Weaponizing the Judiciary: Is Something New About This?

The Trump indictment follows years of ordinary Americans being stripped of due process protections, framed by crooked prosecutors, and ruined and imprisoned by corrupt courts, while politicians and media on both the left and right look the other way.  Should we be surprised that it is now destroying the freedom of all of us?

Donald Trump’s indictment demonstrates starkly what many Americans have long known through personal experience: the American judiciary is available as a weapon to punish innocent people, often for political purposes.  Like the video footage recently released, documenting the events of January 6, 2021 and showing judicial officials and members of Congress criminally framing innocent Americans, the Trump indictment disabuses us of any illusions that the American judiciary still dispenses justice.

If we want to understand why this can happen, and how to prevent it, we might suspend our indignation long enough to realize that this was allowed to happen because of similar injustices we have permitted for too long against ordinary Americans.

Even now, the political class of the Right as well as the Left says nothing about this.  Nightly on television, they throw up their hands at the Trump indictment and express their astonishment “that such a thing can happen in America.”  And yet their own words reveal precisely how it happens: because they themselves endeavor to cover it up.  

Harmeet Dhillon, a conservative “civil rights lawyer”, says that “if they can do this to a former president, they can concoct false charges, without even articulating what the charges are, against any American for political reasons.”  No, Ms Dhillon gets it backward.  We are way past that.  This is happening to Trump because it has already happened to massive numbers of other Americans.  She is covering up more than she is revealing:  “It should really be terrifying to all Americans that this is the current state of the law in New York City.”  No again, not current law in New York.  Similar and worse injustices reveal the state of the law for decades throughout the United States.  

Likewise, the establishment Right’s favorite lawyer:  “How does a judge get to take away the right of an American to speak out on their own behalf?” Sean Hannity asks Harvard professor Alan Dershowitz.  “Tragically, judges have done that,” he replies with chagrin, “they’ve done it recently.”  No, they do it, and much worse, all the time to ordinary Americans.  Like Dhillon, Dershowitz is spinning this to protect his colleagues in the legal racket:   “The rule of law does not apply to Donald Trump in the borough of Manhattan.”  No, it does not apply to any of us anywhere in the United States, and certainly not to ordinary citizens who lack media lawyers to speak out publicly against the far more vicious injustices.

Dhillon and Dershowitz, and the conservative media that feature them, are spinning the injustice against Trump to make it look new and exceptional, when millions of Americans know it is longstanding and routine.  

This is not nitpicking.  None of this would be happening – the entire coup d’etat of the last three years would never have happened – if the conservative political class had paid as much attention to the judicial persecution of ordinary Americans as they now pay to their own interests.

Injustice and Repression in America

Injustices and outright repression in the American criminal justice system are real and serious.  They have been described by many people, from both the Right and Left (but always outside the mainstream media).  “Most Americans are unaware of the police state that is creeping up on us from many directions,” wrote Paul Craig Roberts and Lawrence Stratton some 15 years ago in a major exposé of judicial abuse.  The abuses come from both Left and Right.  “Liberals chasing after white-collar criminals and environmental polluters, and conservatives determined to ‘save our children from drugs’ have seriously eroded the protections once offered by law.  Due process, the presumption of innocence…the right to counsel…and the ban on retroactive law” have all disappeared.¹  

Feeding the world’s largest prison gulag is a machinery of systemic injustice.  Law-abiding citizens are routinely harassed, plundered, dispossessed, ruined, incarcerated, and left homeless by a smorgasbord of judicial chicanery and oppression: predatory lawsuits; the thievery of probate; prosecutors who build their careers by railroading people into prison; knowingly false criminal charges and convictions; falsified and fabricated evidence; incarcerations without trial or record; mass confiscations of property; plea bargaining that amounts to extortion and has rendered the venerable institution of the jury trial largely a thing of the past; neutered grand juries that do nothing to protect the innocent against unjust prosecutions; gag orders and other censorship that prevent citizens from establishing their innocence or publicizing judicial chicanery; family courts that seize control over the children and private lives of legally unimpeachable parents, whom they then incarcerate with trial.  In short, judicial functionaries not only ignore but themselves violate the very protections they are in charge of upholding, including almost every article of the Bill of Rights.  Roberts and Stratton call it a “career-driven conviction mill”.  In most cases, it is the judicial apparatchiks, much more than those they prosecute, who belong behind bars. 

We have tolerated this for decades, thinking we can escape the consequences.  “At all levels of American society...the idea that American courtrooms strive toward justice is no longer taken seriously,” the Wall Street Journal observed more than two decades ago.  “The courts are greatly feared for their ability to ruin, but they aren't much respected anymore by the American people.”  Since then, no effort to rectify this has been made, and the depredations have only become worse.  Now they have culminated in a coup that has brought the extreme Left to power.

Both Democratic and Republican elites sit silent and even participate.  Most politicians and lobbyists are lawyers after all, and members of the bar associations that protect these practices.  No mass rallies or conservative pundits defending the victims (though they certainly make up a large proportion of Donald Trump voters).  

The media likewise ignore it, both the Left media and the Right, decade-after-decade, with a blackout at least as serious as any about which conservatives complain today.  

These depredations will never be reformed by Republican politicians appointing “conservative” judges, since they are just as complicitous as the liberals.  Though much of the chicanery takes place in state and local courts (where conservative Republican lawyers operate), it is protected by the federal courts, including the Supreme Court (and Republican-appointed judges).  It is never scrutinized in judges’ confirmation hearings by grandstanding Republican senators (lawyers) or conservative pressure groups (more lawyers).  All three Trump appointees on the Supreme Court joined the conspiracy of silence. 

Some abuses have begun receiving attention from conservative groups, when they affect the affluent.  They point out that “Congress is criminalizing everyday conduct at a reckless pace,” and what Congress legislates is only the tip of the iceberg; state legislatures, judges, and even civil servants also create crimes.  Many new crimes are vague, defined not by a clear response to a clear danger, but by political and partisan negotiations.  Many are legislated not by elected representatives as statutes but by civil servants as regulations.  Still others are effectively legislated by judges and, effectively, by prosecutors, and some even by plainclothes enforcement agents.  The politicization of prosecution and weakening of legal safeguards, such as blurring the distinction between civil and criminal offenses, vague statutes that “lack clear-cut definitions” of what is a crime and what is not, and eliminating the principle that a crime requires criminal intent (mens rea) – all this undermines constitutional protections and makes it easier to imprison the innocent.²  Criminal penalties are legislated for liability laws and regulatory non-compliance.  More and more crimes are federal rather than local, contrary to the US Constitution.  According to one conservative group, “the body of federal criminal law has become so large that ‘there is no conveniently accessible, complete list of federal crimes.’  Federal agencies have issued an estimated 300,000 regulations that can bring criminal” penalties.  Businessmen can easily receive jail time for ordinary business decisions.  “Innocent Americans have been arrested, prosecuted, convicted, and imprisoned for minor actions that most persons would never regard as a ‘crime.’” 

Low-Hanging Fruit

Yet overwhelmingly, and ignored by almost everyone, the vast preponderance of the injustices are suffered by the poor, and more than anyone by that much-despised but central figure in today’s American tragedy, the low-income African-American male.  His degradation and emasculation by the welfare machinery renders him the easiest and most vulnerable target of predatory judicial officials whose existence he justifies and the least likely to be defended by anyone, Left or Right.  

For him and other low-income defendants, American criminal courts are a nightmare underworld that bear no relation to television courtroom dramas.  Young, poor, uneducated, mostly minority men are the victims of hideous injustices.  They are coerced into plea bargains they cannot possibly understand, made in a matter of seconds during “mass plea hearings” in a system of what many call “assembly line justice”.  They then spend decades in prison, before being released on the streets where they constitute the bulk of the homeless.  Trials are so rare that they serve only to annoy judges and prosecutors, who are certain to resent and punish such insolent requests.  “A fair trial is considered an interruption.”³

The standard excuse for this practice is that courts are “overburdened and under-resourced”.  But this is self-serving nonsense.  For it is in the courts’ self-interest to be overburdened, and they do everything they can to overburden themselves and make sure their dockets are exploding with cases, since judicial salaries, like any others, increase with demand for their services.  The courts are playing an old game – long ago observed by Charles Dickens, Walter Bagehot, and many others – of creating work for themselves.  “The one great principle of the English law,” wrote Dickens, “is to make business for itself.”  Self-serving cliches about overcrowded dockets simply rationalize more money.  Pointless and predatory litigation, both civil and criminal, is precisely what keeps the entire enterprise afloat. 

Nowhere does this principle operate with more devastating and cynical force than in the courts’ power to create the very criminals they later punish by rendering those same young black males fatherless and therefore on the path to criminality, before their lives really have a chance to begin.  

The New Ideology 

Yet if we really want to understand the current and continuing coup, Americans must seriously ask themselves, how and why we built the world’s most massive prison gulag. 

The weaponization of the judiciary and the creation of what Marie Gottschalk calls the “carceral state” was pioneered by the Left, specifically the New Left, and above all, by the sexual Left.

The massive criminalization of the American population – overwhelmingly the male population – coincides precisely with the rise of organized feminism.  “The women’s movement became a vanguard of conservative law-and-order politics,” Gottschalk writes, choosing her words carefully.  “Women’s organizations played a central role in the consolidation of this conservative victims’ rights movement that emerged in the 1970s.”  It is therefore more than a coincidence.  From the beginning, the most authoritarian pressure group in American politics has consistently been women’s rights activists.  “If one looks back at the history of penal policy and reform, it is striking what an uncritical stance earlier women reformers took toward the state,” writes Gottschalk.  “Periodically, they have played central roles in defining violence as a threat to the social order and uncritically pushing for more enhanced policing powers.”  No social movement organized group has done more to politicize criminal justice, expand the penal apparatus, and increase the prison population.  “Feminist groups…became champions of state intervention to address problems like rape and domestic violence.”  During the 1970s, they were politicized criminal justice and commandeered the penal machinery to punish male chauvinists. “Nearly every state enacted legislation designed to make it easier to convict and punish people [sic] accused of sexual assault or domestic violence.”

Gottschalk, an avowed feminist, tries to absolve her sisters of responsibility by labeling them as “conservative”.  But what she describes could not be a clearer case of collusion between the Left and Right:

Being for victims and against offenders became a simple equation that helped knit together politically disparate groups ranging from the more traditional conservative, law-and-order constituencies mobilized around punitive policies like “three-strike-and-you’re-out,” to women’s groups organized against rape and domestic violence, to gay and lesbian groups advocating for hate crimes legislation, to the Million Moms pushing for gun control...⁴ 

Did any of this clue in conservatives (or, for that matter, Old Left liberals) that they had signed a pact with the devil?

This collusion of Left and Right leaves no voices of opposition or dissent.  But more, it creates a vicious cycle.  Justifiable outrage about genuine crime rationalizes ever-more draconian measures against law-abiding but defenseless citizens, whom leftist lawyers refuse to defend (“pro bono”) and who are not always entitled to a (ineffective) public defender.  Meanwhile, by averting our eyes from the central role of sexual radicalism in the incarceration explosion, we futilely seek to address its more obvious miscarriages of justice by further weakening the measures available to adjudicate and punish real crimes.  Thus we rotate the guilty out of the prisons as we rotate the innocent in.

Here the pivotal figure – disdained by conservatives and targeted by feminists as the easiest male to emasculate and degrade – is again the young, low-income black male.  He both disguises and reveals the trend.  As the likely child of a single mother, he is most liable to commit crime in the traditional sense.  This makes him a political client of the Left and a villain of the Right.  He is also the most defenseless and therefore likely target for looting and incarceration by the rape/domestic violence/child abuse/child support gestapo.  This makes him a malefactor to both the Left and Right.  This leaves him about a 75% chance of incarceration, depending on how he is played as a pawn in others’ games of political power.

One could hardly expect a clearer illustration of how the ideological requirement on both the Left and Right to focus on race while willfully ignoring sex and family creates an optical illusion that allows the problem to fester and worsen.  Gottschalk accepts the standard leftist line that crime and incarceration are driven by “racial disparities, racial discrimination, and institutional racism” but finds that “the USA would still have an incarceration crisis even if black people [sic] were sent to prison and jails at ‘only’ the rate at which white people [sic] are currently locked up.”  So instead of race, “class” becomes the culprit, and the solution then becomes more welfare to ameliorate poverty.  Yet her own account makes clear that it was not racism or poverty but welfare itself that created an African-American criminal class and prison population in the first place:  “In the 1920s [after centuries of slavery and decades of segregation], fewer than one in three prisoners were black.  By the late 1980s [after decades of welfare], for the first time in US history, the majority of prisoners were black.”

The New Prosecutrices

The machinery responsible for all this is embodied in figures like Kamala Harris whose political careers begin as prosecutrices and attorneys general – occupations sustained largely by incarcerating huge numbers of young black men (and increasingly others).  Putting these men in the pokey is now a large growth industry, employing substantial numbers of young black females.  They can be seen on the Washington Metro in dreadlocks and carrying thick textbooks with titles like Management and Administration of Criminal Justice, which train them to lock up the men they should be marrying.  This may be for crimes of real violence (though, like all crime, invariably originating in single-motherhood), but it is far more likely that the men will be snared for concocted “gender” crimes, as Gottschalk indicates: rape or domestic violence.  In fact, young black men are far less likely to be incarcerated (without trial and even without record) for violent crime than for unpaid child support, itself a dishonest, extorted, and lucrative subsidy on single-motherhood that hugely exacerbates fatherlessness, grows government power, criminalizes poor parents, and enjoys uncritical conservative support.  (Or they are arrested for-dealing drugs and other crimes driven by child support, because the penalties are milder.)  Prosecutions for child support are especially formulaic and demand no intelligence from robotic prosecutors, which is why it serves as the entry point for large numbers of employable mediocrities like Harris, of zero intellect and no understanding of the gravity of what they are doing, being elevated to prosecutors and “empowered” with the weapons to intern any of us at whim.  Old school lefties criticize Harris’ glee for jailing people, camouflaging the fact that she herself is a new, mindless product of the far Left and even fooling some “law-and-order” right-wingers into endorsing her “moderation”.

But building the planet’s second-largest gulag (only North Korea is bigger) is not moderate and does not make for “law-and-order.”  It is creeping Stalinism:  Here again, radicals first challenge the penal machinery and then seize it for their own purposes, cynically invoking traditional values to co-opt conservatives.

The Bottom Line

The critical question before us now is:  Will the criminal investigation and prosecution of Donald Trump and citizens who support him inspire Americans to finally start rectifying the systematic injustice that leads poor black men in Louisiana to spend decades in prison without any semblance of a fair trial, fathers in Baltimore whose children are permanently confiscated by social workers with no semblance of “due process of law”, not to mention numerous middle-class Americans and small businessmen who face judicial looting and incarceration?  If not, as we now see, it is just a matter of time before this willful neglect catches up to us and makes a free society impossible for anyone.

Stephen Baskerville is Professor of Political Studies at the Collegium Intermarium in Warsaw and author of The New Politics of Sex: The Sexual Revolution, Civil Liberties, and the Growth of Government Power (Angelica, 2017), where some of these points are further documented.  This expaanded from an article just published in The American Thinker.

1. Paul Craig Roberts and Lawrence M. Stratton, The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice (New York: Three Rivers Press, 2008), 5.

2. Harvey Silverglate, Three Felonies a Day:  How the Feds Target the Innocent (New York: Encounter, 2009), x, xxv, xxx-xxxi.  See also Gene Healy (ed.), Go Directly to Jail: The Criminalization of Almost Everything (Washington: Cato, 2004).  

3. “Our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors,” says the New York Review of Books.

4. Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge: Cambridge University Press, 2006), and “Ghosts of the Past, Present, and Future of Penal Reform in the United States,” in Why Prison? ed. David Scott (Cambridge: Cambridge University Press, 2013).  For more documentation, see Stephen Baskerville, The New Politics of Sex: The Sexual Revolution, Civil  Liberties, and the Growth of Government Power (2017), ch. 3.