America’s Strange, Intentionally Politicized Justice System

[Manhattan District Attorney Alvin Bragg] “is a radical left George Soros-backed prosecutor.” « This is where we are right now. I have a Trump-hating judge, with a Trump-hating wife and family, whose daughter worked for Kamala Harris and now receives money from the Biden-Harris campaign. » – Donald Trump

One of the bedrock principles of a democratic system is an impartial, transparent judicial system. In a true democracy, justice is blind. For Europeans, used to prosecutors and judges who work for the state and not for the political masters of the moment, America’s often overtly politicized judicial system must therefore be something of a mystery. For people unused to the U.S. approach, Donald Trump’s Twitter outbursts against the allegedly hyper-partisan leanings of the people trying and judging his criminal case in Manhattan may be hard to understand. Let’s unpack the strangely political US judicial system.

First and foremost, the United States has a truly federal system, and this is as true for the judiciary and law enforcement as it is for any other aspect of government operations. Unlike France, which has one national judicial system and police powers concentrated in the hands of the national government, the United States has literally hundreds of court systems and police jurisdictions, at the local, state, and federal level.  Laws, practices, and appointments within these systems vary widely. Most cases – both criminal and civil – are tried at the state and local level.  The federal court system deals with violation of federal law, disputes between states, constitutional issues, and the like. The “Stormy Daniels” case against Donald Trump, which recently saw a former US president charged with a criminal felony for the first time in the history of the republic, is working its way through the New York State court system. The prosecutor in that case is Alvin Bragg, who is the District Attorney for the borough of Manhattan in the City of New York. (As an aside, presidential authority to pardon criminals does not apply to state or local convictions; even if reelected, Trump will never be able to pardon himself in this case.)

In many state and local jurisdictions, although not all, the judicial system seeks to ensure that officials are directly responsible to the electorate. This means that in municipalities, counties, and states across the country, officers of the court are elected. Sometimes, although again not always, these elections are politically partisan. DA Alvin Bragg, for example, is a democrat, and his campaign literature makes clear his party affiliation. In principle, elected officials like Bragg are meant to be impartial in their dealings whatever their political leanings. In practice, this overtly politicized system makes possible – and, at least for his supporters, credible – Trump’s accusations of gross partiality on the part of Bragg and the judge in the case.

Judges stand for election in many places, sometimes on a party ticket. This includes judgeships at the appellate level. Wisconsin, for example, recently held an election for a vacancy on its state supreme court. The Wisconsin elections were officially non-partisan, but the winning candidate was widely perceived as a progressive running with democratic support and her opponent was seen as a conservative republican. The stakes in that race were particularly high, as the court is split between conservatives and liberals and will consider several vitally important issues in the coming months.

Law enforcement is not immune from the red/blue divide. In many places in the United States, for example, county sheriffs, who run police departments at an intermediate level, are elected.  On occasion, these locally elected cops can be hyper-partisan. A classic example of this kind of arch-political operator is former Maricopa County Sheriff Joe Arpaio, from Arizona. Arpaio, a far-right republican, was convicted in 2017 of criminal contempt of court at the federal level when he refused a court order to end his department’s illegal roundups of undocumented immigrants (local police are not charged with enforcement of US immigration law). Trump subsequently pardoned him, and Arpaio ran for US Senate in 2018 as a republican.

There is even a weird, pseudo-legal trend on America’s far right that treats elected sheriffs as the highest “legitimate” authority in the land. The “Constitutional Sheriffs Movement” is a collection of fringe groups that believe that as elected officials sheriffs hold ultimate authority in determining which laws to enforce, including federal law. Although this approach has no basis in constitutional jurisprudence, it reflects the sometimes surprising ways in which some Americans believe that justice can be legitimately partisan.

In principle, the federal system is different. Federal police officers, prosecutors, and judges are not elected, and historically they have tended to be more politically impartial, or at least they sought to give that impression.  Even here, though, there is plenty room for political influence.  The Department of Justice, of course, is run by a cabinet officer appointed by the President, and senior officials of that department, including senior prosecutors, are appointed by the White House with the consent of the Senate. Federal judges and Supreme Court justices similarly must be nominated by the president and confirmed by the Senate.

The Supreme Court has become much more overtly partisan in recent years. The justices have, of course, always had proclivities, leaned right or left. But around key issues – and most notably “culture war” issues like abortion or LGBT rights – the court has increasingly become a partisan battleground. These matters hugely because the court is the final arbiter of the constitutionality of all laws, at both the national and local levels. The republicans in particular have focused on judicial appointments as an essential element in moving forward their political agenda. Donald Trump says he considers it one of the greatest achievements of his administration that he was able to put three right-wing justices on the nine-person Supreme Court. The days when justices sought to dispel any notion that they were influenced by political considerations are past. Justice Clarence Thomas, for example, is unapologetic about his wife’s ties to former President Trump and the efforts to undo the last presidential election.

Thus far there is little to suggest District Attorney Bragg’s prosecution of Donald Trump – besides the very decision to prosecute in the first place – is partisan. But given the odd ways America accepts, and even promotes, partisanship in its judicial systems, Trump’s complaints about politically motivated legal persecution are hardly surprising.