"Show Me the Man and I'll Show You the Crime"

It doesn’t take long until that Faustian bargain—trading the cultivation of long-term principles for short-term expediency—backfires.

Barry Brownstein is an esteemed educator and the author of "The Inner-Work of Leadership." He contributes to outlets such as the American Institute for Economic Research, Intellectual Takeout, and the Foundation for Economic Education. His Substack is Mindset Shifts.

Shortly after the Trump verdict, a friend called. Reacting to the verdict, the friend, a compulsive CNN watcher, said, “Thank God. Now, maybe they can get him on more.”

I was not in the mood for a tedious conversation, so I said, “uh-huh.”

I would not be let off the hook. The friend persisted and asked, “What do you think?”

My reaction was, “I’m not voting for Trump, but I am disturbed by a political prosecution that is another assault on the Rule of Law.”

My friend ended the conversation without further inquiry or asking about the Rule of Law. I regretted qualifying my answer with “I’m not voting for Trump” since my response should stand on its merits without virtue signaling.

Lavrentiy Beria was an unrelenting and merciless secret police chief under Stalin's rule. Stalin's reign of terror claimed the lives of millions of innocents. Beria “bragged that he could prove criminal conduct on anyone, even the innocent.  ‘Show me the man and I’ll show you the crime’ was Beria’s infamous boast.’”

Alvin Bragg brought the charges against Trump. To Trump’s haters, nothing matters but bringing him down. One unhinged MSNBC commentator referred to Bragg as “the anointed one.”

I feel for Trump-haters whose lives are so devoid of meaning that their “two -minutes of Trump hate” via CNN, MSNBC, or NPR is a means of trying to fill their existential void.

In 1984, George Orwell wrote, “The programmes of the Two Minutes Hate varied from day to day, but there was none in which Goldstein was not the principal figure.”

That Trump has so many haters doesn’t establish his innocence, nor, for that matter, his guilt.

In his book The Road to Serfdom, F. A. Hayek wrote,

The form which the Rule of Law takes in criminal law is usually expressed by the Latin tag nulla poena sine lege—no punishment without a law expressly prescribing it. The essence of this rule is that the law must have existed as a general rule before the individual case arose to which it is to be applied.

I won’t litigate the Trump trial in this column. If you’re interested in short commentaries, here are a few worth reading: A Sham Case; Prosecutors Got Trump — But They Contorted the Law;   A Travesty of Justice; A Canned Hunt; Verdict Now, Law Later. These writers are not Trump supporters, and they will have you questioning whether the Rule of Law was followed in the Trump trial.

Elie Honig, a former assistant U.S. attorney “with sterling anti-Trump credentials,” wrote in New York magazine:

The charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor—in New York, or Wyoming, or anywhere—has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.

Honig said the case “push[ed] the outer boundaries of the law and due process.” If you’re OK with that because it’s Trump, one day, America’s future version of Beria might arrive looking for you.

There is a larger context here. I’ve been writing about the assault on the Rule of Law long before Trump arrived on the political scene. See, for example, Against the Fall of the Night. I also warned about Trump as early as 2010. Since then, I have written many essays critical of Trump. I’m defending America’s founding principles—not Trump.

Individuals are free to pursue their personal goals when the coercive power of government is restricted under the Rule of Law.

“Nothing,” F. A. Hayek states, “distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law.”

Hayek explains:

Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.

Though this ideal can never be perfectly achieved… the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough.

While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts. [emphasis added]

Widespread understanding and respect for the Rule of Law among citizens makes it easier to store and strengthen during prosperous times. The metaphor of storing—or eating—our seed corn applies not only to physical assets and money but also to ideas. During economic downturns or difficult times, the level of fear goes up. The public’s demands for expedient responses put pressure on the Rule of Law; respect for this vital principle of a free and prosperous society dwindles. The frightened want what they claim they are entitled to, and some politicians are all too willing to pander to those claims.

It seems evident to Trump haters that destroying him is the right thing to do. Of course, it doesn’t take long until the Faustian bargain—trading the cultivation of long-term principles for short-term expediency—backfires.

Examples abound. Expediency meant banks in 2008-09 were made whole for their costly errors. During COVID, legal rules changed so tenants who did not pay their rent could not be evicted, depriving landlords and homeowners of their property. The taxpayer is made to pay for student debt. Abuse of the Rule of Law goes on and on.

But it can get worse. Perhaps when the next bear market arrives, stockholders will eschew responsibility for their choices and demand to be made whole. We may hear cries of I thought stock prices could only go up; it’s unfair my stocks are worthless.

When you observe what hatred of Trump and fear of COVID has driven the population to accept, you see a foreshadowing of what a major financial crisis will bring. Frightened people can be vicious.

Hayek explains, “There is always in the eyes of the collectivist a greater goal which these acts serve and which to him justifies them because the pursuit of the common end of society can know no limits in any rights or values of any individual.”

Today, the stock of our seed corn of respect for the Rule of Law is all but eaten. With the rule of law crumbling over the past decades, the government wields increasing coercive power.

Years ago, during my lecture on the Rule of Law, an MBA student asked me in a good-natured manner how long I had been alarmed. Like a talented lawyer, he sensed my answer was “many years.” He thought I should lighten up; things wouldn’t get that bad.

Perhaps he is right. Perhaps America can muddle through. However, the rule of law has gradually degraded. In years to come, historians will debate the tipping point when America becomes unrecognizable.

If you have a rose-colored belief in the certainty of the progress of humanity, The Road to Serfdom is an unsettling read. In it, Hayek offers guidance in recognizing and undoing the errors that enable tyranny. To undo our mistakes, we first must be aware of the error-filled road we are traveling.

You can’t undo what you are not willing to see.

Barry Brownstein’s Substack is Mindset Shifts.