The Law is the true embodiment
Of everything that’s excellent
It has no kind of fault or flaw
And I, my Lords, embody the Law
—Gilbert and Sullivan
I am the law and the law is not mocked.
—Inspector Javert, Les Miserables
Democratic Senator Kamala Harris is running for President, mostly on her record as “progressive prosecutor.” To explain what’s wrong with Harris, I have to ask you about the president.
Riddle me this: What, exactly, is wrong with the president? Is Trump against the law, or is he the embodiment of the law?
We’re used to thinking of the President as a criminal—and he is. Most of us detest him, and common loathing unites us in a warm, familial hunting pack. Yet below our shared disgust for Trump…our reasons why vary. We’re here for different purposes, as the undertaker told the doctor at the sick man’s bedside.
Broadly, we fall into two camps.
People who see Trump as Outside the Law see Trump as an invading virus, an aberration. He’s a creature from outside, a bog terror who somehow slinked indoors while we weren’t looking. He’s not like us. In this version of the story, all of the toxins and poisons come from him: The Wall is his, and the Muslim ban is his, and the unjust economy is his, and racism is his. Once he’s gone, we turn back to normal. Like a pumpkin going full coach at midnight. Back to brunch, as one sign famously read.
People who understand Trump as Inside the Law have a very different story to tell.
In reality, Trump is as American as apple pie and gerrymandering. Trump is one of us, a con man in a con man’s era. Watch the Hulu documentary on the Fyre Festival and tell me it’s not true. Donald J. Trump is the subtext made bare. America has always been a country of cold Wendy’s burgers piled high. The Orangeman was simply the first President stupid enough to exhibit them in the White House. Child cages existed before Trump, our wars existed before Trump, our cruel immigration system existed before Trump, our private prisons existed before Trump. The Law has always been bad. Trump just makes it explicit.
I bring up Trump because it’s a short way of explaining the Problem with Kamala Harris. How you explain Trump has to do with how you feel about the law—and how you feel about the law defines how you feel about Harris, and her campaign for the presidency.
In a story about how Harris isn’t “a natural fit” in “today’s Democratic party,” Christopher Cadelago wrote:
According to interviews with a half-dozen of her confidants and strategists, Harris will court voters wary of law enforcement by presenting herself as a kinder and gentler prosecutor — a “progressive” attorney who advocated for the vulnerable and served the public interest. At the same time, they believe leaning into her background will allow her to project toughness against Donald Trump, and contrast what they call her evidence-based approach to law and politics with the president’s carelessness with facts and legal troubles with the special prosecutor. “In the face of a lawless president and a lawless administration, Americans are going to be looking for somebody who represents and stands for the rule of law,” one Harris adviser said.
Harris argues that she’s right for the Presidency because she will return us to the law. As Vox noted:
[Harris] has taken some hits on her prosecutorial past … she’s bound to face scrutiny for her record on criminal justice, which has been criticized for its seemingly conflicting approaches to issues including the death penalty and incarceration. She touched on the issue during the GMA appearance. “It is a false choice to suggest that communities don’t want law enforcement. Most communities do. They don’t want excessive force, they don’t want racial profiling,” she said. “People want to know that their law enforcement is going to conduct themselves without a system of bias.”
Forget (for a moment) the foolishness of playing on conservative turf. The rule of law. That’s her ticket. Harris is an embodiment of the law.
But the law is wrong. Surely we’re all adults here.
The law was built for people like Trump. Indeed, Harris proved it, when she let Treasury Secretary Steve Mnuchin get away free during the housing crisis.
“People want to know that their law enforcement is going to conduct themselves without a system of bias.”
But the point of American law, in its present form, is to construct a system of bias. “Progressive prosecutor” is an oxymoron. In a brilliant vetting by The Intercept, Briahna Gray summed up the problem:
... as attorney general of California, she criminalized truancy — making it a crime for kids to be late for school and dragging into the criminal justice system even more disproportionately low-income, predominantly black and Latino families. She’s overlooked the misconduct of her prosecutors and fought to uphold their wrongfully secured convictions. She defended California’s choice to deny gender reassignment surgery to a transgender inmate, and in 2014, she appealed a federal judge’s holding that the death penalty was unconstitutional. This list goes on and on.
As Gray points out, “The problem, more precisely, is that she was ever a prosecutor at all.” With one or two odd exceptions, there are no progressive prosecutors, any more than there are woke billionaires or married popes. As Gray says:
To become a prosecutor is to make a choice to align oneself with a powerful and fundamentally biased system.
David Dayen, in the New Republic, notes that “no public official in this country, from Barack Obama on down, covered themselves in glory during the foreclosure crisis; to say that Harris failed to prosecute bankers is simply to say that she was a public official with authority over financial services fraud in the Obama era.”
With apologies to Dayen, this is a fantastic argument for widespread skepticism of anyone who had prosecutorial power during the Obama years.
Don’t take my word for it. Read Lara Bazelon’s commentary on Harris in the New York Times. Harris, Bazelon wrote, battled “tooth and nail” to uphold “wrongful convictions” that had been won by misconduct, including “evidence tampering, false testimony and the suppression of crucial information by prosecutors.”
Consider her record as San Francisco’s district attorney from 2004 to 2011. Ms. Harris was criticized in 2010 for withholding information about a police laboratory technician who had been accused of “intentionally sabotaging” her work and stealing drugs from the lab. After a memo surfaced showing that Ms. Harris’s deputies knew about the technician’s wrongdoing and recent conviction, but failed to alert defense lawyers, a judge condemned Ms. Harris’s indifference to the systemic violation of the defendants’ constitutional rights.
In 2014, when a reporter asked her about the legalization of marijuana, Bazelon continues, Harris “laughed.” She later “evolved” on the issue … when enough polls were in favor. Bazelon again:
In 2015, she opposed a bill requiring her office to investigate shootings involving officers. And she refused to support statewide standards regulating the use of body-worn cameras by police officers.
Kamala Harris was the Attorney General of California. She was the law. And what did the law do, with the law’s power? As Li Zhou said:
She pushed for programs that helped people find jobs instead of putting them in prison, but also fought to keep people in prison in certain cases that included evidence of wrongful conviction. She refused to pursue the death penalty against a man who killed a police officer (and personally opposes the penalty), but also defended California’s death penalty system in court. She implemented training programs to address police officers’ racial biases but also resisted calls to get her office to investigate individual police shootings.
Let’s think about the law Harris claims to represent. Not just in California, but across this country. What is that law like? What are its fruits?
The law fills the jails with nonviolent offenders. The law gleefully sends men and women to the death-house. The law jails more people than Josef Stalin. The law tells me that a 100-to-1 sentencing disparity of crack versus powder cocaine is well and good in the eyes of justice. As the ACLU reminds us, “5 grams of crack carries a minimum 5-year federal prison sentence, while distribution of 500 grams of powder cocaine carries the same 5-year mandatory minimum sentence.” As the group wrote in 2006:
In 1986, before the enactment of federal mandatory minimum sentencing for crack cocaine offenses, the average federal drug sentence for African Americans was 11% higher than for whites. Four years later, the average federal drug sentence for African Americans was 49% higher.
Yes, yes, let’s hear more about the goodness and glory of the law. Isn’t it something? The law extracts profit from prisoners, underpays them, and denies them humanity. The law refuses to prosecute the rich, and punishes the poor. The law shuts down the government on the whim of a few powerful people. The law lets Jeff Bezos keep his employees in poverty, and the law builds iron bars—and the law decided, just yesterday, to keep the president’s trans military ban.
The law, the law, the law! The greatest irony of the Trump era is that Trump is a felon and he doesn’t even need to break the law to win. The law is already on his side in every way that counts, from the estate tax to the rules of the Imperial Presidency. And here comes Kamala Harris, to tell us how badly communities “want law enforcement.” What in God’s name is she talking about? The one thing American communities do not want—especially poor communities—is more law enforcement.
The Senator is not a Sith lord. She’s no opera villain; there’s nothing of Cheney in her. Rather, see her for what she is: an utterly typical, upwardly mobile, thoroughly spineless member of the corporate wing of the Democratic Party. She did exactly what you’d expect a Clinton/Obama-era professional to do: hug authority, court the rich, and follow austerity.
I don’t envy her. Like most centrists, she’s deathly afraid of progressivism. And like every politician, Harris fears losing. She must feel torn. How can she survive in an era when the base can’t be easily fooled by triangulation? Really, how can the Senator endure when champions like AOC and Rashida Tlaib set the pace?
To her credit, Harris spoke the truth. She does not serve justice; she serves the law.
And so, how strange for her to announce on Martin Luther King Day. How many times was King arrested? How often was he condemned as a crook? His critics sniped at him. The FBI tapped his phones, the government watched him, and called him a lawbreaker. They were right—good people were forced to be criminals. Jim Crow was legal, and Jim Crow was evil, and the law had to fall in the name of justice. King knew the gap between the right and the legal. He chose justice.
Which side do you think Kamala Harris would come down on, in that fight? Where has she spent her career? On the side of right? Or on the side of prisons? Dickens was right: at the end of the day, the law is an ass.