William Shakespeare’s Measure for Measure is usually talked about in terms of sexual harassment. The plot revolves around a man condemned to death for having sex with his fiancé before marriage. His sister, Isabella, a would-be nun, appears before the sentencing magistrate, Angelo, to plead for mercy.
We have little sympathy for Angelo, and for good reason. First, he is a cad (he abandoned his fiancé after her dowry was lost in a shipwreck). Second, Angelo tells Isabella that he will save her brother’s life only if she has sex with him.
Doubtless, Shakespeare wants us to view Angelo as a repressed monster (one character says that Angelo’s “blood is very snow-broth”), but Shakespeare always complicates matters. The initial exchange between Isabella and Angelo quickly turns into a debate between leniency and rigor.
Isabella, of course, pleads for mercy, and she makes a number of good points. But Angelo, representing the law, also, has right on his side, and it’s here that Shakespeare’s play speaks to our present moment.
When Isabella pleads, “let it be his fault, / And not my brother” (a confusing line that means “let the fault be condemned, but not my brother”), Angelo responds:
Condemn the fault and not the actor of it?Why, every fault’s condemned ere it be done.Mine were the very cipher of a functionTo fine the faults, whose fine stands in record,And let go by the actor.
In other words, if someone is caught breaking a law, it makes no sense to condemn the crime, but not the criminal. That would render law enforcement meaningless because criminals could act with impunity, doing whatever they want without fear of consequences.
Which brings us to Judge Juan Merchan’s sentencing decision for Donald Trump’s conviction for committing 34 felonies.
At first, it seems that Merchan is going to throw the book at the convicted criminal. Trump is not yet president and so, “immunity from criminal process for a sitting president does not extend to a President-elect.” The judge skewers Trump’s argument that the charges against him are not serious and should be dismissed:
It was the premediated and continuous deception by the leader of the free world that is the gravamen of this offense. To vacate this verdict on the grounds that the charges are insufficiently serious given the position Defendant once held, and is about to assume again, would constitute a disproportionate result and cause immeasurable damage to the citizenry’s confidence in the Rule of Law.
And the judge notes Trump’s contempt for the rule of law:
Defendant’s disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. Indeed, Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole.
Merchan clearly realizes that the integrity of our judicial system is at stake. The jury, persuaded by the testimony of 22 witnesses, and over 500 exhibits, found Trump guilty of 34 felonies. Trump has shown zero contrition, and in fact, insulted the judge and the jury at every turn. Now it’s time for consequences, to show the world that in America, nobody, but nobody is above the law.
Except that Merchan unaccountably draws back, and instead of Angelo, he follows Isabella. In place of imposing some sort — any sort! — of punishment, Merchan condemns the act, but not the actor. He gives Trump an “unconditional discharge”: no imprisonment, fine, probation, or conditions of any kind.
Given the nonstop abuse levelled at Merchan by Trump and his followers, I can understand why the judge wanted to have done with this case and move on with his life. But by letting Trump go without any consequence at all, Merchan has undermined the very rule of law he sought to uphold.
By refusing to impose any sort of punishment for Trump’s crimes, Merchan has, as Angelo warned, reduced himself and his position to a mere “cipher,” meaning “a person who fills a place, but is of no importance or worth, a nonentity, a ‘mere nothing’.”
Timothy Snyder begins his brilliant and necessary book, On Tyranny: Twenty Lessons from the Twentieth Century, by observing that “most of the power of authoritarianism is freely given,” that by obeying in advance, people teach power “what it can do.” That, sadly, is what Merchan has done. By granting Trump an “unconditional discharge,” he has shown that Trump can get away with pretty much anything because the judiciary is too cowed to impose consequences.
This does not bode well for what happens next.
Peter C. Herman is a professor of English literature at San Diego State University. He has published books on Shakespeare, Milton and the literature of terrorism, and essays in Salon, Newsweek, Inside Higher Ed, and Times of San Diego. His latest book is “Early Modern Others: Resisting Bias in Renaissance Literature” (Routledge).
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