Friday, May 19, 2023

Balm In Gilead

Yup:
When E. Jean Carroll won her defamation and sexual abuse lawsuit against Donald Trump earlier this month, Republicans knew exactly who they wanted to blame. No, not Trump's defense attorney, who called no witnesses and offered no evidence in his client's defense. No, not Trump, who keeps undermining his weak denials of the crime by bragging about how guys like him "historically" and "fortunately" get away with sexual assault. No, they blamed the jury. 

Now, the question is, how good is that strategy?

These swipes at the unanimous jury should not be shrugged off as just another example of Republicans saying some fool thing to get them through the next 5 minutes of the current Trump scandal. This is quite likely not the end of juries weighing in on Trump's crimes. He's already been indicted on nearly 3 dozen counts of financial crimes in Manhattan, making him the first former president ever to be arrested. He's likely to be indicted for election crimes in Georgia over the summer. Plus, Jack Smith, the special prosecutor appointed by Attorney General Merrick Garland, has intriguing grand jury investigations into Trump's theft of classified documents and, of course, his attempted coup after losing the 2020 election. 

In the face of this, there's good reason to believe GOP comments in the wake of Carroll's victory were a test run for their next big talking point: That juries have no credibility. After years of attacking voters and election systems as illegitimate for rejecting Trump, denying the legitimacy of the jury system is only the next logical step for Republicans.  

Yes, yes, yes; but where does that get them?  The re-election of Trump?  Control of both Houses of Congress?  The triumph of the Proud Boys?  The end of the republic and thus life as we know it? Is there balm in Gilead?  Is America beyond MAGA really ready to dump the entire jury system because Trump is a whinger who resents being made responsible for his actions?

Durham's efforts to uncover a "deep state" conspiracy against Trump, however, didn't just fail to turn up evidence. In his zeal, he did manage to get his allegations before juries twice. Both times, the unanimous juries of 12 people resoundingly rejected Durham's claims. It's worth remembering that federal prosecutors have around a 97% conviction rate, casting Durham's failures into an even more comical light. 

But despite the fact that his colleagues have no problems getting their cases through a jury system, Durham decided the problem wasn't his own failure in trying to turn a Trump-tweeted conspiracy theory into something real. No, he blames the two juries who wouldn't play along. 

"Juries can bring strongly held views to the courtroom in criminal trials involving political subject matters," Durham writes, "separate and apart from the strength ofthe actual evidence and despite a court's best efforts to empanel a fair and impartial jury." 

That's an excellent and very sound critique.  emptywheel has pointed out the same thing:  having lost two cases where Durham alleged people lied to him, Durham's report still says those people lied to him.  I've actually known prosecutors convinced the jury was fooled by the defense.  I've known civil trial lawyers convinced the defendants fooled the juries into not ruling for their injured clients.  It happens.  It's doubly despicable when it's folded into a report by a special counsel for the DOJ.  But it is the end of the world as we know it?  Or do we recognize it as bad faith, recognize that such shit happens, and move on?

Generally it's the latter.

Durham's pseudo-reasonable language shouldn't fool anyone. Yes, it's true that politics can prejudice a jury. But it's a massive stretch in these two cases. The defendants aren't famous politicians, nor were their cases touching on major culture war hot buttons. It was just "lying to the FBI" charges, and Durham failed to prove it. The only person getting political up in here was him. 

That's a perfectly reasonable way to do it. 

Durham's "blame the jury" report is whinging; but alas! in this day and age even whinging is something wicked which this way comes:

 Whining is the lingua franca of Trumpists faced with facts that run against their conspiratorial narratives, of course. This flavor of whining, however, is doubly sinister, because it's a member of the DOJ leveraging his status to discredit the jury system, simply because these two juries wouldn't be snookered by him. Worse, in doing so, he's helping stoke what is quite likely to be a growing MAGA assault on the foundational concept of due process.

Yes, it is.  And it has been since 2015.  But I have to ask: how's that working out for MAGA?  Trump has lost every election he entered or pushed MAGA candidates for since 2016.  Ron DeSantis, who wants to out-MAGA MAGA, has proved he has no coat-tails, not even in Florida.  Non-MAGA and anti-MAGA candidates are rising from the presumed ashes of democracy.  Election skeptics are losing races around the country, or being tossed from office in new elections.  Trump whinged about the Manhattan indictment:  it impressed the judge not one whit.  He whinged about the E. Jean Carroll case, in Ireland, and was told to watch his mouth.  He's whinging about Jack Smith and Fani Willis, and neither of them seem to give a wet snap.  He whinged about the orders of his hand-picked judge in Florida, all the way to the Supreme Court:  and he was slapped back so hard that his attorneys are regularly being forced to testify about what they know, and as a consequence are dropping away from him like dead flies (you can't represent someone and be a witness against them at the same time).

There's always been an assault on the foundational concept of due process.  The Warren Court reversed that assault with a series of rulings which the Rehnquist and Roberts courts have been chipping away at ever since.  Political pundits just pay more attention to the VRA cases (if at all).  Trump's whinging is small beer in context.  Frankly, the fact the court system is taking such white collar crimes so very seriously, and that all the defense Trump has is whinging, should be cause for celebration, not Cassandraesque hand-wringing.  Yes, this is bad:

The anti-jury grumblings of the MAGA right have only just begun, and already the impacts are alarming. Jurors in Carroll's case were kept under anonymity rules usually reserved for Mafia trials, to protect them against MAGA violence. Personalized attacks on grand jurors have kept Manhattan D.A. Alvin Bragg busy filing motions to prevent Trump from directing violence their way. In Georgia, law enforcement is prepping months in advance to protect grand jurors from MAGA violence. One of the jurors in the Proud Boys sedition trial was so afraid she was being followed by MAGA goons that the judge had multiple hearings just about that, compelling other jurors to take photos of strange people they saw in hopes of figuring out if her concerns were justified. 

But Trump is not a Mafia don in a bad gangster movie, or a brutal ruler of a drug cartel, and moreover this is not a third-world country where the judges themselves have to sit behind bulletproof glass in the courtroom and are murdered in their homes on a frighteningly regular basis.  Trump is not a powerful crime figure; he couldn't even muster a major protest for his Manhattan arraignment, much as one was expected.  It's bad that people are making death threats and that judges fear for jurors who are not anonymous, but the system is holding, and Trump's only recourse is appeals.  Which is pretty thin in the civil case, since he didn't bother to put on a defense.  He kind of ceded the outcome to the plaintiff with that decision; it's going to be hard to argue he was denied a fair trial (the basic ground for a reversal) when he didn't attend the trial at all, and left the country. 

No system is perfect, and juries are certainly made up of fallible human beings. But the reason Republicans are already sowing seeds of anti-jury sentiment is not because they believe juries will get it wrong — they're afraid juries will get it right. Carroll's case is just the latest in a long line of juries, including those in Durham's B.S. cases, getting it right. Juries also convicted the Proud Boys and the Oath Keepers for their role in the January 6 insurrection. Juries ruled against Alex Jones in defamation cases filed by the parents of Sandy Hook shooting victims. Mere fear of a jury caused Fox News to settle a defamation case with Dominion Voting Systems. MAGA lies tend to falter when placed in a regulated court situation, in front of a jury of everyday Americans. That's what Republicans are afraid of, and why they're already training their followers to parrot "juries are worthless" talking points. 

And as judges regularly remind juries:  ignore what is said outside the courtroom.  Not only because the only evidence is that presented in the courtroom; but because the only words that matter, from jury selection to the final verdict, are the words that come from the courtroom.  Trump can lead his chorus of whingers as long as they will follow his baton.  But his whinging won't open one courthouse door, won't reverse one verdict against him, and won't get the judicial system, which is pursuing at least three criminal cases and one more civil one in New York City, to leave him alone.

Courts are notoriously unimpressed with whingers.  And courts have, in general, the support of the people in what they do.

Americans aren't all that crazy about whingers, either.  Especially when they are rich, 76 year old white men.

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