The Criminalization of Politics

Are we ready?

I was going to write this week about the passage of the Inflation Reduction Act (it doesn’t) lauded by Senate Majority Leader, Chuck Schumer, as the most significant piece of legislation in the 21st Century (it isn’t), but events have overtaken themselves, and we are now captivated by FBIs raid of the former President’s home in Florida.

Thirty Federal Bureau of Investigation Agents along with three Department of Justice lawyers descended on Trump’s Mar-a-Lago residence on Monday at 9 am staying until 630 pm searching the entire residence which apparently is really big.  They brought a safe cracker with them who opened a safe (which was empty) and ultimately carted off numerous boxes of documents.  Mar-a-Lago is also the location of a private resort and hotel for dues paying members, and in contrast to the prior SWAT team raids on former Trump officials, the FBI arrived wearing khakis and golf shirts without weapons probably not to scare the hell out of the guests.  Trump lawyers arrived about an hour later but were denied permission to watch the FBI search.  The FBI also disabled the Mar-a-Lago residence cameras so there is no record of what the FBI was doing there all day.  There is no word as to whether they were served lunch.

But before we move to outrage which many Americans quickly did, we need to think for a little bit exactly how all this happened.

From what we know currently on information and belief or whatever other qualifiers that exist to show I am doing the best I can, in December 2021 some 11 months after Trump had left the White House residence, the National Archives got around to sending a letter to Trump representatives suggesting that maybe there were some 15 boxes of materials that they had thought might be Presidential records subject to the Presidential Records Act that they would like to get back. Trump representatives after enjoying the holidays, sent the 15 boxes back in January.  Apparently, someone at the National Archives looked at the documents and saw that there were some classified documents contained in those 15 boxes and reportedly began to talk with the Justice Department to explore whether it was interested in reclaiming some of the material.

As an aside, when I was in the Air Force with a Top-Secret Clearance (tells you how easy that is to get), I had the opportunity to review classified documents for litigation and other matters.  I actually found a newspaper article that had been stamped “Confidential”.  There also were documents that had been classified after they were printed and distributed.  In other words, there were documents that were in a file that were “Classified” but had not been labeled as “Classified” looking like any other piece of paper.  Often the classified stuff that I looked at contained information that was publicly available that everyone knew to be true, but the government did not want to formally admit that they also knew it to be true, thus classification. 

The same issue arose during the Hillary Clinton email “scandal” during the 2016 election.  She claimed that the 33,000 missing emails were simply calendars, her yoga workouts and her daughter’s wedding plans.  They could have been, and some zealous state department apparatchik could very well have classified that information for fear that a foreign power learning the size of Hillary’s mother of the bride wedding shoes may have used it as a blackmail weapon. I understand that last comment may be construed to be mean on my part, but people in the government actually think this way.  Look, I don’t know what was in there, or what was in Hillary’s emails, but I know that the DOJ doesn’t know either.  I just suggest that the allegation that Trump “illegally maintained Classified Documents” doesn’t mean that he had the list of CIA operatives in the Russian military, the secret nuclear bomb locations in China, or the answer to who really killed John Kennedy, but I’m just spit balling here.

But back to the Presidential Records Act.   As a further slap to Nixon arising out of Watergate, Congress passed the Presidential Records Act in 1978 making all Presidential “records” the property of the United States managed by the National Archives.  There are no criminal penalties or enforcement mechanisms in the Presidential Records Act, I guess relying on everyone to act like adults. Prior to the Reagan presidency, any Presidential records were the owned by the Presidents.  They could treat them however they wanted. They could keep them.  They could toss them.  They could tear them in half.  Richard Nixon, to whom the act did not apply, fought with the government until the day he died over his Presidential records. Roosevelt established a Presidential library in 1941 and donated the records he had in order to honor himself even before his third term was up. The result has been the rise of the Presidential libraries of today that are more like shrines than libraries; let’s say the modern equivalent of the Pyramids to the Pharaohs.  To get a contrary example, visit the Herbert Hoover Library and Museum in West Branch Iowa.  You can do a nice tour of the library and surrounding grounds in 2-3 hours as you take a break off I-80 on your way to somewhere else.  But I digress.

It appears that Representative Carol Maloney D-NY, Chair of the House Oversight Committee heard of reports of the potential mishandling of classified material and announced on February 10th, 2022, that her committee would investigate the matter.  As an aside from an aside, as a result of redistricting for the 2022 midterms elections, Carol Maloney and Gerald Nadler, the Chair of the House Judiciary Committee were redistricted into the same House District and are running against each other in the primary scheduled for August 23rd. The major issue in this contest is who has pounded Trump the most and therefore should continue in their congressional career. On February 16th, Archives sent a letter back to Maloney confirming that indeed they had discovered some classified information in the Mar-a-Lago boxes.

Apparently, things were not moving fast enough for Maloney, and she sent a letter to Merrick Garland, the Attorney General, alleging that DOJ was hampering the Oversight Committee’s request for documents from the National Archives. By May, the DOJ had convened a grand jury.  The Department of Justice issued at least one subpoena and several requests for interviews with former Trump Administration Officials. On June 3rd, there was a meeting at Mar-a-Lago to go over the issue.  Trump was there, stopped by to say hi, shook everyone’s hands and said if there was anything they needed just to let him know. About five days later, DOJ officials asked that the room where all of this material was stored be secured. Evan Corcoran, attorney for Trump, wrote back to the DOJ attorney saying that he had received the letter, signing “with regards, Evan” and then proceeded to put a bigger lock on the door.

The next thing that happened, as far as we know is that without any prior notice, the FBI swooped in with 30 FBI agents and lawyers to search the place and shock the country.

The media chattering classes have exploded with allegations of witch hunts, political reprisals, and dark days with the response that we are a country of the rule of law, and no one is above the law.

Political trials although rare are not unknown in this country. Political debate took a dark turn during the confirmation process of Robert Bork who was nominated to the Supreme Court by Ronald Reagan in 1987.  The Democrats responded to the nomination by waging a vicious campaign of personal attack to prevent the nomination.  Bork’s nomination was defeated by the Senate and the term “Borking” was established as an effective way to engage in the politics of personal destruction.  The Left tried the same technique against Supreme Court nominee Clarence Thomas in 1991 but was unsuccessful. The Right responded by a series of allegations of impropriety against Bill and Hillary Clinton which resulted in the appointment of Ken Starr as Special Prosecutor and ultimate Impeachment of Bill as a result of him lying in a deposition about his affair with a white house intern.

Although there may have been others, the first notable actual political prosecution involved a Texas Democrat prosecutor who secured an indictment against the hated, Tom DeLay, Republican House Majority Leader, nicknamed the “Hammer” for alleged campaign violations and money laundering.  Delay was convicted by an Austin Texas jury but was later vindicated by the Texas Appellate court and affirmed by the Texas Supreme Court which concluded that there was no basis in the evidence to sustain a conviction.  The Court entered a not guilty decision, but DeLay’s political career was over.

Seven term Alaska Senator, Ted Stevens’, home was raided by the FBI and IRS agents in July 2007.  It was claimed that he failed to properly report gifts relating to the 2000 renovation of his modest Alaska home that was doubled in size to 2471 sf.  In July 2008, during his campaign for reelection to an eighth term, Stevens was indicted and found guilty by a D. C. jury three months later (October 27, 2008).  Eight days after the jury verdict, Stevens was defeated by Democrat, Mark Begich, by 1374 votes.  Begich would go on to be the 60th vote in the Senate to assure the passage of controversial Obamacare program in 2010.  Stevens claimed all along that prosecutors were withholding evidence that would have shown that was he was not guilty. Subsequently on appeal, it was found that federal prosecutors did indeed withhold exculpatory evidence that would have resulted in Steven’s acquittal. The Court recommended that the prosecutors receive punishment or disbarment for their unethical behavior, but the Obama administration didn’t even fire the pair giving them unpaid suspensions of only 40 and 15 days each. Instead of being in the Senate, Stevens died in a 2010 plane crash in Alaska.

Bob McDonnell, former Attorney General from the State of Virginia, was elected Governor in 2009 and was a rising star in the Republican party.  In January 2014, McDonnell, as a sitting governor, and his wife, Maureen, were indicted on federal corruption charges for allegedly receiving improper gifts and loans from a Virginia businessman. They were convicted by a federal jury in September 2014. McDonnell was sentenced on January 6, 2015, to two years in prison. In June 2016, the Supreme Court overturned McDonnell's conviction and remanded the case to a lower court. Less than three months later, having destroyed McDonnell’s political career, the Justice Department moved to dismiss the charges against the former governor and his wife. The case cost McDonnell over $27 million in legal fees.

This troubling trend accelerated during the Trump years.  With Trump’s upset victory over Hillary Clinton came a vow by the Democrats to resist Trump in every way they could.  Even before Trump’s inauguration, the FBI sent agents to interview Lt. Gen. Michael Flynn as FBI Director Comey later bragged of his intent to get Flynn to lie to take him out of the administration. Despite reports by the FBI investigators (disclosed only later as a result of litigation) that they believed that he was telling the truth, Flynn was hounded from his position on the threat of prosecution under the Logan Act which no one had ever been prosecuted by the government since its enactment in 1799.  After having to sell his house and facing bankruptcy and to keep his son from being similarly harassed, Flynn agreed to plead guilty to lying to an FBI agent. Upon the disclosure of government misconduct, his guilty plea was subsequently voided but the damage had been done.

After the election of Joe Biden, in 2020, there was a movement in Democrat circles that all former Trump officials should be shunned, and action taken to assure they never worked again.  The January 6th Committee has been the source of new persecutions against former Trump allies and officials.  Steve Bannon (who I admit is not a nice person) was arrested and subsequently convicted for contempt of Congress for asserting executive privilege on advice of his Counsel, but he was denied the opportunity to call witnesses or present his defense of executive privilege.  Trade Representative, Peter Navarro, former Trump U.S. Trade Representative, was arrested for contempt of Congress, which is a misdemeanor, at Reagan National Airport. He was taken out in handcuffs as he was boarding a plane to deliver a speech in Nashville for failure to appear before the January 6th Committee. Navarro wasn’t even in Washington on that date.  Even the Judge overseeing the contempt trial was critical of the FBI handling of the arrest. The ordinary course of conduct is to inform defendants of their pending arrest and allow them to come into an FBI office to get their summons to appear in Court for an arraignment.   In Colorado and many other states, car thieves, minor drug dealers and other misdemeanor defendants are treated the same way; just given a summons, and asked to show up in Court at a later date.  After Navarro made a public issue of his being hauled out in handcuffs from the airport, on August 3rd, the Justice Department upped the ante by bringing a rare civil suit against Navarro for violation of a federal records act.  Even if unfounded, Navarro will now have to engage attorneys to defend against the action and suffer the expense of his attorneys’ fees to prove his innocence.

Then on August 8th, the FBI raided the Trump residence, and on the next day, August 9th, Scott Perry, Republican Congressman from Pennsylvania and head of the conservative House Freedom Caucus was stopped by FBI agents while traveling with his family and elderly parents, and his phone was seized and copied without being informed why.

These cases are in addition to the continued incarceration of hundreds of January 6th defendants who have been held in jail without bail or trial longer than the sentences they would have received had they been found guilty.

One might ask, what the hell is going on here?  And tonight, Americans are asking.

No one is arguing that politicians who commit crimes should not be held to account like everyone else, but when you examine what the rule of law is, it is important to understand how the law has been applied.  If it is not applied equally no matter your economic status, race, of political party, there is no rule of law, only tyranny of the government against its citizens.  So, we must compare the above against the treatment of Republicans and Trump supporters with similarly situated Democrat officials. With no consequences, Hillary Clinton destroyed government documents while they were under subpoena and bleach bit her devices so that they could never be recovered.  Gina McCarthy, former EPA administrator, under Obama maintained an email account under a fictitious name to conduct government business to avoid the Freedom of Information Act and in violation of the federal records acts with no consequences except being resurrected as Biden’s National Climate Advisor and leader of the White House Office of Domestic Climate Policy. James Comey, former FBI Director, bragged about leaking confidential FBI documents to a surrogate who then gave them to the press which formed the basis of the appointment of the Special Prosecutor, Robert Mueller, on the Russian collusion investigation.  He wrote a book and has been on all the talk shows. James Clapper denied under oath of NSA tapping Americans phones under the Patriot Act only to see the tapped phone conversations revealed three months later by Edward Snowden.  He is a panelist on TV shows. Eric Holder was held in contempt of Congress by an overwhelming bipartisan vote for refusing to provide documents in the “Fast and Furious” investigation where the Justice Department let guns go into Mexico into the hands of the cartels which were subsequently used to kill a DEA agent.  Congress and the American people still don’t know what the hell happened or what they were thinking.  Holder just continued on being Attorney General. Hunter Biden, well we know about him.

I do not suggest that all of these Democrat officials should be criminally tried and sent to jail.  What I would suggest is that criminalization of only the conduct of Republicans, Republican Congressmen and in particular former Trump officials shows that there is no equal application of laws. The Democrats are currently using the criminal justice system to punish their political opponents and warn off all future opposition. The unequal application of our laws can only lead to disaster.  The consequences are all too apparent.  What competent person who has been reasonably successful would want to risk that and his family’s security in order to serve his country when he could subject himself to arbitrary imprisonment and financial ruin, all for backing the wrong faction or for saying the wrong things?  Who would cooperate with the FBI or the police when to do so would put them at risk for a perjury trap.  Whether defendants win or lose in the judicial system, it is irrelevant since the regime in power can either convict you or bankrupt you while you try to prove yourself innocent.

What to take away from all of this?  Well, as when most things don’t work, if someone else can’t do it right you have to do it yourself.  In this case, the current Democrat administration has directed its law enforcement arm to criminalize political disagreement and chill dissent for its advantage.  Just like other totalitarian regimes, they are throwing their opponents in jail or at least destroying them financially in court cases, Congressional investigations, and grand jury probes and sending a message to others who may dare to oppose them.  Some on the Right have already vowed revenge when they get their turn to assume power to investigate conduct by the opposing party and to criminalize political thought, just like the Democrats have done to them. 

The only way this will stop is if there is a strong message from the people in the next election that this conduct in order to maintain power and punish political enemies is not acceptable or to be tolerated by Democrat and Republican voters alike.  That message must be communicated loudly enough that if a new Republican administration comes in power, it will be deterred from taking revenge and playing the Democrats’ game.  There have to be political consequences for criminalizing opponents’ political positions.  If not, like in Latin America, incumbents will do anything to hold on to power so they will not be jailed by the new regime.  Voters need to punish the current party in power for allowing this type of criminalization of political discourse to have occurred.  This is not to reward the Republican/Conservative movement with a victory but to provide a warning that when the Republicans come back into power, they must not use the criminal justice system or retaliate against their foes.  It must be loud and clear that the American people will punish any side who abuses our system of justice for their own ends.  You say it can’t happen here.  It already has.