WHAT IS TO BE LEARNED FROM WHAT WE KNOW

MAY 1, 2024 – Last week as I joined the other passengers inching our way down the entrance ramp onto the Delta plane that would fly us from BDL to MSP, I noticed the checkered condition of the paint on the outside of the fuselage around the doorway. Obviously, the A320-200 had been in service for many years. It reminded me of a bit of President Biden—and his decades in service. Should I be any more worried about Biden’s age than I am about the Airbus . . . or vice versa? I wondered.

Once I’d settled into my seat, I pondered the “old Biden – aged aircraft” analogy. Naturally, I had to consider parallel analogies: safety of the Airbus vs. any number of alternatives, from walking to driving to flying a poorly maintained prop-job flown by Seat of Our Pants Airways; and likewise, Biden vs. his main alternative. Just as an aerophobe might consider the Airbus in complete isolation from all the alternatives, a voter might well examine Biden’s flaws without any regard for the other guy’s shortcomings. As a result of these equally defective approaches, the aerophobe might think that a repainted ’53 Chevy, waxed and buffed to perfection would be the safer choice over the old Airbus with checked paint; and likewise, the voter put off by Biden’s age and policies might believe the ex-president should be given another shot.

Before putting my phone on airplane mode, I made one more check of the news headlines. In the lead was (more of) the latest on The Litigation. I didn’t have long to read about it, but during the flight I had ample time to contemplate . . . more, again, still . . . the implications of the multiple cases. Here’s what I settled upon:

After all the ad nauseam reportage and punditry about The Hush Money Trial, the Documents Case, the Immunity Appeal, and the Georgia Election Racketeering Case, the Arizona Elector Fraud case, judgment(s) in the two verdicts in the Jean Carroll Defamation Case (now on appeal), and the verdict in the NY Civil Business Fraud, and perhaps at the very epicenter of our democracy, the 10 Election Fraud Cases (across six states) that were dismissed on the merits, and the 50 other Election Fraud Cases that were either dismissed on procedural grounds or withdrawn by lawyers for the Duly Defeated, here’s what we know beyond refutation:

1. The Duly Defeated is a magnet for litigation, particularly involving claims of fraud, not only by “the Biden DOJ,” but by prosecutors in three states.
2. The Duly Defeated himself is a litigation factory. The delay, obfuscation, political, and appeals divisions of the factory are especially active.
3. Only by the expenditure of hundreds of millions of dollars in legal fees has the defendant managed thus far to defer—or avoid altogether—unfavorable verdicts, orders, and judgments or the consequences of unfavorable results. (Compare and contrast this strategy with the dead ends faced by millions of civil and criminal defendants of limited means, who are forced to pay (with their freedom, liberty or property) irrespective of the merits of their defenses. Then ponder the slogan, “With Equal Justice under the Law” that adorns every federal courthouse in the country.)
4. Apart from proof, The Litigation has exposed mountains of evidence.

Based on what we know, here’s what should be learned: The ultimate verdict on our Democracy’s future will be revealed in November.

To the defendant himself, of course, The Litigation outcomes matter greatly. And because they are of such gravity to him, all the head-spinning and hair-splitting legal theories devised to buy him time or save him a few hundred million bucks or, God forbid, keep him out of an orange jumpsuit, are immensely critical. Paradoxically, he who displays overt contempt for the rule of law is entitled just the same to all the benefits of procedural and substantive due process.

I often hear detractors of the Duly Defeated say, “He should be locked up, that’s all there is to it” This visceral, “Go straight to jail, do not pass Go” is at odds with the sacrosanctity of Constitutional due process. Just as often I hear the ex-president’s supporters say, “He’s innocent until proven guilty.” Not quite right. He’s presumed innocent for purposes of setting the prosecution’s evidentiary bar and high standard of proof, but a jury never returns a verdict of “innocent.” The verdict is either “guilty” or “not guilty.” Acquittal is not synonymous with a finding of innocence.

This gets to the crux of The Litigation as it pertains to us voters.

As is the case with nearly all our assessments, conclusions and decisions in life, our choice of one candidate over another rarely turns on information that would be admissible in a court of law. That is, the information (let alone “feelings” or “intuition”) we rely upon is often hearsay or irrelevant or overly prejudicial or privileged or . . . barred under a host of other provisions of standard and customary rules of evidence that prevail in courts across the land.

Yet outside the context where life or property is on the line—i.e. outside of a civil or criminal trial—none of us could function long if we put each of our opinions and actions (and those of everyone else) to the test of such rigorous evidentiary rules, the ultimate guide for critical thinking.

Accordingly, for us voters when it comes to The Litigation, the technical outcomes are of far less importance than the stuff “we know beyond refutation.” As a juror, I’d have to ignore or at least heavily discount the phrase, “Where there’s smoke there’s fire.” As a voter, however, concerned about the viability of our democracy, I have every right and reason to take that phrase into account, especially when the smoke has been blowing black and thick, up and out for many years without letup. Moreover, most of the smoke has blown straight from the defendant’s mouth. His words are not hearsay, not taken out of context, not nefariously edited or filtered by pundits or editorialists or AI-generated memes posted on Instagram. He himself is transparent proof beyond all doubt in the ultimate case before us the voters: that he is unfit to rule or reign over much of anything or anyone. Should we voters ignore or deny that proof, we will be guilty in the far larger case—the self-inflicted demise of our democracy.

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© 2024 by Eric Nilsson