Our courts have too often become expressions of the popular will.
by Victor Davis Hanson
In ancient Athens, popular courts of paid jurors helped institutionalize fairness. If a troublemaker like Socrates was thought to be a danger to the popular will, then he was put on trial for inane charges like “corrupting the youth” or “introducing new gods.”
Convicting gadflies would remind all Athenians of the dangers of questioning democratic majority sentiment. If Athenian families were angry that their sons had supposedly died unnecessarily in battle, then they might charge the generals with capital negligence — a warning to all commanders to watch their backs. As in the case of Socrates, a majority vote often led to conviction, and conviction to a death sentence, or at least ostracism or exile. The popular courts freelanced to ensure that “the people” would hold sway over the perceived powerful and elite.
For a couple of years in revolutionary France, a Tribunal Révolutionnaire tried royalists, clergy, the wealthy, and supposed counter-revolutionaries on trumped-up charges of crimes against the people. Their purpose was a more violent version of the Athenian idea that the courts should serve the public by targeting the prominent, influential, or wealthy.
We in the United States are in jeopardy of turning our own criminal-justice system into revolutionary tribunals — fanned by the popular media and public opinion and directed against so-called enemies of the people.
In October 2005 popular anger against the Bush administration over the Iraq war was at its zenith — and in particular against the unapologetic Dick Cheney, Karl Rove, and other top Bush officials. The Democrats were rightly confident of making huge gains in the upcoming 2006 midterm elections, in part by attaching animus and scandal to administration grandees.
We don’t hear much any more about Scooter Libby, who was chief of staff to Vice President Cheney. But in late 2005, by a set of strange circumstances, he became a target of media anger and liberal fury. Libby was indicted by a Washington grand jury and put on trial by Special Prosecutor Patrick Fitzgerald, supposedly for leaking the claimed covert identity of Central Intelligence Agency officer Valerie Plame Wilson.
We know now that not only was Ms. Plame’s identity probably not covert, but, if it ever had been, former Secretary of State Colin Powell’s own deputy, Richard Armitage, had already leaked it. And we also know that both Mr. Fitzgerald and Mr. Powell knew that fact at the time of the trial, and yet kept silent about it. The prosecutor’s apparent concern was not whether Libby had indeed first leaked a supposedly classified fact — since it was clear from the outset that he had not — but instead that at least someone in the Bush administration was owed a comeuppance.
Libby was eventually convicted not of disclosing anything illegal about Plame, but, in the course of unending testimonies, of obstructing justice by supposedly not telling the entire truth under oath to various federal bodies. The crushed career of Libby served as a sort of national venting and warning. Once the federal court had become a revolutionary tribunal acceding to the popular will, the furor passed, the media were satiated, Libby was ruined and soon to be forgotten, and calm returned.
Note that, last week, Director of National Intelligence James Clapper calmly admitted that he had lied while under oath in testimony to the U.S. Congress, in answering “No” to the question, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper has been neither fired nor indicted for perjury. For that matter, Attorney General Eric Holder was also not truthful when, under oath, he denied knowledge that the Justice Department had gone after reporters.
Do not expect Patrick Fitzgerald to come out of retirement as a special prosecutor to try Clapper or Holder as he did Libby — much less to wade through the NSA scandals. Do not expect administration personnel to be asked to testify under oath about their leaks to the New York Times or the Washington Post concerning national-security information favorable to President Obama.
I doubt that the Post’s David Ignatius or the Times’s David Sanger will be jailed as was the Times’s Judith Miller in 2005, should they choose not to reveal who in the administration gave them such intimate knowledge of the Stuxnet virus or of the bin Laden raid and the trove of documents found in the al-Qaeda leader’s compound. And yet these are not minor issues like the supposed status of one Valerie Plame. Instead, these scandals are only deemed minor in the mind of our revolutionary prosecutors and judges, who prefer to ignore them. How strange that a country that once tore itself apart over who said what about Valerie Plame now snores when its top officials lie under oath and the most intimate details of our national security are leaked to the press.
Nor will there be a special prosecutor to depose IRS executive Lois Lerner, who took the Fifth Amendment rather than disclose to Congress why her tax-exemption division seemed to single out conservative organizations for rough treatment.
In other words, media hysteria, popular anger, and ideology determine whether revolutionary courts go after someone like Scooter Libby as an enemy of the people, or ignore those in the Obama administration who lie under oath or take the Fifth Amendment. The court system has become a valuable tool of perceived social, rather than individual, justice.
Note also that Conrad Black — writer, member of the House of Lords, and ostentatiously rich fat cat and conservative media mogul — was put on trial by Patrick Fitzgerald for all sorts of sensationalized crimes. Yet he was eventually convicted on just two lesser counts, and apparently was sent to prison as a reminder that a flamboyant conservative mogul should watch what he says and does. He is barred from entering the United States for the next 30 years — unlike illegal immigrants, who soon may be able to claim amnesty even after breaking a federal law and committing two DUI offenses. In that regard, note also that Jon Corzine, liberal former senator from and governor of New Jersey, was at the heart of the financial meltdown at MF Global — involved in improper practices that cost investors hundreds of millions of dollars. So far Corzine, unlike Black, seems immune from commensurate federal criminal prosecution.
People can legitimately disagree on the merits of the George Zimmerman self-defense case. But few serious observers believe that Zimmerman can ever be proved to have committed second-degree murder as charged. That prosecutorial overreach came in response to the popular furor whipped up by racialists like Jesse Jackson and Al Sharpton, veiled suggestions from Attorney General Holder that civil-rights violations might be prosecuted, and improper editorializing by the president of the United States about his and Trayvon Martin’s shared racial makeup. All this led the state of Florida to appoint a special prosecutor overriding local public prosecutors, apparently because of both fears of civil unrest and liberal perceptions of social justice.
The popular media once again did their best, along with politicos, to use a criminal court for larger social agendas and therefore hyped the racial aspects of the trial: CBS aired doctored photos of George Zimmerman to downplay the severity of his injuries. NBC altered Zimmerman’s 911 tape to make him sound a racist. The New York Times invented a new rubric, “white Hispanic,” to ensure that the case was explosively reinvented in the media as white on black, rather than a Latino/black incident.
CNN published photos of Zimmerman’s ID, making it easy for viewers to gain access to his Social Security number. Celebrities like director Spike Lee publicized (inaccurately) Zimmerman’s home address. The New Black Panther Party put a bounty on Zimmerman’s head. Members of the Congressional Black Caucus smeared him as a killer and racist.
Again, no one knows exactly what happened on the night Trayvon Martin was killed; but given the media distortions, the threats, and the popular agitation, everyone knows that a revolutionary tribunal is in session to find Zimmerman guilty of murder. He has ended up a necessary sacrificial pawn to serve wider issues of social justice, or at least avoid civil violence.
The American court system is insidiously focusing on social transformation rather than individual justice. If Neanderthal reactionaries in California twice voted to reiterate that marriage is between a man and a woman, then leave it to judges and courts to find them bigoted and politically incorrect. In the present revolutionary environment, the degree of the Obama administration’s enforcement of federal laws concerning gay marriage, or illegal immigration, or the new health-care law has hinged on politics and perceptions about social justice — and the courts increasingly predicate their own decision-making on these same considerations. The street can brand a court either an esteemed ally or a reactionary enemy of the people, and so the courts make the necessary adjustments.
If only George Zimmerman had Hispanicized his first name and adopted his maternal last name, the popular tribunal might have never indicted Jorge Meza. If only Conrad Black had been head of the New York Times, whose incompetent, high-living owners have cost stockholders hundreds of millions of dollars, rather than an outspoken conservative public figure, the prosecutor might not have been too interested in his affairs. And if Scooter Libby had just worked for Barack Obama, a special prosecutor would no more have gone after him for leaking or being untruthful than it has James Clapper or Eric Holder.
Twenty years ago we laughed at the absurdities of the O. J. Simpson trial and verdict. But that circus has proved to be the blueprint for 21st-century American criminal justice.
NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution. His latest book is The Savior Generals, published this spring byBloomsbury Books.