'Why is this night different from all other nights?' (Andrew Kelly-Pool/Getty Images)

April 5, 2023   3 mins

The legal system, though constituted under the rubric of Justice, can only be an agglomeration of human beings. That is, the foolish, the misguided, the self-interested, the careerist and the idealist — the same admixture found in you and me.

Hamlet lists one of the screaming tragedies of life as “the law’s delay”. All of the affronted have anguished that “surely there must be a better way”. And there may, but if it has been previously discovered, that knowledge is lost to us.

Those who have served as jurors realise: “Oh. There’s nobody here but us chickens
” We’re instructed to put prejudice aside, and rule on the facts as presented under the stringent rules of jurisprudence. But we are flawed and prejudiced, and many of the procedures we are instructed to follow are, of course, absurd. Again, the question presents itself: can’t we find a better way? Are we really going to set this depraved murderer free because of a technical error? Do we actually have to deprive this mother of her child because of some ancient statute? And so on.

Any who have experienced the jollity of the court in any capacity know that all parties, ourselves included, will scheme to exploit the absurdities, technicalities and ambiguities of the system to our benefit. We are constrained from too obvious transgression by fear of discovery and punishment; but all decisions, even by the Righteous, if such there be, will involve a calculus of the cost of an over-nice obedience to The Law.

Back in Vermont, in the Sixties, the Old-Timers used to refer to a fellow’s lawyers as His Liars — a designation in which there is more truth than fiction. At what point does a shading of evidence, or the gentle preparation of a witness, tick over from a healthy prosecution or defence into misconduct?

The determination of that point is the lawyer’s main job, for success in which he’s lauded. That’s the Adversarial System, which in America’s case is what we got, which is the survival of trial by combat. Opposing attorneys, given the same rules of procedure, fight it out, and, consciously or not, we accept that the chance of the more just cause prevailing is perhaps equal to, but finally independent of, the actual merits of the case — should the victor stay within the rules, which is to say, escape discovery of their violation.

The Old Texas Verdict had it: “not guilty, but don’t do it again”. We know its application was not limited to Texas, for the law can free both Jean Valjean and Teddy Kennedy, and isn’t life like that? Where there is law, there is injustice. Hypocrisy is the homage vice pays to virtue.

What of overt and unapologetic prosecutorial misconduct? The aim of the current legal thuggery is suppression of a politically threatening individual by an administration usurping power. Our democracy is no stranger to it. Gene Debs, the Socialist leader, was jailed in 1918 by the Wilson government for his opposition to participation in the First World War. He was convicted under the Sedition Act, which criminalised expression of opinion questioning our involvement. The act was passed under President, elected in 1916 with the slogan, “He Kept Us Out of the War”.

Power is arrogant, and none of us is immune to its intoxication. Each of us knows not only the bully, but the meek narcissist who bludgeons us through his passivity, ineptitude, or unassailable good will. The first recorded acts of humankind are crime and disgrace. Eve broke the one law she was given, and Adam denounced her to mitigate his sentence. He blamed his wife, and his wife blamed the snake, but the snake blamed no one. What was the snake doing in the Garden? God put him there — he represents that portion of our human depravity which is not ashamed to sin.

More recently, some pedestrians strolling outside the Capitol on January 6 were imprisoned, and many are still held without charge. It’s a tough world out there, and the Government isn’t unaware of the delights and uses of power; little has changed since ancient Sumer.

But, as Passover is here, we might ask: “why is this night different from all other nights?” Answer: the indictment of President Trump demolishes the line between prosecutorial sharp-practices and naked persecution. The fig leaf of judicial probity is, granted, often transparent. But its glib removal yesterday announces an advance past that last firewall against thuggery: shame.

David Mamet is an American playwright, film director, screenwriter and author. He was awarded the Pulitzer Prize for Glengarry Glen Ross.