Merrick Garland’s ‘Chinatown’ Moment

Jack Nicholson as detective J.J. Gittes in “Chinatown.” Video still.

Cassidy Hutchinson’s testimony before the House Jan. 6 Committee made it clear that Donald Trump built a replica of his shambolic family business in the White House.

It provided the only environment in which he could function, and he swam in it like a fish in the sea.

Meanwhile, everyone else struggled for survival. Beneath the opera bouffe surface supplied by Rudy Giuliani and Sidney Powell, there was a sinister undertow.

Work for Trump, and you were surrounded by accelerating lawlessness, hidden traps and dangers, mysterious forces, betrayals, lies, chaos, tantrums. Ordinary expectations of cause and effect were suspended. Words lost their meanings.

There was no “normal” to be restored, no job description that actually described your role, no one you could trust, no solid ground where you could plant your feet.

Trump World recreated the moral atmosphere of Roman Polanski’s classic 1974 film noir, Chinatown.

And the portrait of Trump himself that emerges from Hutchinson’s account summons up a scene near the end of that movie where Jack Nicholson’s detective, J.J. Gittes, confronts John Huston’s villain, Noah Cross, in the garden of Cross’s daughter’s home.

After many wrong turns and bad guesses Gittes has finally figured things out. Cross fathered a child on his own daughter, Evelyn, and he wants access to that daughter of their incestuous union. He deployed his wealth and political power to rig a giant scheme in which Los Angeles’ lifeblood, its water supply, is manipulated to yield him obscene profits.

Gittes asks “Why are you doing it? How much better can you eat? What can you buy that you can’t already afford?”

Huston’s Noah Cross seems startled by the question—he had thought Gittes was smarter than that—but he is delighted by the opportunity to explain.

“The future! Mr. Gittes,” he crows. “The future!”

Noah Cross pursued the Politics of Appetite. So does Donald Trump.

A Politics of Appetite constitutes something quite different from the banal opportunism of people like Mitch McConnell. It does not share the ideological preoccupations of the Federalist Society. It isn’t concerned with immigration, or abortion, or gun control. It is detached from all questions of policy.

It has one simple principle—that principle comes down to “More.”

The Trumpian Future

 The MAGA-hatted Trump fans who fill the rallies, send the money and trash the Capitol, are motivated by a characteristic American nostalgia: nostalgia for a vision of their future as that future once appeared to them, back in the comfortable past.

MAGA’s grievance is not about anything current. It is about something once owned, but now lost—in their view, now stolen.

But the past has no hold on Trump.

He lies incessantly about historical facts partly because in his calculus they simply don’t matter—in fact, they don’t even quite exist. Yesterday’s wants—his casinos, trophy wives, unwilling sexual partners, hotels, airlines, “universities”—are discarded without a second glance.

Their aftermaths are acknowledged, if at all, only as inconveniences to be stalled, or  buried, or out-run, to free the future from constraints.

Impulsive preferences turn into needs; needs into necessities; necessities into entitlements; entitlements into imperatives. Any requirement that you must articulate today the goal you will seek tomorrow is in itself an unacceptable curb and limitation.

Trump knows only that, just as he wants something today, he will want something tomorrow. What?  It doesn’t matter. Like Noah Cross, Trump is certain there will be something; and that he will need it.

In a Trumpian future, there are no limits on what could be wanted, nor on how much of it you will want. Limitlessness itself is the point, and any definition would be an obstacle to achieving it.

“As Little as Possible”

So, our current situation raises a question: What happens when the Politics of Appetite and the criminal law collide?

There’s a scene in Chinatown where Noah Cross’s daughter, Evelyn Mulwray, asks Jake Gittes, what exactly he did for the police. When Gittes says, “As little as possible,” she challenges him: “The District Attorney gives his men advice like that?”

“They do in Chinatown,” Gittes replies.

“As little as possible” pretty well describes Attorney General Merrick Garland’s chosen approach to prosecutions in the metaphorical Chinatown where Trump and his inner circle gambol.

Garland is not the first, or only, prosecutor to decide that less (and later) is more.

The Department of Justice has never charged Trump (“Individual-I”) for his role in the Stormy Daniels hush money case that sent his lawyer and co-conspirator, Michael Cohen, to prison.

Former Manhattan DA Cy Vance deferred prosecutions in the Trump Soho condo scams; Robert Mueller waffled on bringing Russia probe obstruction of justice charges; Vance’s successor, Alvin Bragg, avoided filing New York criminal tax cases.

These prosecutors seem unable to choose a moment at which to act. Every instance of their temporizing weakens them. Is their limp inaction a cause of the Trumpian Chinatown, or is it an effect?

Or is it both? While prosecutors are cautiously polishing their case on the last norm violation, Trump is gobbling down the next norm, and we experience a slow spiral into impunity.

Are prosecutors allowing themselves to be paralyzed by Trump’s bedlam even though their paralysis simultaneously empowers Trump’s potential successors, and we spiral further into Hobbesian dystopia?

I have been a defense lawyer for decades, and I do know a few factually guilty people who were acquitted at trial.

I believe (and I think every serious onlooker believes) that Trump is factually guilty, and if charged will be found guilty by a jury of his peers.

Still, I don’t say an acquittal is impossible, or the prosecutorial fear of it is irrational.

Knowing someone is guilty and proving it are two different things. Prosecutors are right to weigh the possibility of an acquittal in their charging decisions.

Even so, The Principles of Federal Prosecution, that govern federal charging decisions make it clear that a negative assessment of a trial outcome does not bar a decision to bring a charge.

And prosecutors have to recognize that the distinction between knowledge and proof cuts two ways.

Trump’s path to a potential acquittal is not only very uncertain; it is also agonizingly narrow. It depends on showing either that the election was stolen or that he believed the election was stolen.

Up until now, Trump has been able simply to say the election was stolen.

But a trial is not Fox News. At trial he will have every opportunity to prove the claim, and everyone will know he has that opportunity. He won’t take it; he can’t take it. He can’t produce any non-frivolous evidence that tends to show that “fact.”

At trial Trump could try to prove a sincere subjective belief that the election was stolen.  It is very difficult to see how he can hope to demonstrate that without taking the stand, under oath, and facing a withering cross-examination.

The roster of people from Bill Barr on down who told him that the election was clean goes on for pages.

For Trump, the price of a trial “victory” will be: first, a conclusive showing that there was never any evidence from which a sane man could conclude the election was stolen; second, and at best, compelling proof that Trump himself believed what no sane man could believe.

It might—if it works—keep him out of prison. It is also political suicide.

For Trump, acquittal will not be vindication; it will require immolation.

Endgames

In the movie Chinatown, the line “As little as possible” recurs.

Jake Gittes says it to himself, under his breath, as he stands over Evelyn Mulwray’s corpse at the film’s climax. She has been shot by the police. Noah Cross will escape unscathed, and with the teenaged offspring of his incestuous abuse of his daughter under his control.

There’s an argument—one in harmony with Roman Polanski’s pitch-black view of the human condition—that Evelyn Mulwray is dead not because Gittes did too little but because he tried too hard, and failed to reckon with potential unintended consequences.

Maybe that—a lawyer’s version of “First, do no harm”—is Merrick Garland’s argument for inaction too. Still, you have to wonder whom exactly that stance really protects.

It is often said that the last, devasting, line in Chinatown is spoken by one of Gittes’ assistants as he tries to ease Jake away from the scene of the holocaust: “Forget it, Jake, it’s Chinatown.”

But that isn’t true. The last thing we hear in Chinatown is the voice-over of a cop, shouting to the curious residents gathering around the car where Evelyn’s body lays: “Get off the streets! Everybody get off the street!”

James Doyle

Failing to prosecute Donald Trump—because the “prudent” thing is to accept that he must be treated as above (or beneath) the law—says the same thing. 

 The powerful have their appetites. The rest of us had better get out of the way.

Editor’s Note: Hearings of the Jan. 6 committee are scheduled to be carried live on Tuesday and Thursday this week.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes comments from readers.