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I was struck by a side comment offered by Larry O’Connor, in the February 12, 2020 “Examining Politics” episode. In a segment on the Roger Stone sentencing recommendations kerfuffle, O’Connor, as podcast host, noted that he had been involved in civil litigation in the DC area some time ago. He settled the case, and…
He was told that he had absolutely no chance of prevailing with a DC jury, that his known political affiliation made him a guaranteed loser. Think on that for a moment. If true, it was an assumption in the local legal community, “everyone knows,” that if you are conservative you will not get justice from a DC-area jury. This effectively reduces the value of every conservative’s lawsuit to the nuisance suit level.
What does that mean? Say you have “black letter law” (the actual law, passed by the legislature and signed by the executive) on your side in a civil case. Say your facts are unassailable; you have everything documented in a form that the other side will have no chance of challenging. Say your damages are worth a million dollars. And yet, every lawyer you go to for help tells you, “sorry, but the real value of your case here is whatever the jerk’s insurance company will write off every day of the week as the cost of doing business.” You, a serious plaintiff, are reduced to the status of a slip-and-fall plaintiff, because of your political identity.
That cannot be tolerated. And yet, Republicans have had control of the House, Senate, and White House repeatedly but apparently allowed this gross injustice to fester in our nation’s capital region. The federal courts, below the Supreme Court, are creatures of Congress. They depend for their existence on legislation, not decrees handed down from the Supremes. The rules of the courts, likewise, are exactly what Congress passes and a president signs into law. See for yourself on the official United States Courts web page: “Current Rules of Practice & Procedure.” See the Constitution’s clear language [emphasis added]:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
If “everybody knows,” then that certainly includes Congressional staff and the members of Congress. The Congressional Republican Party has averted its gaze from the district which, as a matter of that quaint document, the Constitution, is their responsibility. Article I, Section 8 is crystal clear:
The Congress shall have Power To… exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States…
The federal district is not a state, so even in criminal cases, Congress has the power to direct where cases will be tried, if connected with the nation’s capital, the “District” which became “the Seat of the Government of the United States.” If it is true, as is almost certainly the case, that the population has become hyper-partisan, and was so long before “Trump,” then every Republican majority and every Republican Attorney General has been negligent in their sworn duty. It may be that this is just one more issue that took a President Trump to finally start real reform.
My recent recommendations, in “A Bit of Court Discovery,” would be a good starting point. If the problem is deeper than hatred of President Trump and a determination to crush his voter coalition, then every Republican Senator, starting with Senator Lindsey Graham, Chairman of the Senate Committee on the Judiciary, has an obligation to act, to drop heavy hammers on Chief Justice Roberts and start the process of moving all federal cases into a locale with a demonstrably ideologically balanced jury pool. Tweet away, Mr. President!Published in