Plus some thoughts on *American justice”
14 June 2023 — And so a former U.S. President has been indicted and arrested. For the 2nd time. And as expected, there’s been non-stop coverage. Some good analysis, and some not so good analysis.
This morning I was at NATO HQ in Brussels for a totally unrelated event (the use of OSINT in the Ukraine war), but there seemed to be non-stop chatter about how the military and intelligence services were the most upset about Trump absconding with intelligence secrets. As well they should. If you have read the indictment, or merely skimmed it, the amount and type of classified information Trump took, hid, did not secure, and refused to give back is simply off-the-charts 🤯 .
I’ve noted many media analysts have called them “war plans” but I doubt any of the documents fit into that specific contingency category. A long-time friend of mine at NATO who has advised me on various aspects of the Western intelligence efforts in the Ukraine war, and who has worked on U.S. Presidential briefing papers, told me the documents a select few have seen are extremely detailed intelligence assessments, with potential foe (and friendly) capabilities and weaknesses and U.S. capabilities we would not want anyone – especially foes – to know. And they know Orange Head has traded some of these documents for personal gain but nobody wants to talk specifics – although they allude to “more info will come out as the litigation proceeds”.
And my friend said (in a very angry, animated way):
“This isn’t a document issue, it’s a national security issue. I know the process that intel agencies, military units, foreign service officers go through, the sweat and blood into providing these documents, making sure they are accurate. All those individuals KNOW they must get it right, because their work, their assessments, are provided to key decision-makers. Those who view these docs – the President, high-level military leaders, State department officials and others – use these assessments for critical decision making. FOR our citizens, FOR our country”.
One phrase in the indictment struck me like a bullet. Trump refers to “my boxes”.
None of these are “personal papers.” These documents provide information/intelligence – gathered through the use of U.S. capabilities, put together by really smart, dedicated, patriotic individuals – to be used by U.S. officials to defend against all enemies, foreign and domestic. Strategic leaders see and use these documents when they are in a position to serve the American people. They don’t get to keep them, or review them, or show them around, or not keep them secure, when they are no longer in the position.
Even the military side is the same. Each kind of document – Secret, Top Secret, TS-SCI, TS-HCI, NOFORM, TK, and even the kinds that were “redacted” – are only allowed to be seen because they help the appropriate military commander make better decisions, plans, or conduct more effective operations. When you leave the military or a specific job, you are “read out” of the clearance process.
That’s what happens to everyone, including the U.S. President.
Yes, the President has declassification authority. But that requires a complicated process that then protects a lot of people. Anyone who says otherwise is a moron. And anyone who says someone can do it after leaving their leadership role is even more moronic.
To claim they are “his” – as if they’ve been given to him for personal use or vanity just like the World Wrestling Federation belt, the New York Post clippings, or any other trinket or memento also found in these boxes 🙄 – is horrid. So, yes, military and intelligence officials are pissed. They know the power of these documents that were treated cavalierly.
And all Americans should be equally pissed. But it seems so many are not because of how so many of the Republican politicos in government are treating this case.
It has been 20 years since I left the U.S. and parked myself in Europe, making very infrequent trips back. But as I have noted before, although I am no longer a U.S. citizen I find myself irrevocably tangled in America’s hopes, arrogance, and despair.
Donald Trump aims to burn down the American republic. These were his words last night after he appeared in court:
Yet another attempt to rig and steal an election. Political persecution straight out of a fascist or communist nation. The president, together with a band of his closest thugs, misfits and Marxists try to destroy American democracy.
And this:
I will appoint a special prosecutor to go after Biden and the entire Biden crime family.
I will totally obliterate the deep state. I am the only one who can save this nation.
They are a declaration of repudiation against reality, democracy and the rule of law. They are the ravings of a thug, who should be taken literally and seriously. Trump delivered his war speech from his New Jersey golf club. His war is against the American people who defeated him, and the institutions that exist to preserve the blessings of liberty for America and its children. The only people who can end this madness are the American people, but perhaps they don’t care.
But will there be *justice*?
The spectacle, the lies, the whining – all predictable, and in some ways, meaningless. What matters is that, in a democracy, laws matter and they should apply to everyone.
But, of course, having practiced law in the U.S. for 45+ years, I know “the rule of law” doesn’t apply equally to everyone. Many of my long-time readers will recall the brilliant Yale Law Journal piece I posted a few years ago by the civil rights lawyer Alec Karakatsanis which detailed in exquisite(?) detail the U.S.’s brutal “punishment bureaucracy” that, for example, unfairly disadvantages poor people and people of color – throwing them in prison for minor offenses, and making a mockery of the idealistic idea that its criminal justice system is objective. The U.S. emerging “criminal justice reform” consensus is superficial and deceptive. It is superficial because most proposed “reforms” would still leave the United States as the greatest incarcerator in the world. It is deceptive because those who want largely to preserve the current punishment bureaucracy – by making just enough tweaks to protect its perceived legitimacy – must obfuscate the difference between changes that will transform the system and tweaks that will curb only its most grotesque flourishes. As he notes:
A society makes choices about what acts or omissions to render worthy of different kinds of punishment. The decision to make something punishable by human caging authorizes the government to treat people in ways that otherwise would be abhorrent. And that is what has happened to the U.S. justice system.
Bureaucrats have co-opted a movement toward profound change by convincing the public that the “law enforcement” system as we know it can operate in an objective, effective, and fair way based on “the rule of law.” That is now impossible.
And he goes into so, so much more.
Or just read two books I have quoted numerous times in my posts: Katharina Pistor’s “The Code of Capital” and Bruce Gibney’s “The Nonsense Factory”, withering examinations of how the American legal system has been gutted – by the attorneys in the system, themselves.
Through that realistic lens, Trump has a huge advantage in the justice system. He has:
• an array of lawyers to delay and obfuscate and play every aspect of the Byzantine structure of the American legal system
• deep pockets
• the federal judges he appointed
• a cult following, and an ability to sway public opinion, which is political power
• volumes of experience in showing he is a singled-out victim.
Yes, it’s heartening to see some modicum of the rule of law holding sway in Trump’s latest arrest.
But justice for the lawless Trump has been far too long in coming. And who knows whether he really will be held responsible in the long run, or whether he’ll find a way, as usual, to escape accountability. There’s really nothing for this former president and forever conman to cry about – except his own endless misdeeds, should he ever decide to cop to them. Trump has learned the way to win is to cut every corner, trample on every ethical guideline, while his opponents primly weigh up the legal niceties and nuances. They are thumbing through the rulebook of the monastery while in front of them a mafia don has set the monastery on fire.
I think it is fair to say America passed *reason* two or three election cycles ago, and decimated its *justice* system long ago.
Pity the U.S. cannot invade itself to restore democracy.
It will get even uglier. What Trump and his sycophants have unleashed cannot be put back in the bottle. Only the naïve still believe it can be reversed.
But it is getting worse all over the globe. For the past 200 to 300 years, ideas have been in full flow, stimulated by ever-increasing contacts between peoples, and transmitted by accelerating means of communication. Globalization is the result: a fizzing ferment of words and images.
But that accelerating means of communication has caused a retreat into populism and chauvinism. Confused by chaos, infantilized by ignorance, refugees from complexity flee to fanaticism and dogma. People are being fractionated into their own information realities. The pillars of logic, truth, and reality are being replaced with fantasy, rage, and fear. People’s cognitive architectures are being changed, and not for the better. That will not change.