Former President Donald Trump came closer to the truth than he realized when he compared his legal dilemma to Al Capone's—just not in the way he intended.
Trump inaccurately claimed he has been indicted more times than Al Capone, the notorious bootlegging Chicago gangster from the 1920s (at least six for Capone, four for Trump), but it hardly matters. What really matters is what Trump and Capone's dilemmas say about the difference between law enforcement and justice.
Al Capone led a flamboyant life as a celebrity bootlegger and populist, smuggling illegal alcohol into the United States during the unpopular period of Prohibition. He ultimately was found guilty of violating tax laws. His irreverence and populism brought him power and adulation in Chicago for years.
Donald Trump has led a flamboyant life as a serially unsuccessful real estate developer and successful media personality during the Roaring 80s. His real estate enterprises repeatedly went bankrupt. He ultimately was found to have committed fraud in his return to wealth in recent years. Still, his irreverent populism brought him to the White House.
Some Americans aren't bothered by these antics. Many of us are amused by a shameless huckster. You can see the quintessential personality in Zero Mostel's adorable fraudster in the original movie version of the Producers. It reflects many Americans' love for defiant rebels and "to-hell-with-it" hedonism.
But now we come to the dark side. Capone was a murderer, including the seven dead during the notorious St. Valentine's Day Massacre. Trump was an insurrectionist whose attack on the United States Capitol left as many as nine dead and hundreds wounded. Not funny anymore?
Not to anyone with a sense of justice. To us, Capone's crimes and Trump's deserve the highest level of opprobrium. They leave us expecting our justice system to root them out. Yet—so far—neither Capone nor Trump has been convicted of the crimes they are notorious for.
Instead, Capone's career of crime was finally halted because bookkeeping revealed his tax fraud. He went on trial for not paying taxes; he tried to intimidate jurors and did time for contempt of court. He died a broken man, in part from his seven years in prison—in part from the syphilis he acquired from unseemly sex.
Donald Trump's career has yet to be stopped. Rather than facing—yet anyway—the consequences of his major wrongdoing, he is on trial because bookkeeping allegedly revealed his campaign fraud. Like Capone, he has tried to intimidate jurors, has been found in contempt of court, and is suffering from an unseemly sexual liaison.
These circumstances highlight the difference between law enforcement and justice. One view of law enforcement seeks to convict a targeted individual of a bad thing, no matter how slight. It's the lazy man's lobster of law enforcement. It leaves a defendant free to claim that the prosecution wouldn't proceed against any other person in similar circumstances. It is the same argument Hunter Biden has made about his allegedly false statement on his gun application: "The wrong happens all the time, and only when it comes to me do you pursue it." Many times, it reflects prosecutors' frustration when they can't get at a targeted person in any other way.
Justice is different. It focuses on the wrong, not the man. Prosecutors have limited resources. They must make choices. The greater the wrong, the more urgently it demands prosecution. Particularly when you are dealing with a former president of the United States, prosecutors and judges should bring to trial first the thing that jumps off the page the fastest and the farthest. It should be a matter of good and evil. Justice can't be fully felt without it. Indeed, the widows and orphans Al Capone left behind must have been bitter to see him jailed for tax evasion instead of murder. And indeed, we should all be bitter if Donald Trump escapes responsibility to the dead and injured of Jan. 6, 2021, while paying only for his payoff of a porn star.
Trump may be guilty of the charges in the hush money trial in New York, but, to some, it's a slightly silly sideshow of law enforcement. He won't really face justice until he pays for the insurrection of Jan. 6.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
