In January 2016, Donald Trump famously declared that “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” An updated version of this statement should be, “I could stand in the middle of Fifth Avenue and shoot somebody, and I would not be charged with a crime.” Twice in the past ten years, the District Attorney of New York County (where Fifth Avenue is located) overruled senior prosecutors of his office, and decided not to bring charges against Donald Trump or members of his family.
Right now, there are various ongoing criminal investigations involving Trump’s conduct. My prediction is that just like with New York County, nothing will become of them. If we had engaged in the conduct that Trump had, I am certain we would have been charged with a crime.
The difference is that Trump is too big to be charged. No prosecutor has the courage to take on the former president and possible Republican nominee. This includes local, state, and federal prosecutors. They are afraid of the power that Trump and his supporters wield. Trump will declare that it is a witch hunt, he is a political prisoner, and ask his supporters to act. Their actions can make the attack on the Capitol look like a walk in the park in comparison. Law enforcement already has their hands full dealing with the uptick in crime. They don’t need a headache that a Trump arrest and trial would cause. Also, the attention would shine a light on how they operate, which is something that law enforcement agencies do not want. Additionally, there is a risk that they could lose the case or have a hung jury, which in this case would be career-ending for the prosecutor who brought the charges.
Another example of different rules for the rich and powerful was New York City Mayor Eric Adams’s proclamation at Citi Field that professional athletes can play even though they are not vaccinated. The new rule does not apply to others who are still under the vaccine mandate, such as city employees who have been fired or can be fired if they are not vaccinated. Both the Mets and the Yankees were not interested in addressing why some employees were fired for not being vaccinated while these multi-millionaire athletes are getting a pass. The difference is that professional sports is a big money-maker for New York City, so athletes get special treatment.
The third example relates to the revelation of text messages by United States Supreme Court Justice Clarence Thomas to Trump’s then-chief-of-staff Mark Meadows. The texts mentioned trying to overturn the results of the election. Then Judge Thomas ended up being the only judge who wanted to stay the National Achieves from turning over of Trump White House records to the January 6 committee. For many, it can be seen as the judge making his decision to protect his wife because of what the documents may say about her or otherwise support her agenda. Even if it may not be technically a violation, it diminishes the public’s confidence in the integrity of the Supreme Court.
It was shocking to learn that the Supreme Court is not covered by conflict of interest or recusal rules as in other federal courts. The Supreme Court may be the only court in the nation that has carte blanche to do what it wants without any guidelines in this area.
These are just three recent examples of the double standard. The reason things operate this way is that they can get away with it. Some people may complain for a few days and then it is business as usual.
Once those in power realize that it will no longer be business as usual, then change will occur. I expect that there will be court challenges to the mayor’s pro-athlete exception. The city is going to be hard-pressed to explain the distinction in policy on public health grounds. Also, if I were representing a defendant in New York County charged with crimes of similar conduct as Trump, I would make an equal protection or selective prosecution argument. I might not win, but it will put the District Attorney’s office in the uncomfortable position of having to defend their actions. Fans have the power by boycotting games unless all the players are vaccinated.
Although the federal prosecutor in charge (United States Attorney) is appointed, in most cities and states the head prosecutor is elected. Thus, they must worry about being reelected. A high-profile prosecutor must lose re-election to send the message that everyone should be treated the same. If you commit a crime, you should be charged. It should not depend on one’s social economic status or political power. In New York City, the one who should be voted out is the New York County District Attorney, whose performance is nothing to brag about.
The United States Supreme Court must be pressured to set up set rules of conduct by its justices. The standards should be at least as high as the other federal courts.
It is important not to lose focus. For example, this is not a discussion about the policy of requiring workers to be vaccinated. Whether or not you believe workers should be required to be vaccinated, you still should be upset with the city’s approach. It is an issue of fairness. Why are certain people treated differently than others? Why do the rules apply to you and me and not to those who have more power and wealth?
It is a tough hill to climb to change the way of doing business. It may be incremental. Nevertheless, any victory, even small, justifies the effort.