Flaw And Disorder
Tags: Politics, Law, Crime, Justice

It now seems clear that our legal and judicial system is fundamentally and completely broken. It is also clear that this has moved well beyond the standard two-tier justice system that has existed ever since the country’s founding where the poor and unfavored are treated far more harshly than the rich and well-connected, although that is certainly the nexus of the problem. Instead, we have reached the point where the courts and prosecutors have become so corrupted certain elites simply face no consequences at all for brazen law-breaking.

Obviously, the Jeffery Epstein case highlights both past and present situations and Epstein’s connections seem to touch so many areas of where our legal and judicial systems have totally failed. His initial plea bargain was a travesty of two-tier justice, ignoring mountains of evidence, harassment of witnesses, and searches of his other properties in order to provide a slap on the wrist. And, while Epstein at least spent a few hours a week in jail in the course of his pathetic sentence, it only highlights that other serial sexual predator friends of his have, so far, escaped any legal accountability. Donald Trump, creditably accused of sexual assault by more than a dozen women, hosted Epstein at Mar-a-Lago event where 28 “calendar girls” were flown in for the entertainment of those two alone. Harvey Weinstein, another predator who has at least been finally charged, once was a partner with Epstein in an attempt to buy New York Magazine. And, of course, there have been rumors about Bill Clinton and Epstein for years.

Remarkably, Epstein is also directly connected to another one of our system’s great failures of accountability, the financial crisis. The failure of two Bear Stearns hedge funds was the real signal for the beginning of the financial crisis and the resulting Great Recession. The heads of those funds were two of the handful of Wall Street executives who were even charged with crimes related to the massive and widespread fraud that precipitated the crisis. Incredibly, Epstein was apparently a major investor in both funds and was a witness in the case in which both managers were eventually acquitted. And Epstein has reportedly been banking with another serial corporate felon, Deutsche Bank, for years, only having his accounts closed there earlier this year. The bank has been fined for money laundering, mortgage fraud, and price fixing and is now being scrutinized for its involvement in the 1MDB scandal, the largest financial fraud in history. Deutsche is, of course, the only bank that would deal with Donald Trump after his multiple bankruptcies and the activities of both Trump’s and Epstein’s accounts were flagged by compliance officers for suspicious transactions, only to have those officials overruled by senior bank executives. But Deutsche Bank merely pays the fine for such activities and then continues with its criminal enterprise.

Trump, of course, seems all too comfortable with sexual predators, as does the GOP party apparatus. Trump’s campaign chairs in Kentucky and now Oklahoma are now in jail on child sex trafficking charges. At least they are in jail. RNC campaign chairs Steve Wynn and Elliot Broidy are still walking the streets despite credible accusations of mutliple rapes by Wynn and a sexual assault by Broidy who is at least currently charged with other, unrelated crimes. So is former White House staff secretary and a reported favorite of Trump, Rob Porter, who was forced to resign after multiple accusations of sexual assault, including accusations from two former wives. In addition, the reason that Alex Acosta is Labor Secretary now is because the original choice, Andrew Puzder, was also accused of sexual harassment by an employee and of sexual assault by his wife. Acosta himself has been ruled by a judge to have violated the Crime Victims’ Rights Act by refusing to notify Epstein’s victims of the ridiculous plea deal he arranged. Trump, of course, has also been ruled a co-conspirator in a felony campaign violation for which his lawyer in currently sitting in jail.

Acosta’s crime occurred in 2008. The Trump administration is violating the law today, today and every day. CBP is holding children on the border in concentration camps long beyond the 72 hour legally mandated limit. ICE has exceeded the congressionally authorized limit on the numbers in detention and placed many of them in private facilities where there is a history of sexual assault and violence. Children have died while in CBP, ICE, or DHS custody. Detainees are being sent to states where there is a lack of immigration judges and the courts are more likely to look unfavorably on the detainees’ claims. Of course, the Trump administration is also in violation of multiple valid congressional subpoenas, fighting them in court every step of the way. Mnuchin is not providing Trump’s tax returns as provided by law. The administration is now reportedly attempting to keep private citizens from testifying at congressional hearings and has also instructed other witnesses to invoke entirely mythical claims of privilege in order not to answer committee members’ questions.

To some extent, we shouldn’t be surprised when career criminals like Epstein, whose mentor was the greatest Ponzi schemer of his time, and Trump, who, beyond the sexual assaults, has been creditably accused of tax evasion, insurance fraud, business fraud, using his foundation for self-dealing, colluding with the Russians before the election, and obstructing justice after, continue their criminal careers because the legal system has never really been interested in holding them to account. What is shocking is how the judicial branch is equally disinterested in holding people of privilege to account as well. In New Jersey, a judge declined to have a 16 year old boy tried as an adult for a rape he committed, filmed, and spread on social media because “the young man came from a good family, attended an excellent school, had terrific grades and was an Eagle scout”. Sadly, this is not the first such instance of decisions like this in rape and sexual assault cases.

On a broader scale, however, we should expect our nation’s highest courts to at least feel that the Constitution is worth defending, but we can’t even get that. Judges on the Fourth Circuit just tossed the Emoluments Clause suit brought by DC and Maryland concerning foreign payments to Trump via the Trump Hotel in Washington because it was ruled those entities did not have standing to bring such a case and that somehow the link between the profits generated by these foreign guests at his hotel and Trump himself was “simply too attenuated”. The decision raises some interesting questions as to who might exactly have standing if, say, the Saudis simply wired $270,000 into Trump’s personal account instead of buying the equivalent monetary value in hotel rooms at Trump properties that they never even used. Based on the Fourth Circuit’s reasoning, since no one is actually harmed by such an action, it is hard to see who would still have standing to sue. Worse, the judges seemed to believe there was no judicial recourse for violations of the Foreign and Domestic Emoluments Clauses, writing “Neither Clause expressly confers any rights on any person, nor does either Clause specify any remedy for a violation…As the Clauses do not expressly confer any rights or provide any remedies, efforts to enforce them in courts have been virtually nonexistent prior to President Trump’s inauguration in 2017”. The reason, of course, that that there are no precedents is that no other President has so brazenly and consistently violated the Constitution in this way. Yet these judges seem to believe they have no power to enforce the Constitution. I have written previously about the Fifth Circuit has basically become the judicial arm of the Republican party where Democratic legislation and policies goes to die. In addition, two conflicting opinions in death penalty cases where three conservatives basically flip-flopped after public outrage over their initial racist decision highlighted just how political the nation’s highest court has become.

Since the courts can’t be bothered to defend the rule of law, it is no wonder that some of those appearing before them also refuse to take them seriously. The census question was blocked by the Supreme Court simply because the Trump administration lied to the courts, and also Congress, about the true reasons for wanting to add it and the impact it would have. In their case to kill the ACA, as Krugman points out, the administration is absurdly arguing that an individual mandate of $1 is constitutional but an individual mandate of $0.00 makes the entire law unconstitutional. In order to block congressional oversight, the administration also absurdly argues that Congress can only legislate and has no right to investigate the functioning of the executive branch because that would “disempower” the President.

Perhaps almost as much as Epstein, Michael Flynn represents the current failure of accountability. Flynn was essentially a mole/spy for hire who became the National Security Advisor. He was getting illegally paid by multiple foreign governments and actually plotted the kidnapping and rendition of a Turkish cleric residing in Pennsylvania. And when he signed a cooperation agreement with the government, which subsequently recommended a maximum sentence of one year, it was assumed he provided powerful and useful information to the Russia investigation. Instead, a close reading of the Mueller report showed he provided little more than was already publicly known. Even the judge overseeing Flynn’s case was outraged at the pathetic sentence that the government was recommending. And now, just like Manafort before him, Flynn is backing out of his plea agreement and apparently admitting that he lied to prosecutors in his original plea agreement. And, like Manafort, it is probably with the expectation that he will be pardoned by Trump after the 2020 election.

Some people still seem to believe that our institutions are holding. But the legal and judicial systems seem to be unable to hold well-connected individuals to account for their crimes without enormous public pressure. Worse, the system itself is being gamed to drag cases out as long as possible in order to prevent any accountability until after the 2020 election when those politically connected will probably be provided even more political protection. And most distressingly, it appears that many in the system believe they do not have the power to change this. I despair.

Originally posted on thesoundings.com on July 12, 2019