When special counsel Robert Mueller impaneled a grand jury in Washington last week, it was either very big news for the Trump–Russia probe or it wasn’t, depending on who you asked and what he or she was willing to guess. The truth is that we don’t know all that much about why Mueller opted to put his investigation into the hands of a second grand jury in light of the fact that one has been at work for several weeks in Alexandria, Virginia, subpoenaing documents related to the federal investigation of Michael Flynn.
One thing we do know is that Trump’s defenders will never miss an opportunity to turn a complicated matter into something that’s both reductive and racially polarizing. If those defenders can, in so doing, undermine public confidence in democratic institutions and shared facts, so much the better. And so over the weekend, people who should know better than to pander to Trump’s efforts to delegitimize the criminal justice system, and the norms of independence and neutrality that underpin it, took to the airwaves to do just that.
Trump apologist Alan Dershowitz gave an interview Friday to D.C. radio host Rita Cosby in which he explained that moving to impanel a D.C. grand jury “gives the prosecutor a tremendous tactical advantage.” In case it wasn’t clear what that meant, Dershowitz further expounded that Mueller had “stacked the deck” against the president by presenting his case in the “District of Columbia, which is always solidly Democratic and has an ethnic and racial composition that might be very unfavorable to the Trump administration.”
On Sunday, Newt Gingrich translated this dog whistle into a handful of simple sentences:
President Trump got 68.63% in West Virginia, 4.8% in Washingtoin DC. Guess where Mueller has a grand jury? Guess how biased it will be?— Newt Gingrich (@newtgingrich) August 6, 2017
Now it’s become a full-blown theme with Trump supporters suggesting unironically that the D.C. grand jury will become part of a “lynch mob” for leftists who have “thrown aside any respect for process.”
Former U.S. Attorney Preet Bharara tweeted back at Gingrich’s claim, unimpressed:
Newt, is this sparkling legal analysis your way of auditioning to be appointed U.S. Attorney for the Southern District of New York? https://t.co/d5P70OM8ED— Preet Bharara (@PreetBharara) August 6, 2017
So did National Review’s David French:
I missed the statute requiring grand juries to locate in cities where investigated politicians or staff are most popular. https://t.co/LVggn46oiW— David French (@DavidAFrench) August 6, 2017
Rep. Maxine Waters, meanwhile, called Dershowitz a racist, to which he replied that she has no idea what she’s talking about. All of this serves as a large-scale public performance of See, Everyone Is Biased, the reality show Trump is currently selling with the goal of undermining law and truth, for everyone.
It hardly seems possible that a scant year ago, Trump managed to horrify most right-thinking Americans when he began attacking Judge Gonzalo Curiel. The judge, who was then presiding over the Trump University civil fraud lawsuits, had an “absolute bias,” Trump explained, because the Indiana-born American citizen “is a Mexican.” Trump demanded that Curiel recuse himself from the matter, and former Attorney General Alberto Gonzales, also of Mexican descent, publicly opined that all Americans would lose faith in the rule of law if they had reason to believe their judges were biased. It was, in retrospect, less a warning than a pledge. Gonzales, careful at the time to clarify that he couldn’t know for certain whether Curiel was a Trump hater, drew conclusions about the judge’s supposed bias based on, among other things, his connection to the National Council of La Raza, which had opposed Trump’s plan to build a wall between the U.S. and Mexico.
It’s now August 2017, and Trump supporters are making exactly the same moves: implying that there is something unconscionable and underhanded in Mueller’s decision to impanel a grand jury in the city in which Trump and most of the players in the current investigation live and work and where the Russian embassy is housed. And as Gingrich further claims, only white people in West Virginia—a group that supports Trump with great fervor—are free of the kind of ethnic prejudices and biases that would allow them to be fair and neutral.
You may remember that charges of bias were once leveled against Supreme Court Justice Sonia Sotomayor, who was maligned as prejudiced for saying in a speech, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Judge Vaughn Walker was also deemed by some to be unfit to rule on California’s gay marriage ban because he was gay and thus, in their view, hopelessly biased. This is a game that goes way, way back, as when litigants in the 1970s attempted to remove federal district Judge Constance Baker Motley from a discrimination lawsuit with claims that she was too biased to hear it fairly because of her lengthy experience as a black woman and a former civil rights litigator. Around the same time, another black federal judge, Leon Higginbotham, was similarly asked to recuse himself from a case involving black litigants with discrimination claims. He wrote then that “[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations.”
Nobody should be taken aback anymore that everything in Trumpland is rooted in thinly sourced appeals to white resentment and zero-sum thinking about minority gains as white losses, in everything from economic opportunity to the possibility of neutral legal outcomes. Nor should anybody be startled that the attacks leveled against Mueller’s choice to impanel a grand jury in a city filled with people of a certain “ethnic and racial” makeup, in Dershowitz’s parlance, will be the mechanism to foment doubts about the fairness of the entire criminal justice regime. (Grand juries date back to the Magna Carta.) Just as Trump contends that in America only whites suffer from discrimination, so too—it stands to reason—do whites invariably lose whenever minorities are allowed to sit in judgment.
Claims that minorities have biases while white Trump supporters don’t are not only divisive and false. They also perpetuate silly claims like Gonzales’ argument that belonging to a certain racial or ethnic group is enough to create an “appearance of impropriety,” one requiring that those minorities hustle to recuse themselves. It’s not just the Mexican judge, or the Hawaiian judge, or the “so-called judges” that are deemed biased in Trump’s justice system. It’s that the law itself, in the hands of anyone but a Trump loyalist, is reduced to a “witch hunt” and a “hoax.” Judges and jurors who don’t accept that their race makes the system look unfair become part of the problem.
Weaponizing popular doubts about every aspect of an independent judiciary isn’t just something Trump does for fun and personal profit. It’s the last best tactic of a man who will be judged, some day and in some capacity, by a nation of minorities whose votes cannot be suppressed and whose families cannot be summarily deported. Sidelining them requires persuading everyone else that they are, by sheer dint of color and geography, incapable of seeing straight.