A few years ago, a popular Hindi film actor was asked about the books she reads, to which she replied, among other things, that George Orwell’s Animal Farm can teach children to love and care for animals. Whatever one may think of Orwell and his writing, he was not a writer of children’s books, and Animal Farm is as dystopian as it can get. One of the great aphorisms the book included was a proclamation by the pigs on the farm: “All animals are equal, but some animals are more equal than others.”
The aforementioned actor’s celebrated ignorance and the pigs’ proclamation is an apt metaphor for all that is wrong in the American judicial system which has often prided itself for upholding the “Everyone is equal under the law” dictum. Well, sorry to bust the myth, it is not. The ongoing criminal trial of former US President Donald Trump tells us why.
Trump is the first former American President to face a criminal trial. At the heart of the case is the hush money he paid in 2016 to a former adult film actor named Stormy Daniels and a Playboy magazine model named Karen McDougal to suppress news stories about his alleged sexual relations with both of them. Aiding and abetting his attempt was the publisher of the tabloid National Enquirer, David Pecker, who was also the first witness to give his testimony on Tuesday.
Pecker and the Trump campaign are alleged to have participated in a “Catch and Kill” scheme, a slang term for paying money to keep involved parties silent, especially if their exposés could hurt the political prospects of the other person in the alleged affair.
All through the trial, Trump has been voicing his angst against the prosecution as well as the judge in the case, Juan Merchan. Judge Merchan has been warning Trump not to defame him or the process, something that the former President has neither acknowledged nor heeded. Yet, six days into the trial (as of Wednesday) Trump remains free, with no action taken against him for contempt of court.
In sharp contrast are several of his close former and current associates, all of whom have either been forced to remain silent or have already been convicted for their crimes. As of the middle of April, eight of his former colleagues have been sentenced to jail — Senior Strategist Steve Bannon, Campaign Chairman Paul Manafort, Senior Advisor Peter Navarro, Campaign Advisor George Papadopoulos, his friend Roger Stone, Campaign Deputy Chairman Rick Gates, Trump’s former personal lawyer Michael Cohen and former Trump Organisation CFO Allen Weisselberg.
In addition, former Trump campaign lawyer Sidney Powell took a plea deal to testify against co-defendants that helped her avoid prison. Former Trump campaign attorney Kenneth Chesebro did the same. Both are Trump’s co-defendants in an election fraud case in the state of Georgia. A third co-defendant in the Georgia case, Scott Hall, also accepted a plea deal agreeing to testify against others.
Then, there is the infamous resurrection of January 6, 2021 where hundreds of his followers stormed the US Capitol, the seat of the American Congress, and almost brought down the entire government just when his own Vice President Mike Pence was endorsing the election of Joe Biden as the new President. Some of those involved have been convicted and sentenced to jail terms, while hundreds of other prosecutions still remain.
To illustration the scale of the conspiracy, over 1,200 Americans have been charged criminally for their alleged actions during the riot, and more than 890 have been found guilty of federal crimes, according to the Justice Department. More than half of those found guilty have been sentenced to prison time.
So, why is Trump — the mastermind — still not punished for contempt of court despite his daily outbursts that are clearly violations of the letter of the law?
The sarcastic answer could be that Trump is seemingly coated with Teflon, just like our desi wrestlers of yore oiled themselves to prevent their opponents from getting a grip. The real and long answer, however, is that the American system has spectacularly failed when it comes to bringing Trump to justice. His army of expensive lawyers have been able to circumvent complex American laws to keep him untouched.
Not just that, he has won the Republican nomination again to run as the party’s candidate for President in the November 2024 election. Even if he is convicted, there is no current American law that would prevent him from becoming the Commander in Chief. In fact, if he wins, he could pardon many of the same associates and January 6 conspirators and set them free.
Part of the problem is that the American political system has allowed this to happen for several decades. As law professor Sheldon Evans says, “Politicizing crime, and using it to target opponents, is a longstanding American tradition… In 1971, Richard Nixon declared a ‘War on Drugs’ that Ronald Reagan later expanded — and that Nixon’s aides later admitted was intended to target groups that voted against him, namely Blacks and anti-war ‘hippies’.”
In his column for The Hill, he explains, “If we want a better, fairer, more equal criminal justice system — one that does not treat people differently based on political affiliation — we need to collectively reflect how criminal policy has been used as a bipartisan tool to serve political agendas, and we need the strength to change our politics.”
Thus, Trump’s protection mechanism is the same policies and laws that his predecessors enacted, including the Democrats. While what he did and continues to do is reprehensible at best and criminal at worst, he is just using the law to go against the law. It is a shame, but that is exactly how the cookie crumbles.
Sachin Kalbag, Senior Fellow at The Takshashila Institution, is a former Washington Correspondent and editor of Indian newspapers. Email: sachin@takshashila.org.in. Twitter: @SachinKalbag
