Justice Delayed (and the Feculent Executive)

is justice denied.

We’ve all heard that old saying.  But what does it really mean?

One of the major benefits of our legal system is that it attempts to move us away from a pattern of retributive justice in which we demand “an eye for an eye,” in which you steal my pig so I steal five of your cows, in which you burn my barn, so I march on your town . . . with a pattern in which monetary compensation substitutes for the more brutal schemes.  Thus, if you drive recklessly and cause an accident where I lose an eye, you (and/or your insurance company) are going to pay me fair compensation for the loss of my eye.  And maybe a bit more to compensate me for my pain, and trouble, and suffering.  (After all, I had to miss a lot of work going to doctor appointments.)  But I am not going to come gouge out your eye.  If you break into my house and steal my silverware, you’re going to pay me back for the value of the silverware, the damage to my door, my cost for having to rent silverware for my daughter’s wedding which was scheduled for the next day, my legal costs for having to sue you, etc.  But I’m not going to break into your house and your brother’s house to steal a similar amount of silver.  If society gets it wrong and imprisons an innocent man, society can, at least theoretically, make it all right by paying him a few million dollars for those years that he lost.  But he and his relatives don’t get to illegally imprison a bunch of other people.

We will need to invoke the time value of money:  I may have bought the silverware for $2,000 ten years ago, but it’s going to cost more than that for me to go buy a new set today.  But we’ve figured out ways to address those sorts of issues, at least more or less.

It’s not a perfect system, but it’s better for all of us than the “rough justice” of retribution that obtained throughout much of human history.  It’s especially better for those of us unfortunate enough to, for example, live next-door to an arsonist.  When his victims showed up to burn HIS house, the fire sometimes spread to ours.  That left us to go burn THEIR homes, and well, as Ghandi said, pretty soon, the whole world is blind.  Or burned.

But there’s a problem when we come to the kind of crimes that simply can’t be given a dollar value.  Some damages can’t be calculated in terms of money lost, even with a bump-up for pain and suffering, even when we figure in the time value of money.

For example, the Constitution makes it illegal for any person who holds office to accept “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”  The goal of this provision was to keep our government free from interference by foreigners.  Americans shouldn’t have to worry that when, for example, the President decides to sign a treaty, ignore one foreign country’s invasion of another, or look the other way when a foreign country murders a journalist, that the president did so because the foreign country had bribed the president.  American citizens are entitled to believe that the president always acts in America’s interests.  This has led to presidents before Donald Trump either divesting their assets (Jimmy Carter famously had to sell his peanut farm to ensure that no one would question any of his agricultural policies) or placing their assets into a blind trust.  But Trump refused to do that.  And there’s evidence that, while he’s been in the White House, foreign countries and corporations have, for example, stayed in his hotels or bought properties in his buildings for amounts that only make sense if those transactions were designed to influence his decisions as president.  And there’s evidence that his decisions have followed suit.

There are several court cases that allege that Trump is violating the Emoluments Clause of the Constitution, including one filed the day that he took office.  But as we all know, the wheels of justice can grind rather slowly, especially when one party (Trump) can hire lawyers to try and gum up the works.  And, so, here we are, two years into the Trump Interregnum, halfway through his first term, and those suits are still in the discovery phase.  Meanwhile, Trump has been free to make foreign policy in ways that appear designed to favor those who provide him with presents and emoluments.

There’s no real economic compensation that America can receive for this.

Even if Trump is finally found guilty (and if I were his lawyer, I’d move for dismissal on grounds of mootness the day he leaves office, leaving him with a nice sum in his purse for selling America’s foreign policy and setting up a nice precedent for future corrupt presidents), and even if a court were to calculate the amount of gifts and emoluments that Trump received (a Herculean task — how do you calculate how much of each night’s hotel stay was designed to buy favorable foreign policy and how much was the fair value a bed in DC?) and order Trump to refund the time value of those gifts and emoluments, that’s not enough.  The foreign policy has been made.  The Saudi princes got away with murdering journalists, China has now established long-term trading relations with South America’s soy bean farmers, Putin got away with invading the Ukraine.  American interests have been harmed in ways that simply aren’t amenable to dollar values.

Or, consider the possibility that Trump actively conspired with Putin to steal the White House.  Suppose that it turns out that the evidence clearly demonstrates that Hillary Clinton won the election, or would have done, absent Putin’s assistance.

What’s the monetary value of winning a U.S. election?  How do we unwind that?  There’s no way to figure out how much Trump should pay us for the lost value of the infrastructure programs that Clinton promised to enact within 100 days if elected.  How do we get him to recompense us for killing children in concentration camps, which Hillary wouldn’t have done?  What’s the value of the two Supreme Court seats the Republicans have stolen?  All the other federal court seats?  How much money must he pay for the bullying, sexism, and racism that his presidency has caused?  The list goes on and on.

In cases where the court can calculate the time value of damages, it supposedly doesn’t matter how long it takes for a case to wind its way through our system of justice.  (Of course, there are limits to this.  If my child dies from exposure to cold while appeals of my suit against you for burning down my home wind their way up and down the court system, no amount of money, despite the legal fiction that we can “value lives,” is going to make it all OK.  But, again, the value to society overall of avoiding the “so I’ll come burn down your home with your two children and your grandmother in it” approach is worth enough that we enforce this legal fiction.  And I get some value from the application of that fiction to others so I have to accept its application to me.)

But in those few cases, such as Emoluments and presidential treachery, where no legal fictions and actuarial studies can work out compensation, the courts and the legal system are — at the very least — required to move with more than due speed.  And this is where our legal system is failing us, and failing us badly. These are the cases in which justice delayed is truly justice denied.

The Emoluments Clause cases need to be on a rocket docket.  More than half of a term is not an OK amount of time to wait to find out if our president is selling foreign policy.  That issue needs to be determined almost instantly.  At the very least, a stay should have been imposed w/in 30 days.

And, although until a few days ago I’ve been a proponent of allowing Mr. Muller to take his time, dot his i’s and cross his t’s, work his way through the witnesses, I’m no longer OK with the amount of time that it’s taking him.  This isn’t, after all, about letting Mr. Muller prove (any more than the election was about letting Mr. Comey prove) his own great personal rectitude.  This is about saving America.  And if Mr. Muller has evidence that this Congress needs, evidence that Americans need, then he needs to release it, even if it comes with the warning that he may be working on discovering more important evidence.

Justice delayed is justice denied.

Our slow and careful system of justice works well for most cases, ensuring both sides that the courts took their time, gave everyone a chance to develop their cases, considered all the evidence, and reached a careful decision.  I’ve devoted my life to that system, spending many, many years on cases that ran from agencies, to appeals courts, to the Supreme Court, back down to the agencies and then again through the appeals courts, to large settlements, to the agency, and, finally, to benefits to consumers.  Damages in those cases included interest that sometimes doubled the original amounts.  But I’m also capable of determining when the delay works an injustice.

And that’s where we are today.

Mr. Muller, put your cards on the table.

Courts, expedite the Emoluments suits.

Finding out two, or three, or six years from now that Trump and Russia, Trump and Saudi Arabia, or Trump and China  fucked us over is justice denied.  We all took oaths, as young lawyers — if not as judges and prosecutors — to uphold the Constitution, with its promise that “we the People of the United States, in Order to form a more perfect Union, [would act to] establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” and that promise imposes upon us, to this day, a solemn requirement.  

You can’t do any of those things if you sit for years and years upon a Feculent Executive.

Act.

Now. 

Picture found here.