THE EKLUND ǀ GOMES TEAM

Notes From Away: Don’t Let This Go Too Far

By Tom Lamia

As I settle in on a mid-July day, hoping to get ahead of the deadline for these columns, I am concerned about the consequences of caution when action is necessary to protect a vital interest. Hesitation, to avoid responsibility for stepping out front, is not acceptable simply because the action necessary is unprecedented or the consequences unknown. To not act only reinforces the problem for a future crisis.

JANUARY 6TH COMMITTEE VICE CHAIR LIZ CHENEY (below) and Chair Bennie Thompson during the hearings. The message to the Committee is clear: The iron is hot—STRIKE!

 

During Watergate, Congress and the Justice Department were faced with the issue of presidential criminal accountability for abuse of the office and labored long over what to do. The result satisfied many because it provided an exit ramp for Nixon, but I fear that it has left the country without a clear path to presidential prosecution for any crime committed by a president while in office. The advisory opinion of the Department of Justice’s Office of Legal Counsel issued in Nixon’s time has served since as a shield for sitting presidents. The Mueller Report relied upon that opinion in not indicting President Trump on several counts of obstruction of justice. The implication was that such crimes were open to prosecution in a post-presidency. After two failed attempts at impeachment of Trump for actions during his presidency, there is a growing popular belief among both detractors and supporters that he will not be prosecuted because any prosecution might fail, with disastrous consequences, even civil war.

This amounts to a practical get out of jail free card for anyone holding the office even if their means of getting it or keeping it have been clearly, even flagrantly, illegal. Regardless of how distasteful it might be, prosecution is necessary to preserve criminal remedies when political remedies have failed or proven inadequate. A failure to prosecute a former president out of an abundance of caution would mimic, reinforce and extend the Nixon “baby with the bathwater” precedent. It would be letting things go too far; of accepting a grievous injury to avoid a potentially fatal or life-saving confrontation.

This contretemps over what to do about a criminal president brings to mind other situations in which power has been withheld or misused while events transpired, only to be insufficient when finally deployed. The first four are dated and behind us, but the last two are highly relevant to our current situation.

The Revolutionary War

The British were confident in the 1770s that their empire, with its unsurpassed army and navy and its record of successful colonial administration around the world, could not see revolution coming so failed to take ameliorative action to avoid it or prepare for it.

The War of 1812

An unprepared and over confident United States declared this war out of deep resentment of British impressment of American sailors on the high seas and other righteous causes, but soon discovered their many shortcomings as a fighting force, not the least of which was a failure to have each of its constituent states on the same page about causes and effects. Only offsetting problems for the British, who were fighting Napoleon at the time, allowed an honorable exit. Our still fledgling federal government was eager to show itself confident and capable on the world stage when caution and careful assessment of its capabilities was the wiser choice.

The Civil War

The Union was so unprepared for war when the Confederacy seceded in 1861 that years passed before reliable military leadership was in place and defeats turned to victories. U.S. Grant was a cashiered officer with a history of alcoholism when the war started. With the shortage of West Point trained officers to call on, Grant was given command of a local Illinois state militia and went on the offensive in a series of river battles in Confederate territory. With military skill, chutzpah and courage, Grant won battles and gained the attention of his Commander in Chief in Washington, D.C. Lincoln put Grant in command of the Army of the Potomac ending the failed strategy of avoiding contact with Lee’s Army of Northern Virginia and a march on Richmond began.

Viet Nam, Iraq, Afghanistan

All illustrate the hazards of limited war. Each one devolved into stalemate when aggressive unrestricted engagement was possible but inadvisable because of the risks of escalation and lack of popular support. The process of measuring the level of warfare that would strike a happy medium in cost, risk and result was never going to bring clear-cut victory. Allowing this impasse to settle into a permanent condition may have avoided worse outcomes, but it also prevented definitive results.

The 1876 Presidential Election 
Compromise

The presidential election of 1876 resulted in a failure of our then governing law to produce a result that all interested parties, could accept. To get to a compromise a special commission formed under an Act of Congress was empaneled. There were fifteen members: five Senators, five Representatives and five Supreme Court Justices. The law called for an even split between Republicans and Democrats, but the independent Supreme Court justice appointed as chair refused to serve and was replaced by a Republican justice. The commission deliberated and decided by an eight-seven vote, with the chair casting the decisive vote, awarding an electoral victory to Republican Hayes over Democrat Tilden. The matter did not end there as the Democrats threatened to prevent Hayes from governing. To put an end to the matter Republican Hayes agreed to remove federal troops from the three southern states still under federal Reconstruction control. That ended Reconstruction and gave rise to Jim Crow segregation throughout the south that continued through my time as an undergraduate at the University of Mississippi in the late 1950s. One could say, with justification that the compromise settled an immediate issue of choosing a president by sacrificing a fundamental constitutional issue of racial justice. The Electoral Count Act of 1887 was thought to have solved the vote-counting issues of 1876, but the 2020 presidential election and the insurrection that followed leave considerable doubt on that score. To save the country from an unthinkable future of anarchy, authoritarianism and mob rule, the January 6 Commission must now act decisively to find a cure for this imperfection in our Constitution and laws. Make it simple and get it done.

Radical Politics, Free Speech and Governance

The rise of right wing politics and the denial by so many of its adherents of the freedom and justice guaranteed by our Constitution and laws, has been inexorable from the earliest days of our country. Every step along the way has roots in the failure of the Constitution in its original form to satisfactorily address the fact of slavery and its legacy. The Civil War Amendments (13th, 14th, 15th) and federal legislation enacted to give practical meaning to them have not provided either a pathway to equality or a roadblock to racism. The Ku Klux Klan, segregation, Dixiecrats, McCarthyism, and Birchers have come and gone, but we still labor to agree on and implement our “guarantees” of equality, justice and freedom for every American. Our politics and our idealism have not had the practical effect of creating a national symposium for respectful and effective governance.

Trump and Trumpism will go, too, but at what price? Making future presidents immune from prosecution for crimes committed while in office is too high a price.

To the January 6 committee and the Department of Justice, the message is clear: The iron is hot—STRIKE!

 

 

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