I wanted to highlight this sharp piece by David Kurtz about the agonizing slowness of the American justice system in holding Donald Trump to account for his many, many crimes. Kurtz writes from the perspective of someone who was initially in the camp of trusting the slow grinding wheels of justice to do their work, but who has evolved to “having my hair on fire that the gravity of the moment calls for so much more than the legal system is prepared to offer.” I’ve been on a similar trajectory, so his words hit me with particular punch.
Here’s the heart of what Kurtz has to say:
[I]t has become obvious that the slowness of the legal system isn’t merely the result of a careful, deliberative adherence to the rule of law and the procedural protections necessary to do proper justice. It is also a product of a wariness in confronting Trump and his legions of supporters, an unreasonable tendency to give him the benefit of the doubt, the judiciary’s own overweening sense that it is above politics, and a fundamental failure to appreciate that a strongman who attempted to seize power unlawfully once is a threat to the very existence of the legal system itself.
When the legal system itself is under threat, it must respond with extraordinary measures that continue to protect the procedural and substantive rights of the individual defendant but girds the system against attack, prioritizes institutional self-preservation, and is self-conscious of its role as a bulwark of democracy [italics added].
I’ve emphasized the second paragraph above because, as important as it is to understand the lamentable reasons for why the U.S. justice system has fumbled its response to Trump, Kurtz’s prescription cuts to the heart of the true challenge and what ideally needs to be done. It is incredible to me that so many in the justice system have not grasped that, as Kurtz puts it, “the legal system itself is under threat,” even as such is obviously the danger posed by a lawless authoritarian like Donald Trump. It should be self-evident that the legal system should protect itself against such incursions, both for its own sake and owing to its role as “a bulwark of democracy,” and yet this has not happened. The question, then, is what might be done to change this dynamic.
One thing that occurs to me is that we can hardly expect the legal system to protect itself alone, in a vacuum, cut off from political support from elected politicians. Democrats have not done nearly enough to provide either cover fire for the legal system or encouragement that it play its proper role, out of a misplaced fear of appearing to politicize it. It could have been different; it could still be different. For instance, when judges and juries legitimately fear threats or violence at the hands of MAGA extremists, the lack of clear and deterrent Democratic-led legislation amping up penalties for such intimidation becomes glaring and unforgivable. Why not drum this up into a political issue? —done right, it might even win them some votes from law and order types!
Conversely, when Democrats necessarily defend the “rule of law,” pointing to our system of justice is a key way of making concrete what might seem overly abstract. And in turn, being able to creatively and powerfully talk about what the rule of law provides the country (equal treatment for all, freedom from arbitrary violence) in turn can provide support for the legal system that makes it possible, in a sort of virtuous circle. It seems to me that defenders of democracy across the board could be doing a far better job of this — particularly as a second Trump term promises a high likelihood of lawlessness by the president and his allies, with all the mass political, physical, and economic insecurity that would entail.