I write this article not knowing if Donald Trump will get arrested this week. He seems to think he will be. He has called for demonstrations against that happening, which means that his lawyers must be pulling their hair out, because their client is failing the first test of facing criminal charges. He is acting like a criminal.
Trump has often bragged about his experiences in court. In his so-called business life, he sued people and was sued in turn; he saw litigation as the cost of doing business. A written contract, for him, was little more than a place-holder. Attorneys were pawns. Whoever won was allowed to crow about it and whoever lost was beneath contempt.
Civil litigation can be that way. At its worst, which is not uncommon, it can be a war of attrition that most benefits the party who can best afford to be stubborn and irrational. Justice can not only be blind. It can also be halt and lame.
Criminal litigation is built differently. When one party to a dispute is the state itself, a different sort of unfairness creeps in, having less to do with financial disparity than with social structure, moral superiority, and sometimes even the plain ambition of prosecutors seeking advancement.
Life’s unfairness is a truth that most of us learn to reckon with early on. In spite of our fondest hopes and dreams, we are not born equal to each other by any practical measure. Looks, intelligence, physical ability; family wealth, ethnic background, and cultural touchstones help complete the random draw of birth. Some of us have it easier than others and a great deal of government exists to ameliorate those differences, because allowing our different natural inheritances to fully determine our outcomes in life is a sure path to general misery and, eventually, revolution. We seek to form a more perfect union because the ever-present alternative is decay.
Perhaps nowhere does the unfairness of things come into sharper focus, though, than in our criminal justice system. Unfairness is woven into its warp and its weft. Consider the simplest prosecution: a speeding ticket. Consider how many cars exceed the speed limit on any given highway and the odds of any one person getting stopped. The trooper picks and chooses.
Then your average speeder gets to meet a prosecutor. Maybe he or she is friendly, maybe not. Then your average speeder gets to meet a judge; maybe that judge is generous and maybe that judge is not. Maybe the cop, the prosecutor, and the judge are all terrific people, who are all having a bad day. Your average speeder may well be facing a situation that has nothing to do with fairness and everything to do with luck – if he or she is lucky, that is. If he or she is not lucky, or of a certain color, or from a different country, or has made someone angry for some strange reason: luck might disappear from the equation entirely, to be replaced by something else. By power, for instance.
Once you start to play under any of these circumstances, then, you realize pretty quickly that this particular deck is stacked. Now oddly enough, you can still win – that’s the poetry of our system. Nodding to concerns for fairness, the game still has rules, and if you are smart and patient enough, you can use those rules to your real advantage.
You can even point out how unfairly you have been treated. You can make that unfairness part of your defense. But the cardinal rule is this: don’t make things worse for yourself. If you are arrested for a bad charge, don’t do the blue suits any favors by resisting your arrest. Don’t pick up a new charge that you can’t beat, in the process of fighting a charge that you can. Don’t let the cover-up be worse than the crime.
Arresting Donald Trump for paying off a porn star is the equivalent of taking down Al Capone for tax evasion. He may be right in arguing that this particular prosecution is political in nature. I would be less than shocked to hear it. But all prosecutions are political, because they all represent a series of choices made by people with power against people who lack power. You don’t beat them, however, by putting your own power in the balance against that larger power.
Not unless you are looking for violence.
And by doing that, again, Donald Trump has once again made himself the chief witness against himself. He can’t get out of his own way. He is the lazy prosecutor’s best friend: a defendant of true criminal nature.
Davidow writes Radio Free New Hampshire for InDepthNH.org. He is also the author of Gate City, Split Thirty, and The Rocketdyne Commission, three novels about politics and advertising which, taken together, form The Henry Bell Project, The Book of Order, and The Hunter of Talyashevka . They are available on Amazon and Barnes and Noble. Davidow’s Chanukah Land can be found here.