Discretion
Shakespeare says in King Henry the Fourth through the likable, comic and slightly roguish character Sir John Falstaff that discretion is the better part of valor. What he means is that sheer acts of bravery are foolhardy and it is far better to be cautious, to show good judgment, to be reserved, to make responsible decisions. It can mean that shying away from battle is smarter and better than engaging. One could suggest that President Joe Biden is showing great discretion in focusing his attention on solving the monumental problems facing the nation like the Pandemic, the economy, infrastructure, social injustice and voter suppression instead of spending his time going after Trump.
In the realm of criminal justice, discretion tends to mean that the criminal justice system adjusts to the social mores of the times and moderates its sentencing provisions. 2021 will be a year when we find out whether we, as a society, want to be discrete in our handling of Donald J. Trump’s vast array of purported and yet well-documented crimes and faux pas, or whether we want to get our backs up and stand up for the strictest interpretations of the rule of law and the concept that no one, and perhaps especially no one in a position of privileged power, is above the law. Most of us are pleased to find ourselves in calmer political waters than in 2020, but we must ask ourselves if that is actually the case. We may not have an outrageous and flamboyant leader at the helm, tweeting some of the most disturbing sentiments of our political lives in rapid-fire (up to his record of 200 in a day, as he did on June 5th, 2020), but the underlying Republican stance against the efforts of the Biden administration are epic. The Republican mainstream, which is now still cow-towing to Donald Trump while successors to that throne are jockeying for outrageous positioning, is trying to stand strong against any and every Democratic initiative no matter how seemingly popular it may be (even among its own constituents). Meanwhile, in New York City and in Fulton County, Georgia the wheels of traditional criminal justice are turning steadily against Trump and, in actuality, against what he stands for.
Yesterday in a conversation with one of my workmen who I have befriended over the last four months I had an unsettling conversation. I know this man lives in a very red part of the county and that his influencers are predominantly conservative. I asked his several questions. I asked him how he reconciled the fact that Joe Biden is getting 59-60% approval ratings and that Trump approval rating averaged 40% over his tenure in office and never got above 49% (which it touched twice in early 2020) and got as low as 34% at the time of his departure. I also asked how he felt about Sidney Powell’s statement in her trial that “reasonable people would not accept such statements (her statements about the Big Lie of Donald Trump having truly won the election) as fact but view them only as claims that await testing by the courts through the adversary process.”
This man, a man everyone here likes and respects in general, had some very telling and surprising responses. As for the approval ratings, he simply does not believe the polls and feels they are illegitimate reflections of what Americans really think. He somehow feels they are manipulated by Democrats to distort the reality that most Americans stand with Trump and feel that the Trump policies and actions were best for America. He is unmoved by any thought that such distortion is illogical and unlikely. As for the Sidney Powell statement, he was equally unmoved and thought that it merely reflected the maneuvering and views of one person, which were inconsequential. The fact that she was a vocal and highly visible surrogate for and lawyer representing (along with Rudy Giuliani) Donald Trump while he was president meant nothing to him. He went on to offer that he believes that voter fraud was rampant and that the fear of future continued voter fraud (especially through mail-in balloting) was a serious threat to our democracy. All of that was not in any way mitigated by the utter lack of evidence and the 60 or so adjudications (many with Trump-appointed judges on the bench) that made clear that there was no evidentiary basis for any of the voter fraud claims. Wow! The impact of Fox News and living in a red-insulated community is amazingly powerful in its effect on an otherwise seemingly reasonable man.
That is all why I found two articles I read this morning particularly important. What caused Sidney Powell to recant on her strident views about the election was the $1.3 billion civil litigation brought by Dominion Voting Systems for defamation against her. Of course, Rudy Giuliani is next into that breach, having his own $1.3 billion similar civil claim with which to contend. I expect to see similar attestations from him in the dear future. But the case we have all been waiting for just got filed today. Dominion Voting Systems has now filed a $1.6 billion defamation suit against Fox News. It is good to see a brash and distasteful opportunist like Sidney Powell get her comeuppance, but no one thinks her net worth is really the issue. Similarly for Rudy Giuliani, taking him down a few notches and stripping him of the excessively good life he has created for himself on the back of his phony 9/11 role and then being the PR goon for Donald Trump feels righteous. But taking a big bite out of Fox News’ ass in a financial sense is perhaps the best news America could have at this moment of peril vis-a-vis the future of democracy. Fox News is the biggest perpetrator of the false narratives that have shaped the views of almost 40% of the population. They are largely to blame for the move away from reason for people like my workman.
The other article I read was about Cyrus Vance, Jr., the Manhattan District Attorney who has successfully subpoenaed and won from the Supreme Court the right to access the fullness of the financial records of Donald J.Trump and the Trump Organization to assist in his prosecution for a long list of crimes against the country and Americans themselves. I put far more likelihood on the productivity of this avenue of criminal redress against Trump than the Fulton County, Georgia efforts led by District Attorney Fani Willis. Fani sort of stands as a symbol of the racial new order that scares so many red Americans. She epitomizes the great fear of the cost of reparations to white Americans and the eventual subordination of white Americans to the new majority of brown and black Americans. In that sense there is a part of me that feels there is great righteousness to her prevailing in her efforts, not to mention that Trump’s attempts to pressure and falsify Georgia election officials and the Georgia ballot was as obvious and heinous a crime against democracy as we may ever see. But I fear that justice will get lost in the racial backwash and I feel that on this issue justice is critical for the notion of democracy.
That is why having Cyrus Vance prevail in his efforts to bring a solid set of indictments against Donald Trump is so very critical. As it turns out, Vance has announced that he will not seek re-election for another term (he is 66 years old and quite weary from the battle) and will retire on December 31, 2021. This is both bad and good for the cause of democracy. The bad is obvious because he has retained his non-political stance and is, by any measure, a conservative and a “just the facts, Ma’am” find of guy. As such he is impeccably unbiased and credible in his claims and pursuit of Donald J. Trump. The good news is that despite the abundance of discretion that Vance exhibits, it will take a dog with killer instinct to go up into trial against the arch-villain that is Donald J. Trump.