In Sunday night’s debate, Donald Trump attacked Hillary Clinton for defending an alleged child rapist. He apparently believes that being a criminal defense attorney disqualifies a person for higher office.
Putting aside the facts of her representation (she was assigned to handle the case, and she worked out a plea to lesser charge, read about it here on snopes.com), Trump’s statement displays a lack of understanding about our legal system.
To put it bluntly: defense attorneys are not defendants. Our role is to zealously represent our clients and to provide them with a defense. Our system of justice depends on it.
Our country was founded on a shared mistrust of government power. That is why we have divided government. Our founders were concerned by the power of the state to imprison or execute people. They did not want this power to go unchecked. It is why we have an adversary legal system, that gives defendants Constitutional rights to know the charges against them, face their accusers and cross-examine them. We enshrined in our Constitution the rights against being forced to testify against oneself, being tried twice for the same crime and to a trial by a jury of our peers.
Defense attorneys are a last line of defense, protecting personal liberty. We are the ones challenging increasing power of the state and maintaining rights to privacy and personal integrity. We challenge illegal searches and seizures, false evidence, improper scientific methods and the use of torture or other coercive methods to obtain confessions.
When we put on a defense, we are making the state prove their case. We are testing their evidence, questioning the credibility of their witnesses, the accuracy of their science. As it should be. Otherwise we would be living in a police state or worse.
As someone who is and has been the subject of numerous lawsuits, Mr. Trump should be aware of this.
So when Trump attacked Clinton for defending an accused rapist, he is attacking our carefully balanced system of justice that, whatever problems it may have, is still a model for the world.
I have represented accused murderers, rapists, burglars, thieves, drug dealers and a lot of drunk drivers. Some of them were guilty, some were not. Sometimes the truth was elusive. Sometimes the truth was in between. Many of the accused are otherwise good people. I have represented police officers, fire fighters, veterans, doctors, lawyers, business people, school teachers, postal workers, you name it. Does that fact that I have represented these people mean that I have bad judgment or am incapable of holding political office? I think not.
While I am on the subject of the debate, there were two other things that bothered me.
Donald Trump said that when he becomes president, he would appoint an Attorney General who would prosecute and jail Hillary Clinton for her emails. Again, putting aside that FBI Director Komie said that “no reasonable prosecutor” would indict her for this, Mr. Trump’s statement again shows a fundamental ignorance about our justice system.
The Attorney General is of course appointed by the President, and therefore, is to an extent, is a political office. They will (generally) reflect their president’s priorities. Obviously, Loretta Lynch is more likely to prosecute civil rights violations than say, John Ashcroft was. And John Ashcroft was more likely to seek tougher sentences on low level drug offenders than Loretta Lynch.
Having said that, the role of the Attorney General, like any prosecutor, is to use his or her independent judgment when bringing forth prosecutions, based on evidence and supported by probable cause. So for example, while the DOJ under Obama investigated into George Zimmerman’s shooting of Trayvon Martin, it ultimately decided that there was insufficient evidence to support a civil rights violation charge and no federal prosecution was brought. If it was solely a political office, this would not be the case.
What Trump proposed is the opposite of that. It is improper for an Attorney General to go after political enemies. In fact, doing exactly this was the basis of one of the articles of impeachment that was drafted against President Richard Nixon.
Finally, I’d like to address the Supreme Court vacancy. As to this topic, I am critical of both candidates. During an earlier Republican debate, held the weekend of Justice Scalia’s death, Mr. Trump said that Republican’s should “delay, delay, delay” President Obama’s nominee. That was before President Obama had a nominee. This obstruction has lead to two terms of Supreme Court deadlocks and further politicization of the Supreme Court, which any prospective government leader should understand is intolerable and damaging to our judicial system.
As to Ms. Clinton: when asked what considerations she would take in naming a nominee, she indicated that trial experience would be desirable, which is something that I, as a trial lawyer, appreciate. However, she also listed several cases that she wanted upheld or overturned (Citizen’s United, Obergefell and Roe v. Wade). I do not believe that it is appropriate for a President to have a litmus test for Supreme Court nominees. Indeed, her husband, President Bill Clinton claimed not to have had a litmus test when he nominated Judges Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Having a litmus test for judges is problematic in the same way that having one for attorney generals is. It breaks down the separation of powers and destroys independent reasoning and judgment.
In my humble opinion, a President should be looking to appoint the best possible legal minds to the bench, and not appoint someone to uphold or reverse a particular ruling. A Supreme Court Justice will rule on thousands of cases during his or her tenure and it is far more important that we have sound legal reasoning in all of those cases than a preferred result in one or two of them.