The Price of Justice

The fact that politicians seem to get away with incredibly slanderous and libelous comments has been a particular annoyance during this election campaign. Granted, it’s hard to match the invective of Donald Trump, but if we’re honest, we have to admit that he has simply normalized and amplified the growing nastiness of too much of American politics and culture.

Seen any Senate ads lately?

Of course, candidates know what they are getting into, and I suppose they can slug it out (although it does make you wonder how many nice, qualified people who would do a good job simply decline to get down and dirty), but other objects of vitriol and unsubstantiated accusations are rarely in a position to fight back.

Think about the women (I believe the number is currently 12) who summoned their courage and shared their “Trump experiences” following disclosure of the appalling “pussy tape.” They probably anticipated his rage and bluster and denial, but those reactions have been accompanied by threats of lawsuits. Trump is clearly someone who issues empty and even ludicrous threats (see: letter to the New York Times), but he has also been involved in literally thousands of actual lawsuits, and not always as a defendant. In fact, as Ed Brayton reports, 

The New York Times reports that the American Bar Association prepared a report calling Donald Trump a libel bully for his decades-long use of defamation suits to stifle criticism of him, but they chickened out on releasing it because — drumroll, please — he might sue them.

The New York Times can take care of itself, but if the threat of litigation can chill and intimidate the ABA, think of the effect on even the most blameless and resolute accuser. If you lack the financial wherewithal to mount an adequate defense to a lawsuit, no matter how unfounded, the person pursuing that lawsuit starts out with a grossly unfair advantage. Even a loss is a win, when the real goal is to inflict damage.

This problem goes well beyond the antics of the spoiled brat running for President, and it isn’t simply relevant to libel cases. Ask any lawyer who has defended  or sued on behalf of a “little guy” against a large corporation represented by a major law firm. For that matter, ask the twenty-year-old stuck in the Marion County Jail awaiting trial on a relatively minor charge, who doesn’t have money to post bail and is represented by an overworked public defender because he can’t afford private counsel.

In far too many situations–not all, but too many–justice is something only the affluent can hope for.

Americans talk a lot about the obvious problems with our justice system: (1) inexcusable delays in the federal courts because there aren’t enough judges (thanks to Mitch McConnell and the GOP lawmakers who simply refuse to fill judicial vacancies so long as Obama is nominating the candidates for those positions), (2) unarmed people getting killed because police departments’ training programs–especially in smaller communities– are spotty at best and nonexistent at worst, (3) hundreds of thousands of people–mostly black– suffering mass incarceration and lifelong stigma thanks to a Drug War that we now know had little to do with controlling drugs and lots to do with continuing Jim Crow practices (I urge everyone reading this to watch Netflix’ documentary, “13th.” It gives chapter and verse.)

There’s much more.

The good news is that there finally seems to be a bipartisan recognition of at least some of these problems and even some evidence of a willingness to address them.

Bottom line: your chances of achieving justice–whether that’s redress of a wrong done to you, or the fair and timely resolution of a charge against you–shouldn’t depend upon  who is in office or what’s in your wallet.

The American justice system needs to be fixed, sooner rather than later.


  1. Now that the FBI is back into the ‘tried and true’ political actions of that ‘great’ American J Edgar the price of justice just became out of reach for most Americans. Wonder if they all wear dresses?

  2. I read just the other day that several law firms have had to SUE the Donald to get paid for all of his lawsuits that they filed and worked on for him. The guy is only a millionaire because he doesn’t pay anybody for anything. He wants it all for free. Now he wants the country and doesn’t want to learn how to do it, or the laws, or the way it’s done economically or ethically. The stupidest candidate eveh! And the GOP BUILT THAT.

  3. At Trump’s level of filing law suits, is there protection from “frivolous filing”? Is this still used in lower – or any – court system. In the 1980’s, Indiana criminal courts were being inundated with ridiculous law suits and a panel was put in place to decide which suits merited being heard in our courts. If there is none at the higher level; there should be.

    At this time – actually long before now – we, the public, should have been informed of the number of lawsuits filed against Trump and those he has filed and their basic content. We sure as hell have been kept informed of those against Hillary Clinton and this weekend (was the timing on this deliberate?) the news has primarily been and continues to be about the FBI involvement on an anti-Hillary level as if she is already tried and convicted.

    Few reports, or valid sources, of DOJ involvement on the ill-advised timing of the FBI releasing the vapid, empty letter regarding “new” E-mail problems and somehow involving Hillary in the apparent ongoing “Weinergate” hoopla have been released. Is this to retaliate for the public release of Donald’s “Pussygate” problems? Anthony Weiner’s wife cannot be blamed for his behavior; only for her lack of intelligent use of his laptop to send E-mails to Hillary – if what Rachel Maddow reported Friday night is factual.

    I am beginning to feel sorry for Melania; caught up in the middle of this ugly election and world politics and embarrassed by Donald repeatedly. I see another Trump divorce in the future – if she can find any attorney brave enough to go against “The Donald” after the past nightmare year for this entire country.

    There is something missing from our laws when this man can be given so much power and authority over United States politics and this presidential election with access to nuclear weaponry looming in HIS future. The Constitution doesn’t ban stupidity on the part of any government official which would protect us from Trump. It is again “follow the money” and that leads us to Citizens United and SCOTUS…also not protected from the racist rampage of the GOP for the past eight years, culminating in denial of hearing President Obama’s submission of filling a vacancy on their panel.

  4. AGAIN! A vibrant, free, and honest press would go a long way toward solving these problems.

  5. The ABA has manifested gross cowardice. Surely one of their members would have taken their case pro bono. They should be ashamed of themselves.

    As to the Hillary situation, remember that Mr. Weiner was still in Congress while she was SoS. We hadn’t yet seen that first picture of his “junk”, so sharing a laptop doesn’t seem so odd in that context. Director Comey should have made some attempt to ascertain what was in the e-mails before sending his letters.

    The level of our civil discourse is certainly terrible. The reason it seems worse than ever is that so much information is available and no one gives a second thought to publishing everything he/she knows.

  6. I have known for years that there is a direct correlation between receipt of justice and bank accounts. I recall years ago suing General Motors for breach of warranty and winding up in Noblesville on a change of venue against Harvard-educated counsel and that on a rainy Friday night the jury held for my plaintiff. Adverse counsel called me after the jury’s decision and threatened an appeal unless I took less than the jury found. I told him to forget it and invited his appeal. We were paid in full, which proves that sometimes the little guy can get a measure of justice if he or she perseveres. It’s possible, but it doesn’t happen in far too many cases. For instance, product liability cases are becoming few and far between these days now that corporations have been legally enabled to hold buyers to administrative relief as opposed to going to court in keeping with fine print in which the buyer effectively waives his or her right to go to court and instead complain to a group for relief, a group appointed by the seller! We need more than a free press, nice as that would be. We need reform up and down the judicial spectrum both civil and criminal and a bench composed of judges who did not come from prosecutor and insurance and corporate backgrounds with their baked in views of justice.

  7. JoAnn,

    “At Trump’s level of filing law suits, is there protection from “frivolous filing”? Is this still used in lower – or any – court system.”

    The only way to insure against a S.L.A.P.P. [Strategic Lawsuit Against Public Participation] lawsuit is to be a multi-millionaire or judgment proof like me. That’s why I resigned from the State Bar of Texas in 1991, decided not to renew my $150 fee for The Florida Bar, and became the Head Chef for the Liberty Center for the Homeless. Ultimately, against the likes of a Donald Trump, it will all come down to a threat of an expensive lawsuit if you attempt to effectively speak out. I learned that lesson well in Dallas.

    During the battle for one man, one vote during the late 80’s and early 90’s in Dallas, Fortune Magazine started an expose on the family of Ambassador Robert Strauss. The magazine was threatened by a multi-million dollar S.L.A.P.P. lawsuit by Robert Strauss. Two months later, instead of attacking the corruption of the Strauss family, Strauss’s sister-in-law then the Mayor of Dallas was pictured on the cover of Fortune Magazine along with a positive story line. Fortune folded after the threat, it was much cheaper to do so.

    Truth vs. $$$. $$$ win most of the time, but not always.

  8. You are right, of course, Gerald. It will take more than a free press to solve these problems. But a free press would be a great help. Then again, this discussion today has me wondering if the general population really wants NOT to be informed. If you do not know about a problem you can excuse yourself from any effort to solve it.

  9. Gerald; I won’t write about my mugging, permanent physical injuries and months of legal problems due to the attack at 11:00 in the morning on my driveway. Will say that, as a victim, I had NO rights regarding prosecution of all crime Jones committed against me, victim #3 of 4 elderly women. My two charge cards were used 8 times that day but only one Fraud charge was filed against Jones for using the card of the 4th elderly woman victim. My PNC bank Fraud Division responded 4 days after the attack and resolved the fraudulent charges; police and prosecutor received copies. Prosecutor’s Office refused to file Forgery, Fraud or Battery charges; informed me “the more charges we file, the more charges we have to prove”. My medical reports and bloody pictures plus the PNC Fraud Division documents were not enough proof. It took two years to reach a plea agreement, two years and one month before sentencing where I gave my Victim Impact Statement. Jones was sentenced to 46 years; to serve 25 years in DOC and a specified number of years on parole after release. Last week I received a letter from DOC informing me that Jones will be allowed to file for parole in 2026. According to my math; 2016 from 2026 comes to TEN years. I have gotten screwed in criminal and civil courts here; even when having an attorney. I am not in the least surprised that suits against Trump for non-payment of services provided result in 30 cents on the dollar…IF they are awarding anything at all.

    If justice has a price; obviously I couldn’t afford to pay it.

  10. Theresa,

    “Then again, this discussion today has me wondering if the general population really wants NOT to be informed. If you do not know about a problem you can excuse yourself from any effort to solve.”

    No need to wonder, you’re exactly right.

  11. Marv,

    As Scott Peck, psychiatrist and writer, put it, “The original sin is laziness.”

  12. If you’re afraid to speak out, then you don’t want to be informed. No one likes to feel like a coward. That goes for most attorneys, Gerald definitely excluded.

  13. Donald Trump has led the charge to normalize sleaze. Yet many who pine for the good old days will support him. Go figure.

  14. Sheila: “The American justice system needs to be fixed, sooner rather than later.”

    We can’t start to do that until we FIRSTFIX DEMOCRACY.

    The following is from “The Secret of Democracy” by Suzanne Labin (New York: The Vanguard Press, 1955)pp. 10-11:

    Chapter 1-Every man bears within himself a dormant fascist

    “Democracy, a flame constantly flickering but incessantly renewed, hallowed by reason but profaned by life, has been fighting an uneven battle for two thousand years against ancestral absolutism . . . a battle that nevertheless it occasionally wins.”

    “Totalitarianism did not fall to earth from interplanetary space like a meteor on a dark morning. It sprang from existing societies, it took as the elements of its program everything that was already cruel, greedy, and reactionary in those societies. [sound familiar] It is a grave error to think that these societies en bloc represented democracy as opposed to totalitarianism. No, democracy is not a hereditary virtue of any particular people; only the unremitting struggle of enlightened men keeps it alive, throbbing weakly, always at deaths door. Let their vigilance relax for a moment, and the lava of despotism overflows everything.” [I would substitute tsunami for lava]

    “Every man bears within himself a dormant fascist, so that it is easy for totalitarians to turn nations against enlightenment. Yet totalitarian victories, however brutal, so far have never been able to keep the light, or at least its pale shimmer, from reappearing in the eyes of each generation. Sometimes, through a combination of happy circumstances, the shimmer has managed to last for a few consecutive decades, and men have even thought it a part of the normal course of things. “The right to think freely and act independently,” wrote John Morley in 1870, “is now a principle that has been definitely adopted, with minor exceptions, by all schools of thought that have any chance of influencing the future.”

    “Alas, Morley did not foresee a relapse into barbarism. An upheaval occurs, and the margin of security behind which a free existence can develop disappears. Then we realize that the survival of the pale shimmer is a perpetual miracle, the miracle of intelligence subduing force, of David vanquishing Goliath.”

  15. For many years my opinion has been that we only have a “legal system”. I don’t believe that it has ever been a justice system. Those with financial means and/or connections have always managed to have the upper hand in a court room.

    Look at what is going on in the Dakotas with the Native Americans. They are trying to protect their sacred burial grounds and source of water, but it appears that the energy companies with deep pockets will win out. If not, they certainly have caused much stress and financial costs to the Native Americans. And, shame on our sham media for not covering this situation as daily critical news that should be on the air continuously until it is resolved.

  16. I wonder how many American lawsuits would be avoided by the English system of lawsuit settlement (i.e., if you lose you pay all costs)

  17. Sorry Professor Kennedy this post is slightly off the topic of your Blog post today. Although it certainly does appear to come under the general topic heading of “Justice.” But due to the fact it may be the most remarkable and significant thing that has yet occurred in this “historic” (in a monumentally bad way) Presidential election year, I can’t get it out or off of my mind. So I apologize in advance.

    The more I have read and found out about it since Friday; the more and more it appears to me that one of two things has to be true in the wake of FBI Director James Comey’s unprecedented, on so many fronts, letter to Congress on Friday — only 11 days before the election — concerning the alleged discovery of new, possibly “pertinent” Clinton e-mails:

    One is Comey is dumb as a box of rocks, which I doubt is the case. Or two, we have just witnessed the most blatant attempt to sway and influence the outcome of a Presidential election by a high government official in the history of our Country.

    First consider: Comey sent his letter to Congress in spite of the fact that there is a long-standing Department of Justice and FBI policy not to comment on on-going criminal investigations while the investigation is still on-going; period. Add that there is a long-standing DOJ and FBI policy not to release information about investigations that might possibly influence the outcome of an election within sixty days of an election. Nor never mind that it is a violation of the Hatch Act for a government official to try to influence the outcome of a Federal election. Those all would have been sound reasons, as the DOJ strongly recommended, for Comey to keep his mouth shut until after the election — or at the very least until he and the FBI had some actual hard facts in hand.

    But here is the one “fact” I find truly mind boggling: The FBI has admitted that, as of Saturday night, they have not yet obtained a warrant to search and read the emails on Weiner’s computer, are only now discussing getting one, and don’t know when they might try to get one. Oh, that means that no one in the FBI, including Comey, has yet read any of them, knows who sent them, knows whether any of them were sent by Clinton or from her private e-mail server, or whether they are merely duplicates of previously turned over emails. In fact, several main stream media sources are now reporting that none of the emails found on Weiner’s computer were sent by Clinton or from her private e-mail server.

    So how in the world could — let alone why would Comey send a letter to Congress stating the FBI had found some additional e-mails that “appear to be pertinent” to the investigation of Clinton’s use of a private email server? If the FBI hasn’t read the e-mails — they would need that warrant to do so, how could Comey possibly reasonably conclude that they appear to be pertinent? Moreover, even Comey admits he doesn’t have any clue if there’s anything in or about these emails that is or could possibly be “significant” to the Republicans’ phony, “witch hunt,” investigation into Clinton’s emails. Then Comey sends a Memo to his employees at the FBI stating it’s very likely his letter to Congress will be misunderstood and misconstrued. Which, of course, is exactly what has happened.

    Maybe I’m missing something about the claims being made in his defense that Comey was “in-between-a-rock-and-a-hard- place” because he had previously testified in front of Congress the investigation was over. Even if it is the case that Comey had some sort of a duty to “correct” his testimony by informing Congress there was something new to investigate, you would think, when the stakes are so high, and as even he admits his letter would likely influence the outcome of a Presidential election, a reasonable, responsible person in Comey’s position would at least wait until he knew what the facts were and whether the newly discovered emails are in fact pertinent, and more importantly are significant.

    Just when you think you have seen and heard it all.

  18. Thanks David F for stating so clearly how I think about this whole mess.
    Will this election ever end? omg, I’m so sick of those damn emails!

  19. Could Comey possibly have a job offer waiting in case someone in DOJ and the FBI is paying attention and he stands to lose his current position? Could Trump have paid Comey enough to entice him to knowingly break the law? Government officials seem to be immune to arrest and conviction; the higher up their position, the better their protection. Just sayin’

  20. Maybe Comey did the dirty deed because he wants Trump to win just like many other conservative law enforcement professionals. And he had his big chance. Who said life was fair, especially when it comes to politics?

  21. Interesting you should raise Comey’s future job prospects JoAnn. As you probably know, Comey, a Republican, was appointed by President Obama and took office in 2013. Under the law passed in 1976, after J. Edgar Hoover’s death, the Director of the FBI can be appointed by a President to and serve one term of ten years. So Comey’s term won’t expire until 2023. There are, however, no limitations on a President’s right to fire the Director of the FBI. In fact, Bill Clinton fired then FBI Director William Sessions in 1993 (the only time this has ever happened).

    But, of course, that’s where this gets even more interesting. President Obama could fire Comey fire him today or tomorrow, if he wanted to for not following DOJ’s policies. But that would open up a “firestorm” and create all sorts of avenues for Trump and the Republicans to allege that Comey was fired by Obama to attempt to cover up all of Hillary’s alleged crimes and prevent her from being charged and convicted. That would most likely be far worse for Hillary than letting the present mess play out over the next nine days, hopefully in Hillary’s favor as the actual facts emerge. But then, if Hillary is elected, she would face the same overwhelming criticism alleging she was trying to tamper with law enforcement’s investigation into her supposed “crimes” if she fired Comey. So Hillary is likely stuck with Comey too, unless he does the honorable thing and resigns, or he himself gets charged with violating the Hatch Act.

    Some other position in a Trump administration, if Trump gets elected and that is the horrible fate that befalls us? Guess we would have to wait and see. At this point, I don’t think a reasonable person could rule out anything, no matter how crazy or unseemly it might appear to be in the abstract or by what used to be the normal rules.

  22. Thank you, Marv, for becoming a Chef, dealing with the importance of feeding those who have limited resources. And still continuing to use your expertise and knowledge to guide and lead such interesting and thought provoking discussions.

    And, by the way, thanks to all of you for your shares and comments. Makes many of the rest of us hanging out with Sheila ‘ s amazing blog feel so much a part of a larger community.

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