Justice Perverted: We Need a New Magna Carta

Both before and after the indictment of former President Trump, there has been a heated debate about how our polarized country should proceed. Rep. Marjorie Taylor Greene went so far as to call for a “National Divorce,” though decrying violence in a later statement.

Certainly, the partisan divide between Democrats and Republicans is as great as it has been at any time in my life, and probably since the election of Abraham Lincoln, which was seen as the spark that ignited four years of devastating war.

So it’s no wonder that Americans are on edge. Watching a former president, the leader of 75 million people who voted for him in 2020, called into a courtroom to defend himself against people who hate him and fear him could easily be the spark that ignites violence again.

But let’s be clear: We don’t need a new Civil War; we need a new Magna Carta.

Magna Carta, translated from Latin as the Great Charter, is a document sealed and accepted under duress by the tyrannical King John of England in 1215. It established the principle that everyone, including the king, is subject to the law and that no one can be deprived of their rights without due process. Magna Carta was the result of a political battle between the barons of England and their king, but it became a symbol of the protection of all citizens against the demands of an authoritarian ruler.

Now, Donald Trump has become the symbol of how the law can be wielded as a weapon against anyone. Although Trump is a billionaire and a former president, he wields no power of office and is, in fact, at the mercy of both the federal Department of Justice and any petty tyrant with a law license, including Alvin Bragg Jr., the district attorney of Manhattan.

From a historical perspective, the arrest of Trump is no different than the unjust arrest and seizure of assets of the barons who opposed King John. As many have mentioned before me, the 34-count indictment against Trump is bereft not just of due process but of common sense. The indictment fails to identify an underlying crime, which is required to prosecute the case as a felony. Without that information, the district attorney provides no opportunity for Trump to wage a defense. This is the very definition of lack of due process.

Moreover, when you read the actual list of the 34 instances of falsifying business records, you discover that they are multiples of the same core offense. In other words, the prosecutor is charging Trump with the same crime over and over again. Although this is not the usual definition of double jeopardy, perhaps that’s because no prosecutor has ever been so brazen as Bragg in trying to use the law to crush a political opponent. 

Imagine the audacity. Trump gets an invoice from his attorney Michael Cohen, enters the invoice in his ledger, enters another part of the invoice on another line of his ledger, then writes a check to pay the invoice. This supposedly is four separate crimes, even though the payment of hush money is not a crime at all, and all of these payments and most of the rest revolved around a single payment made to porn star Stormy Daniels to prevent her from talking about a single alleged tryst with Trump.

Bragg claims that the payments were falsified “with intent to defraud” because they were listed as payment for legal fees. Well, sorry, but Cohen was Trump’s attorney, and the invoice apparently said it was submitted for payment of legal fees. So who was defrauded? Not Stormy Daniels. Not Michael Cohen. Not the Federal Election Commission, which found no wrongdoing. The ledgers were intended for the private use of the Trump Organization, and were not used to cover up or promote any crime. Even if it was inappropriate to categorize the hush money payments as legal fees, who was defrauded?

The indictment is flawed at every level. The statute of limitations for the underlying misdemeanors in the indictment was passed years ago. And to turn them into felonies, Bragg has to prove that the supposedly “false entries” were recorded in order to commit or cover up some other crime. Yet, as noted, the indictment doesn’t explain what the underlying crime is, and Bragg told reporters he doesn’t have to provide that information. This is not only absurd, it’s a blatant misuse of the legal system. 

The “Statement of Facts” accompanying the indictment claims that Trump falsified records “to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.” But that makes no sense as an underlying crime. The money in question came from personal funds, not campaign funds, and was spent to protect Trump’s reputation, which has a value far beyond his presidential campaign. And no one except Cohen, the convicted perjurer, could testify against Trump that he intended to deceive, defraud, or conceal. The real kicker is that the payments made by Trump took place in 2017, which demonstrates irrefutably that nothing Trump did could have impacted the 2016 election. And does anyone really think that Trump personally made the entries in his corporate ledgers?

If Alvin Bragg actually thinks he could convict Trump on this threadbare skein of manufactured charges, then he is either the dumbest graduate of Harvard Law School in history or the reincarnation of King John. Because only a tyrannical king whose edicts were law could possibly expect to see his enemies sent to jail without evidence.

So that brings us back to Magna Carta, and the need for some kind of legal protections equivalent to those demanded by the British barons at Runnymede in 1215. Where are the Republicans, where are the libertarians, where are the ACLU Democrats who supposedly want to protect the people from the power of the state? Few and far between. Nor is Trump the only victim of an overzealous justice system that too often tramples on the rights of the people. Ask Moussa Diarra, the New York City garage worker who was initially arrested and charged with attempted murder after shooting a suspected thief who had first shot him. Even more absurd, Diarra was charged with illegal possession of a weapon because the gun he used was the one he had wrestled away from the suspect after being shot himself. Thank God, the charges against Diarra were dropped, but this is just one of the many cases where prosecution is used as a political weapon to promote policies like gun control.

That’s why I’m calling for an American Magna Carta that reaffirms the rights of the people and gives them specific legal recourse if their due process rights are violated. We need to clarify the rights and responsibilities of citizens and the government, especially in the context of emerging technologies and new forms of communication. If King John was an absolute despot who needed to be put in his place, then we patriots must also confront the concentration of power and wealth in the hands of a few individuals and corporations, which threatens the democratic process and the rule of law.

While the United States already has a Constitution that protects individual rights, including due process, it is possible to enact additional laws or amendments to strengthen these protections.

One way to create a Magna Carta-like document to protect due process rights across all 50 states would be to pass a federal law or amend the Constitution to establish clear and enforceable standards. This could include requirements for fair and impartial trials, protections against self-incrimination and political persecution, the right to legal representation, and other fundamental due process protections.

One approach would be to codify strict guidelines and procedures for prosecutorial decision-making, including clear rules for initiating an investigation, gathering evidence, and bringing charges. These guidelines could include strict prohibitions against bringing charges based on political motivations, and could require that all decisions be based solely on the evidence and the law.

Another approach is to establish independent oversight bodies or mechanisms to review and monitor prosecutorial decision-making. These oversight bodies could include independent prosecutors or special counsel, independent ethics committees, or internal review boards.

If nothing gets done using the legislative approach, and we have plenty of reason to doubt the motivation of Congress to protect the people, then there is one last solution.

The Constitution provides an opportunity for the people to take power back from a rogue Congress or justice system, and that is an Article V Convention of the States, which allows the people to directly propose amendments to the Constitution. The process has never been used before, but it was included by the nation’s founders for a very good reason – they had lived under the despotic rule of King George III and were wise enough to know that any political system could fall prey to authoritarianism.

The Convention of States was their last-chance lifeline sent down through the generations to protect their immortal invention, the Constitution. Think of it as their equivalent of the message you see on a fire alarm: “In case of emergency, break glass.” The indictment and arrest of Trump, and the prospect of two or three more indictments against him while he is running for president in 2024, make it clear. This is an emergency, and the greatest election interference ever imagined.

Too many people fear a Convention of the States under the mistaken impression that it will lead to a loss of rights, but with Democrats already targeting the First Amendment’s free speech and religious rights, and aiming to eliminate the Second Amendment altogether, we need to focus instead on what we could lose if we do nothing.

This isn’t about saving Donald Trump; it’s about saving our country.

This article was originally published by RealClearPolitics and made available via RealClearWire.