America's Rule of (F)law

October 13, 2022

Donald Trump’s legal tangles drag on and dominate headlines, but American justice itself should be placed on trial because it is cumbersome, costly, corruptible, and inconclusive. Exhibit A is Trump who has gamed the legal system for decades. His most recent example concerns the illegal possession of thousands of classified White House documents at his Florida resort. For a year, he ignored National Archive requests to return them before finally surrendering 15 boxes in January then telling his lawyer to claim none were left. But more were hidden and the U.S. Department of Justice obtained a search warrant this summer from a grand jury and judge and the FBI found twice as many documents as before and repossessed them. Next Trump lawyers appealed and a judge agreed to the appointment of a Special Master to oversee the investigation. Trump appealed to the politically-appointed U.S. Supreme Court, dominated by three radical Catholic Trump appointees, to dump the Special Master and every other decision. Finally, the Department of Justice appealed his appeal.

"If the Supreme Court ends up listening to this bull%$+t, the fact that this ass#@le can have top-secret documents, which is in violation of the Presidential Records Act, as well as the National Archives with their multiple subpoenas, requests, and so on for the return of the documents, we'll know that the f#$@ing Supreme Court is corrupt," said an outraged Michael Cohen, former Trump lawyer. Cohen, who went to jail for devising many schemes for The Donald added that if the Supreme Court intervenes and takes Trump's side, all the justices on the bench would "have to go.” “Delay, delay, delay, that's what he's gonna’ do. This is exactly what he does in every single case. He will drag it now as far as he possibly can to avoid prosecution."

It’s not just Trump who abuses the system, to be fair, but he’s the maestro. His cases involve attempts to find judges to overrule judges to overrule judges and to make a mockery of the system. The current documents scandal is an open and shut case, said Fox TV regular Andrew Napolitano, former New Jersey Superior Court Judge who is a conservative. He said Trump will be indicted after the mid-terms (November 2022) for three reasons stemming from the DOJ’s raid of his home to get the documents: a) for the removal and concealment of national defense information; b) giving that information to those not legally entitled to possess it; and c) a possible obstruction of justice charge for failing to return all of the documents in the first place. His delays are aimed at stalling charges before the mid-terms on November 2 and, by the way, even if he’s charged he will launch multiple appeals.

Is this any way to run a society or an economy? Justice delayed is justice denied, but America’s legal system can be weaponized by rich guys and corporations and their overpaid lawyers. The consequence is that America is over-lawyered and is also afflicted with a labyrinth of laws, a plethora of judges, multiple court systems, overlapping jurisdictions, unethical practices, politicians who bake loopholes into laws, over-appealing, politicized judges, and expensive delays. This has created a culture of litigiousness that has becomeAmerica’s biggest competitive disadvantage. It also corrodes society because the rule of law is for the rich. Trump didn’t create this system, but he’s its poster boy.

America dominates the global legal services market

The United States has the biggest legal services market in the world for several reasons. It is the world’s biggest economy and U.S. law is the basis for many international contracts. But America is also the most sue-happy society in the world: Roughly 2.2 percent of America’s GDP, or about $1,000 per person per year, is spent on tort litigation. This is mostly because American healthcare is double the cost of government-run systems in other countries and rewards are often enormous. America’s crime rates are the highest in the world, and lawsuits and criminal cases are lengthy and expensive because they are often adjudicated by juries, not professional judges, unlike other developed nations.

Worse, America has spawned a massive global third-party litigation finance industry – investors such as hedge funds or individuals back legal action against companies in return for a percentage of profits. This is illegal in other developed countries and should be in the United States because it increases the cost of doing business and of seeking justice — expenses that are eventually passed along to consumers or taxpayers. 

The result is that U.S. companies spend, on average, 166 percent more on legal services than do their global counterparts, or 0.4 percent of their revenue, according to a recent Thomson Reuters study. Real estate, banks, and tech companies spend the most. American law is a gigantic industry and the result is the highest proportion of lawyers per capita globally, a total of 1.26 million who are mostly in New York, California, and Florida. The U.S. has one lawyer for every 248 residents while Germany has one per 516 people and France one for every 1,221 residents.

And Trump leads the pack in terms of litigiousness as well as the number of criminal cases outstanding that may do him in eventually. New York State Attorney General, Letitia James, is closing in on Trump, his family, and his empire’s questionable business practices. The Trump Organization attempted to settle recently but she refused and last month filed a civil lawsuit accusing Trump personally of fraud. This month, the Trump Organization goes on trial in Manhattan on charges of fraud and tax evasion and its former chief financial officer has pleaded guilty to 15 felonies and will testify.

Trump is also in hot water in Georgia because of his tape-recorded telephone plea to the state’s secretary of state to “find 11,780 votes” in order to reverse Joe Biden’s victory there in 2020. There’s also the House committee investigation of the January 6 attempted insurrection to overthrow the election. Two domestic terrorists so far have pleaded guilty to seditious conspiracy and obstruction in connection to the violent riot at the Capitol Building and may implicate Trump.

Any one of these cases would destroy or debilitate a normal businessman or politician, but not Donald Trump. He believes the rule of law is a sport, not a boundary, and that he, as a politician-celebrity, is essentially above the law. He’s never disguised this. During the 2016 Iowa primary, he famously said: "I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK? It's, like, incredible” and then, while on stage, he mimicked holding and shooting a rifle.