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The Law Isn’t Coming To Save the West

Essay
Roman Godfrey, esq.

The Law Isn’t Coming To Save the West

Hello, Anon. Are you aware that if you’ve ever used a fake name to get a second free Netflix trial after your first expired, you could be charged with a federal crime? What do you mean, no? Title 18 § 1343 of the United States Code makes it a felony, punishable by up to twenty years in prison, to devise a scheme or artifice to defraud another of property using false pretenses over the wires (internet.) Perhaps you’re thinking, “Hold up, a free Netflix trial isn’t property.” But of course, you are aware that § 1343, “is not limited” to tangible property and extends “to rights in intangible property.” See United States v. Bruchhausen, 977 F.2d 464, 467 (9th Cir.1992). Right?

What do you mean you’ve never heard of 18 U.S.C. § 1343? Or Bruchhausen? Or any Ninth Circuit decision for that matter? “Ignorantia juris non excusat.” Ignorance of the law is no excuse and no court in the country will hear you argue otherwise. See Haas v. Henkel, 216 U.S. 462, 471 (1910). Want to know a dirty little legal secret? It actually doesn’t matter if you know any of the country’s innumerable laws. Why? Because you do know these laws. All of them. This is because everyone is “presumed to know the law.” Moore v. Brown, 52 U.S. (11 How.) (1851).

Just ask the Supreme Court. Id.

“That’s all well and good,” you may be thinking, “but I don’t actually know anything about the law. I was (somehow) never taught about it in my mandatory state education. I’d also have to pay thousands to even access all of the country’s laws and spend a lifetime reading them.” This is an entirely reasonable thing to say. Try arguing it to a court, though, and you’ll be coldly reminded that “everyone is presumed to know the law.”

You may now be thinking, “How can I be presumed to know every law? Every year, Congress passes mountain sized omnibus bills filled with millions of laws which Congress itself doesn’t even read.” That’s a good question. But who said you’d know “the law” just by reading every written state, federal, administrative, and maritime statute? Even if you did, you’d still only know a small fraction of what you’re presumed to know. See, unlike many European countries, America has a common-law legal system. This means that there are countless “laws” which are not found in ordinance, statute, or regulation, and instead come from judicial decisions. Some of which date back thousands of years to Anglo-Saxon England.

To know “the law,” you’d technically have to know a few centuries worth of judicial decisions too. But unfortunately, it’s still not that simple. America’s common-law jurisprudence is anything but unified. In the federal system alone, there are 94 district courts, 13 circuit (appellate) courts, and one Supreme Court, which lords over them all. These courts disagree with each other, and even themselves. ALL. OF. THE. TIME. Even the Supreme Court, which is bound by its own precedent, can (and will) suddenly change its mind if and whenever it wants to.

Thus, an action can be illegal, and even criminal, in one of the thirteen appellate circuits but legal in another. For example, let’s say buried on page 750 of a recent bi-partisan spending bill is an amendment to the Endangered Species Act which makes it illegal to transport “fish” across state lines in an “autonomous motor vehicle.” We’ll call this Fake Law (F.L.) § 69. Anyone found violating F.L. § 69 can be fined up to $100,000 per fish and punished with up to two years imprisonment. Unbeknownst to you, F.L. § 69 went into effect right before you decided to drive 50 softshell crabs from Massachusetts to a seafood restaurant in New York in your brand-new Tesla. Upon entering New York, you’re pulled over by authorities. Maybe they smelled something . . . fishy. Upon seeing the crabs and the Tesla, the officers immediately arrest you, almost tripping over several fentanyl-addicted vagrants in the process.

Bound in shackles and draped in traffic cone orange, you’re hauled before a judge who informs you of your charges—violations of Fake Law § 69. Maybe you were fortunate enough to hire a good attorney, draining years of hard-earned savings. But good news! Your attorney tells you that you’ve got a strong case. He argues to the court that the term “fish” in F.L. § 69 doesn’t apply to softshell crabs and that a Tesla, which you drove without using automatic driving features, isn’t an “autonomous motor vehicle.” After eight months of waiting, you finally get a written decision from the court. Your heart sinks to your throat as you read,

 

“It is plain that Congress clearly intended to include softshell crabs in F.L. § 69’s definition of ‘fish.’

“Furthermore, it is clear to the Court that a Tesla falls under Congress’s definition of ‘autonomous motor vehicle,’ regardless of whether autonomous driving features were used.”

 

Since you had 50 softshell crabs in your Tesla the judge fines you $5,000,000 and sentences you to six months in jail. That’s a tough break for you, but as President Joe Biden says, “No one is above the law.”

As it turns out, a man in a different federal circuit, call him Steve, was also caught driving 50 softshell crabs in a Tesla and was also charged with violating Fake Law § 69. Steve’s court, however, writes an opinion saying, “It is absurd to imagine that Congress intended ‘fish’ to include softshell crabs and ‘autonomous motor vehicles’ to include cars driven manually when drafting Fake Law § 69.”

But wait! The fight isn’t over yet. Both your attorney and the government in Steve’s case appeal their respective losses. After several years (and thousands more dollars) in litigation, the appellate courts in both your and Steve’s cases reverse the lower courts’ decisions. According to the higher courts, you didn’t actually transport “fish,” after all — Steve did! You didn’t break the law! Of course, this legal battle forced you into bankruptcy and you already served your jail sentence. But justice has been done! That’s a tough break for Steve. But as President Joe Biden says, “No one is above the law.”

Believe it or not, this Kafkaesque nightmare is something that could happen and probably has to someone. Despite all this, I want to make clear that I’m not writing to “bash” the American legal system. Despite its flaws, our legal system is probably the best in the world (at least for now.) America has some of the best legal protections for accused criminals that can be found anywhere, and our civil system (which has many problems) affords regular people access to justice most of the world could only dream of. I don’t write this to hack on the American legal system. Far from it. I write about why it is so important that the American legal system must be preserved and saved.

“The law” is not found in a book. You couldn’t read it all if you tried. Indeed, “the law” is not an abstract ideal which exists in the aether. The law is an institution and institutions are made of men. Since “the law” (however written) is interpreted and enforced by men the law is only as good or as just as those men interpreting and enforcing it. Victims of Soviet show trials were given trials, after all.

A civilized society needs a healthy and functioning criminal-justice system to survive. Such a system must be capable of differentiating between “law breakers” who are actually harmful to society (violent criminals, misanthropic vagrants, hostile foreign nationals fraudulently claiming social benefits) and those who may find themselves crossed with insignificant technicalities (people with crabs in Teslas.)

In a healthy society, an ordinary and generally law-abiding citizen wouldn’t have to worry about having their life torn inside out for minor infractions. Stealing is wrong. But no one wants to live in a world where your neighbor can be made a felon because they got too many free Netflix trials. Moreover, a healthy criminal-justice system would never selectively target anyone for a brutal legal onslaught just because that person may be culturally disfavored. Right?

The legally nonsensical and nakedly political criminal prosecutions of former U.S. president Donald Trump have brough to focus something which has been becoming clear for a while. Western nations are losing the rule of law. It used to be politically unthinkable that a former president could be criminally prosecuted, let alone one generally favored for re-election.

Growing up, I was told that this distinguished our country from “banana republics.” Something I wasn’t told growing up, is that the United States, more specifically its secretive law enforcement agencies, were largely responsible for creating those so-called “banana republics.” Thank goodness the nation’s black-budget funded professional government breakers are only allowed to operate in foreign countries. It’s the law, after all! And as President Joe Biden says,

“No one is above the law!”

Trump is the first president to face criminal prosecution, but Trump is not the first president to violate criminal law. Indeed, every president of my lifetime is a criminal. I don’t say this with much reproach as “doing crime” is probably a prerequisite to the job of leading great nations. This itself leads to many interesting questions about “the law” and who it actually applies to or even should. But this is the subject for a different article, perhaps discussing

Nietzsche, which I would very much like to do.

People who aren’t being selectively prosecuted like to say that “No one is above the law.” This is maybe true for the serf class (us). But this clearly isn’t true for the wealthy and powerful (see the Sackler Family, Nancy Pelosi, Robinhood’s CEO, and others I won’t name less I suicide myself). This especially isn’t true for presidents. Yet, Donald Trump is the first and only president in United States’ history to face criminal charges. Though this is a dramatic understatement. Former President Trump isn’t facing one criminal trial, he’s facing four — and during an election cycle. But this too is an understatement as Trump has been personally charged with eighty-eight criminal offenses in four jurisdictions. This is madness.

There is nothing wrong per se with large multi-count criminal indictments from a legal perspective. After all, society would be doing itself a disservice if it forbade itself from brining many charges against those “worst of the worst” who commit many crimes i.e. the mafia, serial killers, etc. Large, sweeping indictments, however, were traditionally viewed with distrust, and for good reason. Sadly, overcharged indictments have become common place and their prevalence may be almost perfectly corelated with the degradation of the American criminal justice system.

Legal scholar Paul Bennet writes, “overcharging is most often practiced by prosecutors to coerce a guilty plea” and “has been disapproved by the American Bar Association, because intimidating a defendant who may be innocent to accept a guilty plea infringes upon the

Defendant’s rights to a fair trial.” Even a single criminal charge is enough to change someone’s life forever. Your business, bank account, marriage, and hairline probably wouldn’t survive a run in with F.L. § 69.

There is almost no one on earth who could withstand the weight, expense, and risk of eighty-eight criminal charges in four districts. Whether Trump proves to be an exception is yet to be seen. Putting this aside, the system knows that it can take down virtually anyone with enough charges. By bringing 88 criminal charges, Trump’s prosecutors confess their belief that 88 charges are needed to bring the orange beast down. By contrast, Sam Bankman Fried, who all but admitted to masterminding history’s largest financial fraud on twitter, was charged with only seven counts.

The wild overcharging by Smith, Bragg, Willis, and others, reveals the system will only tolerate a single outcome—the criminal conviction of Former President Donald Trump. The preelection timing of these 88 charges, all brought by members of Trump’s opposition, in turn admit to the raw political motives behind these “criminal-justice” proceedings. With the end result predetermined, or so it would seem, the country is watching politicians weaponize the legal system to obtain single party rule — all in the name of democracy. Something which, until recently, would have been considered unthinkable in a “civilized” society.

“No one is above the law.” Except all the people who are.

As usual in American politics, no one will think more than one step ahead. What option do these clumsy and reckless prosecutions leave a possible 47th President Trump? Could anyone blame him for criminally prosecuting his adversaries should he return to the White House? Moreover, could anyone stop him? Are we then at the precipice of a bi-partisan legal arms race to totalitarianism? These are the terrible consequences when the legal system is taken over by pure, unfiltered, politics.

The American Bar Association, in a post titled “How Courts Work” writes the following:

“Law won’t work without independent courts. That means courts that aren’t under the thumb of the political powers-that-be. An independent judge can assure that your case will be decided according to the law and the facts—not the vagaries of shifting political currents.

 

“Often, courts are called on to uphold limitations on the government. They protect against abuses by all branches of government. They protect minorities of all types from the majority, and protect the rights of people who can’t protect themselves. They also embody notions of equal treatment and fair play. The courts and the protections of the law are open to everybody.”

 

If it isn’t clear to you now, the law is not coming to save Donald Trump, let alone “the West,” whatever that means to you. Even if it could, the Supreme Court will not stop these four prosecutions dead in their tracks. Nor will legal Jesus descend from the heavens and deliver America into a pre-COVID election cycle. The damage was done long ago and we are only now starting to see the ugly consequences. Any society which wishes to survive and remain free needs a functioning criminal-justice system. Tragically, the fate of American legal institutions may be inexorably intertwined with the criminal prosecutions of a gaudy, philandering, businessman

(who I am forever grateful to for not starting any more wars in my name.) Whatever happens to Trump, it’s clear that the law is not coming to save the West. It is therefore up to the West to save the law.

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