by Roger Kimball @ American Greatness Nov 24/23
Much that is happening in the spectacle of America’s legal-political life today reminds me of some pages in Johan Huizinga’s great book Homo Ludens: A Study of the Play-Element in Culture (1938). In a chapter on “Play and Law,” Huizinga distinguishes the unfolding of legal proceedings in advanced cultures, where strict adherence to process and abstract notions of right and wrong prevail, from the situation in more primitive cultures, where the ultimate criterion is victory. “Turning our eyes from the administration of justice and highly developed civilizations,” Huizinga writes, “to that which obtains in less advanced phases of culture, we see that the idea of right and wrong, the ethical-juridical conception, comes to be overshadowed by the idea of winning and losing, that is, the purely agonistic conception. It is not so much the abstract question of right and wrong that occupies the archaic mind as the very concrete question of winning or losing.”
In this sense, I submit, Special Counsel Jack Smith, District Judge Tanya Chutkan, New York Attorney General Letitia James, and the rest of the anti-Trump legal confraternity perfectly epitomize the atavistic persistence of archaic impulses in the law. People like me are always going on about “the rebarbarization of civilization.” The peculiar legal assault against Donald Trump is one instance (among many) of that phenomenon.
It’s been going on for quite a while. The 2020 election, for example, took place during the period of eagerly embraced Covid hysteria. That hysteria provided a justification or, more accurately, an alibi for the numerous violations of the law in the conduct of the election. The Constitution of the United States stipulates that state legislatures are in charge of determining voting procedures. But various governors and secretaries of state, from blue states mostly, swept that Constitutional provision aside in their eagerness to assure the appearance of a Biden victory. Such anomalies were noted and commented on at the time but somehow never got traction. Why? Because the media, that great tool of The Narrative, determined that it oughtn’t to get traction.
In subsequent months, the public has been treated to an efflorescence of similar and even more extreme anomalies as Donald Trump can barely turn his head without being indicted for something or other. I do not think that the public at large grasps how bizarre the quartet of indictments, proceeding in tandem in four separate jurisdictions, really is. It is unprecedented, yes, but it is also surreal. It is also a travesty of the legal process. The aim is not justice but the grubby partisan goal of removing a popular political rival from the field. The Attorney General of New York, Letitia James actually campaigned on the promise that she would “get Trump.” How is that OK? What has happened is that the law—or, more precisely, the paraphernalia and accoutrements of the law—is simply the weapon of choice, all else having failed. Those who point out that the effort to transform a political rival into a pariah is tantamount to banana republic tactics are right. But to say that is not yet to do justice the breathtaking situation in which a former president who happens to be, by a wide margin, his party’s favorite for the presidential nomination is treated worse than a common criminal. Common criminals, as a rule, are not subject to gag orders for trying to defend themselves. “Shut up, or you might convince people you are being unfairly persecuted!” What a blow against “Our Democracy™” that would be!
What’s happened this past week has put the proverbial icing on the cake. First, the Colorado Supreme Court ruled that Donald Trump was ineligible to appear on the ballot in that state because of his role in the January 6 jamboree.
Yes, I know that one is supposed to describe that event as an “insurrection,” an event worse than Pearl Harbor, 9/11, even the Civil War. But no amount of agitated repetition can change the fact that what happened on January 6, 2021 was a far cry from being an “insurrection.” Tucker Carlson’s description of the event as a “protest that got out of hand” is much closer to the truth. The surging crowd was not armed. The one shot that was fired that day was fired by Capitol Police Officer Michael Byrd. He murdered Ashley Babbitt who was trying to calm the crowd inside the Capitol. Byrd was exonerated, as were the federal agents responsible for the death of Rosanne Boyland.
Readers interested in what actually happened that day should consult Julie Kelly’s meticulous and indefatigable investigative reporting on the event. As for Trump himself, what was his role on that fateful day? Believing (as I do) that the 2020 election was rigged, he held a rally in DC during the course of which he urged his followers to march to the Capitol “peacefully and patriotically” to make their voices heard about an election they believed as flawed. He also took to Twitter (shortly before he was ejected from the platform) to urge his followers to eschew violence. “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” As insurrectionists go, that’s pretty pathetic, isnt it?
The guardians of The Narrative have had to resort to an obscure clause in the 14th Amendment—a clause that was devised to prevent supporters of the Confederacy from assuming or reassuming public office—in order to keep Trump off the ballot or, in Jack Smith’s case, to charge him criminally.
It hasn’t been been a great week for Jack Smith. Like the narrator in Andrew Marvell’s “To His Coy Mistress,” he hears “time’s wingèd chariot hurrying near.” He is desperate to have Trump’s trial start March 4, the day before Super Tuesday, the day that, many observers predict, Trump will essentially sew up the the GOP nomination. Smith hopes that by having Trump in court on criminal charges before that will materially erode his support. Looking at how Trump’s polls have thus far responded to his persecution by the state, I’d say that was a dubious proposition, but there it is. Smith asked the Supreme Court to bypass the usual appeals process for Trump and hear his case on an expedited calendar. On Friday, they refused, without comment and without dissent.
Meanwhile, former Attorney General Edwin Meese and Law Professors Steven G. Calabresi and Gary S. Lawson have filed an amicus brief with the Court arguing that Jack Smith, a private citizen, has no standing as Special Counsel because Merrick Garland, who appointed him, lacked the authority to do so. Best line in the brief: “Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.” (I had to look up Bryce Harper, but you know how it goes).
It’s uncertain at this juncture what the Court will do or how, if at all, the brief by Messe et al. will affect the thinking of the Justices. I’d say that having someone of the stature of Ed Meese weigh in was significant, but who knows? The DC Circuit Court has already scheduled an expedited review of the case in DC, where an anti-Trump jury guided by an anti-Trump judge can be counted on to convict Trump of whatever he is charged with. The obvious bias of the judge and the jury pool are also things that belong to an atavistic conception of the legal process. But that is precisely where we are now. It would be interesting to know what Johan Huizinga would think of this brutal carnival in which one man is turned into a scapegoat in order to satisfy the blood lust of a barbaric vendetta. Unfortunately, he died in 1938. So we will just have to watch the unfolding of this unedifying spectacle ourselves.
