Justice, American Style

Many people hear my accent and guess that I’m American. When I say that I’m in fact Canadian-born they apologise. I always ask “why?” and tell them I like Americans as they’re just about the friendliest people on earth. In fact, I’ve long claimed the mantle of being the most pro-American law professor in Australia and Canada. The U.S. spends a huge chunk of its GDP protecting countries (like us and like most of Europe) that flat out refuse to spend even 2% of GDP defending themselves. However, for a long time now I’ve also pointed out that the U.S. justice system is woefully bad. Let me be clear. It seriously stinks. At the federal level some 98% of accused are convicted – a laughably embarrassing figure for any democracy. Almost all of those are convictions without trial where the Feds have basically threatened you with 500 years in jail or you cut a deal, plead guilty and take a tolerably low sentence. (And for all those who say “well, you should never plead guilty if you didn’t do it” I point out that they also cut deals with all sorts of others who have to testify against you and fighting the charges will bankrupt you and your family even if you win and only the uber brave can withstand this treatment.) Think of it this way. Given a choice between the Australian criminal justice systems (Canberra or Victoria) – with their patently flawed lack of commitment to the presumption of innocence and the cab rank rule – or being tried in the U.S. by the Feds, you’d have to be brain dead not to roll the dice in Canberra or Melbourne.

This has been a longstanding problem in the U.S., a criminal justice system that no Australian, Canadian or Brit would really recognise as a fair system. But in the last little while it’s been made worse by being politicised. Take the recent defamation case against the legendarily funny columnist Mark Steyn in Washington D.C. brought by the climate change alarmist Michael Mann – yes, the hockey stick guy who laughably claimed to be a Nobel laureate for years. This trial and verdict makes a mockery of the idea that any politically conservative person could get a remotely fair trial in Washington D.C. (where some 93% vote Democrat year in and year out). Mann and his lawyers (none paid for by Mann but by invisible wealthy types in the background) delayed their own case for over a decade to try to bankrupt Steyn who ended up representing himself. The case was so weak it should never have gone to the jury, not least because in U.S. defamation cases plaintiffs who are public figures (as Mann clearly is) have to prove actual malice – basically that Steyn when blasting the falsity of the hockey stick climate change catastrophism knew that he, Steyn, was lying; that Steyn subjectively knew what he was saying wasn’t true. But as Steyn pointed out at trial, he’s been saying the same thing about Mann’s hockey stick charade for over two decades and even wrote a book about it. No way that test is met. And, of course, Mann needs also to prove reputational damage. But given the clear benefits of being on the climate change gravy train he couldn’t call a single witness to allege any damage Mann ever suffered.

But this is D.C. The plaintiff’s lawyer in his closing argument asked the jury, regardless of everything else, to award exemplary damages to, in effect, silence these global warming sceptics. No judge in Australia or Canada – not even one appointed by Dan Andrews – would allow a lawyer to appeal for exemplary damages even though the legal requirements otherwise to win the case had not been met. It would have been a directed verdict for Steyn. But the jury came back and awarded Mann one dollar in actual damages (against Steyn and his co-defendant), a deadly verdict in jurisdictions with a costs rule and in effect a decision that Steyn was right. But then the jury also awarded Mann $1 million in exemplary damages – basically deciding that regardless of everything else Steyn is not free to speak about this issue and sending a clear message to anyone who wants to voice doubts about ‘end of the world climate scaremongering’. Of course if Steyn appeals it would be in the (non-federal) D.C. system with huge numbers of federal bureaucrats operating under regulatory climate change policies that create a near-perfect set-up to get dissidents. Good luck with that. Only the U.S. Supreme Court can save him and odds are it won’t touch it. So Steyn is probably bankrupted. Mann gets a big PR boost. And the legacy press (so yes, the ABC) will treat the verdict as something other than a bad joke. I’ll be blunt. This is a very sad outcome for Mark Steyn who is and has been a free speech warrior for decades and decades.

In addition to Steyn the justice system has pretty clearly been weaponised in the U.S. against Trump and his former advisors. A Trump former adviser has been ordered to report to prison while former Attorney General Eric Holder (a Democrat) suffered no penalty for the same charge. Or think about the so-called claims about Trump instigating an insurrection. There is no charge to that effect of course but the current Washington D.C. charges require the special Trump prosecutor to prove mens rea – that Trump didn’t actually think he’d won in 2020 but proceeded anyway when, as with Steyn, the evidence seems overwhelming that Trump did believe he’d won (and that is enough for an acquittal whether anyone else believed that or not) – and to overcome a Presidential immunity defence. It is the latter defence that Trump just lost in the D.C. Circuit appeal court and will now appeal. But think about this. You have a criminal charge that is alleging nothing more nor less than a political crime. Americans have been inundated with all the information for a couple of years. The voters are well aware of both sides of this. It can be resolved in an election in 10 months where 160 million odd people will have their say, and let us know whether they think Trump’s conduct disqualifies him from being President. Or, in keeping with the way things are done in Pakistan, Thailand and a fair few other places, you can legalise the issue and have the current President try to put his main opponent in jail for the rest of his life. You just bring the case in D.C. Hand it over to a jury in a jurisdiction where well over 90% vote Democrat. And let 12 jurors decide for a country of 332 million Americans who can and can’t be President.

I don’t care how badly you hate Trump. This is an affront to democracy. It will demand reciprocal behaviour from Republicans in future. And it is risible to claim you have to take the man currently leading in every poll off the ballot to save democracy. As I said, the U.S. criminal justice system has stunk for ages. But under Biden the stench is now political too. (I leave discussion of the documents charges and the differential treatment of Trump and Biden for another day.)

James Allan is the Garrick Professor of Law at Queensland University. This article first appeared in Spectator Australia.