//  12/4/17  //  Commentary

Michael Flynn should be happy he doesn’t yet live in the kind of country he spent much of last year trying to turn America into. The man who led the Republican National Convention in chants of “lock her up” will have his fate decided by a sober, impartial application of the law to facts established in court. That is as it should be, and as it needs to be if the United States is to remain a free and democratic society. We don’t have show trials here, and we convict people only if they’re proven beyond a reasonable doubt to have violated specific criminal prohibitions—not because we don't like them, or because we feel that in some undefined way they are guilty.  This commitment is a large part of what we mean when we talk about the rule of law.

It is also something that Flynn was happy to ignore last summer, and that Donald Trump continues to hold in contempt. The latest demonstration was the President’s series of tweets about the jury verdict on November 30 finding Jose Ines Garcia Zarate not guilty of murder or manslaughter for the shooting death of Kathryn Steinle. Garcia Zarate was in the country illegally in July 2015, when a bullet from the gun he was handling struck and killed Steinle. The question at trial was whether the killing was intentional or accidental; the jury decided it was accidental.

Trump called the verdict “disgraceful” and “a complete travesty of justice.”  And he immediately tried to capitalize on it politically. It showed the need to “build the wall,” he said.  And it showed that “the Schumer/Pelosi Democrats are so weak on Crime that they will pay a big price in the 2018 and 2020 Elections.”  The next morning, while Michael Flynn was in court pleading guilty, the White House again tried to score political points from the acquittal, saying that it highlighted the dangers posed by “criminal illegal immigrants,” and blaming Steinle’s death on the failure of the city of San Francisco to enforce federal immigration laws.

Steinle’s death was a terrible tragedy.  There’s nothing wrong with asking how it could have been prevented.  It’s a responsible question to pose, at least if you don’t take gun policy off the table at the outset, and if you pay attention to the evidence that aliens, whether documented or not, are not especially likely to commit crimes.  But a criminal trial isn’t a policy debate, and it shouldn’t be—in a free society it can’t be—a political prop.  The jurors, who sat through weeks of testimony and then deliberated over six days, were asked to decide the case based on the evidence, not their prior assumptions.  And there were grounds for skepticism about the prosecution case.  There was no motive for the shooting.  The gun was of a kind unusually prone to accidental firing.  The bullet hit Steinle only after ricocheting off the ground about 100 feet away from her.  Garcia Zarate may nevertheless have been trying to kill Steinle, but the jury’s contrary decision doesn’t look unreasonable, especially given the requirement that guilt be proved beyond a reasonable doubt.

Trump complained in his tweets that the jury was never told that Garcia Zarate “was a 7 time felon.”  (He also suggested that the prior convictions were for violent offenses, which is false.)  Any lawyer could have told Trump, had he bothered to ask, that juries usually aren’t told about a defendant’s prior convictions.  The reason for that isn’t that the prior convictions are irrelevant; it’s that jurors can have a tendency to give the evidence too much weight.  They can think it proves more than it really does, or they can be tempted to ignore whether the defendant is guilty of the charged offenses and just convict him because they don’t like him. There’s no way to know whether the jury in San Francisco would have fallen into errors of this kind, but it clear that Trump would have liked them to.

At the Republican National Convention last July, when the chants of “lock her up” began to die down, Michael Flynn put on a face of righteous anger and told the crowd, “we don’t need a reckless President who believes that she is above the law.”  Trump isn’t just reckless, and he doesn’t just seem to think he is above the law.  He has an authoritarian’s hostility to the very idea of a principled inquiry into the truth.


Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

Versus Trump: Trump The Trustbuster (Interview with Lina Khan)

11/30/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie has an interview with antitrust expert Lina Khan, Director of Legal Policy of the Open Markets Institute, about the lawsuit filed by the Trump Administration to block the proposed AT&T/Time Warner merger. Listen now!

Charlie Gerstein

Civil Rights Corps

Antitrust After the Fall

11/21/17  //  In-Depth Analysis

Trump has needlessly created many reasons to look skeptically on DOJ's justified, important lawsuit to prevent AT&T and Times Warner from merging.

Eric Citron

Goldstein & Russell