Image by Ian Hutchinson.
I have been having a lot of nightmares of late. It is upsetting that many occur when I am awake and reading the news. But last night I had one while sleeping that was a real doozie.
Chief Justice John Roberts appeared in my dream asking me to defend him from a Trump DOJ prosecution under an Executive Order resurrecting the Sedition Act of 1798.
Roberts told me that, after invoking the Alien Enemies Act of 1798 for deportation power the Trump DOJ had found the Sedition Act of 1798 very appealing because it made it a crime to criticize the government or the President. Justice Roberts had made a statement condemning calls to impeach Judge Boasberg who ruled against Trump and that “criticism” prompted the indictment.
I replied, “The Sedition Act attacked the core of freedom of speech and press: the right to criticize the government. Partisanship was extreme in the 1790s, the partisan press and first rival political parties had emerged and battled for power.
“The Alien and Sedition Acts stacked the deck in favor of those in power and against political opponents by making criticism of President Adams a crime, but allowing criticism of Vice President Thomas Jefferson, who the Adams’ Federalists knew would challenge Adams in the next election. This allowed the “Fox News” of the day to blacken Jefferson while criticism of Adams landed “MSNBC” in jail.
“Jefferson and James Madison wrote the Virginia and Kentucky Resolutions arguing the Acts violated the First Amendment. The Supreme Court never ruled whether the Acts were constitutional. In the 1800 election, the American people voted for freedom and Jefferson defeated Adams.
“In office, Jefferson allowed the Sedition Act to expire and pardoned those convicted. The Sedition Act is no longer good law,” I concluded triumphantly. (I was trying to impress the Chief with my lawyerly scholarship and secure him as a client.)
Justice Roberts shook his head saying, “These days the Executive Branch not only ‘faithfully enforces the law,’” he chuckled, it also makes law by Executive Order under the “unitary executive doctrine.” As I listened to Justice Roberts expound my nightmare deepened; hopelessness and fear gripped my heart.
“What exactly did you say?” I asked.
After Trump said federal judges who impede his agenda should be impeached, Justice Roberts said, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
“You didn’t even mention Mr. Trump by name?” I asked.
Justice Roberts nodded his agreement.
“We have that in your favor, unlike the attacks made on Adams naming him personally that he needed for his Sedition Act persecutions,” I said. “That’s a factual distinction we can sell to the jury.”
“We will demand trial by jury and no American jury will convict under this perversion of law. We can argue your statement was not a criticism of the government, but a resounding affirmation of US government under law. You simply spoke the truth, which is protected by the First Amendment.”
Justice Roberts hung his head. “The DOJ is relying on a number of precedents to deny trial by jury in this case.”
“The Constitution states expressly in two places that, ‘in all criminal cases the accused shall enjoy the right to trial by jury,’” I thundered.
Justice Roberts looked wistful. He knew the Supreme Court had allowed denial of jury trials in “petty offense cases.” In my nightmare state I knew in my heart that I was dealing with a rogue DOJ now asserting “petty” was what the Executive Branch said was “petty.” And, if the Executive Branch was expert in anything, it was expert in “petty.”
Justice Roberts reminded me of my futile argument to a judge in one case. I had argued, “Jefferson said, ‘I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.’ Without trial by jury we risk loss of the Constitution.” That judge, I thought, was no Judge Boasberg.
Justice Roberts, pale and frightened, turned, leaned back and studied me.
“The new Sedition Act Executive Order,” Justice Roberts said, “excludes jury trial, allows much greater penalties, including being tossed from an airplane over international waters.”
“Okay,” I said, “no jury. But we can call Pope Francis as a witness to your good character and the fact that you believed your fidelity to the law and your freedom of religion, augmented your free speech rights so that you did not have criminal intent, mens rea. Rather you demonstrated good intent, opposing lawless government which is abhorrent to both god and man.” Pope Francis had just issued a firm statement of Catholic Doctrine opposing genocide in Gaza so I was confident he would support Justice Roberts’ lack of criminal mind state in this case.
Again Justice Roberts looked at me and sadly shook his head “no.” I knew from his look that he knew that I knew that trying to defend based on lack of criminal intent was unlikely to prevail. In one case I had argued a catholic Nun, charged with trespass at a nuclear missile silo where she peaceably prayed to end nuclear weapons because her religious beliefs compelled her to, arguably negating criminal mind for trespass, had been rejected by the judge.
The judge excluded from the jury argument that if a German citizen blocked a train to Auschwitz, and was charged with trespass, the defense that committing the lesser crime of trespass was excused if her motive was to stop the greater crime of genocide, or in the Nun’s case, nuclear war. The argument that the Nun’s praying for peace was protected freedom of religion and speech, not a crime committed with bad intent, could not be heard by the jury.
Justice Roberts smiled at me, knowingly. The courts had rendered such defenses illusory at best, as I knew and he knew I knew. I wanted to look away from him but the nightmare locked our eyes. The dream state allowed me to know what was coming but I was stuck in place like lonely weed on a desolate dune desperate for a drop of dew, unable to do anything.
“How about jury nullification,” I asked, “if we are granted that basic right.”
For centuries English and American law gave the jury in criminal cases the power to acquit and nullify what the jury saw was an unjust law. Before the Civil War, in Fugitive Slave Act cases, juries often rejected the law and refused to convict defendants charged with failure to return ‘runaway slaves’ to their ‘owners’. It was a noble principle of law that in such cases the jury acted as the ‘conscience of the community’ by refusing to enforce patently unjust laws. The abuse of power here was similarly odious. Surely we could rely on the decency of ordinary Americans sitting as a jury to rally to defense of the Constitution.
Again, Justice Roberts smiled sadly, again he knew that I knew the US Supreme court had ruled that though jury nullification was the law, courts had ruled that juries could not be instructed that they had that power.
Justice Roberts spoke, “Most Americans are not aware of their power as jurors, and if we cannot tell them of it, how can we expect them to exercise it?” I had to laugh, nightmarishly, because that was the very argument I had futilely made to judges urging them to instruct the jury on their power to nullify, to enable them to act as the conscience of the community only to be overruled. Since 9-11 the constant raising of “threat levels” generating fear in the War on Terror had eroded the civic courage of many Americans. The nightmare deepened.
Like many nightmares this one had its’ bizarre properties, I wanted to run, but I could not move. Suddenly, I saw I was surrounded by many Judges sitting in tiers in their black robes, yellow eyes glowing in red orange faces, apparently rising forever into blank nothingness. Their looks were as black as their robes.
With nightmare vision, I saw that many of them held two US Supreme Court decisions in their hands while they smiled evilly down from their benches. In the first, Trump v. Anderson, Justice Roberts had voted with the majority to gut the Fourteenth Amendment’s disqualification clause so that Trump could run for a second term despite his leading role in the January 6 insurrection. In the second, Trump v. United States, Roberts wrote the opinion that granted Trump Constitution-destroying “presidential immunity,” halting most of the criminal prosecutions against him. “Maybe,” I thought hopefully, “they will acquit because Justice Roberts is one of them?”
“If it please the court,” I began my plea, fumbling for a defense as I faced the nightmare that for decades the courts had eroded, not defended, the Constitution.
Beside me I saw Justice Roberts stood cowed before the satanic majesty of “just-ice” arrayed against him. A pulsing, wordless message pounded and the judges’ heads bobbed in sinister time. I struggled to hear it clearly. The throbbing built. A sound I had heard in many cases, unjustly imposed, destroying the rule of law: “Guilty, guilty, guilty…” A bolt of lightning struck next to me and Justice Roberts disappeared in a puff of smoke.
I awoke trembling and sweat soaked, screaming, “Objection! Objection,” but the nightmare continues…
