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The reports of the death of the U.S. legal system have been greatly exaggerated.
Last week, (V) wrote: "the legal system simply doesn't work anymore." This was written in the context of the Michigan fake electors case where a judge dismissed eight felony charges brought against 15 fake electors. This response, shared by many readers, is certainly understandable. But while the U.S. legal system is indeed under severe strain, this case is actually an example of the legal system working, even if the outcome is not one that most people wanted or agree with.
It's important to understand the context here: The court dismissed the charges after lengthy preliminary hearings—a process in criminal cases to determine whether there is sufficient evidence to go to a jury trial. Unlike a grand jury proceeding, defense counsel can introduce evidence and cross-examine the prosecution's witnesses. It is one of those safeguards that prevent criminal cases which aren't supported by probable cause from proceeding.
The defendants were charged under Michigan criminal law, which requires an "intent to defraud" or an "intent to injure or defraud." Proving "intent" is difficult and requires evidence that the defendant knowingly set out to defraud or injure in a specific way. In finding insufficient evidence of that intent element, the Court noted a few things that undercut the prosecution's case: (1) the defendants were not the ringleaders—one woman said she'd only been called the night before they met; (2) they posed for photos and went public with their actions, which is inconsistent with ill intent; (3) they testified that they thought they were "alternate" electors in case election litigation was successful; (4) the certificate did not purport to be official—no Michigan seal, no forged governor's signature; and (5) they testified that their goal was not to defraud, but to bring attention to the matter—i.e., to "redress" a wrong. There was evidence that contradicted that testimony, but the judge has to determine how much weight to give competing evidence and decide whether the prosecution has met its burden.
Also, at a preliminary hearing, the prosecution doesn't have to present all of its evidence, just enough to satisfy the probable cause standard to get to a trial. AGs often make a strategic calculation about how much of their case to let the defense see, so it could be that the prosecutor withheld too much—maybe they have evidence of intent that they didn't present. We just don't know. AG Dana Nessel has vowed to appeal, but the bar is pretty high for decisions where the judge is weighing evidence and determining its sufficiency—appeals courts generally don't second-guess those credibility/reliability determinations or substitute their judgment for the judge who actually heard the evidence firsthand. This judge may have gotten it wrong, and a different judge may have allowed the case to proceed, but that's the system working as it should, even if some wish the outcome were different. Also of interest is that the judge was appointed by Gov. Gretchen Whitmer (D-MI), so this decision does not appear to have been driven by politics.
If you want to talk about the challenges to our legal system, there are plenty of better examples to point to, especially at the federal level. We are experiencing an unprecedented attack on the rule of law by Donald Trump and his loyalists, including undermining the independence of our Department of Justice, the misuse of federal prosecutors, the firing of career personnel and replacing them with incompetent lackeys, redirecting critical counter-terrorism and national security resources to immigration tasks and abuse of power by the president in calling for the prosecution of people he dislikes and the shuttering of investigations of those he likes (looking at you Tom 50-grand-Cava-bagman Homan).
Now we have a particularly egregious example of this abuse of power in Trump demanding the prosecution of people he holds grudges against, even though they haven't broken any laws. Currently in his cross-hairs is former FBI director James Comey. Trump fired Comey in his first term after Comey wouldn't commit to dropping an investigation into Trump ally Mike Flynn, who pleaded guilty to lying to the FBI, served time, and was later pardoned by Trump.
It is worth remembering that Comey is a Republican, one who arguably tipped the 2016 election to Trump when he inexplicably announced the week before the election (in violation of Department of Justice policy) that he was reopening the investigation into Hillary Clinton's e-mail server. He later said, "nothing to see here"—but only after Trump was elected. Still, Trump hates him anyway because he has a modicum of integrity and wouldn't take marching orders from the Oval Office. So, Trump tasked his U.S. Attorney in the Eastern District of Virginia, Eric Siebert, to find crimes with which to charge Comey, along with other thorns in Trump's side, New York Attorney General Letitia James (D) and Sen. Adam Schiff (D-CA). When Siebert balked, he was pressured into resigning. Now Trump has installed his former personal lawyer (of which there is seemingly an endless supply), Lindsey Halligan, who has no prosecutorial experience, into the role to bring those charges, whether or not any laws have been broken.
And yesterday afternoon Halligan did as she was told. Comey has been charged with obstruction of justice and making false statements and, apparently, was able to secure an indictment from a federal grand jury (though the grand jury did reject one of the charges brought, approving two). The claim seems to be related to Comey's testimony to the Senate Judiciary Committee in September 2020, in which he addressed leaks to the press about investigations into links between the Trump campaign and Russia. There's a 5-year statute of limitations, which was set to expire in 4 days. As Ben Wittes at Lawfare explains, if that is the basis of the charges, they seem to be based on different recollections of events between Andrew McCabe and Comey about who may have been responsible for the leaks. Speaking of an intent element, that is a very thin reed on which to hang a claim of intent to deliberately mislead the committee, which is a required element to get a conviction.
We can add to that Trump's very public statements demanding that Comey be charged, which is evidence that this prosecution is politically motivated. Comey can file a motion to dismiss and once that's granted (we wish Vegas was taking bets on the over/under as to how quickly that will happen), he has an excellent case for vindictive and selective prosecution. And while Trump won't be held accountable, the lawyers who brought this case can be. They can be fined and disbarred for bringing not only a frivolous case, but one they knew was motivated by malice, not the law or the facts. That will also be true of any charges they try to bring against Letitia James or Schiff. The president cannot choose a target and then instruct government lawyers to manufacture a crime to charge them with. Instead, facts that seem to point to a crime lead to an investigation, which may lead to a person of interest, which may lead to that person being charged with a crime that the facts and the law support. If the U.S. president takes a personal interest in someone's prosecution, that taints the entire case with the stink of an improper motivation.
Unfortunately, the media still struggles with how to report on Trump's behavior. Instead of sounding the alarm that Trump has crossed the line into the persecution of perceived enemies regardless of any wrongdoing, they're still in a "we report, you decide" landscape, as if there are two sides to whether it's OK for the president to order the Attorney General to jail a political rival. Pro Tip: IT'S NOT OK! Consider this headline from CNN: "DOJ nearing decision whether to charge former FBI Director James Comey with lying to Congress, sources say." This headline is irresponsible and misleading. Try this: "Despite memo advising against charges, DOJ capitulates to Trump's demand to charge Comey without basis." This is a five-alarm fire, but media coverage is inconsistent at best and misleading at worst.
We started this item with the observation that "the death of the legal system has been exaggerated." And it's true, even if it's struggling mightily against those whose only goal is to destroy it and who are in a position to do so. There are guardrails that are still in place to protect people from political prosecutions and uphold the rule of law: (1) grand juries refusing to indict for trumped up charges (see sandwich throwing and protesters' other alleged assaults); (2) courts issuing restraining orders to stop unlawful orders; and (3)—and this is a big one—for all the Trump kvetching about the courts, the administration is largely following court orders. One example is the birthright citizenship cases—a nationwide injunction remains in place in two cases following the Supreme Court's action telling a lower court that it could implement a nationwide injunction if it was necessary to give "complete relief" to the states. The judge did just that, and there was no effort to get that stayed on the shadow docket. There are other examples like that. Steve Vladeck, in an excellent writeup, opines that the public narrative is largely wrong and the lower court decisions have often been effective in reining in this administration.
The Department of Justice is definitely under attack and its decimation is making us all less safe. The podcast UnJustified details what is happening at the Justice Department and how that impacts us, if you want more insight into that story. It's hosted by Andrew McCabe, former deputy FBI director (and famously fired by Trump in his first term), and Allison Gill, former VA official and founder of Mueller She Wrote and MSW media. But even they, for all their concern, also sound a hopeful note that there remain plenty of ways to push back and keep those important guardrails in place.
Finally, most of the state judges, including those on the state Supreme Courts, are largely holding the line when it comes to the rule of law, regardless of the party of the governor who appointed them. For example, the Utah Supreme Court recently struck down the Republican gerrymander as a violation of a citizen-passed initiative prohibiting the practice. There are exceptions, of course, the most egregious being Ken Paxton, the attorney general in Texas who has effectively criminalized pregnancy and abused his office so extensively that Pam Bondi can barely keep up with him when it comes to corruption. But thankfully, that is the exception. Moreover, there are thousands of state and federal judges who are working hard, under the most difficult conditions, to honor their oaths, give each party a fair shot in court, and reach a result that is supported by the law and the evidence. (L) has a friend who is a law clerk for a district court, and she is one of the smartest people (L) knows and is an excellent and dedicated public servant. She is, in her words, "at my breaking point." She doesn't know if she'll have a job at the end of the month, as the legal work from DOJ attorneys is increasingly shoddy, and it just keeps piling up. These folks need our support, if for no other reason than we need them. So, show them some love and if you know someone who works for the court system, tell them "thanks!"
We all have an obligation to avoid oversimplified generalizations that only serve to demoralize and further erode people's confidence in the legal system, and to find and emphasize where the system is holding, while also holding those to account who would dismantle the rule of law in this country. We know who those people are—everyone else is doing their best. Don't mistake an error for an intent to destroy, or give that error more significance than it warrants. (L)