Here's how to bring Trump and his lawless thugs to justice

We are witnessing lawlessness on a scale none of us has seen in our lifetimes. It’s so bad that over the weekend, even Kamala Harris was forced to admit she’s lost faith in the American system of justice.

“I don’t know if we can trust what’s coming out of the Department of Justice,” the former vice president told MSNBC.

“That pains me to say that, as someone who spent the majority of my career as a prosecutor. Many who have worked as US attorneys … talk openly and rightly about the fact that they should do their work without any fear and not in the interest of favor. That so clearly is not what is ruling day there.”

In her new book, she repeatedly says the Democrats should fight fire with fire. Should they do with the US Department of Justice what the Republicans under Donald Trump have done to it? Her answer: No.

“No president should think of the Department of Justice as being their personal attorney,” Kamala Harris said. “No president should try to influence prosecutorial decisions based on a political agenda, period.”

But I suspect she knows it’s more complicated. No legal institution — not the courts and not the Department of Justice — is going to hold Donald Trump accountable for the crimes he has committed without the political motivation to do so. But there will be no such motivation if the Democratic Party sticks with its “norms and institutions” view of criminal justice. It must channel the public’s desire for retribution.

The people want payback, wrote Christopher Jon Sprigman.

“When this is over – and it will end – there has to be a sustained and severe campaign of retribution, from Trump down to the masked ICE fascists who carried this out,” he said. “No f–––––g kumbaya. Consequences.”

Sprigman is the Murray and Kathleen Bring Professor of Law at New York University and co-director of its Engelberg Center on Innovation Law and Policy. I got in touch with him. Below is our conversation.

JS: The Democrats seem to have stopped talking in terms of compromise and have begun talking in terms of accountability. You think they need to demand retribution (your word). Why?

CS: There are two reasons.

First, the American people need to hear that when this is all over, elected Democrats aren't going to want to sing kumbaya — which is probably the instinct that a lot of them have. If that happens, if perpetrators in this administration aren't punished — severely punished — we'll be right back in this mess very quickly.

Second, the word "retribution" is part of justice. And in situations like the one we face, it should take center stage. Existing law and courts — the institutions we rely on to provide justice — are plainly inadequate to meet the challenge of the wide-scale lawbreaking, abuse and utter lack of human decency that we see from Trump on down to ICE. What's needed is something beyond existing law and legal process.

What would that something be?

I've been re-reading Justice Robert Jackson's opening statement at the Nuremberg War Crimes Tribunal. I'm not saying the administration has risen, or sunk, to the level of the Nazis ... although, give them some time, I suppose. What I am saying is that some of what Jackson says about why a special set of proceedings was required for Nazis — you can't just try them in US courts — is applicable to our situation.

Jackson insisted that "[t]he common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched."

I think our courts — most notably the Supreme Court — have demonstrated that they will not hold Trump to account. So, for example, if Trump's attacks on alleged Venezuelan drug boats are really the murder of a bunch of innocent fishermen, US courts are not going to permit him to be tried for murder.

Later in his speech, Jackson noted that trying the Nazis in regular US courts would be an interminable process — and that years of delay was unacceptable:

"Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole Continent, involving a score of nations, countless individuals, and innumerable events. Despite the magnitude of the task, the world has demanded immediate action. This demand has had to be met, though perhaps at the cost of finished craftsmanship. In my country, established courts, following familiar procedures, applying well-thumbed precedents, dealing with the consequences of local and limited events seldom commence a trial within a year of the event in litigation."

So too here. This administration has been in power less than 10 months, and already the scale of its lawbreaking is immense. Trials in US courts would likely drag on for more than a decade.

Why do we need to go outside existing law and legal process? Why can't we do it ourselves, so the people can get fully behind it?

There is simply no law that squarely covers a lot of what Trump has done. Partially because we could not previously imagine a criminal sociopath being elected president. Partially because the Supreme Court has — based on literally nothing — conjured a crazily broad presidential immunity doctrine just at the moment a criminal sociopath was in place to abuse it.

And also partially because the federal courts are now packed with partisans who cannot be trusted to apply the law evenhandedly. We need new rules, and we need a new institution to judge Trump and his enablers and thugs. We need to apply the Nuremberg model here.

It seems to me, for all these reasons, Trump is going to get away with his crimes. But the same might not be said for his minions. Can our system seek retribution sufficiently to deter future conspirators?

I don't think it's time yet to accept that Trump is going to get away with it. If we leave this to regular law and courts, he will. That's why I'm making these arguments.

The US is currently in a state of lawlessness. It may not seem that way to the average person. The law still applies to them. But that's the trick. The law doesn't apply to Trump and his allies. That is a particularly threatening type of lawlessness.

Law for some. Impunity for others.

And my point is: the law is broken. The response to that should not be strictly legal — at least not "law," as it stands currently. We need a new law that responds to lawlessness. We need a new institution to enforce it on the lawbreakers. That was the essence of Nuremberg.

To answer your question directly: if there's no punishment for Trump and we focus on Trump's enablers, that's a terrible outcome.

That will breed more contempt for the law.

And it should.

To make reforms happen, there must be political will. Something big enough to force the Democrats — who are the only way Trump will feel the consequences of his actions — to act. Perhaps Epstein is the stand-in for all elite corruption and impunity for law?

I worry every day that this is asking too much of a party that retains as its legislative leaders two men as limp as Chuck Schumer and Hakeem Jeffries. I mean, how can any elected Democrat explain that?

But it's not in my nature to just throw up my hands. And there is a level of anger and frustration in this country — and revulsion in seeing our government turn into a crime syndicate — that I think some enterprising politician will eventually harness. Of course, that comes with great danger. We're living very close to the edge right now, and will be for some time, unless we fall completely into the abyss.

The furor around the Epstein files is an indicator that this fury at our elites is shared by many Republicans as well as Democrats. Trump has somehow convinced people — for now — that he is the vessel for retribution (that word again) against corrupt elites. Of course, he never was that. People bought it. They may continue to. But the Epstein files seem to have had some power to shake people's faith in Trump and Trumpism. We'll see how that develops. I'd be surprised if it goes away.

In any event, I hope voters will send Democrats a clear message.

If they do ever regain power, they cannot leave the Trump administration’s lawbreaking unaddressed. And they cannot leave it to existing law and our politicized courts. We need new rules and new institutions. And they have to judge Trump and his enablers, right down to the masked, violent ICE agents on the street.