Below is my column in the Hill on the recent decision in Georgia and the “odor of mendacity” rising out of various courtrooms across the country. It is the smell of not just selective prosecution but political bias in our legal system. It is becoming harder to deny the existence of a two-track system of justice in the country as commentators and even a few courts raise concerns over the role of politics in prosecutions.
Here is the column:
The removal of lead special prosecutor Nathan Wade from Donald Trump’s prosecution had the feel of a Southern Gothic.
Fulton County, Ga. District Attorney Fani Willis had described Wade as “a Southern gentleman. Me, not so much.” For weeks, the public has been enthralled by accounts of Wade’s illicit affair with Willis. Then there was the roughly three-quarters of a million dollars paid to Wade before he was booted from the case this week.
Channeling Tennessee Williams in his play “Cat on a Hot Tin Roof,” Judge Scott McAfee wrote that, after their testimony, there remained “an odor of mendacity.”
That odor was particularly strong after the hearings indicated that Wade may have committed perjury in his earlier divorce case, and that both Willis and Wade were credibly accused of lying on the stand about when their relationship began.
They are prosecuting defendants in the Trump case accused of the same underlying conduct, including 19 individual counts of false statements, false filings or perjury.
Yet, that distinct odor noted by Judge McAfee goes beyond the sordid affairs of Willis and Wade.
For many citizens, mendacity, or dishonesty, is wafting from various courtrooms around the country. The odor is becoming intolerable for many Americans as selective prosecution is being raised in a wide array of cases.
The problem is that courts have made it virtually impossible to use this claim to dismiss counts. Yet there is a disturbing level of merit to some of these underlying objections.
For years, conservatives have objected that there is a two-tier system of justice in this country. I have long resisted such claims, but it has become increasingly difficult to deny the obvious selective prosecution in a variety of recent cases and opinions.
I have long stated that the charges against Trump over documents at Mar-a-Lago are strong and based on established precedent. However, the recent decision of Special Counsel Robert Hur not to bring criminal charges against President Joe Biden has undermined even that case.
Hur described four decades of Biden serially violating laws governing classified documents. The evidence included Biden telling a third party that he had classified material in his house and actually reading from a classified document to his non-cleared ghostwriter. There is evidence of an effort to destroy evidence and later an effort of the White House to change the report. There is also Biden’s repeated denial of any knowledge or memory of the documents found in nine locations where he worked or lived.
Hur ultimately had to justify the lack of charges based on a belief that he could not secure a conviction from a D.C. jury with an elderly defendant with diminished mental faculties.
Although Special Counsel Jack Smith could still proceed on obstruction counts, his prosecution of Trump for the retention and mishandling of national security documents is absurdly in conflict with the treatment Biden is receiving.
In New York, the legislature changed the statute of limitations to allow Trump to be sued while New York Attorney General Letitia James effectively ran on a pledge of selectively prosecuting him. She never specified any particular crime, just promising to bag Trump.
Ultimately, James used a law in an unprecedented way to secure an absurd penalty of roughly half a billion dollars, even though no one lost a dime because of the Trump loans.
Manhattan District Attorney Alvin Bragg has also come up with an unprecedented way of using a state law to effectively prosecute Trump for a federal offense that the Justice Department has already rejected.
The same odor has been lingering in the Hunter Biden cases. The Justice Department had reached a ridiculous plea agreement with Hunter Biden that would have allowed for no jail time and a sweeping immunity agreement that would have protected him from all of his other alleged crimes.
As the plea agreement fell apart in court, the prosecutor admitted that he had never seen a defendant given such a deal over his long career. This came after the Justice Department had allowed the statute of limitations to run out on major felonies and scuttled efforts to conduct searches and interviews. Even after that embarrassing hearing, the Justice Department was still trying to preserve the agreement.
It is not just the Trump and Biden cases where there is a stench of selective prosecution. Consider a few other recent cases.
In California, U.S. District Court Judge Cormac J. Carney issued an opinion that found such evidence of selective prosecution against conservative groups. In considering a far-right group, Carney noted that the Justice Department has had sharply different approaches based on the political views of the defendants. Antifa and other leftist groups often see charges dropped, whereas federal prosecutors seek draconian sentences against conservative defendants.
“Such selective prosecution leaves the troubling impression that the government believes speech on the left more deserving of protection than speech on the right. The government remains free to prosecute those, like Defendants, who allegedly use violence to suppress First Amendment rights. But it cannot ignore others, equally culpable, because Defendants’ speech and beliefs are more offensive. The Constitution forbids such selective prosecution,” Carney noted.
That treatment was equally glaring when federal prosecutors convicted an Antifa supporter who took an ax to the door of Sen. John Hoeven’s office in Fargo. He was given no jail time, and the FBI even returned his ax.
He later mocked the government by posting on social media “Look what the FBI were kind enough to give back to me!”
Likewise, this week, former U.S. Attorney Rachael Rollins was disbarred after being found to have lied to investigators about leaking material to the press for political purposes. Rollins had allegedly made a clear and knowingly false statement to federal investigators, but the Justice Department just shrugged it off and refused to indict.
FBI Director James Comey received similar gentle treatment after removing FBI material and arranging for information to be leaked to the media. Meanwhile, defendants such as Trump’s National Security Adviser Michael Flynn were pursued relentlessly for making false statements to investigators under Comey’s watch.
These and other cases have fulfilled Trump’s narrative about a politically weaponized legal system. The fact is that many in cities like New York are thrilled by selective prosecution and biased sentencing decisions directed at locally unpopular figures.
The rest of us are left in courtrooms, from Georgia to Washington to New York, asking the same question of Tennessee Williams’ “Big Daddy” Pollitt: “What’s that smell in this room? …Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School.
The mendacity of Democrats, at least those in leadership positions, has infected nearly every institution that is vital to the survival of this country. Major universities are awash with DEI professors and administrators whose specialty is propaganda at the expense of knowledge; hundreds of members of Congress thrive in a swamp that could not exist but for mendacity; as the Professor points out, our federal legal system and some states are populated by judges and juries who are comfortable with “evidence” that bears no relation to truth so long as the person being prosecuted is one of “them”; our health care system promotes agenda driven ideas that turn biological reality on its head and that insist on making medical professionals of people of a certain color regardless of merit; the citizenship privilege of voting and the citizenship safety net of welfare is given freely to people here illegally (because they will vote the right way); and journalism, the greatest safeguard against the destruction of democracy, is now intentionally nothing more than a platform to advocate Democrat lies such as most recently the “bloodbath” story. Tennessee Williams had the answer: “Maggie, we are through with lies and liars in this house. Lock the door.”
Honestlawyermostly,
Well said and great comment.
The Democrats were giving off a pretty strong odor long before they began their crusade of crap against Trump. They are the party of illegal aliens, abortions, violence, stolen elections, lying, race-baiting, and castrating young boys and cutting the breasts off young girls. If you are just now smelling them, then there is something wrong with your nose.
Floyd,
Exactly!
Not voting for Trump but against all the insanity that has gripped the Democrat party.
I would also add the Democrat party is the party of anti-Constitution, censorship, totalitarianism.
Floyd,
Exactly, and mixed in with the stench of homegrown evil, I catch a distinct whiff of the rotted smell of Chinatown.
What precedent is in place where you refer to about President Trump’s documents at Mar-A-Lago? As president he had the authority to take documents. Bush, Clinton, Obama all took documents, and placed things like recordings in sock drawers, whilst Obama placed documents in a warehouse in Chicago. They were never charged with anything. As a Senator or VP, Biden has absolutely no authority to take anything, and they showed up in 9 different locations, and the ones in his garage were strewn about whilst Trump’s location was continually guarded by secret service people and other security teams. They aren’t even close in comparison to each other. Absolutely more crime with Biden who is not be prosecuted than By Trump, who essentially committed no crime. Leticia James should be in jail along with Bragg. So sick of the constant persecution of Trump, and I didn’t vote for him the first time, but I sure did the second time due to the ill treatment he has received and his policies worked except for that disgusting vaccine.
Anyone who can sense that odor is a Trump supporter. Those who remain willfully ignorant of that stench are those who will continue to vote for the prog/left with the same fervor as islamic jihadists who willfully fly planes into buildings.
Whimsicalmama,
Comparing the two based on their merits and pass actions, the Democrat party smells like a septic tank while the Republican party smells like a rose garden.
Actually, I would agree that the dem has the aroma of a honey wagon, the republicans have not much aroma at all because they are, except for the conservative caucus – useless, idle and without any signs of life at all.
Great article…well done. Methinks the “Mendacity” line can only be surpassed by a line from Shakespeare’s Hamlet…”Something is Rotten in the State of Denmark”.
No, the State of New York.
I have always enjoyed the professor’s column except for one thing: his almost childlike belief in the basics fairness of our judicial system. Having been raised in the south in another era I saw personally how the judicial system and legal system was utilized to suppress the African American population for decades and no one cared until the Feds moved in and along with the civil rights movement started to clean it up. So I knew the judicial system could be used to ill effect. I simply never thought it could become a nationwide illness. It has been a slowly increasing problem for decades bur it was more local than national. Now it is all pervasive and I date it as becoming blatant with the Obama administration and the IRS witch hunt and then Eric Holder and his weaponized Justice dept. Obama was the velvet glove covering the proverbial steel clinched fist but he was subtle as he placed his lackeys all through the federal government and especially Justice. He and Hilary attempted a quiet coup in 2016, succeeded in 2020 but their mistake was Joe Biden who is about as subtle as a pig in a trough when they dump in the feed. That and the pandemic tore the cover off the seething morass of judicial and civil rights abuse and now the stench grows stronger and stronger.
I hope Trump does win because i want this all exposed and destroyed. Trump was caught in his first administration by not realizing how awful it all was but I don’t think that is true any more.
I want to see a bloodbath of federal workers exiting Washington, sort of like the Christians leaving Jerusalem after the victory of Saladin. I want laws that limit time in the federal system and then you’re out. I want dismissal of federal workers who fail to joyfully fulfill the legal orders of the president in the executive system or subvert the legal orders. I want US attorneys who have no connection to senators or congressman and no veto over their appointments. I want administrative rules changes to be required by assent of congress. No assent-no rule changes. If a president wants to change the administrative rules then he or she must submit all rules to Congress for assent by both houses and the President every time.
Congress to lay out the rules for the Justice dept, no internal rules without congress’s assent.
Eliminate the filibuster. Eliminate the FISA court. All presecutorial misconduct should require fines and jail time. Limit prosecutorial discretion.
For starters. And this election we have X to get the real story.
I want to see a bloodbath of federal workers exiting Washington, sort of like the Christians leaving Jerusalem after the victory of Saladin
What I would do if I were President.
Take the leadership personnel, that includes those protected by civil service laws, and move them ALL out of DC, There is a huge glut of office space in cities across America. The dept of ag can be in Des Moines, or Omaha, or Kansas City.
Dept of education, EPA . All the top three or four tiers of leadership OUT of DC.
The DoJ is a must, the AG and deputies, OUT of DC. This movement will cause 80% to quit. That’s the tell. Its not the job, its the network
There is a reason ONLY one President has decided to make his home Washington DC after he left office.
In the age of instant communication, physical location is no longer important. BUT that electronic, communication leaves a digital trail to track. Hard to plot, if all your communication is trackable.
GEB said: “almost childlike belief in the basics fairness of our judicial system”
I think that decades ago, courts were frequently guilty of corruption and self-dealing, but in most places, it was confined to the local level. For example: as a teen, I lived in a resort area that had a lot of bars and clubs that catered to young persons, and there was a lot of under-aged drinking (or so I have heard 😉 There was a judge here who presided over many, if not most, of the hearings for this offence, and he typically slammed any young offender brought before him with the stiffest penalty available. That same judge held a large minority interest in at leat two of the clubs where a great deal of the under-aged drinking occured. So I became a cynic about the justice system at an early age. What I think is much more recent is the wide realization that base corruption and bias (I really think that it is difficult to separate the two) is embedded in a great many higher court systems. You may be correct that this corruption accelerated under Obama, or perhaps greater scrutiny brought more of it to light, I am not entirely certain.
You also said: “Trump was caught in his first administration by not realizing how awful it all was but I don’t think that is true any more.”
I fervently hope that is the case, but unfortunately I’m not convinced. Trump’s vulnerability was, and still seems to be, his out-sized ego. The political landscape is rife with duplicitous cretins who know how to play to that. I really hope he has learned how to smell out that kind of skunk, but for me, that remains to be seen.
SEAN RALEIGH said: “Can 10 just men be found in NY.”
Do 10 just men exist in NY? Certainly. Can 10 be found who are illing to be identified as such, considering the extreme villification of honesty and justice going on there now? Possible, but uncertain. Will any of those just men serve on a jury for a case that pits the woke against the right, and render a just and honest verdict that subsequently leaves them vulnerable to the vissitudes and vengeance of the woke mob? Unlikely.
A thoughtful commentary, GEB. Thank you 😊 Could we add term limits to the list?
Marx and Engels wrote in 1848 that Europe was haunted by the spectre of Communism. We are haunted by a different spectre:the Democratic Party’s police state. Everything we see is part of the emergency of that entity: criminal prosecutions of conservatives; jailing of demonstrators; purging of college faculties; suppression of conservative media; internet trolls; unrestricted immigration; the threat and actual occurrence of violent group action. The election of Trump is vital to stopping the closing of the loop.
Communist never voluntarily surrender power.
They only leave by force.
Civil War is inevitable.
What else can one expect when the universities are rife with Marxist, anti American activist faculty? Why else would mindless students inexplicably march lockstep if favor of terrorists? Why else would they shout down anyone who dares to question “the science?”
We are witnessing and experiencing the results of years and years of university indoctrination. They graduated. Their fearless leader once said “We are the ones we’ve been waiting for.”
Well, here they are.
Trump is a criminal on many fronts, the most important that he lead an attempted coup. Since no one else in the last 150 years has even come close to doing that, there is no basis to call it selective prosecution. Many people have been put in prison for stealing and mishandling classified material, which Trump did egregiously. That Biden did something similar to that in name only in no way undermines the Trump case. Also anything about Biden would be inadmissible anyhow.
The only double standard here is that rich people get the kid glove treatment while everyone else gets the book thrown at them.
Sammy, has Trump been charged with insurrection? No. He has been charged with having classified documents, same as Biden.
And there you have it folks, BOT-ROT from Sammy the Mendacious.
Your entire post is undermined by its base premise, that Trump is a criminal because you say so. I can do that. Biden is obviously a traitor based on his border policies, and therefore anything that happens to him is fine by me.
Trump is a criminal because of his actions.
There was no attempted coup.
It is the lie you have to cling on to in your fevered TDS mind.
By his actions, Biden has committed far more crimes than Trump.
How many times have I stated that we now live in DOUBLESTANDARDSTAN? This great column shows how the Code of DOUBLESTANDARDSTAN works in the legal realm.
How long will Americans do nothing (continue to vote for Democrats) as they sit and watch “protestors” block highways, even highways leading to airports, and not get charged or sent away while actual protestors praying at abortion clinics get long jail time?
How long can we take seeing J6 rioters, that’s right, they did riot, getting years and years in prison while Antifa and BLM rioters, who did much more damage and actually did hurt cops and civilians, get nothing? The riot at the WH in May 2020 hurt more officers and Secret Service members than J6 and it wasn’t even close.
How can we sit and watch conservative speakers either get shouted down on campus or not even be allowed to take the stage while pro-Hamas speakers have immunity?
How can we see a guy like Rittenhouse get the full press treatment and yet about 1% of the people ever even heard about the two IVY LEAGUE ATTORNEYS that tossed Molotov Cocktails into a police car?
Watching Biden skate on the classified docs case while Trump is in serious jeopardy is disgusting and it shows how damn corrupt Joe Biden is and how far he has corrupted the DOJ.
The fact that we live in DOUBLESTANDARDSTAN is probably one of our greatest threats today. It isn’t inflation, it isn’t the moronic climate issue, it isn’t Ukraine and it isn’t even crime, we can fix all of those, the only 2 things we can’t fix is the legal double standard that will end with a packed Court and of course the 10 million illegals that will be here forever.
The watchman is supposed to protect the sheep from the wolves. Now we have a watchman who has opened the gates and invited the wolves in, such as Islamic terrorists (a Hezbollah operative was intercepted yesterday, but how many more get through?), and violent South American and Central American gang members. Meanwhile the previous watchman who not only tried to keep the gates closed to wolves but tried to construct even more and better gates is being persecuted and hounded as he criticizes the current watchman for not doing his job.
Public officials are entrusted with classified documents and should be held accountable when such information is mishandled, like everyone else.
Biden should face relevant punishment, be it fines or prison, once out of office.
And I’m sure everyone here would also agree that Donald Moron stole — “mishandled” — boxes and boxes of documents in which many were classified, coupled with the even more egregious behavior of shuttling said boxes from one tacky club to another while he was accused of obstructing their rightful return.
Of course, if Orange Dumbbell had been a senator before grossly becoming president, he would be barfing now that as president he would have immunity in his prior role as well, because love of law and order means immunity from the law while threatening disorder if he loses again.
All of that is separate from the courts and the obvious conflicts of interest of certain DAs. But conflation remains as critical as delay, in order to continue jettisoning accountability for self-gain.
@D You might have had an intelligent point here, if you didn’t lard it up with gratuitous grade-school insults.
I am sorry to tell you that I cannot agree with you. You see, if the prosecutions have the aroma of mendacity then very likely so do the investigations, the selective leaks from the prosecutors, the reporting by the media, the claims of all people offering evidence, the silent thoughts of the jury, the judge, even interpretation of the law.
What I do know is I’d hate to have you on a jury sitting in judgment of me or anyone else.
And I’m sure everyone here would also agree that Donald Moron stole — “mishandled” — boxes and boxes of documents in which many were classified, coupled with the even more egregious behavior of shuttling said boxes from one tacky club to another while he was accused of obstructing their rightful return.
Biden did exactly the same.
Well not exactly. Biden never had Presidential powers. So Senator Biden is actually a criminal.
JT: Great survey of (just some of) the cases proving that the Left has politicized our system of justice — that they have corrupted it into a system of men.
The Founders were acutely aware of this danger. They saw what happened in ancient Greece (e.g., Socrates). That is why they created an *independent* judiciary, tethered to the Constitution, and governed by a body of laws and objective procedures.
What they could not have anticipated is the degree to which the bankrupt premise — the ends justifies the means — would erode that magnificent system of justice.
To the point! It is a pity that more high profile lawyers don’t speak out. Can 10 just men be found in NY.
Cleanup in aisle “Anne” please.
Time after time, Trump is ridiculed for his intuitive summaries, yet somehow it seems he eventually is shown to be right over time.
Professor Turley, this essay is by far the most poignant and most damning of our judicial system/process. I would encourage you to write a follow-up on how law schools and judges have corrupted our once exemplary judicial system. In fact, it should include bar associations nationwide that have perilously sat back allowing the degradation of their profession. In fact, one can surmise that the destruction of justice produces more income, and perhaps there does need to be a checks and balances on the legal profession. If you agree with the latter, it should be created or revamped by the consumer of the profession, “We the People.” Thank you kindly for your wonderful insights and analysis.
Normally rational people hate Trump so much they cannot see or accept the basic unfairness of these prosecutions and penalties. Then again, maybe they weren’t so rational after all.
I can’t stand far right wing, MAGA outlets like The Hill. No, wait, it is not. Never mind.