Justice is a matted dog: Trump, Cosby, SCOTUS

Overall, I go into the July 4th weekend encouraged that most Americans can see the right thing from the wrong thing.

Going into July 4th weekend, I marvel at the Newtonian balance of American government. I’m talking about a laundry load of half-expected, counterintuitive, and even surprising news.

There’s the Trump Organization being charged with 15 years of tax evasion on a Lilliputian scale, while the paterfamilias himself escapes. There’s Bill Cosby, the O.J. Simpson of #MeToo, being instantly released from prison, refusing to show any regret or admit wrongdoing. There’s the Supreme Court issuing a gaggle of rulings that protect states’ rights to regulate voting and limit states’ to regulate the anonymity of charity.

Photo by Martin Castro on Unsplash

My meditation on this: Though we do make “progress” in the sense that society moves on from issue to issue, justice itself is more like a matted dog, with the people, their government, lawmaking representatives, and judges alternately creating tangles and carefully brushing out the matted fur.

It really is a zero-sum game, which is a good thing, since for 245 years since Americans repudiated rule by a sovereign persona, we haven’t retreated from our liberty. Think of it like a stone disc balanced on the tip of a cone. The disc carries the weight of all our national interests and political power, separated into branches. When too much weight is piled on to one branch, another one tilts back to level our sense of national justice and fairness. The disc does not tumble, though sometimes it wobbles in a frightening way.

Sometimes, politics makes more matted dog than the other branches can untangle, leading to travesties like the 1992 Los Angeles riots and O.J. Simpson’s freedom. Let me take the news items one by one.

New York’s dog of a Trump case

After five years and an enormous amount of time spent in court forcing the Trump Organization to release tax returns, despite the fact that the New York Times possessed these documents, the State of New York could not pin a single crime on Donald J. Trump, citizen.

The best they could do is charge Trump’s octogenarian CFO, Allen H. Weisselberg, with failure to pay taxes on a bunch of perks that company executives received. This kind of petty, trumped up (pun intentional) charge carries about as much weight as a dump truck in a diamond mine, loaded with feathers instead of precious stones.

Perhaps its an exercise in fan service and fantasies about Trump going to prison.

Scott Dworkin @funder

I don’t know who needs to hear this but trump should be arrested and spend the rest of his life in prison.

Palmer Report @PalmerReport

Donald Trump is going to prison

As for Weisselberg, David Frum sums it up nicely. Manhattan District Attorney Cyrus R. Vance spent more money investigating Trump, only to come up with charges that defy imagination. Why would a CEO risk years in prison to steal $900,000 from the IRS over 15 years?

David Frum @davidfrum

I'm trying to imagine the CFO of these other guys proposing/agreeing to risk years in prison to evade $900,000 in taxes over 15 years. Trump schemes are a lot more reminiscent of a crooked dry-cleaning operation than a so-called real-estate empire. forbes.com/forbes-400/

The New York Times reports the allegations as such:

Mr. Weisselberg is also accused of receiving free rent, cars for both him and his wife, and private school tuition for relatives. The company helped Mr. Weisselberg falsely claim he lived outside New York City, easing his tax burden, the indictment said.

Are you kidding me? Let’s look at scale, just for perspective here. For instance: London-based Barings Bank had been in business since 1762. It financed the Louisiana Purchase for Napoleon, taking a $3 million down payment in gold from the fledgling U.S. Treasury, and purchasing U.S. Bonds from France for the remainder. In this way, perversely, Napoleon got the money he needed to finance his plans to invade England, from England.

Fast forward to 1992. Nick Leeson was a trader in Singapore running Barings futures and options operation there. He also was given, against all risk and governance rules, authority to settle his own trades. Predictably, over three years, Leeson ran up an enormous fraudulent hedge that collapsed when the Kobe earthquake disrupted Asian markets in 1995. Leeson fled to Indonesia, leaving a simple note “I’m sorry” to his destroyed bosses.

He single-handedly brought down Barings, which was liquidated, sold for £1 to ING, and broken up. Leeson served six years, six months of prison time in Singapore (he’s now out and living in the U.K.) after betting and losing $1.4 billion in three years.

Weisselberg is accused of defrauding the IRS of $900,000 in taxes on tangible (but not cash) benefits over 15 years: $60,000 a year. Other than the heavy-handed application of “justice” (matted hair on the dog) in the name of flipping an old man to name names, specifically the name of Donald J. Trump, so the Orange Man can be implicated in a larger crime, there’s no reason why the DA in the finance hub of the world should waste taxpayer money pursuing this. It’s the very definition of entertainment prosecution, or grandstanding and featherbedding.

I realize many Trump haters compare this to convicting Al Capone of tax evasion because the government could not make a case for murder, extortion and all around scumbaggery. But I don’t think it’s a valid comparison. Trump is corrupt as a businessman, and brought his amorality with him into the White House. He is not, despite what some believe, a bloodthirsty gangster (some believe the Clintons are murderous conspirators too).

It’s politics. The only party interested in making Trump Public Enemy #1 is the Democratic Party.

This lightweight case against the Trump Organization does more to let Trump off the hook than any pardon ever could. It robs the justice system of any authority and gravitas, if, for example, Fulton County, Georgia DA Fani Willis gets an indictment against Trump for election interference, the New York case will be brought up framing this as just another “witch hunt.” After five years, you’d think they’d get the witch by now. Instead, they are just matting the dog hair.

Cosby’s conviction was justice, his release was also justice

Bill Cosby, by a preponderance of the available evidence over the years, is a sexual predator. There’s little doubt in my mind that Coz did it.

Sixteen women accused him of drugging and raping them. Andrea Constand, Tamara Green, Beth Ferrier, Barbara Bowman, Joan Tarshis, Linda Joy Traitz, Janice Dickinson, Carla Ferrigno, Louisa Moritz, Theresa Serignese, Kristina Ruehli, Renita Chaney Hill, Angela Leslie, Victoria Valentino, Jewel Allison and Angela Leslie have spoken for themselves.

I think, and I believe in his mind and heart, Cosby knows, he did these things. He did them over and over again, in a pattern of abuse. I have been writing about this case since 2014, and I believe that many people have a sense of hero and celebrity worship, wanting to believe the best things about Bill Cosby, because he’s Bill Cosby. I’ll quote myself:

Sixteen women (it’s now up to 20, over several decades, have come forward to accuse Mr. Cosby of drugging them, fondling them, forcing sex upon them, or outright raping them. These accusations are extremely serious. Taken one at a time, they can be parsed into various categories of insufficient evidence, tall tales, or misplaced motivations. Taken together, they paint a picture of a potentially deeply troubled man.

The “believe all women” trope would have us believe even one credible accusation. But twenty? As Josef Stalin said, quantity has a quality all its own. That many accusers, regardless of the niceties and rights afforded by criminal trials, paints an unmistakeable picture. Bill Cosby, however, believes his own hero worship. He, like Ravi Zacharias, never allowed himself an instant of repentance or self-reflection. For his own image’s sake, he must be innocent.

Bill Cosby @BillCosby

I have never changed my stance nor my story. I have always maintained my innocence. Thank you to all my fans, supporters and friends who stood by me through this ordeal. Special thanks to the Pennsylvania Supreme Court for upholding the rule of law. #BillCosby

Cosby was convicted, after a first trial resulted in a deadlocked jury. The rules of evidence and the presumption of innocence were granted in one trial, and in the second trial, those rules were relaxed and the presumption eroded. Cosby’s right to a fair trial was, in the opinion of the Pennsylvania Supreme Court, taken from him.

The way the case was prosecuted, in itself, invited criticism. As T. Becket Adams noted:

“More than a decade ago,” attorney and Washington Examiner contributor Gabriel Malor explained, “a district attorney investigating one of the many sexual assault claims against Cosby determined that there was insufficient evidence to prosecute him. But that district attorney had an alternative to criminal prosecution. He believed that Cosby's testimony could be compelled in the accuser's civil suit if there was no chance such testimony would run afoul of Cosby's Fifth Amendment privilege against self-incrimination. So he made a public announcement that the case against Cosby was closed.”

As the criminal case was closed, Cosby litigated the civil case. Then the civil case was used against him in what the Pennsylvania justices called an “unconstitutional coercive bait-and-switch.” They claim he was trapped into depriving himself of his Fifth Amendment rights.

In other words, they got Coz to admit he did something after they could not gain enough courtroom evidence to prove he did it. It would be like if California prosecutors closed the O.J. Simpson case before it went to trial, waited until after the wrongful death case was litigated against Nicole Simpson Brown’s family, and only after O.J.’s book “If I Did It” was published, they reinstated charges and convicted him.

O.J. deserved to go to prison for murder, and the fact that he’s out after serving for a relatively minor crime (stealing from himself?) is a miscarriage of actual justice. Bill Cosby deserves to be rotting in prison too, if we’re talking about actual justice, in my opinion.

But the matted hair on our dog of justice can’t sustain that, because everyone, even the magnificently guilty, are entitled to the same rights and presumptions as you and me enjoy if we end up charged with a serious crime.

So I agree with Adams that Cosby’s rights were violated and that the Pennsylvania Supreme Court protected our rights when it let him out of prison. That doesn’t make it any more just, is all I’m saying.

SCOTUS protecting justice

I won’t delve too deeply into the two SCOTUS rulings, as I’m not a lawyer. I believe the high court did the right thing on both cases, protecting common sense and restricting government overreach.

In the first case, the Democratic National Committee challenged Arizona’s voter laws. The 6-3 decision balances Arizona’s right to protect against fraudulent voting with imposing burdens on voters. Let’s say it: It’s impossible to protect against fraud without imposing some burden on voters. The ruling syllabus reflected:

(4) Section 2(b) directs courts to consider “the totality of circumstances,” but the dissent would make §2 turn almost entirely on one circumstance: disparate impact. The dissent also would adopt a least- restrictive means requirement that would force a State to prove that the interest served by its voting rule could not be accomplished in any other less burdensome way.

Forcing a state to prove that every possible burden is the least restrictive outcome in terms of impact (read: racial impact, or equity) is a test that the Justices did not believe was in the interest of fairness. It was a bold grab that would move the power to strike down practically any election law to the federal courts, and to Congress. It would force legislation like H.R.1 to happen.

The Democrats could not even prove a non-equitable outcome.

Next, the racial disparity in burdens allegedly caused by the out-of- precinct policy is small in absolute terms. Of the Arizona counties that reported out-of-precinct ballots in the 2016 general election, a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on election day cast an out-of-pre- cinct ballot. For non-minority voters, the rate was around 0.5%. A procedure that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.

The door is still open for the Biden DOJ’s case against Georgia, because if 98% is not enough to prove disparate outcome, then what is the correct number? The Justices left that unexplored.

President Biden issued a statement that he’s “deeply disappointed” in the ruling. That’s fine, as long as he doesn’t try to pack the court to overturn it.

The second ruling overturns California’s requirement that charities and nonprofits expose their donor lists. Again, the Justices put their thumbs on the First Amendment, which guarantees free association. Having the state literally obtain and potentially leak or publish a “shaming” list of donors diminishes this right, without an overwhelmingly good reason to do so.

The Daily Signal gives a good rundown.

The Supreme Court found a “dramatic mismatch” rather than a close connection between California’s “dragnet for sensitive donor information” and its claimed objective of preventing charitable fraud. California had not only previously failed to enforce its Schedule B disclosure requirement, but did not actually use that information when it investigated charities.

Instead, the Supreme Court found that California’s real reason for demanding this information was convenience, to simply have the information “close at hand, just in case” it might be useful. That was not nearly enough to justify the risk that the donor information might be disclosed.

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, wrote in dissent that the majority had actually abandoned, rather than applied, the court’s precedents. She argued that, under those previous decisions, “reporting and disclosure requirements do not directly burden associational rights.”

Here the liberal wing of the high court dissented, but Chief Justice Roberts framed it correctly.

Roberts concluded the court’s opinion with this important admonition: “When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough.”

Common sense is the untangler

Commonsense prevailed here. The Supreme Court is a very good counterbalance to overbearing government data and power grabs, when it is given the opportunity to protect our rights. In both cases, the Court did, what I believe, is the right thing, not politically conservative versus liberal, or left versus right, but rights of citizens versus power of government.

In all three news items, justice will eventually catch up with the matted dog. Unfortunately, sometimes guilty people walk free. Unfortunately, sometimes old men get charged with petty crimes to make points for politicians. And in some cases, justice is bitter.

Overall, I go into the July 4th weekend encouraged that most Americans can see the right thing from the wrong thing. Maybe the last 245 years hasn’t been a failure, or at least it feels good to believe it.

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