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The Dissolution of Our Legal System

The Dean of my Law School was Dorothy Nelson, who was the first female Dean of a major law school in America. I only met her once, but she seemed very nice. One very impressive thing was that she wanted to create a curriculum that was more than just the basic core courses, known as “Bar Courses.” Contracts, Torts, Property, Criminal Law, Criminal Procedure, Constitutional Law, Civil Procedure, and Evidence.

She gave professors the freedom to offer courses such as “Legal Philosophy,” “Psychiatry, Psychoanalysis, and the Law (taught by a law professor, plus a psychologist, and a psychiatrist). “Competency and Control of the Mentally Ill.” I loved those courses, they were much more in my wheelhouse, so to speak; less dry, more theoretical and philosophical.

I did well enough on the Bar Courses, but I got grades far above the normalized grading system, in those others. I would say that I do not have a classic legal mind,; though I can think that way, I have more the mind of an English professor. But that’s just my view.

I know that in the first year, I wrote my exams like literature exams, when the professors wanted the students to just mention all the issues raised by their hypothetical exam questions, not to expound on them. I was a very good student in the Criminal Law class, and the professor liked my class discussions, but my exam score was just a bit above average. I asked him why, and he said, “You only wrote about three issues, though you did a very good job on them!” It took me a whole year to figure this out; not to try to be eloquent or complex, but just mention the issues raised, and brief arguments on either side.

So Dean Nelson, perhaps being more of my mind, I think, had approved a first-year required course for law students, which was probably unlike that of most law schools. It was called “Law, Language, and Ethics” It was apparently the creation of the two professors who wrote the text. One was Christopher Stone, son of I.F. Stone, of the highly regarded “I.F. Stone’s Weekly.” I took the class from Professor Stone. The other, whose name I cannot recall, was said by some second-year students to be brilliant, but very temperamental; and he apparently had a nervous breakdown during or after my first year; he may have returned briefly after that.

The concept of the course was to present some kind of philosophical underpinning of our legal system. As I recall, the foreward to the textbook asked, “Is the law just what the judge says it is?” Clearly, the textbook and course were intended to assure the law students that our legal system had a foundation which was more powerful and enduring than the opinions or quirks of various judges.

I had never really thought of it that much before. Actually, I am not quite sure why I went to law school, except that it was there, a next rung on some ladder. And I did not know if I wanted to be an English Professor, or to do something else, so Law School seemed a reasonable choice. I learned some valuable things in law school, but I was not as immersed in it as some of my classmates.

Anyway, I thought I would enjoy LL&E, as it was called, and I mostly did. The textbook was filled with various short passages by philosophers; the book’s writers seemed to really like John Rawls. Some of the comments used were hard to see as apposite to the theme of the chapter, but some obviously were.

There was a rather cutesy set of two chapters, one, “The Rule of Role, ” and the next, “The Role of Rule.” The first was to emphasize that any judge, when he or she puts on the robe, is heir to a long tradition, and the responsibility to live up to it. It was implied that judges largely grew into their positions in that way, so the public was generally protected by that. The other chapter emphasized things like stare decisis and res judicata, as constraining judges within certain boundaries.

I knew, as did most people, that various Supreme Court Justices had different views of the law, but I had a degree of faith that they were all dedicated, and tried to be fair and judicious. and actually discuss cases with their colleagues. And we saw that a number of Justices appointed by a President of one side or the other grew to take another view of things. Warren, Brennan, Frankfurter, White, Blackmun, Souter, are significant examples.

But Republicans got tired of this, so they vowed to appoint Justices who would come out the way they wanted them to, every time. I won’t go into the philosophy of the Opus Dei sect which several Supreme Court Justices are members of; or of the Federalist Society tests for how loyal a potential Justice would be to their own doctrinaire positions. Needless to say, they have been very successful in presenting candidates to Republican Presidents who never vary from what they were appointed to do.

The end result is that, far more than ever before, being a judge or justice is simply seen as equivalent to being a political ally, with the dressing of a few legal phrases to make it look good. We are getting ever closer to the courts simply being a rubber stamp of the executive branch, much like kings and emperors made sure that all the trials were determined, and the people they didn’t like were executed.

So people lose faith in the legal system, they think it is a rigged game. That is what the writers of the LL&E textbook did not want at all. But power overrides philosophy in many cases. It is not even a pretense now. We know how Thomas and Alito and Barrett and Kavanaugh and Gorsuch will decide in every case, and Roberts in most of them. The liberal justices, too, though I will almost always think that their opinions are based on a clear through-line of legal history.

Now we have gotten to the point where Trump, who of course hates the legal system, hates the Justice Department, hates the FBI, appointed judges whose sole requirement was that they always find the way he wanted them to. McConnell insidiously went along with this as well, though he is less interested in Trump than in his own antebellum political views.

When it came down to DOJ authorizing a search of Trump’s premises for classified and top secret documents which he had stolen from the White House, he needed one of his judges to bail him out. So he chose Aileen Cannon, whom he had used on another case. She delivered (she almost surely did not write this decision by herself) a ludicrous opinion which had as its only basis, that it was intended to protect Trump, and ideally end the potential case against him.

Anyone can read the various opinions of highly respected legal minds such as Andrew Weissmann, Neil Katyal, Michael Miller, Joyce Vance, Barbara McQuade, Harry Litman, Jennifer Taub, who have universally disparaged Judge Cannon’s decision; and there is nothing I would want to add to those. William Barr thinks it is a wrong decision. It is worse than that.

Cannon essentially says that Trump (she says a former president in general, to obscure that she is all about Trump) has more rights than other people. She wrote that it would be very bad if he had a “blot on his escutcheon” due to unfair conclusions, or evidence that the DOJ was not entitled to. And what was that?

Executive privilege? Only a completely loyalist Trump devotee would bring up something as idiotic as that. It is not hard to understand that the only person who is potentially entitled to some executive privilege, is…the current President!!!!! Not a former President no matter how much you admire him, and hope to be appointed by him to the Supreme Court one day. Trump has not one shred of “executive privilege” with regard to those thousands of documents. How difficult is that to comprehend?? Someone made up that term, and then tried to expand it to “A former President, only if he is Republican, can keep or take any documents based on this concept, and he can also prevent all of his appointees from testifying.”

Cannon also said that “the President” (Joseph R. Biden, who holds that office) has not commented about executive privilege with regard to these (stolen) documents. That is absolutely false, he has indicated that he waives his own potential executive privilege with regard to them. And Trump has none. None. But this judge either is too absolutely ignorant to understand this, or more likely, just had a point she wanted to get to, so lied and misstated and dissembled to get there. All of Trump’s people do that.

The media should understand this, but some of them seem bewildered by it all. “Trump is asserting executive privilege, and the judge wants the Special Master to determine what documents would be covered.” None of them! None! Zero!

Cannon’s goal is to completely stop this investigation, not just delay it. An appeal by DOJ could tie this up for a year or more. Besides, Trump has stacked the Eleventh Circuit, and he certainly has stacked the Supreme Court. If there is no appeal, watch Trump demand a Special Master who works for him. Otherwise, they will argue and contend, and it will go on and on.

Any one-tenth competent judge would never have ordered a Special Master. She not only did that, she enjoined DOJ from pursuing a criminal case, even based on all the stolen documents they recovered. She let the Intelligence Community work on protecting assets (who have been at great risk and more because of Trump), but there cannot be anything done with regard to criminal investigations of Donald Trump. No blots on his escutcheon. They figure to tie this up until Trump can get himself installed back into power, or can have all this blocked by a Republican Congress which will defund the FBI.

This is how far we have fallen, how close we are to pure fascism, where the state is solely the dictator who runs it. “The law is what the judge says it is.” This is what our legal system was intended to prevent, what hundreds of years of British and American jurisprudence was meant to shield us from. I seriously doubt that anyone will be teaching from the “Law, Language, and Ethics” textbook now. Which is a tragedy in itself, not that the course could not have been made better! But it sure beats “The Judicial System is the Tool of the Ruler,” or “If You Own the Judges, You Can Do Anything You Want.,” as texts.