DOUBLE JEOPARDY OR NO JEOPARDY?

More than 1000 former federal prosecutors have publically stated they would prosecute Donald Trump for obstruction of justice were he not President of the United States. Those former prosecutors made that declaration after Special Counsel Robert Mueller decided he couldn’t prosecute Trump because of Justice Department policy. That policy, stated in an October 16, 2000, Office of Legal Counsel (OLC) opinion, prohibits indictment of a sitting President. As long as Trump remains in office, no federal grand jury will hand down charges against him, regardless of the evidence that might otherwise compel such an action.

The OLC policy, which isn’t in the constitution, and a long standing American tradition against prosecuting former political opponents, could combine in assuring the government never prosecutes Trump for the acts spelled out in the Mueller Report. This circumstance carries broad and troubling implications for the rule of law in America. The OLC policy, and that tradition, could mean getting elected President provides a permanent get-out-of-jail-free card for seriously bad actors.

Trump’s Situation

Special Counsel Mueller found ten acts by Trump that might constitute obstruction of justice. Citing the OLC opinion, Mueller declined prosecution but specifically said, “while this report does not conclude that the President committed a crime, it does not exonerate him.” Any fair reading of the Mueller Report recognizes the Special Counsel would have indicted Trump but for the OLC policy. Mueller’s decision, therefore, leaves three options for dealing with Trump’s possible crimes: (1) impeachment and removal from office by Congress, (2) prosecuting him after he leaves office, or (3) letting him slide.

Impeachment, being the ultimate political act, may or

may not happen. No one  currently thinks the Republican Senate will convict Trump. Calls for Trump’s prosecution after his term ends have started, including from House Speaker Nancy Pelosi. The problem lies in that American tradition – we don’t prosecute former Presidents, no matter their crimes in office.

Twice in modern times, the issue has arisen of what to do, after he leaves office, with a President who has committed criminal acts. It also arose in a hypothetical scenario involving Trump and his 2016 opponent, Hillary Clinton. The way the issue has been handled in each case suggests we shouldn’t hold our breath for the possibility of Trump’s post-presidency prosecution.

The History

Richard Nixon resigned before the House impeached him and before the Senate likely convicted him. Out

of office, Nixon faced obstruction of justice charges and perhaps others. Before Special Prosecutor Leon Jaworski could charge Nixon, President Gerald Ford pardoned him for all offenses against the United States. By accepting the pardon, Nixon admitted guilt, but avoided indictment, trial, and possible jail time. Ford issued the pardon in the name of putting Watergate behind the nation, potentially healing America’s wounds. The pardon probably cost Ford re-election in 1976, but he may have achieved his objective of tamping down the furor over Watergate and helping the country move on.

Republicans in the House impeached Bill Clinton in 1998 over his affair with Monica  Lewinsky. The

Senate acquitted him, essentially determining sex isn’t a reason for removing a President from office. But, Clinton didn’t get off without a price. In what amounted to a plea bargain with Independent Counsel Robert Ray that avoided prosecution for perjury and obstruction of justice, Clinton accepted a five-year suspension of his Arkansas law license and paid a $25,000 fine. He also resigned from the U.S. Supreme Court bar.

The Nixon and Clinton experiences, for different

Nixon and Cllinton

reasons, cast doubt on the possibility of a post-presidency prosecution of Trump. Trump isn’t a lawyer, so he can’t forfeit a law license, but prosecutors might extract fines and business concessions in exchange for not indicting him. A Democratic successor probably won’t pardon him as Ford did for a fellow Republican, but he or she could find other ways of shutting down a prosecution.

The Tradition

In 2016, Trump mused out loud about the possibility,

if elected, of ordering that his  Justice Department prosecute Hillary Clinton over her e-mail scandal. Even Republican-leaning pundits decried such an action, arguing that bringing down the wrath of the criminal justice system on a former opponent better fit a banana republic than a country committed to the rule of law like the United States. It’s just something we don’t do, they said. 

Democratic 2020 Presidential candidates have been reluctant to endorse the idea of prosecuting Trump after he leaves office. They understand the precedent that could set. Prosecuting a former opponent, even one like Trump, opens the possibility of future politically motivated prosecutions for trivial or made-up offenses much more about settling scores than seeking justice.

And the Rule of Law?

Between the OLC policy, which some Democratic candidates say they’d change, and the tradition, it appears the rule of law could lose big. While he’s in office, Trump, if he’s not impeached and convicted, pays no price for his sins. Once he’s out, especially if its 2021 and the statute of limitations hasn’t run on his alleged crimes, his successor may not allow prosecution in the name of preserving our reputation as a nation that doesn’t permit prosecutions of former political opponents.  

So, when does a bad actor President get punished?  What do we mean when we say we are a nation of laws, not people, and no one is above the law? Do we still have the rule of law?  We’re going to have to answer these questions at some point, perhaps the sooner the better.  

Losing Friends (Appreciating Relationships)

Henry Writes of Loss

As we age it seems the impact of losing friends hits like a sledgehammer. At least this is the reality

I face. Having lost three friends in the last few weeks led me to emotional lows I have rarely visited.  Incredibly joyous memories of these friends and of their disappearance from this world take me on a roller coaster ride of thought, vision, and faith.

One is a friend from birth with whom I shared experiences growing up, in school and through adult life. His view of the world was very different from mine and served as a check on any attempt by me not to see how the world can differ for the individual. We shared joys and disappointments without judgment. He had the best memory of any of our friends and could remind us all of those moments shared at seven or nine or twelve. He seemed to remember everything about our years as kids. It was natural that when I shared a memory of our childhood he was not surprised because he too remembered the moment.

                     

The second was a neighborhood friend.  We were separated by three houses and although he was a year older, I remember much about our days as kids. He was the self-proclaimed “concrete contractor” who construct-ed small roads between our neighborhood houses on which we rolled toy cars and trucks. We also made bows and arrows with arrows that disappeared into sky before falling back to earth. There were the nightly runs around the block and the daily baseball, football, and basketball games. He managed difficult health problems as an adult and left suddenly.

The third was a colleague on the bench and one of the most fun-filled people I've ever met.  We shared stories of our very different lives and after we both retired kept in touch. He loved Mexican food and we almost always communicated on Cinco de Mayo.  

                 

Each of these friends contributed immeasurably to the quality of life I have been privileged to enjoy and thus the loss is greater.

Although my spiritual universe provides a kind of comfort, my mind searches for more explicit explanation and I move in and out of competing visions. Loss, or being without, describes a condition and feelings so it brings much of our complex existence to the front of our consciousness.  When we are no longer able to relate to the physical incarnation of our friends this feeling of absence, for me, is unavoidable. But loss seems to be much more than this absence. At the zenith of this struggle my faith collides with doubt.

I do believe that these friends remain with me because I carry memories of them in an almost tangible sense. They are with me and those memories give me solace.

I find it difficult not to ask whether friends will carry memories of me.

As I write this and experience an avalanche of emotion filled with grief, I realize it may be time to express thankfulness and celebrate the joys of friendships remaining.  This is especially true because of the opportunities presented by an upcoming reunion of all classes from my high school.  There WE will be able to share our lifelong memories and celebrate those bonds having lasted a lifetime.  Of course, we will all grieve the loss of classmates over the years but the presence of those remaining will help remove the sting of loss.

Ecclesiastes 3:1 reads, “To every thing there is a season, and a time to every purpose under the heaven:” Perhaps these times are not as separate as we envision.  This, now, may be a time to remember, grieve and celebrate.  We can embrace our losses and celebrate memories and joys of present relationships. I don’t believe we lose the past by celebrating the present.  After all, these moments are precious.

THE BLACK VOTE: NOW AND THEN

All three of us spent time in our earlier years involved with political organizations.  Henry and Rob took jobs working for Arkansas governors, while Woodson, through his community standing as a lawyer, became an important supporter of several Arkansas political figures. Our experiences gave us a front row seat for the evolution of how the political community views the African-American vote. As 2020 approaches, we can report stark differences in how pundits, politicians and the public view the black vote now and in the past.

Essential Voters for Democrats

Every 2020 Democratic presidential candidate knows he or she needs African-American support. Arguably Donald Trump resides at 1600 Pennsylvania Avenue  because of Hillary Clinton’s shortcomings in turning out black voters in 2016. Clinton got 88% of the black vote, but the turnout decreased from 2012 when Barack Obama  won re-election – from 66.6% to 59.6%, the biggest drop in the voting percentage of any ethnic

or racial group since a ten per cent decrease by whites from 1992 to 1996. In her book What Happened, Clinton blamed some of that on voter identification laws and other voter suppression efforts. That might be the reason and it might not, but it happened, with devastating consequences for her presidential bid.

             

The power of African-American voters, especially women, showed up dramatically in 2017 and 2018. In Alabama’s 2017 special U.S. Senate race, Democrat Doug Jones won by 1.7 per cent, almost certainly because of 98% support from black women (63 % of white women voted Republican). In the 2018 mid-terms, a 94% vote by black women propelled the blue wave that resulted in Democratic takeover of the House of Representatives.

The 2016, 2017, and 2018 results make one thing clear: Democrats win with a big black vote and lose without it. So, the 2020 candidates are out there, openly and aggressively seeking black votes.

The 2020 Pitch

Different candidates are doing different things in searching for black support. Some acknowledge African-American,with a common history as descendants of slaves and victims of slavery’s long, racially discriminatory shadow, like women, represent a special interest group with problems requiring government-sponsored solutions. Former Vice President Joe  Biden, the Democratic front runner, hasn’t been policy specific on much yet. He promises he’ll roll out his major initiatives over time; presumably we’ll begin seeing some of them starting in this month’s debates. For now, Biden relies on his eight years as former President Obama’s wingman. The polls suggest that’s working, at least for now.

Other candidates don’t have Biden’s luxury. Vermont Senator Bernie Sanders, who struggled in attracting black support in 2016, now

offers what he calls ‘A Thurgood Marshall Plan for Public Education’ in honor of the Supreme Court justice and civil rights icon. Massachusetts Senator Elizabeth Warren speaks openly and directly about the impact of historical, government-endorsed housing discrimination, particularly its role in the black-white wealth gap. She’s also suggested a special fund aimed at supporting Historically Black Colleges and Universities.

                   

Some candidates know they have catching up that needs

doing among black voters. South Bend Indiana Mayor Pete Buttigieg must overcome questions about his handling of the dismissal, rehiring, and later demotion of black police chief Darryl Boykins. Buttigieg admits he didn’t appreciate the anguish blacks felt about allegedly racist tape recordings at issue in the underlying controversy over the police chief. Some pundits see lack of support among blacks as a major obstacle preventing Mayor Pete from moving into the top candidate tier.                        

My How Things Have Changed

It wasn’t always this way. When Henry, right out of college in 1967, began working for newly elected Arkansas Governor Winthrop Rockefeller, the idea of openly and explicitly courting the black vote was new. That hadn’t been done in Arkansas (or many other southern states) before and it was one reason Henry returned home rather than head for one of his many options elsewhere as a Yale graduate. 

Mobilizing the black vote in an organized way wasn’t on the radar of many mainstream political candidates in either party. Lawrence O’Donnell, in his marvelous book about the 1968 presidential campaign, Playing With Fire: The 1968 Election and the Transformation of American Politics, covers Robert Kennedy’s appeal to black voters, but spends zero time on the real racial dynamics of the race or the role the black vote played in the eventual outcome of an election that made Richard Nixon President.

By the time Rob and Woodson got involved in Bill Clinton’s Arkansas gubernatorial campaigns in the 1970s and 80s, awareness of the importance of the black vote for Democrats had increased. Clinton maintained numerous friendships with prominent African-Americans and always got the lion’s share of the black vote in his races. There remained, however, a concern cultivating the black vote could result in white backlash. Managing outreach to the African- American community became important, as was doing it in a way white voters didn’t find threating. Operatives treaded lightly, making sure that effort remained subtle and generalized. Promoting education, for example, substituted for discussing issues with more overt racial implications, like housing and employment discrimination. Using the word “all” became another subtle way of telling blacks they too were included.  

Politicians search for black votes out in the open now. We see that as a good thing and long overdue.