Commentary: Justice’s Fork-In-The-Road: Laws for The Super Rich and The Rest Of Us

By Darrell Ehrlick for the Daily Montanan

An aerial view of a natural gas fired electrical generation station being built near the Yellowstone River in Laurel, Montana. (Photo by Ed Saunders, used with permission).

What do Donald Trump and NorthWestern Energy have in common?

They both seem to indicate a troubling new trend that suggests if you have enough money, and by extension, enough attorneys, you can get what you want, do what you want, even if it’s illegal.

Now, for the connection.

In a recent decision by New York judge Juan Merchan, he announced that Trump will not escape sentencing for paying hush money to a porn star to keep news of an extramarital affair out of the public’s view during the waning days of the 2016 presidential election. Trump will receive a punishment that’s little more than a hollow slap on the wrist, largely because of the extreme position of power he has, and thanks to an ungodly amount of money spent on his behalf — money that few of us will ever approach.

Meanwhile, in a recent decision by the Montana Supreme Court, the justices found that work in tandem between Montana Governor Greg Gianforte, the Legislature and NorthWestern Energy meant that Montana’s largest utility was able to game a state agency and skirt laws to build a methane-fired electrical generation station near Laurel that would release the equivalent of roughly every car in Montana’s largest county without any pollution protection. The Supreme Court said the state was derelict in its duty to assess the environmental degradation but then threw up its hands and allowed the illegal plant to chug ahead, releasing a laundry list of toxins that no one — not even NorthWestern Energy — disputed.

Trump and NorthWestern Energy seem to share two other notable similarities: No matter how many times they seem to be heading toward a consequence, they seem to avoid the punishment that most of us mere mortals would not.

And that may be just as corrosive as the perception that the judiciary in Montana needs to heel to the whims and dictates of the Legislature, most of whom are not attorneys and some of whom never even finished college, let alone attended law school.

That may smack of the same tired woke, elitism claims that Republicans love to throw around, but education in all settings is important. It’s odd how the elitism tag is applied to certain professions, like teaching and the law, but no one disputes the necessity of surgeons going to medical school, nor electricians needing to be licensed and trained to play with thousands of volts.

And for NorthWestern, the company continues to complain to the governor that the problem with Montana is too much oversight when the Supreme Court has repeatedly affirmed that both have worked successfully to ignore and avoid the state’s constitutional mandate of a clean and healthful environment.

There may indeed be problems with the justice system, and I would suggest it’s not in how judges and justices apply the law, it’s how they apply the punishment. And the key difference is that both Trump and the state’s largest public utility has been able to buy lawyers to fight every decision, manipulating several tiers of government simultaneously in order to get what they want, only to have the courts declare their actions illegal, but the consequences just too messy or cumbersome to enforce.

Meanwhile, the rest of us who struggle to pay grocery bills, rising property taxes and energy costs can’t afford all the things we used to, and certainly couldn’t afford attorneys or risk the consequences that come along with flouting the law.

In other words, the Republicans have detected the symptoms of a sick justice system, they’ve just come to wrong conclusion. The problem isn’t that the judiciary — whether its Montana, New York or the federal system — isn’t applying the laws correctly, it’s that those courts aren’t applying the consequences fairly, or applying them based on their respective attorneys’ ability to drag out the process that leaves everyone weary, exasperated and them continuing to trudge ahead.