The United States of Lawfare

There's a sad irony in witnessing people who claim that the legal system is stacked against the citizens (see: progressives, police defunders, bail eliminators, non-prosecutors, and the like) happy over the pretzeling of that system for partisan political gain (see: Trump's absurd fine in New York for financial reporting irregularities).

There's an as-sad irony in witnessing one of the recent "champions" of freedom ready to sign a bill that runs roughshod over our First Amendment protected right to free speech (see: Ron DeSantis and Florida's proposed defamation law).

The Trump prosecution by state Attorney General Leticia James could be the poster child for lawfare. Financial record violations and purportedly exaggerated property valuations that harmed no one, that were accepted or ignored by the banks to whom they were submitted, and which produced no quantifiable damages were prosecuted by a zealous partisan, ruled upon not by a jury of Trump's peers, but by a single judge, and punished with a nine figure fine and three years of prohibition from running his businesses. I didn't sit in on the trial, and I don't know the nuances of the laws being violated, but I am confident that if the accused was named Joe Shlabotnik rather than Donald Trump, this case would likely never have even been ideated, let alone prosecuted.

You've almost certainly seen wall-to-wall coverage of the Trump matter, but how many of you even heard of Florida's HB757: "Defamation, False Light, and Unauthorized Publication of Name or Likenesses"?

Among other tort-lawyer-friendly provisions, it requires "that certain articles or broadcasts be removed from the Internet within a specified period to limit damages for defamation," and sets a "presumption that a publisher of a false statement acted with actual malice in certain circumstances."

Good luck trying to remove something from the Internet. The only way to do so is never to put it there in the first place. As for a presumption of malice? Holy dogshit, Batman, we have people who tell us that two plus two doesn't equal four, so anything can be litigated.

It's a giant wet blanket smothering freedom of speech in a state that has been ranked second in the nation in freedom.

If DeSantis signs it, he will have affirmed prioritization of culture-warrior over his exemplary record as a pro-economic-liberty executive - an attitude that bought him some brownie points from the Right in his beefing with Disney, but is a very bad look for someone with Republican Presidential aspirations. In other words, he'll be "dead to me" going forward.

These two data points reinforce a very troubling conclusion: that the bedrock principles of liberty and equal treatment, from which all our laws are supposed to be derived, and by which all our public servants should abide, are washing away like a sand castle at high tide.

This isn't a new or unique conclusion.

The more corrupt the state, the more numerous the laws. -- Publius Cornelius Tacitus, Roman historian and politician. ca. 100.

Show me the man and I’ll show you the crime. -- Lavrentiy Beria, Secret Police Chief under Joseph Stalin, ca. 1935.

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood. -- James Madison, Founding Father, Congressman, Secretary of State, President, 1788.

A grand jury would indict a ham sandwich, if that’s what you wanted. -- Sol Wachtler, Chief Judge of the New York Court of Appeals, 1965.

The United States is a nation of laws: badly written and randomly enforced. -- Frank Zappa, musician, satirist, and philosopher, ca. 1970s.

Every American unknowingly commits three felonies a day. -- Harvey Silverglate, attorney, 2011.

Prosecutors are supposed to exercise discretion in their jobs. No set of laws can cover every instance and every mitigating or exacerbating circumstance, nor can the law read minds or hearts or plumb the depths of intent. Per the "blind justice" paradigm, they aren't supposed to let personal preferences or animosities inform their decisions. But, they are human, and they are political animals, and the system has some perverse reward structures, so the good and honest and fair prosecutor is less likely to advance up the ladder than the one who knows how to play the game, and who subordinates actual justice to conviction records or prized "scalps."

The people who created this nation understood that human nature runs contrary to the foundations of liberty, so they did their best to create a government of "laws, not men." This precept speaks to equal treatment under the law, and to minimizing the ability of capricious individuals to unjustly use the power of government over others. That's why we have a separation of powers, why we have a bicameral legislature, why we have a Federal government with limited powers, and many state and local governments with degrees of autonomy. Distribute the power, and you reduce the ability to abuse it.

But, when legislatures fills executive branches' (which oversee the prosecution of crimes) toolboxes with near-infinite tools, they give them near-infinite power. Thus, Beria's ability to arrest anyone. Thus, the ability to indict a ham sandwich. Thus, three felonies a day.

We, the voters, created this mess. When we applaud "getting" our political counterparts by any available means, we contribute to this law-fare society we find ourselves in. When we argue "tit-for-tat" or something "the other guys started it," we ensure it'll continue and get worse, and we perpetuate the demise of our rights, our liberties, and our ability to live our lives unmolested by bad actors.

Before you ponder payback for the "other team's" misdeeds as a political mission, remember all this.