Dickens Meets His Match

In Charles Dickens’ masterpiece, Bleak House, tying together the myriad characters and plot lines is the impenetrable, byzantine case of Jarndyce and Jarndyce, in which a court must determine the proper beneficiaries of a huge estate.  The Jarndyce proceedings had plodded along for so many generations and had “become so complicated, that no man alive knows what it means.”  In the end, to the chagrin of the would-be heirs, those still alive at any rate, and the destruction of others, the once massive fortune is totally eaten up in legal fees, which leaves the lawyers laughing and everyone else penniless.

Dickens, the man who in Oliver Twist popularized the phrase “the law is an ass,” although he did not coin it, was brilliant at lampooning society’s absurdities, none more so than a legal system that had sent him to a workhouse as a child.  His lacerating depiction of lawyers, judges, and courtrooms evokes both laughter and despair and, terrifyingly, threatens to become our own.

One would think that it would take a genius with language to portray the judiciary with such heartbreaking satire, but in the current day United States, Donald Trump, a man lacking the literary talent to pen a properly constructed compound sentence, has demonstrated that same ability.

As with Dickens’ characters, Trump seems to be correctly following the rules of procedure, but it is in those rules that the absurdities reside.  Our judicial system, like the Court of Chancery in Bleak House, is built more for lawyers than for clients, but a willing client with gobs of money to plunk down can avail him or herself of the circuitous delays that are built into every motion, stay, discovery requirement, brief preparation, appeal, and sundry other facets of American jurisprudence, and thereby forestall, and perhaps forsake, any chance of the process coming to a just conclusion.

And so, the nation is currently being treated to the spectacle of a man who can afford to pay millions to lawyers—although he often does not—and who has no respect for either the legal system or the government it represents, contorting the judiciary sufficiently that it descends to burlesque.

The most illustrative example came in the recent appellate court hearing on presidential immunity.  How else but burlesque to describe an assertion in which Trump’s lawyer, with a straight face, insisted that his client cannot be prosecuted after ordering an assassination of a political opponent, and cited the United States Constitution as the justification for his argument?

Without deigning to dignify his totally ludicrous reading of the impeachment clause, one must ask if there is the tiniest hint that even one of the fifty-five delegates to the Constitutional Convention or the hundreds of delegates to the state ratifying conventions considered something so idiotic as a possibility.

The answer, obviously, is of course not, and Trump’s lawyer knows it.  But he wasn’t making the argument to persuade the three judges, but rather simply as yet another means to draw out the process in Trump’s expectation, which Americans can only hope is delusional, that he will be elected president and end the prosecution.

The problem here is not Trump or his lawyers, but rather judges who pretend that the rules of procedure preclude them from interceding in the art of the stall.  The Supreme Court refused to fast-track the case, and the appeals court has let its own fast-track process move not all that fast.  If Trump loses with the three-judge panel, which is a near certainty, he will then request an en banc review by the entire court, which, even if denied, will engender another delay.  Then on to the Supreme Court, for more delays still. 

If Trump, the perpetual victim, loses there as well, also likely, it will be late enough in the spring for him to claim he is being denied the right to campaign. 

Dickens would have been in awe.

Although everyone knows what Trump is trying to achieve, the judges involved have merely shrugged their collective shoulders and claimed that with issues so fraught they are mere slaves to the rules of procedure, of which “everyone knows” is not one.

Justice may be blind, but judges should not be.

“Everyone knows” is not illegitimate when the circumstances are so apparent, and is even in the jurisprudence, part of one of the most famous opinions in Supreme Court history.  In 1896, in his outraged dissent in Plessy v Ferguson, in which Louisiana was trying to convince the nine justices that forcing Black riders into dilapidated, smoke-filled, railroad cars was not a violation of their 14^th Amendment rights, John Marshall Harlan attacked the notion that these separate accommodations were in any way “equal” and stated the obvious.  “Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons.”

But Harlan’s eight brethren chose to ignore the obvious and the doctrine “separate but equal”—which never was remotely equal—was born.

The argument against “everyone knows” is that if judges are allowed to use inference, or even common sense, in the courtroom, the next step might be ignoring the law entirely and introducing a level of subjectivity in the proceedings that will lead to a miscarriage of justice.

But what is Trump endeavoring to achieve if not a miscarriage of justice?  In their attempt to prevent a miscarriage of justice, judges shouldn’t be perpetrating one.

Neither approach is perfect.  Judges undoubtedly need to be cognizant that the rules of procedure were instituted for the protection of all parties.  But they also need to be cognizant that if they ignore the obvious, the entire system loses credibility, as the American judicial system is well on its way to doing.

It is, alas, for judges alone to decide which is the greater threat.  So far they have done a poor job of it.