When news broke of Roger Stone’s arrest, the place went nuts. The “place,” of course, was twitter and the teams braced themselves for war. Caught in the middle were criminal defense lawyers, as here was an FBI takedown of a high profile, and outlandish, Trump guy. Oh, Rachel was gonna be lit that night.
But it created a huge conflict between reality and partisanship, between what experienced criminal defense lawyers saw and what partisans wanted to see. It got bad. Quickly. At one point, Ken White twitted the obvious (at least it was obvious to the rational), albeit in somewhat tepid words.
The “stop questioning law enforcement or you’re pro-Trump” is really, really, really not a good look, and illustrates why criminal defense attorneys believe there is no party or “side” that is reliably in favor of defendants’ rights.
It’s not that Ken isn’t tough enough to brave the reaction to a bold condemnation of mindless partisanship in the face of substantive distortion, but why invite a thousand “hate twits” from the useful idiots? And it wasn’t just the cheering of the progressives, filled with joy at the arrest of Stone and desperately trying to talk their way out of why they were on the pro-prosecution, pro-arrest, pro-morning raid, pro-perp walk, etc., side.
All the things they decry whenever it’s anyone else are suddenly great when it’s someone they hate. The excuse was “rich old white guy” as opposed to “poor young black kid,” which is, of course, what identity politics is all about. So they’re not opposed to the perp walk, but to the perp walk of a black kid. They adored the perp walk of Roger Stone. And if you didn’t adore it too, it must be because you’re a Trump supporter because no one can be principled about the perp walk, that’s a terrible thing regardless of the identity of the perp.
For people whose careers were built on attacking police impropriety and prosecutorial overkill, this was a minefield. They are caught between conduct they would otherwise vehemently condemn and a defendant they despise. Or more to the point, a defendant they must despise or suffer the wrath and unpopularity of the woke for not hating the person they demand you hate.
The conundrum is hardly new, but has gotten far worse over the past few years. We have criminal defense lawyers who cry sad tears for their poor minority defendants who suffer the nightmare of being denied due process, yet applaud with all possible vigor as its denied male college students accused of sexual misconduct. These same people will fight for the presumption of innocence for their clients, yet are certain of the guilt of Harvey Weinstein before trial.
But Roger Stone?
Did Stone lie? The indictment says so, but indictments are merely accusations. Yet, the New York Times editorial headline concludes he did. Ironic that some complain about the lack of jury trials when the Times has, in its headline, concluded guilt upon indictment. Whether Stone lied or not makes no difference to me, but whether the paper of record says he’s guilty before trial does.
In a concluding paragraph likely intended to maintain plausible deniability of bias, the Times tries to thread the needle.
No one should jump to conclusions in this case. As president, Mr. Trump may have held himself to be above the law, but he is entitled to the presumption of innocence. For their part, the American people are entitled to some answers.
If this confuses you, you’re not alone. They leaped over Stone, who lied as they’ve already concluded, but gave Trump the “presumption of innocence.” That’s damn kind of them, considering Trump wasn’t indicted.
That editorial writers, useful idiots on social media and the great unwashed have decided whether to wear MAGA or Pink Pussy hats is beyond the reach of criminal defense lawyers. But this delusion touches on our world, on what we do and what we’re supposed to believe. Do we support constitutional rights, or do we support rights only for those whose identities conform to our political agenda?
For criminal defense lawyers, this minefield is too dangerous to traverse. If you put your efforts into attacking constitutional rights, they won’t be there for you, for your clients. If due process is traumatic, then it’s traumatic for all. If the accused is undeserving of the presumption of innocence, then your poor black defendant will be presumed as guilty as the rich white Roger Stone. But he already is, you reply? Too often, yes, and so the solution is either defend the right for all, not only for your favored defendant. Schadenfruede is not a viable legal doctrine.
Let the unduly passionate on social media call you names, misrepresent your position, project their outrage and prejudice onto you because they know no better. You’re a criminal defense lawyer. You can take it. Our world is one where nobody loves us for fighting for the people society despises. Nobody promised you popularity for what you do. Nobody is going to build a statue of you for being dedicated to the principle of constitutional rights for all.
But if you can’t gird yourself against the tidal wave of ignorance and bias from the groundlings, and succumb to the cries for social justice that undermine principle for the sake of identity, then don’t expect constitutional rights to be there when your client needs them. And stop complaining about it, as you were party to their destruction.
Hate Roger Stone all you want, but never forget that he’s just a criminal defendant at the moment, and like every criminal defendant, is entitled to the rights you demand for your own clients. You don’t do this for Stone’s sake, but for the sake of principle, the same principle you seek for those clients you prefer. If you can’t do that, you’re in the wrong profession.