In the coming days and weeks, the fortunes of two very high-profile American citizens will be determined (possibly) once and for all—and, with them, the very meaning of the word “fairness” in the national lexicon in 2019.
The Americans in question are Donald Trump and Dzhokhar Tsarnaev—the president of the United States and the surviving Boston Marathon bomber, respectively—who both sit in judgment for their alleged crimes by a legal system built on the promise of equal justice for all but in real danger of appearing slightly less than impartial.
Trump, of course, is staring down the barrelhead of impeachment, as Speaker Nancy Pelosi and her merry band of Democrats plan to draft and vote on multiple articles by the end of the month, with a Senate trial presumably following shortly thereafter.
Tsarnaev, meanwhile—who has been quietly rotting away at the notorious ADX “supermax” prison in Florence, Colorado, since being sentenced to death in 2015—this week will be appealing his case in the U.S. Court of the Appeals for the First Circuit, where his legal team will argue (as one does) that Tsarnaev did not receive a fair trial.
As reported in the Boston Globe, the thrust of Tsarnaev’s attorneys’ case is threefold. First, that the defense was barred from presenting evidence that Tsarnaev had been coerced into committing the attack by his late brother, Tamerlan. Secondly, that by holding the trial in Boston—less than two miles from the scene of the crime—Judge George O’Toole necessarily stacked the deck against Tsarnaev, insomuch as every potential juror had been personally affected by the bombing in one way or another and, thus, had already formed an emotionally-tinged opinion about Tsarnaev’s guilt.
Finally, the defense will contend that at least two members of the jury were, in fact, openly biased against Tsarnaev before the trial began—as evidenced by social media posts that have recently come to light—and had concealed that information from the judge during the voir dire jury selection process.
Having followed the Marathon case from the beginning, I find all three of these arguments compelling—the second and third in particular—and well worth pausing over before allowing Tsarnaev to be the first person since 2003 to be executed by the federal government.
From the start, there has been no doubt about Tsarnaev’s basic guilt in planting the explosive device that killed Lingzi Lu and Martin Richard—including from his own lawyers, who admitted as much on Day 1. (Tamerlan planted the other device moments earlier, killing Krystle Campbell. At least 260 runners and spectators were wounded by the two blasts, including 16 who lost limbs.)
The question is one of process: At every step of the way, was Tsarnaev granted not only the presumption of innocence but also the opportunity to present his side of the story without undue influence from external factors, up to and including an avalanche of local media coverage that could very well have clouded the objectivity of the 12 people who were charged with deciding his ultimate fate?
In retrospect, considering how strong the government’s case was, was there really anything to be lost in trying Tsarnaev in a jurisdiction slightly farther away from where the crime occurred, with a jury slightly less inundated with pretrial publicity (not to mention the experience of having had to “shelter in place” for a full day while the assailants were being hunted down)? By insisting on keeping the case local—in arguably the proudest and most parochial city in America, no less—did they not risk at least the appearance of a mob-like rush to judgment against the defendant, leading a reasonable observer to suspect the whole procedure was for show—or, dare I say, rigged?
That’s not how our courts should function in any context, no matter how foregone the conclusion might be. The whole purpose of trial by jury—and the appeals process that follows—is to ensure beyond all doubt that only the actually guilty are condemned as such, and only after exhausting every possible avenue—with every last piece of evidence—for convincing one’s peers otherwise.
In effect, the machinations of the American justice system—cumbersome as they are—are in service to the nation’s collective peace of mind. They are a means of being able to look ourselves in the mirror and be certain we have done the right thing and to prevent any fair-minded person from arguing to the contrary. The fact that this doesn’t always happen in practice—particularly with a less-than-white defendant—is no excuse for dismissing it in theory.
That is the spirit with which we should conduct and view the impeachment of Donald Trump: Not as a prepackaged march to an inevitable outcome, but as a conscientious search for truth that, whatever the result, all sides will be able to look back on proudly as a noble and wholly substantive episode in the history of American politics.
Of course, I am not so naïve as to believe that anything of the sort is likely to occur in the environment in which we currently reside. Impeachment, we are regularly reminded, is an inherently political institution, unbound by the rules and regulations that protect ordinary citizens accused of ordinary offenses.
What’s more, it has become quite clear in recent weeks that Trump and his enablers in Congress have no interest in legitimizing the House investigation of the Ukraine affair in any way, shape or form, assuming (justifiably) that some 40 percent of the public will follow their lead, come hell or high water—a luxury the typical criminal defendant does not enjoy and cannot expect. As far as they’re concerned, the very existence of an impeachment inquiry is proof that the fix is in.
That leaves Democrats with only one option: Call Trump’s bluff. Assume the best of intentions on the president’s part. Make him look ridiculous whenever he barks about hoaxes and witch hunts. Be so scrupulously circumspect in examining and re-examining every angle of the Ukraine imbroglio that, should a final vote for impeachment carry, no honest broker could say it came about fraudulently or in haste.
Would this approach be nothing more than a fool’s errand? In the short term, yes, insomuch as when it comes to Trump, honest brokers have become rather hard to come by.
But in the long term—that’s to say, in the view of every subsequent generation on planet Earth—we might look for guidance to George Washington’s favorite play, Cato, by Joseph Addison, in which a character asserts, “Tis not in mortals to command success […] but we’ll do more […] we’ll deserve it.”
There is no guarantee the prosecution of Donald Trump will yield a just outcome (whatever that might be). All his inquisitors can do is behave honorably in the pursuit thereof. In the realm of politics, winning is all well and good, but retaining one’s soul is a decent consolation prize.