Institutions Will Not Save Us
In the wake of Trump’s election in 2016, Masha Gessen wrote a prescient and widely read piece outlining the six rules for surviving autocracy. Gessen’s third rule was quite simple: Institutions will not save you. For many, over the last two years, there was a belief that our institutions were showing more resilience than anticipated. Those believers pointed particularly at the courts which had struck down some of the worst of the Trump administration’s abuses including, initially at least, the Muslim ban and executive orders relaxing environmental regulations. Of course, at the same time, the Supreme Court was doing its best to implement its own, extreme vision for our country and undermine decades of judicial and legal norms and precedent.
That belief in the courts’ ability to defend the rule of law and the resilience of our institutions should be badly shaken after the shocking and outrageous sentence handed down to Paul Manafort by Judge T.S. Ellis. Manafort has pled guilty to multiple felonies spanning decades in multiple jurisdictions. Even as he was awaiting trial, Manafort continued his illegal activity by tampering with witnesses. Manafort has defrauded the American people of tens of millions of dollars through acts of tax evasion and bank fraud. Manafort continually lied to prosecutors even as he pretended to be cooperating with them. When given the opportunity to address the court, Manafort showed no remorse and took no responsibility for his action.
In addition, Manafort’s crimes and a particularly large debt to a Russian oligarch exposed him to blackmail while he was managing Donald Trump’s campaign. He lied to prosecutors about passing Trump’s internal polling data to a Russian linked to that oligarch. Yet, incredibly, according to Judge Ellis, Manafort has led “an otherwise blameless life”. The sentencing guidelines for Manafort’s crimes ranged from 19-24 years but Ellis gave Manafort a sentence of just 47 months, with credit for the nine months he has already served.
If there was ever an example of the two-tiered justice system in this country, this was surely it. If ever there was an example of white-collar justice, this is it. If ever there was an example of white justice, this is it. As a public defender in New York noted last night, there are a whole litany of cases where poorer, mainly minority defendants received equivalent or more jail time for far less crimes. He cited one case from two days ago where his client was offered 36-72 months for stealing $100 from laundry machines. Manafort stole tens of millions.
This is not the end of Manafort’s legal troubles. He still faces sentencing in Washington, DC for other crimes where he faces a maximum of ten years. There, Judge Amy Jackson Berman has a chance to put a small salve on this wound of injustice and rebuke Judge Ellis for his description of Paul Manafort’s “blameless life”, a life of crime assisting ruthless, murderous dictators in gaining and maintaining power, often by killing their own citizens. Judge Ellis is a Reagan appointee and has a history of, shall we say, unique decisions that are unfortunately becoming ever more common as Mitch McConnell continues to pack the federal judiciary with partisan Federalist Society hacks.
The disparity of this sentence not only highlights the two-tiered justice system in this country but also further reduces trust and faith in our judicial system. I understand the thought that this incredibly lenient sentence may actually bring attention to the unreasonably severe sentencing guidelines that exist throughout the judicial system and the hope that these can be reduced for all defendants. But that is just wishful thinking. Manafort gets a slap on the wrist and the incarceration state will just keep on rolling.
More depressing is reflecting on the totality of Mueller’s prosecutions or lack thereof. Mike Flynn has pled guilty to a felony and is awaiting sentencing. He has basically admitted to betraying the country for money and conspiring to kidnap an American resident and spirit him off to Turkey. Yet he is currently awaiting sentence and is free to fly around the country and engage in political activity. George Papadopoulos, probably the first to know about the Russian hacking but, like so many other Trump cronies, refused to pass that information to the FBI, served a mere two week sentence for lying to federal agents. Michael Cohen will serve three years for conspiring with President Trump to avoid campaign finance laws in an admitted effort to ensure Trump would be elected. Jared Kushner, who has lied multiple times about his contacts with Russians, tried to set up a back-channel to Putin using facilities at the Russian embassy, lied multiple times on his financial disclosure form, lied multiple times on his security clearance forms, and, like his wife, has been denied a security clearance only to have it granted by the President in an unprecedented act, is free to fly around the world, hobnobbing with murderous dictators like MbS, looking for “investment opportunities”, apparently and presumably for himself and not the country, and continues to try to meet with foreign leaders outside traditional US diplomatic and national security channels. Paul Manafort, who was clearly conspiring with Russians in some way by passing them polling data, presumably also in an effort to get Trump elected and pay off his debt to a Russian oligarch, and who has left a decades-long trail of serious crimes, will probably serve less than three years for the crimes he has so far been sentenced for. Donald Trump, already cited by a judge as a felon in a conspiracy to violate campaign finance laws designed to get himself elected, having engaged in multiple and continual acts of obstruction of justice, is still President and looks almost certain to remain there until his term expires.
Yes, we don’t know what Mueller ultimately may reveal but he has waited so long to tell us that the idea of justice for what happened in 2016 seems hardly relevant. At this point, what incentive is there for a potential presidential candidate not to violate campaign laws, not to openly ask foreign government for help in getting elected, not to engage in large scale criminal efforts in order to get elected. Merely winning the election means that candidate will certainly be able to serve out the first term and, with luck, may win a second and outrun the statute of limitations on the crimes that allowed him to take power in the first place.
The denouement for this travesty of justice was when Manafort’s lawyer came out and, in a brazen plea for a pardon, declared that this sentence showed there was no collusion. It was a slap in the face of Lady Justice. Donald Trump pockets millions each year in Emoluments Clause violations. America’s plutocratic oligarchs take their billions to the bank as a result of Trump’s only real legislative achievement, a budget-busting tax break for those very plutocrats. Trump’s cabinet, past and present, is littered with criminals like Tom Price, Scott Pruitt, and Ryan Zinke who stole or wasted tens of thousands of taxpayer dollars and walked away scot-free. Alex Acosta, in protecting serial sexual predator and pimp of underage women, and Wilbur Ross, in lying to add the citizenship question to the census, have been cited for crimes by judges yet still remain in office. As Sarah Kendzior endlessly tells us, it is a vast criminal enterprise masquerading as a government. They have been stealing from, selling out, and selling off America for their own benefit for years. And they all laugh at the very concept of justice.
Judge Ellis has failed us. Mueller has, so far, failed us. The courts have failed us. The Republican party, which has morphed from a political party to a corrupt personality cult intent on maintaining power by almost any means possible, has failed us.
Our institutions will not save us.