New Process of Law
Many people consider it problematic that someone who is under investigation for multiple violations of federal criminal law should be allowed to select one of the justices who may ultimately rule on charges against him. These people include devotees of the United States Constitution, followers of the rule of law, and people who have analytical skills and a moral compass. They do not, of course, include Republicans in the United States Congress. The Senators responsible for confirming Trump’s Supreme Court nominee now purport to believe with every fiber of their being that there is no conflict of interest in confirming a justice selected by a president who is under investigation. Whether they actually believe that is open to question, but we’ll never know. In the unlikely event that there happens in the near future to be a Democratic president under investigation for a lengthy list of crimes, a Supreme Court vacancy, and a nominee whose judicial philosophy exempts the president from accountability, the epiphanies will come thick and fast. Until then we can only guess.
The more skeptical among us may be concerned that a “Get Out of Jail Free” judge offered only to the president is inconsistent with the constitutional guarantee of equal protection under the law. The obvious solution to this would be to apply the law to the president. If that is off the table, there is an alternative: don’t apply it to anyone.
Why not allow all criminal suspects to select their own judges and oversee their investigations? The Senate should demonstrate its good faith by immediately enacting the Defendant’s Choice Bill, which I am proposing here, to prove to the country and the world at large that they are not violating their oath by aiding and abetting a suspect President to circumvent the law for political reasons. It’s not too late for Congress to put its ideals into action and treat all criminal defendants with the same respect and deference they have been showing the First Suspect.
The Defendant’s Choice Bill would give all criminal defendants the right to select the judges who hear their cases. Defendants would be given this right from the time they become suspect, because if they only acquire the right once they are charged, they may incur unnecessary legal expenses and will certainly lose valuable time that could be spent creating legal roadblocks to the prosecution. These roadblocks could receive useful assistance from the right judge.
The Constitution has no special qualifications for judges or justices. The Defendant’s Choice Bill applauds and enshrines this lack of specificity. It explicitly permits defendants to select judges who are not currently members of the federal judiciary, or, indeed, lawyers, and it streamlines the confirmation process for defendants’ friends and family members.
In addition to the selection of judges, the Defendant’s Choice Bill has several optional provisions that would further level the playing field. The first would allow defendants to appoint and fire prosecutors and investigators. This would avoid the situation where the prosecutor is not loyal to the defendant and may even be loyal to some institution or abstraction, which as has frequently been pointed out on Twitter, is terribly unfair.
A second provision would give all defendants access to nuclear codes that would enable them to annihilate the planet. This would give them much-needed leverage in the event that they are not satisfied with the fairness of the investigation or the charges against them.
A supplemental provision would allow criminal defendants to define the terms of the laws under which they are charged. Why should they be answerable to some random unrelated third parties? An optional version of this provision would further require that the law be rewritten to allow or, preferably, to commend, whatever actions the defendant is determined by investigators to have taken, and to celebrate them with a parade and a Nobel Peace Prize.
