We often discuss the long-standing question of whether it is better for your client to smile or not smile in a mugshot. Some believe a smile conveys a lack of contrition while others view a frown as looking guilty. In the first mugshot of a former American president, Trump (or now Inmate P01135809) rejected both the “carefree smile” and the “disapproving frown” and went with seething scowl. It is a mugshot that unfortunately will resonate with both extremes in our political system.
In Christopher Marlowe’s Doctor Faustus, the devil Mephistopheles (Marlowe spells the name “Mephistophilis”) shows him Helen of Troy, “the face who launched a thousand ships” that released a firestorm.
The Scowl is likely to launch millions of ships . . . all in the wrong directions.
For District Attorney Fani Willis and many of her supporters, the mugshot clearly holds a type of trophy kill appeal worthy of framing and mounting on a wall. This is one of those moments long portrayed on teeshirts and other merchandise for many on the left.
For many Trump supporters, it is a moment of gratuitous insult of a president who is now being prosecuted in four different states just before an election where he is the leading Republican candidate. For the most extreme, it will be portrayed as a virtual declaration of war, proof that the establishment will use every means to prevent another 2016 populist victory.
It is noteworthy that, like his critics, Trump is already selling merchandise with the mugshot and a “Never Surrender” slogan.
In that way, the mugshot will be the rallying cry at both extremes in our political system.
For that reason, I believe the mugshot was a mistake, an inflammatory moment wisely avoided in New York by another Democratic prosecutor. It is entirely unnecessary for the most recognized face in the United States.
The fact, however, is that many on both sides relish the rage. I have previously said that the most unnerving fact of what I have called “the age of rage” is that people secretly enjoy it. Rage is addictive. It allows people to say and do things that they would ordinarily avoid in public. It is a license to hate blindly and excuse all means to achieve an end.
I think that the Georgia, New York, and federal January 6th indictments are unwarranted and threaten free speech. Moreover, it is valid for many to object that these prosecutions could have occurred years ago, but were launched just before the presidential election so that Trump will be running from court to court through the general election.
It is also true that the Mar-a-Lago case is more serious and more substantive . . . and that threat is continuing to grow as a threat for Trump as witnesses change their testimony and Trump aides confirm key prosecution claims.
Likewise, while I believe the case against Trump in the Georgia indictment is weak, there are defendants in that case that face stronger claims on specific election-related crimes.
Of course, in an age of rage, reason is the first to die. We cannot allow that to happen; we cannot allow rage addicts to drive our political or legal processes. We have the greatest legal system in the world. We will sort out these issues from the criminalization of political speech to the claim that Trump can be barred from the ballot even without a charge or conviction.
Courts are likely to divide on these issues. However, we remain a nation of laws. That tradition takes a certain leap of faith. We do not support that system only when we prevail. That is the view of court packers like Sen. Elizabeth Warren (D., Mass.) and Rep. Alexandria Ocasio-Cortez (D., N.,Y.). Notably, Ocasio-Cortez even said that she does not understand why we need a Supreme Court.
Even law professors and legal commentators have called our Constitution “trash” and called for the country to “reclaim America from constitutionalism.” That is the greatest danger of these times: that our deep divisions will cause us to lose faith in our defining values and in each other.
The Trump mugshot captures a defining moment for our country. It will define us. I believe that it is paramount that appellate courts consider the merits of the free speech and other challenges to the Georgia, New York, and federal cases. That may be difficult if judges support these prosecutors in demanding trials before constitutional appeals are taken. Appellate judges could agree, in good faith, that challenges are premature before any convictions.
The important thing is for citizens not to be played as chumps. We will sort this out. The courts will address these important legal issues as citizens resolve the equally important political issues raised by these prosecutions.
The merchandising and madness aside, we have more matters to resolve . . . together.
This column appeared on Fox.com