“First the verdict, then the trial, the imperious Queen of Hearts says to Alice in Lewis Carroll’s Alice's Adventures in Wonderland. Alice, whose sense of Justice has been refined by centuries of English Common Law, knows immediately that something is wrong with that proposition.
Ordinarily, just verdicts follow, they do not precede, trials.
Carroll, a very creative mathematical scholar, loved word play because he knew that words were emblems of reality.
In "The Mouse's Tale," a shaped poem in the same book, "Fury said to a mouse, that he met in the house, 'Let us both go to law: I will prosecute you - Come, I'll take no denial; We must have a trial: For really this morning I've nothing to do.' Said the mouse to the cur, 'Such a trial, dear Sir, with no jury or judge, would be wasting our breath.' 'I'll be judge, I'll be jury,' Said cunning old Fury: 'I'll try the whole cause, and condemn you to death.'"
The poem is presented in the shape of a mouse’s tail.
Carroll’s word play may have a modern – or post-modern, as some would say – application.
That President Donald Trump may have cut corners when evaluating his own properties had been asserted by his multitudinous critics decades before the issue was brought to trial in Judge Arthur Engoron’s court. Previous claims were not seriously considered by judges because there were no victims harmed by Trump’s… shall we call them stretchers? All the principals involved – Trump, investors in his properties, and bankers who issued loans to Trump based on his property valuations – profited by the loan transactions.
If there are no victims, no complainants, can there be a crime? Told that the answer to the question is, ”Yes, there can be a crime without a victim,” Alice, relying on centuries of British Common Law jurisprudence, might be forgiven for thinking – there’s something wrong with that proposition. Consistently applied, it would allow a judge to suppose a non-existent “victim” in the absence of a justifiable complaint and then thuggishly bring to trial any judicial victim he chooses.
It is difficult to imagine Trump – loud, brash, a verbal brawler given to sometimes outrageous hyperbole – as a victim. Bill Buckley got his character right when he said that Trump was “a vulgarian.” But then, in a country in which no one is either below or above the law, vulgarians have rights too. Generally, people who appear in courts to answer charges brought against them are vulgarians of one sort or another, and, generally, prosecutorial charges are brought by lawyers acting on behalf of complainants and victims who wish to be made whole by lady justice.
The following quotes in this piece are all taken from an Associated Press (AP) report printed in the Hartford Courant on January 11, 2024, under the title “Judge: Trump can’t speak at close of civil fraud trial.”
The Trump trial in New York, rooted in a charge that Trump had overvalued his assets in order to obtain loans from banks is, mercifully, coming to a close. Naturally, there will be appellate appeals and perhaps a final Supreme Court disposition of the case. All this takes time, and Trump’s prosecutorial Javerts – Javert being the relentless prosecutor in Victor Hugo’s Les Misérables -- want a quick and certain disposition of the case well before voters are given the opportunity to re-elect Trump as President on November 5, 2024.
In some states, Democrats are attempting to deny Trump’s appearance on voting ballots, apparently in violation of what they call “the democracy.”
The lede on the AP story reads, “Donald Trump won’t make his own closing argument after all in his New York civil business fraud trial after his lawyers objected to the judge’s insistence that the former president stick to “relevant” matters and “not deliver a campaign speech.”
Judge Engoron is unwilling to permit a former – and, some might say, based on most recent polls, future – President of the United States to deliver “a campaign speech” in his courtroom.
A judge’s courtroom is pretty much like a ship captain’s vessel. Indeed, the captain of a ship has broad authority on the high seas to assert his power and, likewise, within the confines of his courtroom, Judge Engoron has equally awesome powers to enforce proper discipline. But a judge’s powers fade when the theatre of action is removed from his courtroom. Just as a sea captain has no authority over landlubbers, a judge has little authority over politicians who make what he deems to be “a campaign speech” on the hustings in the midst of a presidential campaign.
The AP story tells us Judge Engoron “had initially indicated he was open to the idea [of Trump addressing the court] saying he’d let Trump speak if he agreed to abide by rules that apply to attorneys’ closing arguments. Among other things, Engoron wanted the former president and current Republican front-runner to promise he wouldn’t assail his adversaries in the case, the judge or others in the court system.”
These restrictions are poorly defined. The “court” in this case is not a jury of Trump’s peers that might be influenced by the accused “campaign speeches’, but the judge himself who – see Alice above – unilaterally decided the case in favor of the prosecution. The restrictions he has imposed apparently are designed to prevent Trump from unjustly influencing the decision of the court – and the court is Engoron, who unilaterally decided that Trump was guilty as charged. The sole purpose of the trial in New York is to affix penalties. And the penalties also will be decided by Engoron – without demurral from Trump.
First the verdict, decided by Engoron, then the sentence, also decided by Engoron. At first, Engoron generously allowed Trump to make in his court a final statement. Then he denied Trump the mercy of a final statement before he was to deprive Trump of his property and liberties. Finally, he decided that Trump might make a court censored statement, heavily redacted by Engoron. To the very last. Engoron played with tragic precision the part of old Fury in Carroll’s “The Mouse’s Tale” -- “'I'll be judge, I'll be jury,' Said cunning old Fury: 'I'll try the whole cause, and condemn you to death.”