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Did Donald Trump Obstruct Justice?

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We had a fun argument earlier this week on CNN between Jeffrey Toobin and Alan Dershowitz over whether or not Donald Trump obstructed justice by his conduct toward former FBI director James Comey. You can see it here (4:43).

Toobin claimed that Trump obstructed justice:

  • That the alleged request by Trump to Comey to lay off investigating former National Security Advisor Michael Flynn would have constituted obstruction of justice;
  • That Trump’s firing of Comey was obstruction of justice.

Dershowitz disagreed. He argued that Trump had the constitutional options to order Comey directly to cease investigating Flynn or even to grant Flynn an executive pardon. Dershowitz cited the example of Caspar Weinberger, who had served as Secretary of Defense for Ronald Reagan and who had been indicted by Independent Counsel Lawrence Walsh in 1992, accusing Weinberger of perjury and obstruction of justice during the Iran-Contra Affair. President George H. W. Bush pardoned Weinberger before these charges could be tried.

Dershowitz did not argue that Trump should get a free pass, just that his behavior was within his authority under the Constitution and did not constitute a crime. During the interview, Dershowitz said, “Impeachment is political. There is no judicial review of impeachment. You can impeach a president for jaywalking.”

I have to agree with Dershowitz, not just because of his reputation as a constitutional law scholar. Where does the FBI appear on the constitutional org chart? It is within the Justice Department, part of the Executive branch. The FBI is not an independent agency — does anybody really want it to be? (Anybody remember J. Edgar Hoover?)

As such, the FBI director serves at the pleasure of the president, who has the constitutional authority to dismiss the director for any reason, or no reason at all. This is not to say that there will be no political consequences for the president. Lyndon Johnson wanted to dismiss Hoover, but drew back from the political consequences [see Halberstam, The Best and the Brightest, p. 529]. Trump went ahead and fired Comey, and he can live with the political consequences of having done so.

Abuse of political power is a perfectly good reason to impeach a president. Congress also has less extreme options at its disposal, such as cutting funding for the president’s programs and either refusing or delaying consideration of the president’s legislative agenda.

Criminalizing political behavior you don’t like is a bad road to go down. It would represent another step toward being a banana republic with no bananas.

In this case, it is political spinelessness that causes people to seek some artificial objective standard — never mind that it is not applicable. If you don’t like the man’s politics, come out and say so. Seek political means to counteract them.

And if you’re in journalism, and you are concerned that you can’t object to someone’s politics and still appear unbiased, you’re absolutely right. You have to choose your course and live with the consequences no less than a politician has to.


Written by srojak

June 10, 2017 at 3:06 pm

Man Up!

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Through most of human history, wealth creation meant finding a new gold mine. It was a negative sum world; the way to get ahead was to step on other people. You can’t look at that world through the same lens you would view everyday life in 2016 Corporate America.

There was no concept of wealth creation at the time of the New Testament. When you read that the apostle Matthew was a tax collector, do not think of him as a Roman IRS agent. The Romans had introduced tax farming in 123 BC to increase the efficiency of collecting revenue. The Romans would auction off the exclusive right to collect taxes in a territory. The winner of the auction had to front the money to Rome, and then would go collect the taxes, plus some. Being a tax collector, officially known as a publicanus, could be very lucrative, because you could increase the amount you collected and the proceeds were all yours. Being a publicanus was an opportunity to make yourself rich at the expense of your neighbors.

A Roman provincial magistrate was not paid a salary. The position was an opportunity for a rich man to become very rich through means that we who live in the Anglo-Saxon political tradition now consider corrupt: peddling influence, shaking down merchants and extracting tribute. The real plums of the Empire in the time of Augustus were Egypt and Spain. Judea, with its troublesome population, was no prize; Pilate must have been viewed by his Roman contemporaries as distinctly minor league to have been sent there. On his arrival, Pilate promptly brought Jerusalem to near revolt through his actions that Judeans considered defilement of the holy city.

What was a real man in a world like this? In most places and times, a real man was distinctly predatory, taking care of himself and his own at the expense of anyone who came across him. Such a person is not typically going to have what we might call a modern view of the poor, women or anyone who is different.

Skip forward about one thousand years and move to Normandy. Game of Thrones depicts medieval conditions much more accurately than any of the mid-twentieth century movies. Norman barons are about 2-3 generations removed from Viking raiders. In 911, the King of France bought off the most powerful of these and made him Duke of Normandy. In return the Duke promised to convert to Christianity, recognize the King of France as his liege lord and, above all, stop raiding all over France.

The Duke then made his subordinate commanders into barons, and barons grow highly skilled knights who exist to fight for the Duke. What do they do all day besides practice their swordsmanship? The barons are a contentious lot, constantly looking to expand their holdings at the expense of their neighbors. They send their knights out to fight. The knights may fight the knights of the baron across the river, but that could get them killed. An even better way is to slaughter the other baron’s defenseless peasants. There could be opportunities for fun activities like pillage and rape. Modern history shows that a man who comes of age in such an environment and has it reinforced by his peer group can develop a taste for this.

Well-behaved knights would mostly keep off the peasants belonging to their baron, at least if there was anyone watching. It was always open season on peasants belonging to other lords. Conditions were so lawless that Pope Urban II decided this taste for violence needed another outlet. In 1095, at the Council of Clermont, he proclaimed:

You oppressors of orphans, you robbers of widows, you homicides, you blasphemers, you plunderers of others’ rights … if you want to take counsel for your souls you must either cast off as quickly as possible the belt of this sort of knighthood or go forward boldly as knights of Christ, hurrying swiftly to defend the Eastern Church.

Let’s see, the choices are: stop picking on defenseless peasants or go to the Holy Land and pick on defenseless people there while gaining glory as knights of Christ. Is this an IQ test? All together now: God wills it!

All across the world, in places as geographically and culturally separate as Europe and Japan, the ideal man — the gentleman or the samurai — was a man who does not engage in productive work. He can fight, he can contemplate, he can live a life of leisure. He can obtain a government office and tell other people what to do. It is unthinkable for a noble man to produce.

Four etchings from The Great Miseries of War, by Jacques Callot, 1633. Possibly the first instance ever of anti-war art.

Four etchings from The Great Miseries of War, by Jacques Callot, 1633. Possibly the first instance ever of anti-war art.

Slide forward to the Thirty Years’ War. Another golden opportunity for men who like that sort of thing to kill other people in the name of God, although any pretext would have worked. Some areas in Germany required almost a hundred years just to get back to a 1600 standard of living. The good news is that people started to get sick of it and take measures to prevent it. Our First Amendment clause forbidding Congress from establishing a state religion is a direct result of the European wars of religion over the previous 250 years.

The point is that predatory behavior has been the prevailing standard of what a proper man is for most of human history. In many places, it still is.

To look at the boys fighting for the Islamic State or Boko Haram and ask why they are doing that is, really, the wrong question. The right questions are:

  • Why do we have other definitions of being an honorable man?
  • How did we get these definitions?
  • How do we defend ourselves against cultures who cannot respect our definitions?

The idea of an honorable man being a man who works, creates wealth and is not a predator is a Western creation. It is only in the West, over the last three hundred years, that this alternate definition of proper manhood has begun to take root. It is a necessary predecessor for the wealth we enjoy, since without it the wealth of productive people would continue to be dissipated by the predatory faster than it can be accumulated. This, not Western exploitation, is why people with predatory ideals of manhood live in dirt.

In any culture that I can think of, the farmers and artisans were the social inferiors of the warriors. The warriors do not feed themselves; they take from the farmers and artisans. It’s a permanent protection racket.

Was it a painful process to get past this and become a productive society? Yes, it was. Are we at the zenith of our development? By no means. Did we have episodes of backsliding? We sure did. Are we completely free of predatory behavior? No, but we have a culture that directs it in productive ways. “I can build a bigger iron bridge than you” is a position that leads to better lives for entire nations. “I can put an iron broadsword through your guts” does not.

We now have a substantial problem, because we have entire generations who have no idea what advantages they have from Western Civilization and no idea why it is even worth defending. We need to figure it out as a people, fast.

Written by srojak

June 26, 2016 at 4:27 pm