For a long time, scholars, commentators, and officials have debated the efficacy of shame as a form of punishment. Opinion has been divided over the efficacy and appropriateness of using it as a response to a criminal conviction.
But nowhere did anyone ever suggest that shaming someone would be an acceptable reason to prosecute them. Until now.
On May 14, Ed Martin, the newly appointed director of the Justice Department’s so-called “Weaponization Working Group” and the department’s pardon attorney, said he plans to use his position to “expose and discredit” people on President Trump’s enemies list, whether or not there is sufficient evidence to prosecute them.
Former Federal Prosecutor Barbara McQuade gets it right when she says, “Ed Martin may have finally found his calling: He will lead a made-up sounding organization to investigate imagined abuses of power.”
In a society governed by the rule of law, prosecutors leave people alone unless and until they have reason to believe they have violated the law. However, in Martin’s view, for the people on whom President Trump wants to seek revenge, guilt comes before the crime.
Referring to the president’s enemies, Martin said his guiding philosophy will be: “If they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them, and in a culture that respects shame, they should be people that are ashamed.”
A culture that respects shame? Seems an odd way to characterize what the president and his administration are trying to foster.
Shame, as Philip Rotner writes in The Bulwark, “is generally understood to be a painful emotion caused by consciousness of guilt, shortcoming, or impropriety.” Shamelessness, on the other hand, means that a person is “‘insensible to disgrace’. Not necessarily unaware, but ‘insensible.’”
“That’s Trump,” Rotner argues, “Trump’s problem isn’t that he doesn’t know right from wrong. It’s that he doesn’t care.” He says that Trump “is expanding and revising our understanding” of the meaning of shamelessness.
And as Rotner puts it, “The crown jewel of Trump’s shamelessness has to be his attacks on the Biden family. Trump has been pushing phony corruption allegations against the Bidens that were manufactured out of nothing by Steve Bannon’s gang of conspiracy-mongering trolls.”
Enter Martin.
He is one instrument to call out the president’s “adversaries for his own vices….”
Not surprisingly, Martin was very clear about the people he intends to investigate, people he called “really bad actors that did really bad things to the American people.” As the Daily Beast reports, Martin will have a big target list if he wants to go after those who Trump already has called out, including “Bruce Springsteen and Kamala Harris to pollsters who show his approval rating is sinking, as well as prosecutors who have worked on cases against him, such as New York Attorney General Letitia James and former Special Counsel Jack Smith.”
But Martin’s real target is, of course, former President Biden. No surprise there.
Talking about his job as pardon attorney, Martin stated: “[My] job as pardon attorney will be to make clear how the pardon process works, and I think no one with the standard of reasonableness thinks what Joe Biden did at the end of his term was really reasonable….I think the Biden pardons need some scrutiny.”
More generally, Martin explained, “I'm now looking closely, you know, at the Biden administration… they targeted individuals to make sure they could put them in jail to build a case.”
How ironic?
Martin is denouncing something the Biden administration allegedly did while doing that very thing himself. As The New York Times puts it, he is intent on “weaponizing an institution he has been hired to de-weaponize.”
Shameless.
But undisturbed, Martin claims, “That’s the way things work, and so that’s how I believe the job operates.”
No, that’s not how the job operates.
Martin’s planned use of his power to shame the innocent would violate several tenets of the American Bar Association’s (ABA) “Criminal Justice Standards for the Prosecution Function.” For example, the ABA says that “the primary duty of the prosecutor is to seek justice within the bounds of the law…The prosecutor should seek to protect the innocent and convict the guilty…and respect the constitutional and legal rights of all persons…”
It also insists that “a prosecutor should not use other improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion.”
Moreover, NBC reports that Martin’s plan to “‘name’ and ‘shame’ individuals…would amount to a major departure from longstanding Justice Department protocols.” Those protocols “state that officials generally shouldn't confirm the existence of or otherwise comment on ongoing investigations”.
But no mind. As Martin explained, “When I was asked to switch over here, I was told, you know, this job, you need to be out more and talk about what’s going on. So I think we’ll be a little bit more outward facing in terms of talking about what’s happening,” though he didn’t say who gave him that instruction.
He clothed his promised shaming campaign as a public service. "I will say,” Martin claimed, “that the prosecutor’s role, and at this moment in our history, is to make clear what the truth is and to get that out.”
He added derisively, “It can’t be that the system is stifling the truth from coming out because of some procedure."
In that one remark, we can see Martin’s contempt for the rule of law, which insists that the powerful have to follow procedures, even when it is inconvenient to do so. He seems determined to use his position to conduct trials by media, where balanced consideration of the facts gives way to outrageous allegations, repeated over and over again.
Shaming is a form of punishment. It may or may not be wise to use it after conviction.
But it is never legitimate for the government to use it before anyone has been convicted of anything.
More than eighty years ago, Robert Jackson, then-Attorney General of the United States, said that “the prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”
Martin is apparently “that kind of person.” And he has found his niche in Trump’s Justice Department.
Jackson, as if foreseeing the world we now find ourselves in, warned about prosecutors who “pick people that [they think they] should get, rather than pick cases that need to be prosecuted.”
“In such a case,” Jackson said, “it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass… that the greatest danger of abuse of prosecuting power lies.”
Americans need to heed Jackson’s wisdom and urge Congress to do what it can to prevent the Justice Department, or any part of it, from becoming a vehicle for the deployment of shame. And courts, when the occasion arises, should carefully scrutinize Martin’s weaponization group to make sure he is not allowed to act on his plan.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
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