New American Heroes (Corrected)

Corrections to a rough draft that got away. Corrected here.

It is highly fitting and perhaps deeply symbolic that 163 years after the beginning of the the Civil War, Alvin Bragg. a son of Harlem and a son of Harvard, has now passed into the pantheon of American heroes, along with Judge Juan Merchan and the 12 jurors who on May 30, 2024 found Donald Trump guilty of all 34 felonies for which he was being tried.

Together they nay may have struck the blow that will mark the turning point in American history in the struggle to save the Constitution and the Republic from the fascist challenge represented by Donald Trump and his followers.

Of course, the brave and dedicated lawyers who prosecuted the case in a Manhattan district court, as well as the court’s personnel, also deserve their rightful place in the history books. 

Judge Juan Merchan, who conducted the Manhattan trial fairly and with great skill, and the 12 anonymous jurors deserve their rightful place in the pantheon of American heroes.  Despite outrageous attacks from Donald Trump and his supporters, and thinly veiled threats of physical violence, these ordinary American citizens just did their jobs.

Fanny Willis, the courageous prosecutor in Atlanta who obtained the 41 indictments against Trump and his 18 co-conspirators in their attempt to overthrow the 2020 presidential election, also deserves her place among these American heroes.

Nathan Wade, the chief prosecutor in the Georgia case until he was forced to resign as a result of revelations about his affair with Willis beginning in late 2021 (after he was hired), also deserves great credit for his able management of the indictments and plea agreements with some of the accused, in a very complicated case.

The fact that he and Willis had an affair merely demonstrates that they are human, and that even human beings with flaws can perform their jobs with courage and rectitude.  No evidence of impropriety in their conduct of the proceedings against Trump and his co-conspirators has emerged.

Willis and Wade are black, as is Alvin Bragg, which may account for some of the vitriol and threats of violence, including death threats, which have been directed against them. To their credit, they demonstrated great bravery in performing their jobs despite these threats.

These new American heroes are showing us and the world the way the American justice system, based on the rule of law and the jury system, is supposed to work—even in critical cases against high-profile and powerful defendants.

Judge Juan Bertran can take great pride in the fair and even-handed manner in which he handled the trial of Donald Trump in Manhattan.

Trump and his supporters decry the fact that he is the first American president to have been indicted and convicted of felonies. These, however, were of great significance because they were committed in furtherance of a conspiracy to overthrow the 2020 presidential election and with it the Constitution of the United States.

Trump has succeeded in corrupting part of the federal justice system, with his appointment of three zealots to the Supreme Court which now has a right-wing majority which has made it a rogue Court. It is a Court that is out of control, and apparently willing to throw precedent to the wind and to abandon traditional precepts of constitutional interpretation,. Beyond the Dobbs decision overthrowing Roe v. Wade, the justices have acted to delay the criminal trials of Donald Trump by accepting an appeal of the case in which he claims absolute presidential immunity, when they might easily have simply let the lower Court of Appeals decision stand. 

Most significantly, the right-wing majority of the Supreme Court appears to have swayed even the liberal members of the Court to join in reading Section 3 of the 14^th Amendment out of the Constitution, by holding, on the most spurious of rationales. that its plain text and clear historical background simply do not apply. Leading constitutional scholars and judges, both conservative and liberal, both Republican and Democratic, have expressed the clear view that Section 3 does apply, and that because Donald Trump engaged in or supported the insurrection that culminated on January 6, 2021—as held as a matter of fact by the trial court---he should be barred from ever holding federal or state office.

Had they upheld the clear text of the Constitution, we would not be faced with the prospect of a convicted felon running for the presidency and the distinct possibility that he might win the November 5, 2024 election.

Trump has also appointed lower-level judges who have gone out of their way to assist him in delaying his criminal trials or in other ways.  Judge Aileen Cannon in the U.S. District Court for Southern Florida has leaned over backwards in her rulings to delay the trial of Donald Trump in the case involving his alleged illegal retention of highly classified documents, including some relating to U.S. nuclear secrets.

U.S. Special Prosecutor Jack Smith has done an admirable job in securing grand jury indictments in the classified documents case in Southern Florida, and also in the January 6 insurrection case being tried in Washington. D.C. But he cannot make up for the fact that Attorney General Merrick Garland delayed for almost two years the naming of a Special Prosecutor who would energetically pursue the investigation and indictment of Trump. Had Garland acted with dispatch, juries in Trump’s trials would probably have reached their verdicts by now.

What Trump’s conviction on May 30, 2024 strongly suggests is that he will be found guilty of most if not all of the very serious felonies for which he has been indicted and which remain to be tried before a jury.

Not only is Donald Trump the first likely presidential candidate to be a convicted felon, for crimes related to electoral fraud, but he is also the first president who appears to have been on a massive crime spree—like crimes spewing out of a fire hose--before, during, and after his term in office.

We may assume, given the amount of publicly available evidence and the detailed charges and evidence outlined in Trump’s various felony indictments, as well as evidence gathered by the House Select January 6 Committee, that he is guilty of the crimes with which he has been charged by grand juries in Washington, Miami, and Atlanta.

To be sure, the standard of proof for convicting and potentially incarcerating an accused felon is “proof beyond a reasonable doubt”. That standard does not apply, however, to forming political judgments about the conduct of a candidate for high political office. 

There is nothing in our Constitution or laws, or in common sense, that says a candidate for the nation’s highest public office must not be judged unqualified unless he meets the highest standard of evidence for a criminal conviction, “proof beyond a reasonable doubt”.

Moreover, Donald Trump has satisfied even that high standard, having been convicted by a jury on May 30 of 34 felonies.

We owe the deepest debt of gratitude to these new American heroes, these servants of the law who in the face of death threats and physical threats to themselves, their families, and their staffs have demonstrated uncommon courage and dedication to upholding the rule of law in America.

If the fascist threat represented by Trump and today’s Republican Party is defeated in the November 5, 2024 elections, as now seems more possible if not likely than it did prior to Trump’s conviction on May 30 , these conscientious citizens who acted with courage to uphold the rule of law will go down in history as having marked a turning point that ended up saving the Republic.

We are witnessing the final stages of the death of the Republican Party  A new party or parties will now arise to take its place.  There is no room in America for a party of fascism which rejects the Constitution and the Rule of Law.

These new American heroes have done their part to ensure, in the words of Abraham Lincoln in his Gettysburg Address, ”that government of the people, by the people, for the people, shall not perish from the earth.”

James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.

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