it in police procedurals on the television and the big screen. I know I heard it in The Killing and The Wire. A couple of weary beat cops or detectives, battling crime on the streets, fighting the noble War on Drugs perhaps, keeping us law-abiding citizens safe from the depredations of the big, bad, mostly black criminals out there, grimly acknowledge that they cannot make a move against a suspect because he is ‘all lawyered up.’ (The Wire threw in the offensive stereotype of the sleazy Jewish lawyer defending criminals for good measure; as noted elsewhere briefly, that show overreaches at some points.)  He has legal counsel; he won’t talk; he won’t confess; he cannot be interrogated in the way the cops would like; he has withdrawn into a safe space, protected by a mere ‘technicality’ called ‘due process.’ A collective groan goes up from the audience: goddamn criminals and their lawyers, artful dodgers both, have slipped loose once again of the restraining strong arm of the law. If only those weasel lawyers would get out of the way, the police, prosecutors, and judges and juries could get on with the business of sending the most decidedly guilty to jail. The ends justify the means, right?

In a nation suffering from a mass incarceration crisis, which arrests twelve million of its citizens every year (defended by fifteen thousand public defenders), where police-induced false and coerced confessions are among the leading cases of wrongful convictions (including homicide cases), whose Supreme Court has systematically eviscerated the rights of criminal defendants in every domain of criminal procedure ranging from initial arrest to admissible evidence to jury instructions, where plea bargains result in innocents serving jail time for crimes they did not commit, the phrase ‘all lawyered up’ must rank as one of its most bizarre cultural productions.

It contributes to, and is part of, a cultural and political state of affairs whereby most Americans imagine that the law is too easy on crime and criminals; that the rich, powerful crook capable of hiring a $500-an-hour defense lawyer is the average arrestee; that the law’s protection of those detained or arrested by the police is a cumbersome obstacle to be bypassed or evaded. It contributes to the buildup of a groundswell of anger and frustration that all too often results in an urge to ‘throw the book’ at defendants, to harsher sentencing regimes, to a vindictive and retributive philosophy of punishment. Many folks possessed by such attitudes do not just serve on juries; they also serve as judges.

The American mass incarceration crisis has many components to it; it is enabled by many systems and agents. Among them is a cultural industry that specializes in keeping us scared and angry and hostile to the rights of our fellow citizens; the police are the thin blue line, restrained and helpless, unable to protect us because the forces of obfuscation and bureaucracy, law and lawyers, waving antiquated scrolls marked ‘Constitution’ and ‘Criminal Procedure’ will only hinder and obstruct the work of angels.

What a crock.

Kathryn Schulz’s Confused Take On The Steven Avery Case

In a rather confused take on the Steven Avery case–the subject of the Netflix documentary Making a Murderer, Kathryn Schultz of the New Yorker writes:

“Making a Murderer” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey. It also implies that that misconduct was malicious. That could be true; vindictive prosecutions have happened in our justice system before and they will happen again. But the vast majority of misconduct by law enforcement is motivated not by spite but by the belief that the end justifies the means—that it is fine to play fast and loose with the facts if doing so will put a dangerous criminal behind bars.

Pardon me, but the belief that the end justifies the means, which then prompts egregiously immoral actions–like the kind so clearly on display in Making a Murderer, is spiteful and malicious; it leads to actions that trample over all and any that get in the way of the particular end being realized. In the Steven Avery case, that belief–a rule for action–is spiteful because it disregards the moral and professional standards that are supposed to govern the conduct of law enforcement activity. I don’t mean to give Schulz a little lesson in moral philosophy but acting on the basis that the end justifies the means, which can mean treating a person as not a person–you know, one deserving to be treated as innocent until guilty–is a spectacular moral failure. It treats a person–like Brendan Dassey, abused in order to produce a coerced confession–as a means to an end, the kind of moral catastrophe Kant warned against.

Moreover, given Schultz’s apparent passion for the truth and for empirical assessments of the claims of investigative journalism, what does she base such a perception of law enforcement on? It cannot be the vast literature on prosecutorial misconduct or the racist system of mass incarceration which is this nation’s greatest current moral failure. Or is she simply taking law enforcement’s claims at face value? Still, it is nice to see a journalist sticking up for the side with the power to ruin innocent people’s lives. Those folks really don’t get enough positive press.

Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit.

Schultz imagines that journalism needs to be governed by the ‘both sides are equally culpable’ rule. But that is precisely not what journalism is supposed to be about. The best journalism is always partisan, a case often made quite eloquently by Glenn Greenwald (here is the most recent instance.) Moreover, most importantly, in the Avery case, plenty of supposed evidence against him was presented–he is in jail, after all. Perhaps someone should present Avery’s side of the story and concentrate on that so that the full dimensions of the tragedy at play can be brought out–rather than have it obfuscated once again by the considerations that led to his conviction in the first place.

Schulz is confused about both the issues that are supposedly the focus of her essay: the morality of ends-justifies-means behavior and the standards governing investigative journalism.