American justice: with lawyers in the signal box, is a train wreck in the making?

Listening to a piece of music can sometimes feel like dreaming. For me, it often sets off a train of thought – not always linear – about the country and the time in which it was written. In recent days it’s been the work of Roseanne Cash, daughter of Johnny, that caused me to reflect on the politics of her country. What was before and what is now. But more on Roseanne later.

After decades of watching, visiting and doing business in the United States, I’m still intrigued by many aspects of the American way of life. My top three are politics, banking and – way out front – the law in all its glory. All, of course, are interlinked. All are essential to the acquisition and exercise of power. I suppose I should add the military as a close fourth, but I don’t rank them above the others on a scale of power factors because notwithstanding Donald Trump’s efforts during his presidency, the generals have been pretty successful in keeping the armed forces out of internal politics, at least since the Civil War.

The legal system is a wonder to behold. Despite having had a few interactions with US lawyers in my time (strictly commercial, I should add – no orange jumpsuits), I can’t say I know much more than the basics. I get the distinction between federal and state law, but ask me how many levels of appeal are possible before a case gets to the Supreme Court, and I would be stumped.

And then there’s the current litigation over the top-secret documents Trump is alleged to have squirreled away. I get that the Department of Justice is the federal government’s prosecuting authority, and the FBI is the primary enforcer. But then weird concepts keep cropping up that I’d never come across before. A special master? A magistrate judge as opposed to what other kind of judge? Given that I’m not American and not a lawyer, there’s no reason why I should have heard of such exotic creatures, the first of which sounds as if it was created for a Marvel movie.

It turns out that the special master would be employed to review the seized documents to ensure that their use will not violate attorney/client privilege and thus prejudice a defendant’s rights. Or something like that. That’s just one example of the bewildering rabbit-holes of due process that seem to provide American lawyers with a very comfortable living, thank you very much. Apart, of course, from those who are foolish enough to work for Trump, and who as a result always stand a chance of not being paid, or, at worst, going to jail themselves.

There are also mysteries in the process of making laws. Why, for example, is it OK for Congress to pass a law that is supposed to be about one thing, but is actually about a bunch of other stuff as well? Take The Inflation Reduction Act, for example. You would think from the title that the act’s purpose is pretty obvious. But this one doesn’t just do what it says on the tin. In fact the outcome Joe Biden is crowing about is the provisions that are intended to deal with climate change. And the relevance to inflation, however worthy the intention, is what?

But what intrigues me most about the current cause celebre is the suggestion by a number of commentators that the Department of Justice, even if they have overwhelming evidence that Trump committed one or more felony that if proven would send him to jail for many years, should not indict him until after the mid-term Congressional elections in November. I understand the rationale: that such a prosecution might have a material effect on the outcome of those elections. But one thought keeps coming to me. If Trump was suspected of committing murder, also a felony, and the evidence was also compelling, would the Department wait until after November to indict him? I find it hard to believe that he would avoid immediate arrest.

Yet here’s a guy being investigated for some pretty serious crimes, one of which is espionage. Would it not be irresponsible to allow such a person to roam the streets for another three months without charging him? Especially given recent press reports that the CIA has lost a number of agents over the past couple of years for reasons unknown. Nobody is outright accusing Trump of sharing secrets with America’s rivals as a possible explanation, even though he did exactly that in a meeting early in his presidency with the Russian ambassador and foreign minister. No evidence produced, though the connexion is being implied – seemingly up to the limits of defamation law.

But goodness, what hoops the enforcement agencies need to jump through to bring him to book. Not only is he facing investigation because of the Mar-a-Lago search, but he’s facing proceedings in Georgia and New York for alleged breaches of state or federal laws, not to mention a potential reckoning in the wake of the January 6 storming of Congress. Some of these cases have been grinding on for months if not years. Such is the rich constellation of state and federal laws, each with their own cluster of associated case law, that Trump has managed to duck and dive away from the criminal courts thus far.

Then there are the local ordinances and regulations. In addition to the federal government, each state has its own laws, and each city has its own rules. Little wonder, therefore, that there are so many judges, lawyers, and, for that matter, prisons.

Here in Britain, we have to listen from time to time to attention-seeking politicians promising to make bonfires of regulations (most recently as a rationale for Brexit, despite the fact that leaving the European Union seems to be producing far more red tape than it’s removing). But in the United States, where the annual tax return is almost as long as the bible, it would take a full-scale conflagration to simplify regulations that have piled up on each other over many decades.

One of the favourite catch-phrases used by Americans, often in the context of personal relationships, is “it’s complicated”. Looking from afar (and I haven’t visited the US since Trump was elected), the country’s legal system seems more hideously complicated than ever before. And no stronger evidence of this is to be found in the interminable length of time it takes for major lawsuits and criminal cases to come to conclusion (especially when Trump is the defendant). This can also be the case in the UK, but the US doesn’t have the excuse that it has to contend with a whole class of lawyers withholding their labour because they’re asked to do their jobs for absurdly low fees, as is the case with our criminal barristers. In America, there always seems to be enough money to pay for lawyers. And lawyers thrive on complication and ambiguity, of which there’s plenty to be found in the American legal system.

By contrast, simplicity is the feedstock of demagogues, who project their messages in terms of black and white, for and against. There’s no room for grey, for doubt, for uncertainty. Which is how Trump pulled off his extraordinary ascent to power while using every nook and cranny the law provides to evade jeopardy on his journey.

Whatever Donald Trump might say, America has always been complicated. Even if the years before his election might seem to have been relatively calm, in my lifetime there have been plenty of divisive issues: segregation, civil rights and Vietnam to name but three. Yet such is the vicious, hate-fuelled chasm the nation seems to have fallen into today, that I’m left with the feeling that future generations will think of MAGA in terms of before and after, just as they did after the Civil War.

Which brings me back to Roseanne Cash. In her songs, complicated doesn’t automatically equate to divisive. Her songs don’t demand that you judge her protagonists as Democrats or Republicans. They’re simply ordinary people facing choices and challenges that cross the political spectrum.

But look now. So many themes that repeat themselves in country and folk music – tough childhoods, financial failure, failed relationships, misogyny and violence – are no longer just social problems – wrongs that need righting without pointing fingers in a particular political direction. They’re political minefields that threaten to place the songwriter and the performer in one camp or another – because someone must be blamed – where once they were describing universal human traits.

So it has always been with books, movies and theatre. Yet now, politicised library administrators and school boards in many states have started banning books. Hollywood has long been under the influence of studios afraid of offending not only national audiences but other state entities, such as China. Museums and theatres, long dependent on sponsorship, are finding sources of funding harder to come by because traditional sponsors, such as oil and gas companies, are under attack by pressure groups that disapprove of the source of their wealth.

Let’s not talk about woke, because woke and anti-woke, left and right, conservative and liberal are equally enthusiastic about circumscribing what we see, do and think. But to what end?

The MAGA people dream of an America that once was. But which America? Eisenhower’s America, in which a white majority ruled the roost and minorities were kept in their place? Reagan’s sunny era of deficits and tax cuts? Or that brief period following the collapse of the Soviet Union when there was only one superpower? I’m not sure many of those who follow Trump around the country on his rallies could answer that question, except to say that things are shit and we need a strong leader to make them better.

Joe Biden, on the other hand, also looks back. To pre-Trump, to a time when political violence was not tolerated and elections were not disputed. And further back to a hazy hinterland where the dignity of labour was upheld – a fair day’s pay for an honest day’s work. Sadly, neither side can point to a golden era without being rebutted by the other.

The grim reality is that the recent history of America is of periods of calm interspersed with moments of extreme ugliness. One of those moments was Watergate. It’s fifty years or so since a precedent of sort was established, when Nixon resigned the presidency and was pardoned by his successor. Perhaps some of Trump’s declared supporters are hoping that Biden might pardon Trump in return for a commitment to leave politics and never return. Because they know that he’s a train wreck, but that he’s started a movement that will survive and thrive after he’s gone.

That should not happen. And if the authorities are squeamish about bringing Trump to justice, perhaps they should look beyond America, and reflect that presidents and prime ministers in other countries are not immune to prosecution. Think, in recent times, of Chirac and Sarkozy in France, Najib Razak in Malaysia, Olmert and Netanyahu in Israel. Leaders can be prosecuted, and the institutions that prosecute them can survive. Why should America be any different?

But have things gone too far? Is the country beyond repair? The people of America know better than me. I just think of a Roseanne Cash song. Her words are ostensibly about a relationship, but could just as easily apply to her divided nation:

I’m worried about you
I’m worried about me
The curves around midnight
Aren’t easy to see
Flashing red warnings
Unseen in the rain
This thing has turned into
A runaway train

Long-distance phone calls
A voice on the line
Electrical miles
That soften the time
The dynamite too
Is hooked on the wire
And so are the rails
Of American Flyers

Blind boys and gamblers
They invented the blues
Will pay up in blood
When this marker comes due
To try and get off now
It’s about as insane
As those who wave lanterns
At runaway trains

Steel rails and hard lives
Are always in twos
I have been here before this
And now it’s with you

I’m worried about you
I’m worried about me
We’re lighting the fuses
And counting to three
And what are the choices
For those who remain
The sign of the cross
On a runaway train

This thing has turned into
A runaway train
This thing has turned into
A runaway train
Our love has turned into
A runaway train

(Runaway Train, Roseanne Cash)