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Jail Them! They’re Political Offenders!

By Walter Donway

August 25, 2018

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There is no more alarming harbinger of political chaos and freedom’s twilight than the introduction into a nation of the concept—and prosecution—of political crimes.

There is no more alarming harbinger of political chaos and freedom’s twilight than the introduction into a nation of the concept—and prosecution—of political crimes. Literally millions of people in our time have been punished with death or life in a concentration camp or imprisonment—under regimes communist, fascist, or authoritarian—for the “crime” of political disagreement.

Now, Democrats and Republicans alike have no more pressing agenda than to prosecute, convict, and jail their political enemies. The goal is not to punish crime, the goal is to use the criminal justice system, and any available concept of crime to win political battles.

Now, Democrats and Republicans alike have no more pressing agenda than to prosecute, convict, and jail their political enemies. The goal is not to punish crime, the goal is to use the criminal justice system, and any available concept of crime to win political battles.

The announcement of the guilty plea in court by Michael Cohen, formerly a lawyer for President Donald Trump, and the conviction of Paul Manafort, President Trump’s 2016 election campaign director, has stimulated a feeding frenzy by Democrats who have called for President Trump’s impeachment and removal from office. What might be the reason for impeachment, whether or not a crime is involved, and what the U.S. Constitution requires are mere distractions, nit picking, for the President’s political foes. At the moment, leading the charge for criminalizing political difference are Democrats, but that is only because Donald Trump and not Hillary Clinton was elected President. If the shoe were on the other foot, insists Harvard University law professor emeritus Alan Dershowitz—a lifelong liberal Democrat who is leading the protest against impeaching President Trump for his political sins—Republicans would be in full cry for impeaching President Hillary Clinton.

The email server scandal, the Clinton Foundation nuclear fuel deal with Russia, Russian contributions to the Foundation, firing James Comey (as she might well have): A special prosecutor, if President Clinton were foolish enough to permit one, would be cheered on by Republicans praying for grounds to impeach her. And Democrats would be appalled—simply appalled—that Republicans, hating Clinton’s politics, were trying to dress them up as impeachable offenses.

Mr. Dershowitz’s civil libertarian stand against criminalizing political battles, which he has expressed in columns, articles, and interviews since before the 2016 nominating conventions, has made him a pariah among former friends and colleagues (and his relatives targets of abuse, he says) as a Trump apologist and defender.

I have not changed, you have changed, he insists. He argued against impeachment of President Bill Clinton—and earlier against the mob mentality directed at driving President Richard Nixon from office. He reproached Republicans after the Cleveland nominating convention at which at least four speakers called for jailing candidate Hillary Clinton—and one topped that by calling for her execution by firing squad.

The Bipartisanship of ‘The Shoe on the Other Foot’

To qualify as a civil libertarian, says Dershowitz, you have to pass “the shoe on the other foot” test.

To qualify as a civil libertarian, says Dershowitz, you have to pass “the shoe on the other foot” test. If Clinton had been elected (Dershowitz worked hard for the result) and in her first two years in office were dogged by a special prosecutor and by congressional and media demands for her impeachment—what would you say?

How many Democrats, today, pass the “the other foot” test?

How many Democrats, today, pass the “the other foot” test? Dershowitz replies: “There are no civil libertarians on the left. Certainly not the American Civil Liberties Union. The ACLU is dead in the water when it comes to defending the civil liberties of people who they don’t agree with.

Dershowitz replies: “There are no civil libertarians on the left. Certainly not the American Civil Liberties Union. They were the ones who said that the raid on Cohen’s office, taking his lawyer/client files, was a good thing…. The ACLU is dead in the water when it comes to defending the civil liberties of people who they don’t agree with. And that’s just awful.”

Dershowitz has written much on this topic, but his arguments have a hard core—a single solid anchor against changing currents of political persecution.

The U.S. Constitution, he argues, has specific language defining grounds for impeachment. And that language specifies that impeachment is for a crime. Impeachment is not a redress for political policies, however outrageous. Not for incompetent—or outrageous—or dangerous dealing with foreign leaders. Not for mean-spirited policies. And not for actions deemed to threaten the future of the United States.

“Removing a president requires that legal criteria, set out explicitly in the Constitution, must first be satisfied before political considerations can come into play. The impeached president must be found guilty and convicted by two-thirds of the Senate of ‘treason, bribery, or other high crimes and misdemeanors.’”

Dershowitz points out that there are at least 15 provisions in the Constitution, including its 26 amendments, that bear upon impeachment. For example, by “bribery” is meant accepting some form of payment in exchange for a specific promise to deliver a specific political outcome.

Congresswoman Maxine Waters, demanding President Trump’s impeachment, said: “Impeachment is whatever Congress says it is. There is no law.” History professor Allan Lichtman argued that impeachment could be for President Trump’s “war on women” or his policy on climate change, which Lichtman explains is a “crime against humanity.” The authors of the Constitution did not include “crimes against humanity” among impeachable offenses.

Democrats, including politicians and some prominent lawyers, have argued against these inconvenient limitations on impeachment. They have argued, for example, that impeachment and the Senate vote on removal from office is not a trial, not a judicial proceeding, but a purely political one. Recently, Congresswoman Maxine Waters, demanding President Trump’s impeachment, said: “Impeachment is whatever Congress says it is. There is no law.”

Many others have said the same thing. History professor Allan Lichtman argued that impeachment could be for President Trump’s “war on women” or his policy on climate change, which Lichtman explains is a “crime against humanity.”

The authors of the Constitution did not include “crimes against humanity” among impeachable offenses. The Constitutional convention actually explicitly considered including “abuse of office,” but flatly rejected it as … totally political.

Can the Constitution be “interpreted” and “updated” for changing times? Yes, where terms are not defined and their meaning has definitely and significantly has changed. “Due process” might be one such open-ended term—and the Supreme Court is there to interpret it. But where the provisions of the Constitution are explicit, the Constitution is not “living.” It is what it is.

In his most recent book (The Case Against Impeaching Trump, published this year), Dershowitz offers a fascinating commentary on what the Constitution does not make explicit about impeachment and removal—especially the question whether or not this is a “trial” or, more broadly, a judicial proceeding.

For example, the Constitution specifies that impeachment is for a “crime,” a specific crime among those enumerated. And the Constitution, of course, provides every reasonable protection for the criminally accused. But do those protections apply to impeachment and conviction, where the only penalty is removal from office?

Well, Dershowitz suggests, the founding fathers specified that the chief justice of the Supreme Court presides over the Senate during the vote to remove or “convict” the President. Also, senators must be sworn in before the proceeding; their oath upon taking office is not a substitute. “They are swearing to apply the constitutionally mandated criteria for impeachment and removal, and no other,” writes Dershowitz.

If impeachment and removal are not a trial, but purely political, why does the Constitution specify crimes—not “offenses,” not “abuse,” not even “tyranny”? There is another court of appeal for such sins: regularly scheduled elections.

If impeachment and the vote on removal is a judicial proceeding, then can the President be represented by legal counsel? Is he protected by the Constitution from self-incrimination (can he “take the Fifth”)?

More to the point, if Congress impeaches the President not for a crime specified in the Constitution, but for making a deal with Russia to support his election bid (without urging commission of any crime such as hacking)—or for firing the FBI Director, a power explicitly authorized by the Constitution—can the President or his counsel move for dismissal of the impeachment? And does the chief justice of the Supreme Court make that decision?

On that matter, the Constitution does not specify the means by which a vote to remove the president from office will be implemented. If the president (and his attorney general) protest that the conviction was not for a crime specified by the Constitution—and the president refuses to leave office—his party and his supporters might well buy the argument and stand enthusiastically behind him.

“The Constitution is fragile and imperfect, as is democracy itself,” writes Dershowitz. “Both require the legitimacy of the governed…. That is why Congress must comply with the text of the Constitution—especially the enumerated criteria for impeaching and removing a president… It is also why the Supreme Court should remain the final arbiter in the event of a reasonably challenged removal.”

What is Impeachable?

After the bitterly contested 2016 campaign—with calls for impeachment and “jail ’em” even before election day—it was a mistake to appoint a special prosecutor, who investigates crimes. In truth, crimes were not at issue: partisan disagreements tinged with hysteria, wild accusations, and dire threats about the country’s fate—under Clinton or Trump—were at issue.

Special Prosecutor Robert Mueller’s brief is to investigate possible crimes that might have been part of a Trump-Russia “collusion.” But, inevitably, the public and congressional focus has been on grounds for impeachment—a focus on reversing loss of the 2016 election by resorting to criminal proceedings.

Cohen was looking at as long as 46 years in jail, but, as a result of his plea, sentencing will be limited to less than five years. Trump immediately charged that Cohen had “made up stories” out of terror of life and death in prison. That, of course, was Mueller’s tactic.

Mr. Cohen made a guilty plea when faced with eight convictions for criminal offenses such as tax evasion and false bank statements; only two of those offenses even possibly involve Mr. Trump. Cohen was looking at as long as 46 years in jail, but, as a result of his plea, sentencing will be limited to less than five years. Trump immediately charged that Cohen had “made up stories” out of terror of life and death in prison. That, of course, was Mueller’s tactic.

Paul Manafort, Mr. Trump’s 2016 campaign director, was caught by the special prosecutor for crimes he committed long before he worked for the campaign. Manafort did not plead guilty but was convicted. He faces another trial. It is clear to everyone that Muller pursued Mr. Manafort on the 12-year-old tax case with the hope that, faced with the charges, Mr. Manafort also would make a plea and in exchange reveal something possibly relevant to Mueller’s investigation.

Breitbart News pointed out that “Although both men came under investigation by…Mueller, who was charged with looking for Trump campaign collusion with Russia, none of the alleged crimes had anything to do with Russia.”

Still, the two legal developments were enough to thrill Democrats in Congress, the media, and Hollywood. Cher reportedly tweeted: “I’m So excited about Paul Manafort’s Guiltily Verdict I Could &‼”

And so, taxpayers are shelling out for this years-long special investigation, which so far has discovered crimes that mostly have nothing to do with the campaign or with President Trump.

Mr. Dershowitz weighed-in about this most recent development in the ongoing campaign to “get Trump” on some plausible legal grounds. He said that the Manafort conviction and Cohen plea are “not nearly as deadly, lethal as some have portrayed it as being.”

He suggested to Fox News Channel’s Tucker Carlson that “Violation of election laws are regarded as kind of jaywalking in the realm of things about elections. Every administration violates the election laws, every candidate violates the election laws when they run for president.”

“Here,” he said, “they’re trying to elevate this into an impeachable offense or a felony by the president.”

Criminalizing Politics

Criminalizing politics is not new in America. Dershowitz sees it dominating Washington as early as Watergate, which was driven by the rage of Democrats at the landslide defeat of far-left candidate George McGovern by Richard Nixon. Dershowitz cites half-a-dozen recent cases where prominent politicians have become the target of highly publicized criminal charges, have been defeated in the next election, and, without exception, acquitted when tried in a “real” court. That is, the political goal was achieved and after that the legal reality didn’t matter—except to the individual whose reputation was destroyed.

Dershowitz suggests the problem has existed at least since President Thomas Jefferson used criminal charges to go hammer and tongs after his political enemies such as Aaron Burr. The Alien and Sedition Acts were an attempt to arrest and imprison political critics. Those who sought to impeach President Andrew Johnson ignored the Constitution.

But as I see things, Watergate, the years since, and the 2016 election are unprecedented. Finding crimes and making them the overwhelming political focus almost defined the 2016 election. Conceiving of political differences as tantamount to crime is a philosophical trend. It involves ideas about the nature of political power, justice, political differences, and resolution of social differences.

Postmodernism and Impeachment

Each of those ideas has been changed, gradually but drastically, by the influence of the philosophical position called Postmodernism. An adequate explanation of the origins, nature, and effects of Postmodernism is far beyond the scope of this article. There are several good (and very different) presentations of the subject.

Postmodernism is the philosophy that dominates today’s college departments of the humanities, social sciences, and, more and more, the hard sciences. Originating in Eighteenth and Nineteenth Century German philosophy, which represented a rejection of Enlightenment values and ideas—reason, individualism, political freedom, social cooperation, and the market economy—Postmodernism today stands for denial of an objective reality, denial of the validity of reason, advocacy of identifying with one’s racial or other group, and a view of social and political relations as between oppressors (the white race, males, the economically successful) and the oppressed.

In 2016, we witnessed the first truly postmodern election. Almost the sole focus was on “identity politics,” pitting races, sexes, ethnic groups, economic groups, and other sectors of our society against one another for political advantage. It is not surprising that Postmodernism manifested, also, as the attempt to criminalize political differences.

Postmodernism maintains that ideas, argument, political positions, and principles are no more than rationalizations for protecting the political power of a group, especially oppressors. Words—speeches, debates, persuasion—are but one way to go after political power. Another way is force: Witness the violent demonstrations that followed President Trump’s election. Another way is to use the justice system and criminal law. Because the only reality, for Postmodernism, is who seizes and exercises the power.

If, for Postmodernism, all language can be “deconstructed” to expose the rationalizing of naked power, then Maxine Waters is right that the words of the Constitution mean nothing.

If, for Postmodernism, all language can be “deconstructed” to expose the rationalizing of naked power, then Maxine Waters is right that the words of the Constitution mean nothing. There is no objective, sacrosanct law. Impeachment is about an exercise of power by Congress against political enemies.

If, for Postmodernism, the only social reality is the struggle of oppressor and oppressed, then the only offense, the only true “crime,” is your enemy’s politics. If President Trump stands in the way of worldwide government measures against “global warming”—and you believe that he represents the political power of capitalism, the “polluters”—then he has committed a political crime.

And if the ‘old-fashioned’ justice system of the oppressor is used to destroy careers or threaten your enemies with 50 years behind bars—more than any rapist and most murderers—well, the only true “justice” is shifting political power from the oppressor (President Trump and his middle-American supporters) to the oppressed (the mélange of racial, sexual, ethnic, economic, and other groups for which Democrats claim to speak).

In truth, the goal of Postmodernism is not only to criminalize political disagreements; it is to politicize every aspect of life. It is all about politics.

In truth, the goal of Postmodernism is not only to criminalize political disagreements; it is to politicize every aspect of life. It is all about politics.

If there is no objective, independent reality to which to refer; if reason is mere rationalization for wielding power; if social relationships are neo-Marxist struggles between the oppressor and oppressed—then, if humans must live together, their only reality is who is oppressing whom, who has the power.

School or college, the workplace, a sexual relationship, marriage, a scientific journal: In every context, the only question is who holds the power. Is it surprising, then, that when we turn every four years to the explicit contest for political power, the desired end—attaining power—is the reality that makes all discussion of the morality of the means so much irrelevant noise?

And the outcome of the election becomes nothing more than the loser’s next challenge to find the means—any means—of seizing power.

 

 

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