Not many people would think just before walking into court to face fraud allegations to call the case against them a “sham” and a “witch-hunt”. Nor would they step out during the first day of the trial to say this:
He [the judge] ruled that we lost a big part of the case, because he’s a Democrat club politician. He’s a Democrat operative, and he’s a disgrace to people that call themselves judges. And I hope my lawyers go in, and I hope they fight him very hard, because this guy’s getting away with murder.
Donald Trump did, and then he walked back into court, resuming his arms-crossed glare at Justice Arthur Engoron of the Supreme Court of the state of New York. The judge maintained his unruffled, smiling demeanour while the prosecutor, New York Attorney-General Letitia James — who Trump has publicly called “corrupt and racist” — carried on burying Trump and his sons in evidence of their decades-long systematic fraudulent business practices.
Engoron, who Trump had earlier labelled a “Trump-hating judge who is unfair, unhinged and vicious”, has already ruled that Trump persistently committed fraud, the evidence so overwhelming that it didn’t need to be proved at trial. He’s now going to determine how big the fine will be — the DA wants $250 million — and whether the Trumps should be permanently banned from doing business in New York.
You might think that that’s a judge you wouldn’t want to be pissing off just now.
But there’s normal, and there’s Trump. Ever digging, never digging up. The media, we know, has consistently mishandled him. Can the legal system do a better job?
If this were a court in Australia or the UK or anywhere else, Trump would (well, should) be cooling his heels in the cells, held in flagrant contempt of court. America preserves a uniquely wide field for outrageous utterances due to its commitment to free speech; the law there is that the state can only punish false statements about official conduct, including that of judges, made with knowledge of, or reckless disregard for, their falsity.
Still, Trump has been unconstrained in his slander of every judge, court and DA in the many criminal and civil prosecutions he is facing; if his conduct doesn’t amount to reckless disregard at least, I’m not sure what could.
Contempt of court exists for one reason only: courts and judges, and the verdicts they make, are society’s chosen mechanism for maintenance of the compact of civility. Human society necessarily generates disputes and wrongs; there is no objective measure of right and wrong so we need umpires to say who wins. The compact works only so far as we all agree to go along with the answers we’re given. The alternative is anarchy.
Since the carrot of peaceful coexistence isn’t enough, the stick of contempt punishes disobedience of the courts’ verdicts, and goes further to also punish anyone whose behaviour risks undermining everyone’s confidence in the system itself.
In 2017, three Australian Liberal federal ministers — Greg Hunt, Alan Tudge and Michael Sukkar — made public statements regarding Victorian Supreme Court decisions in terrorism cases, calling them “ideological” and “divorced from reality”, by “hard-left activist judges”.
This had them hauled up on contempt charges, which they narrowly avoided with a grovelling backdown and apology. Order was thus restored. Our courts don’t muck around with this shit, to the point sometimes of arguable over-sensitivity.
Meanwhile, in America, while things are generally different (as you’ll know if you’ve ever seen the way its lawyers carry on in public) the same fundamental proposition applies: public confidence in the justice system requires that a base level of respect for the courts is maintained. Trump is busily pants-down crapping all over that notion.
We saw on January 6, 2020, the consequences of Trump’s contempt for the institutions of Congress and the election process — a violent attempted coup. Trump’s own party had enabled, excused and encouraged his recklessness, and the media had gone along for the ride (Fox News went further, madly throwing fuel on the fire). They all failed their responsibilities.
In the aftermath, Trump filed at least 63 lawsuits in state and federal courts in an attempt to use the legal system to overturn the election result. All failed, because they were completely baseless. The courts stood up — in fact, the majority of judges who ruled on the federal cases were Trump appointees. Even his hand-picked Supreme Court preferred the law over his demands.
It took several years before the chickens of his criminality began roosting in the courts, driven by implacable prosecutors. Now Trump is defending himself by attacking the institutions of the law, using the same language as he did against the constitution, with the same intent.
This is another contest of wills, this time between two forces who won’t back down. Trump is calling the whole justice system a fraud and, when it holds him to account, he will call on his followers to burn it to the ground.
The courts are the ultimate backstop of democracy. They cannot fail the test Trump is forcing them to take.
