What do We Stand for When Standing for Something is Most Difficult? The Failure of American Justice in the Case of Trump
Jack Smith and Justice Department Drop January 6th Insurrection Case
The failure of justice in the case against Donald Trump’s attempt to overturn the 2020 election in the violent insurrection Trump plotted and encouraged is now complete. Chief Justice John Roberts and the largely Trump appointed Supreme Court majority ruled that a President enjoyed immunity for any actions that could be considered official acts. The decision cut the legs out from prosecutors and judges involved in the various cases against Trump, and Trump’s election drove the last nail through Special Prosecutor Jack Smith’s indictments.
Today. The Special Prosecutor asked the judge to dismiss the case. Trump, has dodged justice and pledged to pardon all of those convicted of crimes in the attack, having spent years declaring them martyrs, while promising retribution against prosecutors, Justice Department officials and judges. Trump promised to bring retribution on his opponents, in Justice system, in government, among elected representatives and leaders, as well as his perceived opponents in the media and elsewhere. They are in his and the words of men like Elon Musk, “the enemy within”.
While Trump was out of office he control of the GOP which at state and local levels conducted a Stalin like purge of GOP officials from the party and are even threatening well respected elected and appointed officials and succeeded in driving some of the few Republicans who stood against him out of office, while others simply caved to Trump’s demands for obedience. Those who caved were little different than former German Conservatives who joined the Nazis following Hitler’s appointment as Chancellor in 1933. They have surrendered any principles they once held and swore their unconditional loyalty to Trump ans the non-Nazi German conservatives did to Hitler. Both they and Trump’s ever loyal faithful only swear loyalty to Trump and Trump alone.
Meanwhile, many former opponents of Trump, especially in the media are scrambling to get on his good side, hoping, probably beyond hope that Trump will spare them and the media organizations they lead, write, or broadcast for from being shut down.
I read and write a lot about Weimar and Nazi Germany as well as the Holocaust. They were the focus of my undergraduate major working under Dr. Helmut Heussler who served as a translator and interrogator at Nuremberg while I was a student at California State University at Northridge and later in my Masters of Arts in Military History. I read the documents, the histories, the narratives, and the reports both in English and German. I study the perpetrators, the victims, and yes the bystanders as well and there is not enough time in one man’s life to read all of them, but I will try.
Likewise I visit the sites where things happened in Germany, and every time that I make a trip to those places I learn more and believe me it is not comfortable. When I visited the Palace of Justice in Nuremberg a few years ago I saw a picture of Dr. Heussler doing his work. Back then he was very young and it would be a number of years before he finished college and went on to complete his doctorate. When I saw his picture I remembered just how important he was in opening my eyes to the dark side of humanity; even those people that are not truly evil; those like most of us who exist between the shades of gray between sainthood and the devil.
The histories, the documents, the narratives of the Hitler regime and its crimes paint a dark picture of humanity and the fallibility of people. The portrait that they paint a disturbing picture of the true nature of what is in all of us. When I look at the pictures and see the films I can see that the lessons of that time have not been learned. Dr. Timothy Snyder wrote:
“The world is now changing, reviving fears that were familiar in Hitler’s time, and to which Hitler responded. The history of the Holocaust is not over. Its precedent is eternal, and its lessons have not yet been learned.”
In the age where men who admire tyrants and authoritarians like Trump, Putin, Farage, Erdrogan, Assad, and so many others it is important that we try to learn the lessons lest we fall into the same trap as our ancestors and ourselves become perpetrators, victims, or bystanders. I often find myself wondering what will be said we Americans of our time in say fifty years or so about us, who allowed Trump to escape justice and return to power. I have a feeling that history will not be favorable or sympathetic.
Such a fascination with the thoughts of others years after I am likely to be dead may seem unusually circumspect. But my call as a priest and a historian doesn’t allow me not to care about the future, or ignore present realities. The fact is that totalitarian regimes and events like the Holocaust are all too common in human history, one of those is the connection of humanity with its past and future, and that humanity being the constant in our history. Yehuda Bauer wrote:
“The horror of the Holocaust is not that it deviated from human norms; the horror is that it didn’t. What happened may happen again, to others not necessarily Jews, perpetrated by others, not necessarily Germans. We are all possible victims, possible perpetrators, possible bystanders.”
The fact is that there are very few true saints and likewise very few truly evil people. Quite obviously Adolf Hitler and many of his associates fell in the latter category. The rest of us, and for that matter most of the people on all sides during from the Nazi seizure of power until the Gotterdammerung of the Third Reich in in the flames of Berlin in 1945 fall somewhere in the gray area between the truly evil and sainthood. Yet, truthfully all of us given the right conditions are capable of becoming perpetrators, victims, or the worst, bystanders who turn their backs on evil because it doesn’t seem to affect us; but it does.
Admittedly this is a dark subject and as I always reminded my students “the one constant in history are fallible human beings.”
Judgment at Nuremberg is one of my favorite films. It is profoundly disturbing not only because of the subjects that it deals with but also when we look at the great uncertainty time that we live and how similar it is to the world of the late 1920s and early 1930s. In one of the more disturbing scenes of the film, Maximillian Schell, who played Hans Rolfe, the defense counsel for Ernst Janning, played by Burt Lancaster gives a summation in the final defense of his client who has already admitted his guilt which is remarkable because he tells the truth about the guilt of everyone who allowed the Nazi regime to appear legitimate, and thus to conduct its crimes with impunity for six years.
Rolfe’s summation of his defense following his client’s admission of guilt is damning. It is something that almost all of us do. It is how we look at the atrocities of genocide, war crimes, ethnic cleansing, the willful starvation of millions by criminal regimes; and then stand by saying little or nothing and doing nothing, sometimes even supporting the leaders or the regimes that commit these actions.
So please, no matter what your political point of view, take the time to watch clip or the whole film, and read the transcript of Schell’s speech below. It’s far easier than trying to do all the reading, study, and research that I have done.
“Your Honor, it is my duty to defend Ernst Janning, and yet Ernst Janning has said he is guilty. There’s no doubt, he feels his guilt. He made a great error in going along with the Nazi movement, hoping it would be good for his country. But, if he is to be found guilty, there are others who also went along, who also must be found guilty. Ernst Janning said, “We succeeded beyond our wildest dreams.” Why did we succeed, Your Honor? What about the rest of the world? Did it not know the intentions of the Third Reich? Did it not hear the words of Hitler’s broadcast all over the world? Did it not read his intentions in Mein Kampf, published in every corner of the world? Where’s the responsibility of the Soviet Union, who signed in 1939 the pact with Hitler, enabled him to make war? Are we not to find Russia guilty? Where’s the responsibility of the Vatican, who signed in 1933 the Concordat with Hitler, giving him his first tremendous prestige? Are we not to find the Vatican guilty? Where’s the responsibility of the world leader, Winston Churchill, who said in an open letter to the London Times in 1938 – 1938! Your Honor – “were England to suffer national disaster should pray to God to send a man of the strength of mind and will of an Adolf Hitler!” Are we not to find Winston Churchill guilty? Where is the responsibility of those American industrialists, who helped Hitler to rebuild his armaments and profited by that rebuilding? Are we not to find the American industrialists guilty? No, Your Honor. No! Germany alone is not guilty: The whole world is as responsible for Hitler’s Germany. It is an easy thing to condemn one man in the dock. It is easy to condemn the German people to speak of the basic flaw in the German character that allowed Hitler to rise to power and at the same time positively ignore the basic flaw of character that made the Russians sign pacts with him, Winston Churchill praise him, American industrialists profit by him! Ernst Janning said he is guilty. If he is, Ernst Janning’s guilt is the world’s guilt – no more and no less.” (Note, Schell later admitted that Churchill’s words were not from 1938 but earlier and that he got caught up in the character, but it was left in the film.)
Spencer Tracy who played Judge Dan Haygood in the film pronounced the guilty verdict in these words and in this film clip.
“The trial conducted before this Tribunal began over eight months ago. The record of evidence is more than ten thousand pages long, and final arguments of counsel have been concluded.
Simple murders and atrocities do not constitute the gravamen of the charges in this indictment. Rather, the charge is that of conscious participation in a nationwide, government organized system of cruelty and injustice in violation of every moral and legal principle known to all civilized nations. The Tribunal has carefully studied the record and found therein abundant evidence to support beyond a reasonable doubt the charges against these defendants.
Herr Rolfe, in his very skillful defense, has asserted that there are others who must share the ultimate responsibility for what happened here in Germany. There is truth in this. The real complaining party at the bar in this courtroom is civilization. But the Tribunal does say that the men in the dock are responsible for their actions, men who sat in black robes in judgment on other men, men who took part in the enactment of laws and decrees, the purpose of which was the extermination of humans beings, men who in executive positions actively participated in the enforcement of these laws — illegal even under German law. The principle of criminal law in every civilized society has this in common: Any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime — is guilty.
Herr Rolfe further asserts that the defendant, Janning, was an extraordinary jurist and acted in what he thought was the best interest of this country. There is truth in this also. Janning, to be sure, is a tragic figure. We believe he loathed the evil he did. But compassion for the present torture of his soul must not beget forgetfulness of the torture and the death of millions by the Government of which he was a part. Janning’s record and his fate illuminate the most shattering truth that has emerged from this trial: If he and all of the other defendants had been degraded perverts, if all of the leaders of the Third Reich had been sadistic monsters and maniacs, then these events would have no more moral significance than an earthquake, or any other natural catastrophe. But this trial has shown that under a national crisis, ordinary — even able and extraordinary — men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat at through trial can ever forget them: men sterilized because of political belief; a mockery made of friendship and faith; the murder of children. How easily it can happen.
There are those in our own country too who today speak of the “protection of country” — of “survival.” A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient — to look the other way.
Well, the answer to that is “survival as what?” A country isn’t a rock. It’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult!
Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.”
Sadly, the Supreme Court, and the Republicans, aided and abetted by 75 million Americans have show that little has changed in the character of humanity. If we do or say nothing, if we support those who do such things, if we close our eyes and pretend that it is not our problem, then we too are the guilty party. As Hannah Arendt wrote: “The sad truth is that most evil is done by people who never make up their minds to be good or evil.”
In his book Auschwitz: A New History, Laurence Rees noted something that is important about how human beings act in crisis. After interviewing many of perpetrators, victims, and bystanders who were at Auschwitz and other parts of the Nazi death machine he wrote this:
“…human behavior is fragile and unpredictable and often at the mercy of the situation. Every individual still, of course, has a choice as to how to behave, it’s just that for many people the situation is the key determinate in that choice.”
That being said, I will never stop speaking the truth regardless of the cost. That is the only way I know how to live. Life has taught me that not to do so is to countenance unspeakable crimes, and surrender to the whims of men and women for whom the words of the Declaration, the Preamble of the Constitution, the Gettysburg Address, Franklin Delano Roosevelt’s First Inaugural Address and Four Freedoms, Dr. Martin Luther King’s Letter from a Birmingham Jail, John F. Kennedy’s Inaugural Address, and speech at the Berlin Wall, King’s I Have a Dream and I Have Been to the Mountaintop speeches, Frederick Douglass’s Fourth of July Speech, mean nothing? Will we follow in the step’s those who supported and enabled Hitler, Mussolini, Stalin, Laval, Petain, or those who loyally supported and enabled Trump’s crimes during his first term or the last four years? Or will we have the courage to stand for something when it is the most difficult.
Sophie Scholl, a young university student who died at the hands of the Nazis for daring to distribute leaflets telling the truth about Hitler’s regime wrote:
“The real damage is done by those millions who want to ‘survive.’ The honest men who just want to be left in peace. Those who don’t want their little lives disturbed by anything bigger than themselves. Those with no sides and no causes. Those who won’t take measure of their own strength, for fear of antagonizing their own weakness. Those who don’t like to make waves—or enemies. Those for whom freedom, honour, truth, and principles are only literature. Those who live small, mate small, die small. It’s the reductionist approach to life: if you keep it small, you’ll keep it under control. If you don’t make any noise, the bogeyman won’t find you. But it’s all an illusion, because they die too, those people who roll up their spirits into tiny little balls so as to be safe. Safe?! From what? Life is always on the edge of death; narrow streets lead to the same place as wide avenues, and a little candle burns itself out just like a flaming torch does. I choose my own way to burn.”
That my friends is the question we all must ask ourselves today. It is actually a simple but potential soul rending question. The answer to it determines who you chose to serve and what you will defend, our Declaration, Constitution, Republic, Democracy and Freedom, or aid a tyrant as he defies them and persecutes our people.