The Morning Jolt

Law & the Courts

Will Maxine Waters Cause a Mistrial?

Rep. Maxine Waters speaks to the press after standing with protesters in front of the Brooklyn Center police department in Brooklyn Center, Minn., April 17, 2021. (Octavio Jones/Reuters)

On the menu today: a look at Maxine Waters and the long road that led to a California congresswoman possibly forcing a mistrial in the most high-profile police-brutality case in decades.

The Long History of Turbulent Waters

CNN’s assessment, in an “analysis” piece written by White House reporter Stephen Collinson, front and center on their homepage: “Waters’ Comments on Chauvin Trial Expose Republican Hypocrisy.

Yeah, sure, go with that, fellas.

In case you missed it, here’s what Maxine Waters said:

Representative Maxine Waters (D., Calif.) told demonstrators to “stay in the street” and become “more confrontational” if former Minneapolis police officer Derek Chauvin is acquitted of killing resident George Floyd.

Waters arrived in Brooklyn Center, Minn., on Saturday to join demonstrations over the police shooting of Daunte Wright last week. A local officer shot and killed Wright with a handgun during a traffic stop after intending to use a Taser., sparking nightly demonstrations in front of the local police headquarters, with some turning violent.

“I’m going to fight with all of the people who stand for justice,” Waters told reporters at the Saturday demonstration. “We’ve got to get justice in this country and we cannot allow these killings to continue.”

When asked what protesters should do moving forward, Waters said “We’ve got to stay on the street and we’ve got to get more active, we’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”

Waters told reporters “I hope we’re going to get a verdict that will say guilty, guilty, guilty,” in the Chauvin trial. “And if we don’t, we cannot go away.”

Maxine Waters will turn 83 in August. She has been in Congress since 1991; she came straight from the California state legislature, where she was first elected in 1976. Her smallest share of the vote in her congressional races came in 2014, when she won just under 71 percent of the vote. For a long stretch, she was winning more than 80 percent in the general election, cycle after cycle. She has never had a serious primary challenger. She currently chairs the House Financial Services Committee. She is about as impossible to dislodge from her seat as any officeholder in the United States; she is effectively untouchable.

She has also been a practitioner of heated rhetoric since long before the Trump era.

In 1992, she called President George H. W. Bush “a racist for many, many reasons. . . . He is a mean-spirited man who has no care or concern about what happens to the African-American community in this country. I truly believe that.” That same year, during the L.A. riots, she objected to Mayor Tom Bradley’s characterization of the rioters as “hoodlums and thugs,” contending that “some were desperate mothers stealing Pampers.” She referred to the presence of the National Guard as an “occupation.”

In a subsequent interview with the New York Times, Waters said the 1992 rioting and looting were crimes of opportunity:

She also said that many of those involved in the looting were people with no previous criminal records who stole because they saw others doing it. In the same way that leaving your keys in your car can tempt someone into becoming a criminal, Mrs. Waters said, the mayhem turned good but poor people into looters.

“Well, the keys were in the car for women who wanted shoes for their children and bread,” she said. “Many of them didn’t feel good about it afterward, but they did it.”

Mrs. Waters said that those who criticize her response to the rioting do not understand her role or that of other black elected officials.

“There really are expectations from whites and white journalists that we’re going to go out there and say, ‘cool it, baby, cool it,’ ” she said. “But that’s all they want us to do. I know how to talk to my people. I know how to get my point across and I think I did it.”

When the San Jose Mercury News retracted an infamous article alleging that the CIA helped import and spread crack cocaine into the nation’s inner cities, Waters dismissed the retraction and continued to call for an investigation: “I never cared how much was sold; I’ve only cared that some profits did support the Contras from the sale of drugs and that shouldn’t have happened in America.”

In 2000, she more or less forced Joe Lieberman to change — or “clarify” — his positions on affirmative action and school vouchers (!) upon being named to the Democratic ticket with Al Gore. When John Ashcroft was nominated to be attorney general, she said he “represents everything that we know to be harmful to us.” In 2005, Waters said of her colleague in the Senate, Dianne Feinstein, “I think Dianne is more interested in protecting her centrist credentials than her feminist credentials.” In 2011, she said the Tea Party “can go straight to hell” and suggested President Obama wasn’t willing to fight and had been neglecting the black community.

In April 2017, four months into Donald Trump’s presidency, she declared, “The President is a liar, his actions are contemptible, & I’m going to fight everyday until he’s impeached.” Later that day, on MSNBC, she said, “I have not called for impeachment.

In 2018, Waters said of Trump administration officials, “if you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd. And you push back on them. And you tell them they’re not welcome anymore, anywhere.” She said of Trump in 2020, “I’ve worked with gangs, I’ve worked with Crips, I’ve worked with Bloods. And there’s more integrity in many of these young people in the hood than this man has.”

Keep in mind, at no point did any stance Waters took or statement she made generate the slightest risk that she might not be reelected. Rebukes from her Democratic colleagues have been few and far between, although not nonexistent. For Waters, decades of life in politics have taught her that there is little or no downside to using the most incendiary rhetoric she can imagine.

Waters is used to saying whatever she feels like saying and not having to worry about the consequences. And we’re all used to elected officials shooting their mouths off; this has not been a golden era for responsible and careful political rhetoric. But this past weekend, Waters stumbled into the rare situation where her usual inflammatory rhetoric could have big consequences.

Yesterday, in the trial of former Minneapolis police officer Derek Chauvin, defense attorney Eric Nelson motioned for a mistrial: “An elected official, a United States Congressperson, was making what I interpreted to be and what I think are reasonably interpreted to be, threats against the sanctity of the jury process, threatening and intimidating a jury, demanding that if there’s not a guilty verdict that there would be further problems, Your Honor.”

Judge Peter Cahill did not think that Waters’ comment, by itself, was sufficient to declare a mistrial. But he acknowledged other judges might not see it the same way:

Well, I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned . . .

I’m aware that Congresswoman Waters was talking specifically about this trial and about the unacceptability of anything less than a murder conviction and talk about being confrontational. But you can submit the press articles about that. This goes back to what I’ve been saying from the beginning. I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function. I think if they want to give their opinions, they should do so in a respectful and in a manner that is consistent with their oath to the Constitution, to respect a co-equal branch of government.

By the time you read this, the jury in the Chauvin case may have reached a decision on the charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. Many people are hoping for a guilty verdict, either because they believe the prosecution proved its case, or because they believe a not-guilty verdict — or even a guilty verdict on fewer than all charges — will spur another round of rioting, looting, and violence.

But it is conceivable that if the jury reaches a guilty verdict, Chauvin’s lawyers will argue, on appeal, that the jury was intimidated into reaching that decision by Waters’s comments urging people to get “more confrontational” if the jury didn’t rule the way they wanted. And some other judge may find that argument compelling enough to declare a mistrial — likely forcing the entire trial to start over again. And if that comes to pass, Maxine Waters, congresswoman from California, will have managed to undo the conviction of the most infamous former police officer in America.

But how was Maxine Waters to know her heated rhetoric could have such dire consequences? Throughout her time in elected office, her rhetoric never had any such consequences before.

As for that CNN piece, is there hypocrisy among some folks who insisted that Donald Trump’s January 6 speech should be considered incitement, but that Waters’s absolutely isn’t, and vice versa? Sure. But that’s a fairly small percentage of the public. Collinson at least acknowledges early on in his piece that Waters’s comments were “legally unwise and raise questions of Democratic double standards” and that this “justifiably caused an uproar.” He also notes the entirely plausible argument from GOP members of Congress that “her call on protesters to ‘get more confrontational’ if they don’t like the verdict would have resulted in swift punishment from leadership in Congress if they were uttered by a Republican.”

At some point, America’s political culture will have to move on from Donald Trump. If you thought his behavior in office was egregious, you cannot adopt it and expect those who disagree with you to change their ways. If you thought his behavior in office was acceptable, you must accept it from your political opponents. In the end, we do not have the power to alter the standards of others. They must decide for themselves what they expect of themselves. You can only decide what your standards and values are — and then go out and live them.

ADDENDUM: So, are we all just expected to pretend that 18-year-old Greta Thunberg is an all-purpose, all-knowing expert on all topics now? The World Health Organization invited her to a briefing and Thunberg declared, “It is completely unethical that high-income countries are now vaccinating young and healthy people if that happens at the expense of people in risk groups and on the front lines in low- and middle-income countries.”


The Latest