In his latest impersonation of the Red Queen from Alice in Wonderland, the president of the United States stopped just short of shouting “Off with his head!” at the latest New York terror suspect, but pretty much everyone knows that’s exactly what he meant. Lewis Carroll intended the Red Queen to be an entertaining caricature by virtue of her absurdity. That’s a luxury we don’t have when considering our Trump’s affinity with the Red Queen’s jurisprudence: “Sentence first—verdict afterwards.” That’s just what our Trump demands again and again from legal proceedings, with appalling disregard for the Constitution and any other law that happens to displease him.
On its face, that disregard for law, that open hostility to anything like a fair process that might produce a result displeasing to Trump—all that would seem to be an obvious and constant violation of his oath of office (“preserve, protect and defend the Constitution”), as well as an obvious and constant violation of the constitutional mandate (Article II, section 3) that the president “shall take Care that the Laws be faithfully executed.”
As recently as 1970, presidential messing with the judicial process was generally taken seriously, as when Richard Nixon at a press conference said of Charles Manson, “Here is a man who was guilty, directly or indirectly, of eight murders without reason.” Manson’s defense attorneys promptly called for a mistrial, the presiding judge took it under advisement, and amidst public outcry Nixon backed off on his prejudicial public comments, claiming that he didn’t mean to imply that Manson was guilty. Nixon’s attorney general (and later convicted felon) John Mitchell, who was present at the press conference, said later: “I don’t believe the President made the charge or implied one.” (At the time, with killings in Vietnam, Cambodia, Kent State, and Fred Hampton’s bedroom, among other places of extra-judicial execution, it would have been more to the point to note that Nixon was a man who was guilty, directly or indirectly, of thousands of murders without good or just reason.)
On October 31, the FBI charged Sayfullo Saipov with the truck-murder of eight people in lower Manhattan. Saipov waived his Miranda rights and said he had planned the attack for Halloween and asked to display an Islamic State flag in his hospital room. Referring to Saipov’s attack the next day, in the midst of a long statement that first blamed immigration policy with no coherent argument, Trump said to reporters at a cabinet meeting:
“Terrorists are constantly seeking to strike our nation, and it will require the unflinching devotion to our law enforcement, homeland security, and intelligence professionals to keep America safe….” “We have to get much tougher. We have to get much smarter. And we have to get much less politically correct. We’re so politically correct that we’re afraid to do anything…. We also have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now. They’ll go through court for years… “We need quick justice and we need strong justice—much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughingstock.”
Q: “Mr. President, do you want the assailant from New York sent to Gitmo?”
THE PRESIDENT: “I would certainly consider that, yes.”
Q: “Are you considering that now, sir?”
THE PRESIDENT: “I would certainly consider that. Send him to Gitmo—I would certainly consider that, yes.”
If it weren’t such an abomination of torture and legal horror, Guantanamo would be a laughingstock to the world. Instead it’s a shock to civilized countries and a great recruiting tool for Islamic extremists. Guantanamo, whether Americans like it or not, is America’s face to the world. Established in panic and fear by the Bush administration, perpetuated mostly by Congressional panic and fear by an Obama administration that didn’t care all that much, now it is a dark joke that is a fact of American life, where we keep people charged with no crime without a chance of release and let them starve themselves in protest until they’re too weak to resist force-feeding, by which we keep them alive to prolong the endless torture of hopeless, painful lives. Trump has long missed the brutal joke of Guantanamo reality while tweeting lies about how many Guantanamo detainees have returned to the field (relatively few), feeding a fake news story of long standing.
That’s not the joke and laughing-stock our Trump was referring to, although it should be. But Guantanamo is a fine example of “Sentence first—verdict afterwards” jurisprudence, so Trump is willing to overlook Obama’s fingerprints all over this particular legacy. Trump’s laughingstock is the constitutionally-based American judicial system. Except that in the White House wonderland of 2017, Trump never said what the White House transcript says he said. He didn’t call the American judicial system a joke and a laughingstock. That’s what White House press secretary Sarah Huckabee Sanders lied on November 2: “That’s not what he said. He said that process has people calling us a joke and a laughingstock.”
To be fair, only her first statement is a demonstrable lie. The second statement, that people are calling us a joke and a laughingstock, is actually true, just not at all in the way Sanders wants us to believe it. And the Justice Department had already charged Saipov in federal court in New York amidst widespread reports of how well the federal court system has dealt with terrorism cases, especially as compared to the dismal record of the military tribunals at Guantanamo. Even Trump seemed to acknowledge that reality when he tweeted, once again interfering in the judicial process: “Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system…” Not to leave bad enough alone, Trump tweeted four minutes later with a sentiment that out-Nixoned Nixon: “…There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!”
Our Trump knows no bounds. Every time he tweets like this it’s another impeachable offense that the cowardly majority in Congress will ignore, or even follow. We know what kind of government our Trump would like us to have. He made that clear to the Washington Post: “The saddest thing is, because I am the President of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing. And I am very frustrated by that. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier, and the kind of money—I don’t know, is it possible that they paid $12.4 million for the dossier, which is total phony, fake, fraud and how is it used?” Our Trump wants to be emperor, perhaps not in name, but in fact. He wants no checks and balances, he wants no rational consideration, he just wants obedience. He wants to punish his enemies: “Sentence first, verdict afterwards.” He wants the kind of judiciary they already have in Guantanamo, where the presiding judge (a general) feels justified in convicting defense counsel (a higher ranking general) of contempt of court, not just for standing up for his client, but for standing up for his client’s civilian attorneys. This was the first military tribunal conviction since 2008, not of a terrorist but an American general, sentenced to 21 days in confinement. The convicted general is the chief defense counsel for military commissions and the second highest ranking general in the Marines.
The general’s underlying offense was his objection to the government wiretapping attorney conversations with their clients. He was freed after a three day confinement. The case is continuing, with Pentagon lawyers uncertain whether any of the developments so far are within the officials’ legal authority, and a federal civilian judge reluctant to hear any appeal. This would all be breathtakingly funny if it were fiction. But it’s a real world laughingstock. There are laughingstocks everywhere. We have a government of laughingstocks. The president is a laughingstock, as is his cabinet and his veep. the Congress is a laughingstock— that’s the one truly bipartisan thing about Congress. For the moment, only the judiciary is not a complete laughingstock, although the Supreme Court is teetering toward the bad joke category. The federal judiciary continues to maintain centers of rationality, coherence, and constitutional principle. But time is against the judiciary. As Trump appointees fill more and more vacancies, we can expect to be governed by a full laughingstock. And the joke will be on us. Unless we can somehow regain our full civic size and become another Alice who tells them all: “Who cares for you? You’re nothing but a pack of cards.” Z
William M. Boardman has over 40 years experience in theater, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.