The Brazil-ification of American Politics

William Blackstone’s famous edict from the 1760s, “It is better that 10 guilty persons escape than that one innocent suffer,” is sort of hardwired into the way Americans think about the law.

It is, of course, not strictly true. It wouldn’t be better to have a system in which 10 murderers went free to keep from the wrongful conviction of one innocent citizen. Certainly not for society as a whole, and certainly not in the short run. 

But think of Blackstone’s ratio in the same way as Jesus of Nazareth’s instructions to his disciple, Peter, on how many times we should forgive those who sin against us, “not seven times, but 77 times.”

Peter had wondered if forgiveness should go to the seventh offense, and his rabbi was making clear that he wasn’t even in the right arena. Jesus didn’t mean that on the 78th offense, his followers should start curb-stomping sinners. 

Nor did Blackstone mean that a 10-to-1 ratio was the correct aspiration for a criminal justice system. He was suggesting that in the situations where the chance of wrongful conviction is in tension with law enforcement, authorities should err widely on the side of protecting the innocent. 

The use of hyperbole by Blackstone’s contemporary, Ben Franklin, emphasizes the point, with Franklin taking the ratio to 100-to-1.  

Again, these are not instructions for how to construct the perfect system of criminal justice. These are acknowledgements that no system of criminal justice is perfect. 

In any system, no matter how well designed, no matter how noble and virtuous its administrators, some guilty persons will go free, and some innocent persons will be convicted. In making the best possible system, we have to hold two good things in tension: keeping the peace and protecting the rights of individuals. And when we resolve those tensions, Blackstone tells us we should put our thumbs on the scale in favor of rights, and not by a little. 

It is an acknowledgement that there will be trade-offs in the eternal struggle of every just government to balance freedom and order. It is also a warning that if a system misses the calls in favor of order too often, it isn’t just that individuals will be denied their rights, it is that the government becomes tyrannical and can use the law as an instrument of oppression. 

So when we think about the kinds of mistakes we’d rather make, we can know which ones are preferable. But just as important is the understanding that there will, invariably, be mistakes. The law is, even at its most precise, an imperfect and blunt tool.

Speaking of tools, we read this week about the plans being hatched in MAGA world to use the criminal law to do to President Joe Biden what former President Donald Trump claims is being done to him. “A source close to the Trump campaign” told Axios that “everything you have seen from the Biden DOJ, you can expect to see from the Trump DOJ.” 

Which is weird, since what Trump says is happening is “corrupt,” “election interference,” and, the classic, “a witch hunt.”

Now, let’s only very briefly entertain the perverse reasoning that would allow Trump to argue that he is being unfairly prosecuted but that Biden and his family would merit punishment. I’m sure there are enthusiastic Trump vassals who would line up to make the claim that what Republicans accuse Biden of doing vis-a-vis his son’s shady buck raking is actually worse than the crimes with which Trump is charged. Stipulated.

But we know what it really is: retribution. Just like the fizzle of an impeachment that House Republicans cooked up against Biden, the idea here is that Democrats should get a taste of their own medicine.

When Trump calls the charges against him “banana republic indictments” and his sons decry “third-world prosecutorial misconduct,” the logical conclusion would be that if Trump were returned to power, he would seek to restore higher standards. 

Lolz.

When he was indicted for violating the same laws concerning classified records for which he said Hillary Clinton should be imprisoned, Trump made it plain.

“There was an unwritten rule” to not prosecute former presidents, Trump said, but no longer: “I will appoint a real special prosecutor to go after the most corrupt president in the history of America, Joe Biden, and go after the Biden crime family.” 

The former president would have us believe that the only reason he didn’t prosecute Clinton was this “unwritten rule,” as if he didn’t try to do it himself and was rebuffed by his own administration.

But with a lead in the polls and Republican insiders falling in line behind his restoration, Trump and his team are excited about the chance to do what they couldn’t do before and use the Department of Justice to smash his enemies.  

It’s fine to say one thinks it was wrong for prosecutors to go after Trump for his document shenanigans or even that Trump should not have been prosecuted for his efforts to steal a second term. 

Once the Senate failed to convict Trump for his misdeeds that led to the January 6 attack, there’s a case to be made that it was unwise to try to achieve the same ends through the criminal justice system. That couldn’t apply to the people who helped him or certainly the rioters themselves, but there’s some argument for the wisdom of letting voters decide rather than a jury. Fine, fine. Debatable, but not outrageous.

But what good case could possibly be made for the idea of perpetuating a practice that Trump and his team say puts America on par with banana republics?

Brazil produces a lot of bananas, but it wasn’t the original banana republic of American imagination. That was probably Honduras. What Brazil does have is crippling corruption and increasing indifference to it. The Economist reports that in Brazil and across Latin America, voters have burned out on endless prosecutions of political corruption and are throwing their hands up.

“Few people in Brazil want to talk about corruption anymore, except to express disdain for Lava Jato [the nation’s sprawling, decade-long corruption probe],” the magazine says. “Gilmar Mendes, a Supreme Court judge, dismisses it as the product of foreign interference, ‘propaganda’ by the media, and ‘anti-corruption fighters [who] like money a lot.’”

You don’t have to squint very hard to imagine a near future in America in which corruption prosecutions end up making corruption more common, not less common. 

We’ve already watched impeachment, what was intended as an emergency tool to be deployed in the most dire circumstances, become a mostly meaningless political messaging medium. 

Trump is now promising that in the tit-for-tat battle, he will seek to do the same for prosecutions of former presidents, Blackstone be damned.