“No one is above the law” is a phrase that once had depth in the U.S. It has become a lame cliché
Few who believe in a free society can challenge the notion that the rule of law and uniformity in its application are systemic staples of a democracy. “No one is above the law” is a phrase that once had depth in the U.S. It has become a lame cliché. There is an adage that is gaining momentum among observers of American democracy. “No one should be below the law, either.” This addition to the popular statement reflects the legal climate in America today. The recent indictment of former President Donald J. Trump on 37 charges exemplifies the crisis in U.S. jurisprudence. This fact poses an overarching threat to the republican model of government.
The perception that there is currently a two-tiered justice system in the U.S. is fast becoming self-evident. The legal terrain is now a war front. Ideological enclaves of American leftism offer far-left activists the proper human fodder to get prosecution validations via grand jury schemes that they would not get in most of the country’s other court localities. These are the American version of “revolutionary tribunals.” Judicial districts in places like Washington, D.C., New York City, and San Francisco, for example, are being exploited to undermine the principle of a fair trial and the common law tradition, which relies on precedent.
The charges against Trump contain 31 counts of alleged willful retention of national defense information. The others are single counts for supposed conspiracy to obstruct justice, withholding documents, concealing and plotting to conceal documents, hiding a document in a federal investigation, and making false statements. The underlying premise of the Biden administration’s Department of Justice (DOJ) action against Trump, deals with the handling of presidential records, who they belong to, and whether there was malicious intent by the former president, who happens to be the lead opposition leader and a 2024 presidential candidate.
Since 1978, the Presidential Records Act has served as the guidepost that delineates what is U.S. government property and what are personal records of a former president. The items at hand include memos, letters, notes, emails, and other written communications during a president’s tenure as the chief executive and that of his staff. The law seeks to establish norms and is enforced by the National Archives and Records Administration (NARA).
When there is a discrepancy between an ex-president and the NARA, the case could go to trial, and a federal judge would settle the matter. That is how, historically, ownership discrepancies concerning presidential items have been handled. The Biden White House has handled this matter under the premise that Trump is an enemy of the American republic. After all, Trump is an instrumental part of the MAGA conservative movement, a conceptual coalition labeled by Biden as “extremists” and categorized accordingly, on a prosecutorial level, by his DOJ and FBI.
The following of legal precedent, the seminal rock of American jurisprudence, has been abandoned for novel, postmodern explorations of the law. Barack Obama’s Harvard mentor and founder of the Critical Legal Theory Marxist variant, Derrick Bell, would be most pleased. The Biden DOJ, however, is pressing its case with hardly a mention of the Presidential Records Act (PRA). This is probably attributable to the PRA not having a criminal statute. In other words, it could not produce the results of potentially incarcerating Trump. In a worst-case scenario, the PRA could only impose a civil penalty, typically a fine. The prosecutors, instead, have relied on the Espionage Act of 1917, which does criminalize offenses.
The Espionage Act was passed two months after the U.S. entered World War I. It prohibits the obtaining of information, recording of pictures, or copying descriptions of national defense data with the intent or belief that the information could be used to harm the U.S. or benefit a foreign nation. In addition to implying that Trump committed treason and had a premeditated desire to damage the country he represented as president, it also presupposes criminality when the nation’s chief executive has issues with ownership claims of documents during his tenure.
Following common law tenets, the legal model in the U.S. (except partially for Louisiana), there are sufficient empirical comparisons, which makes the documents' case against Trump surreal. Among the many things that Bill Clinton took with him from the White House when he left the presidency were over 79 audio recordings. It was alleged that those audio copies were recorded telephone conversations with world leaders that contained classified information. In 2012, Judicial Watch, a non-profit organization that investigates government misconduct, filed a lawsuit requesting that the Clinton audio tapes be transferred to the NARA for proper vetting. Judge Amy Berman Jackson, an Obama judicial appointee, ruled that the exclusive authority to classify records, as per the PRA, falls uniquely with the president. In other words, the NARA cannot determine classification, and it cannot forcibly take presidential records.
The notorious 30,000 emails in which Obama's Secretary of State, Hillary Clinton, circumvented governmental security protocols, jeopardizing American national security, are another case in point. Then FBI director James Comey concluded, after investigating Clinton, that there were 110 emails containing classified information and about 2,000 others had been “up-classified” to the classified category. In addition to this massive amount of privileged information, 49,000 other emails containing classified information were found on a private, unsecure laptop belonging to top Clinton aide Huma Abedin. Disgraced felon and former Democratic NY Representative, Anthony Weiner, regularly used Abedin’s computer while he was married to her and solicited sex with women, including a 15-year-old minor. Clinton was scolded, but not prosecuted. Comey’s rationale for not recommending criminal charges included Clinton being a presidential candidate in an election.
Before the enactment of the PRA in 1978, former presidents owned all documents from their presidencies. This included information of which Trump is accused today of possessing and facing potential long-term prison sentences. It would be inconceivable to imagine any former American president facing treasonous charges for potentially possessing documents that each one of them, before 1978, had the discretion to keep. Historical precedence and the importance of continuity in democratic governing tradition is being shredded to smithereens by the current administration's ultra-left zealot activism.
The obliteration of attorney-client privilege, a sacrosanct principle of the rule of law, is another barbaric legal travesty that the Biden government is committing. Part of the “evidence” to prosecute Trump was obtained by the de facto forced statement of otherwise privileged information given by Evan Corcoran, a former lawyer of the 45th president, which revealed attorney-client conversations that took place. Rarely does a judge or a prosecutor venture into the territory of annulling the privacy that an accused and his lawyer are granted. This mechanism is typically an ironclad assurance to accommodate due process and a fair trial.
DC federal Judge Amy Berman Jackson, the same district judge that was overly lofty in her 2012 ruling favoring Bill Clinton, displays a wholly different legal disposition when the accused is a conservative. Jackson is a left-wing, radical judicial activist. Every major decision rendered against anyone associated with Trump, MAGA, or remotely skewed as part of the Right has suffered her fundamentalist rage. Not content with merely ruling in favor of causes that aid the “march through the institutions,” Jackson has added vitriolic speeches that echo the sentiment of the worst of the extremist left. The bench, for the Obama judicial appointee, is a bully pulpit, a means for proselytizing the Jacobin political religion she is devoted to.
Paul Manfort, Roger Stone, Rick Gates, and the January 6 defendants have all suffered Jackson’s wrath and injustice. The DC federal judge, who has overseen the most high-profile cases, has never backtracked on sustaining narratives that have since been disproven, like the Trump-Russia hoax and the pristineness of the 2020 elections. It should surprise no one that Jackson dealt a brutal blow to due process by butchering the attorney-client privilege.
Granting the admissibility in court of communications between Trump and his lawyer was a gross breach of attorney-client privilege. This prejudiced the jury in the prosecutor’s favor. The “crime-fraud exception,” the basis for annulling the attorney-client confidentiality factor, is difficult to prove in a criminal case. Since its threshold requires that a crime is being concealed or furthered. However, that is a presupposition that is a de facto verdict in and of itself. In other words, defendants and their defense lawyers must have procedural guarantees to ensure fairness. Jackson emitted a guilty verdict even before Trump had the trial.
Joe Biden had been keeping documents unlawfully since the 1970s. Senators do not have the discretion to take home records. As vice president, Biden took documents, moved them around, and left them within reach of potential enemies of the U.S. On January 12, Robert Hur was named as a special prosecutor to investigate the current president. The public knows nothing about where this investigation stands. It will probably follow the course of Hunter, his son. It will go nowhere.
The fact that Trump’s indictment was announced the same day that it became known that Mykola Zlochevsky, a Burisma executive and former Ukrainian government official, has 17 recordings (FD-1023) implicating the Bidens in a millionaire bribery scam, is an insult to the American people. According to Zlochevsky, two of the recordings are of the current president and cite a $5 million payment.
There can be no doubt that the double-standard legal system in the U.S. today, has become standardized. One can only hope to land in a district where jurors and judges are not ideologically contaminated. Democrats are experts at cherry-picking their venues. This grave injustice will only stop the day Republicans have the means to bring to trial, render accountability, and place in jail many of those who have abused power and committed egregious crimes against the American republic.
© The CubanAmerican Voice. All rights reserved.
🖋️Author Julio M. Shiling
🖋️Author Julio M. Shiling
Julio M. Shiling is a political scientist, writer, columnist, lecturer, media commentator, and director of Patria de Martí and The CubanAmerican Voice. He holds a master’s degree in Political Science from Florida International University (FIU) in Miami, Florida. He is a member of The American Political Science Association and The PEN Club (Cuban Writers in Exile Chapter).
- Trump Documents Indictment
- above the law
- egal records
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