The separation of powers is central to limited government, and limited government is axiomatic for freedom. The separation of powers divides the key functions of government, effectively balancing one off against the other. A free press is often regarded as an informal, separate branch of government (the "fourth estate") in that it freely investigates and scrutinises all branches and powers of government, and informs the people of what those institutions of power, authority, and control are conspiring to do.
The separation of powers makes for messy government at times--well, actually, most of the time. It means that things can't get done--which is to say that the wills of the separated powers of government are often thwarted. Either one branch of government is set against another, bringing stalemate, or the end outcome can be quite different from what some governmental powers intended. Messiness is the price of freedom.
But to the modern mind, government ineffectualness is an indicator of weakness.
In Western societies where increasingly power is believed to be an essential attribute of government and where people look to their government more and more as their omnicompetent god, frustration and impatience with messy, ineffectual government grows.
Messy, ineffectual government is a blessing. It means that the potential damage of government power is limited. The more effective a government is in having its way, the more powerful it is. The less freedom its citizens consequently have. The adage, "the government that governs least, governs best" holds true. But increasingly, Western peoples regard messy government as a curse, a blasphemy against their established religion. If government is one's god, divine messiness and bumbling is unacceptable.
When can government get things done cleanly and effectively under such as system of separate powers? When all the separate powers of government are aligned. When does that occur? Usually under one of two conditions. The first is benign. The separate powers of government become aligned and all push and pull in the same direction when there is a strong, even overwhelming, consensus amongst the citizens on a matter. Rich and poor, black and white, male and female, intellectual and artisan all pretty much agree on the issue at hand and what needs to be done. The judiciary, the executive, and the legislature eventually all become aligned and in concert.
The second is not benign. This occurs when the separate powers of government become aligned under an emergency, a clear and present danger to all. Such times usually mean that executive branch is granted emergency powers. These powers inevitably mean exploding governmental intrusion over citizens: the draft, internment of suspect ethnic groups, involuntary labour camps, censorship of the press, war without legal warrant, perpetual detainment without trial, spying on citizens, lying to the public--all of these we have seen in our recent history.
But apart from these two situations, government, under the Christian doctrine of the separation of powers (prudently required by mankind's natural limitations and its nascent wickedness) government remains a messy, bumbling, business. This leaves those who regard government as the power that puts all things right annoyed and frustrated. And that's when people everywhere start to take short cuts and game the system, trying to push the balances of power in their preferred direction.
Take the recent Zimmerman trial. Whilst it took place under the Floridian judicial system, individuals and powers throughout the country were at work trying to game the system to deliver a certain outcome--which they perceived to be in the "national interest". John Fund, writing in National Review, exposes just how far these ideologues, "civil rights" zealots, and revolutionaries went (and continue to go) to get what they believed was the right outcome, regardless of whether the accused was actually guilty or not. Bigger fish needed frying.
The trial of George Zimmerman should be taught in law schools and elsewhere as a prime example of one of the most mishandled and politically motivated prosecutions in recent U.S. history. If we want to reserve the criminal-justice system for deciding guilt or innocence rather than for playing out social and racial grievances, it’s important to review the spectacle we just witnessed.
Recall that the investigation of Trayvon Martin’s shooting was taken out of the hands of local authorities and placed with an appointed special prosecutor named Angela Corey. She said her job was to rise above public pressure to indict Zimmerman, but within weeks she claimed her job was “to do justice for Trayvon Martin.” She quickly decided to charge Zimmerman with second-degree murder, a charge that may have satisfied public opinion but which required her to prove that the former Neighborhood Watch volunteer harbored ill will and spite against Trayvon Martin, whom he had never met until minutes before the shooting.
The Florida Bar’s rules state that the government’s attorneys shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause . . . [and] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” Angela Corey flagrantly violated those standards. Her prosecutors waited months before giving the defense photos showing the extent of George Zimmerman’s injuries the night of the shooting. Ben Kruidbos, the information-technology director for the state attorney’s office, was shocked when he learned that prosecutors hadn’t turned over to the defense evidence of photos and text messages that Kruidbos had recovered from Martin’s cell phone. The photos included images of a pile of jewelry on a bed, underage nude females, marijuana, and a hand menacingly holding a semiautomatic weapon.
Kruidbos feared he would put his job in jeopardy if he came forward with this information, but he also was concerned about a possible miscarriage of justice, so he directed his attorneys to alert Zimmerman’s defense team about the withheld evidence. He turned over the photos in late May, and the state placed Kruidbos on administrative leave until this past Friday, the day the Zimmerman case went to the jury. That morning, according to the Florida Times-Union, he received a hand-delivered letter from Corey informing him that he was fired and that he “can never again be trusted to step foot in this office.” The treatment he received for telling the defense about government misconduct will discourage others from becoming whistleblowers.
In addition, Corey’s deputies interviewed key witnesses with Trayvon Martin’s family present. Jonathan Turley, a self-proclaimed liberal and a law professor at George Washington University, called such behavior “a highly unusual and improper practice.”
The government’s presentation of its case in court was so badly bungled that panicky prosecutors demanded at the very end of the trial that jurors be allowed to consider not just a second-degree murder charge but also manslaughter and third-degree murder due to child abuse (the 158-pound Martin was 17 at the time of his death). The judge allowed the jury to consider the manslaughter charge but not the charge of child abuse. Noted Harvard Law School professor Alan Dershowitz told radio-talk-show host Steve Malzberg that such last-minute maneuvering is apparently allowed in rare circumstances by Florida law — but “these prosecutors should be disbarred,” he added. “They have acted absolutely irresponsibly, in an utterly un-American fashion.”
That’s not going to happen. What may happen is a form of double jeopardy if Eric Holder’s Justice Department decides to follow the advice of the NAACP and the Reverend Al Sharpton and file criminal civil-rights charges against Zimmerman. (Justice has already announced that it will investigate such charges.) Even Eliot Spitzer, the disgraced former New York attorney general and governor who seems never to have encountered a liberal cause he couldn’t embrace, says that such a move would be problematic. “The Justice Department will step in, but it’s in a very dicey position because there has been a criminal case,” he told the New York Daily News. “Double jeopardy is a fundamental principle in our American judicial system, as it should be. And so it’s going to be hard for them to come back at the defendant.”
Here’s hoping that the tensions and anger stirred up by the Trayvon Martin case subside instead of being inflamed by a rogue Justice Department. But let’s not forget the prosecutorial abuse the trial has revealed. If a criminal-justice system can be hijacked for political purposes, it can also be misused in other cases and at other times. Of course, it was important to thoroughly review Trayvon Martin’s death. But allowing politically correct prosecutors to cross bright lines limiting their behavior only politicizes our system and helps no one except demagogues and cable-TV talking heads in search of ratings.
— John Fund is national-affairs columnist for NRO.