Judge denies Trump's request to move hush money case to federal court
Calling Every Adverse Ruling a ‘Witch Hunt’ Is an Assault on Consent, Not a Defense of Liberty
When a court applies known law to a powerful man and he cries “lawless,” the burden of proof lies on him, not on the law that judged him.
A former chief magistrate of this republic has, I am told, been convicted in a criminal trial and now seeks, by various legal devices, to erase that conviction. In the most recent skirmish, a federal judge refused his bid to move the matter into another court and described the attempt as a “second bite at the apple,” disfavoured by law, resting on a delay that was a “quintessential strategic decision.” The legal team answered not with careful argument alone, but with public declarations that the ruling is “baseless and lawless,” the work of a “witch hunt” that must be “immediately overturned and dismissed.” It is this way of speaking about law that troubles me.
I have long defined political power, in the work I called the Second Treatise of Government, as a right of making laws with penalties only for the public good. Such power is held on trust from free and equal persons, who leave the state of nature for no other end than the better preservation of their lives, liberties, and estates. Courts are instituted as a chief part of that trust: to apply known standing laws to particular cases, to hear parties on equal terms, and to give sentence without respect of persons. Where a court proceeds by known rules, gives reasons, and allows appeal, it acts within the trust, even if its judgment bites hard upon one who once held great office.
We are told that this litigant now invokes a “historic decision on Immunity,” as well as federal and state constitutions and other precedent, as grounds why his conviction must be removed and dismissed. Very well; any man may claim the benefit of law. But as I argued in my Essay Concerning Human Understanding, assent ought to be proportioned to the evidence; to believe merely because a thing is loudly affirmed is to fail in one’s duty to the understanding. The mere naming of constitutions and high courts, without showing the clear chain by which they command this particular outcome, is rhetoric, not proof. Power—especially when it has lately been held in one’s own hands—must justify itself; the burden lies there.
The judge’s answer, so far as these few reports allow me to see it, does not rest on hidden prerogative or on some new arbitrary rule, but on a plain procedural point. The effort to remove the case came late; that lateness was not compelled by force or fraud, but chosen as a “strategic decision”; and to ask a new court to rescue one from the sourness of one’s own stratagem is to demand a second chance that the law, for the sake of equal treatment, generally denies. Here the judge does what judges are set to do: he refuses to let one party be judge in his own case about which tactics shall be riskless. If others in like circumstances have their delays counted against them, then to shield this man would be to confer private privilege, not public justice.
Some will say that when prosecutions touch those who have wielded great power, suspicion is always warranted, and here they cry “witch hunt.” I agree that a long train of abuses against political opponents would be evidence that the trust of government is breaking, and the people might then be forgiven for withdrawing their obedience. Yet in the matter before us, I am shown only a single ruling in a single cause, resting on a well-known aversion to second bites at the apple, and accompanied by the ordinary right of appeal, which this defendant hastens to use. Fear of disorder is no argument for accepting tyranny, and by the same token, fear of bias is no argument for treating every unwelcome judgment as lawless.
Because men are the workmanship of one Maker, sent into the world about His business, I have always held that no earthly power may dispose of their rights at pleasure. If this court had claimed that a ruler may, by virtue of office, pay hush money with public impunity, or that some men’s reputations place them above answer to the law that binds their neighbours, I would call it an attempt at absolute power, worse than the state of nature it pretends to cure. But the reports show no such claim. They show only a court insisting that even the highest must live under the same rules of delay and decision that govern the lowest. That is not usurpation; it is equality under law.
What, then, is left to the man aggrieved? He has, and rightly uses, an appeal to higher courts; he may marshal precedents, show how immunity reaches the acts in question, and persuade impartial judges that the first ruling erred. This is how a government held on trust corrects its own mistakes, without dissolving society into chaos. But when he steps outside that process to assure the public that every check upon him is “baseless and lawless,” and that only his own cause is law itself, he invites a more dangerous thought—that no sentence against him could ever be legitimate. That is not a defence of liberty; it is the seed of arbitrary power.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The state of nature as analytic baseline: perfect freedom and equality under the law of nature, so that government must be shown to improve on that baseline for everyone who leaves it.
- An Essay Concerning Human Understanding — Assent must be proportioned to the evidence; believing beyond one's proofs is a failure of duty, not a mark of faith.