Justice Without Fear or Favor

In the 1960s, a relatively new technology was able to record and broadcast as news the behavior of citizens and law enforcement in Southern states, in particular Alabama and Mississippi. The rhetoric matched the behavior, as protesters or voting rights advocates were beaten while the police stood by. One cannot repeat the names called, but can remember still the violent speech used by segregationists as they fought against the change that was coming. To be in the South was to be without the Rule of Law most of us had come to depend on in our lives. At the heart of the Rule of Law is the promise of equal protection under the law as we exercise our civil rights.

Jump ahead forty years, and we find that through those years violent hate speech existed in pockets or groups that operated mostly underground, not in the mainstream. The U.S. Constitution has been amended rarely since its inception – there are only 23 amendments, the first ten of which comprise the Bill of Rights, which sets out to distinguish what the government may not do. But we return time and time again in any discussion to the Rule of Law to the Declaration of Independence, which announces that "all men are created equal."

Go forward a few more years to the primaries in 2016 and the public stage is dominated by a presidential candidate Donald Trump, who captures donations and votes by making personal and dangerously suggestive claims about the government and about his political opponent. He initiated the chant "Lock Her Up," which was shorthand for Hillary Clinton's handling of classified documents. The New York Times journalist Peter Baker noted that

"Throughout 2016, he castigated Hillary Clinton for using a private email server instead of a secure government one. 'I'm going to enforce all laws concerning the protection of classified information' he declared. "No one will be above the law.' Mrs. Clinton's cavalier handling of the sensitive information, he said, 'disqualifies her from the presidency.'"
Seven years later, Mr. Trump faces criminal charges for endangering national security by taking classified documents when he left the White House and refusing to return all of them even after being subpoenaed. Even in the what-goes-around-comes-around department of American politics, it is rather remarkable that the issue that helped propel Mr. Trump to the White House in the first place now threatens to ruin his chances of getting back there." (June 8, 2023)

In remarks on Ellis Island to welcome new citizens in September of 2022, U.S. Attorney General Merrick Garland spoke about the Rule of Law as distinguishing the United States from many other countries.

"The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country's newest citizens or whether our [families] have been here for generations. The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon ones race or ethnicity or country of origin."

Everyone should take the time to read the full indictment handed down by the grand jury, and then pay close attention to the exhortations that emerge from Trump supporters, suggesting that another January 6th event is in order, or something worse. They are whipped up by the remarks of the former president who calls the indictment "a witch hunt," while declaring that he did nothing wrong, and while calling the Department of Justice's special counsel, Jack Smith, "a deranged lunatic." He says nothing about the facts of the indictment at all, which includes a great deal of supporting evidence, including photos and transcriptions of testimony taken under oath.

Polarization of the country is likely to heighten before the case goes to trial. The Federal Bureau of Investigation has already fanned out around the country to monitor potentially violent groups we may recognize from January 6th.

It is likely that Trump will not want a speedy trial, but rather to draw matters out and continue to fund raise by repeating these false claims. The world is watching how this unprecedented case will be handled. There is at least one other federal investigation that Jack Smith is handling that involves former President Trump and that is January 6th, where Attorney General Garland promised to "pursue justice without fear or favor" in his decision on whether to charge Donald Trump with crimes related to the Capitol attack and the attempt to overturn the 2020 election.

That phrase is from an announcement that Adolph S. Ochs made in April of 1896, when he announced he had assumed control of the New York Times, and stated the principles that the paper would operate on going forward.

"It will be my earnest aim that THE NEW-YORK-TIMES give the news, all the news, in concise and attractive form, in language that is parliamentary in good society, and give it as early, if not earlier, than it can be learned through any other reliable medium to give the news impartially, without fear or favor, regardless of party, sect, or interests involved; to make the columns a forum for the consideration of all questions of public importance, and to that end to invite intelligent discussion from all shades of opinion."

The announcement bears a remarkable resemblance to the role that Attorney General Garland has laid out for the Department of Justice in this case, and as we await a decision on whether to charge or not in the next month or so.

The political climate is in a different place than it was in the 1960s, or even in 2016.  Though it is hard to imagine how Trump's lawyers will be able to mount a defense of his actions around documents that are still so sensitive they cannot be exhibited in the courtroom, we can see that Republican members of the House of Representatives are characterizing the indictment in the language he leads with and the still sizeable minority of Trump supporters echoes it. Republican senators are quiet at this time, waiting for the next shoe to drop. His followers are numerous and respond with both money and vicious threats.

More troubling still is the persistent motive, against obviously clear evidence, for nearly a third of the electorate, to unswervingly follow Trump, seemingly taking a state of perpetual grievance as their own. It is to be hoped that the formality of the court proceedings will offer everyone an opportunity to understand exactly what he did, and why he is on trial, "without fear or favor." These claims, under the language of favor, reveal a pervasive fear of change and of the future, when what is most needed is a clear and sober reaffirmation of the Rule of Law.

Originally Published by ASA News and Notes June 12, 2023


Annie Searle

Searle is an Associate Teaching Professor Emeritus at the University of Washington. She is founder and principal of ASA Risk Consultants, a Seattle-based advisory firm. She spent 10 years at Washington Mutual Bank, most of them as a senior executive. Annie is a member of the CISA 10 Regional Infrastructure Security Group. She was an inaugural inductee in 2011 into the Hall of Fame for the International Network of Women in Homeland Security and Emergency Management. She writes a column monthly for ASA News & Notes and is the author of several books or book chapters. She is also a member of the emeritus board of directors for the Seattle Public Library Foundation.

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