Your Pocket Guide to Republican Constitutional Crimes

Of course Trump could get away with it. Four of the past five previous Republican administrations have engaged in fairly dire Constitutional crimes (not even discussing the 2000 Presidential election) with diminishing consequences, aided in part by Republican Congressional delegations with succeedingly smaller interests in Constitutional governance and greater ones in power at any cost.

I'll leave the current debacle off the pocket guide, but run your own checklist for: venal personal gain, motivation to get elected at any cost, political payback/vengeance, and the all-time winner, cover-ups and obstruction of justice in the interests of all of the above.


Administration:

Nixon

Constitutional Crime:

Broadly, abuse of power in furtherance of electoral manipulation.

Extensive use of government  and political party machinery and outright crime (including burglary and money laundering) to gain re-election, and then a criminal conspiracy to obstruct justice. 

(It later turned out Nixon also deliberately scuttled the 1968 Vietnamese peace accord in order to affect the 1968 election, but that wasn’t proven until just a few years ago.)

How it was uncovered/investigated:

Dogged reporting, followed by (ultimately bipartisan) Congressional investigation, followed by two Special Prosecutors.

Special Prosecutor(s):

Archibald Cox, Leon Jaworski

Role of Congress:

The Democratic majority was aided by many Republicans of good faith in pursuing the investigation, after initially partisan reactions to the initial revelations, and it was the televised Congressional hearings that ended up uncovering much of the most damning evidence and propelled the establishment of the Special Counsel and subsequent criminal indictments.

What Happened to the Perps:

Lots of people went to jail. Nixon was forced to resign nearly three years after the major crimes which he committed or helped to cover up, but was pardoned (possibly unconstitutionally) before being criminally charged by President Ford.


Administration:

Reagan

Constitutional Crime:

Violating explicit Congressional laws, the US government, at the direction of the executive branch, including senior members of the National Security establishment (both NSA and CIA), sold military arms to our adversary Iran as ransom in exchange for the release of hostages taken in the wake of the US military intervention in Lebanon, and then used the financial proceeds to arm and train a rebel (terrorist, in some eyes) group in Nicaragua. Members of the administration then proceeded to obstruct justice and the investigation by perjury and  spoliation of evidence (notably Oliver North shredding documents and smuggling them out in in Secretary’s underwear). Money from these sales was also diverted to persons for personal expenses.

How it was uncovered/investigated:

Foreign “partners” in these crimes, in both Iran and Nicaragua, revealed details of the arrangements in late 1986 (perhaps in part to embarrass the United States) at which point Reagan admitted in a televised broadcast the gist of the arrangement. An independent commission without subpoena power or the ability to compel testimony under oath was appointed by Reagan to do initial two-month investigation (The Tower Commission), generally seen as an attempt to whitewash the affair, after which special committees of the House of Representatives and Senate were formed specifically to investigate the affair.  After public and Congressional pressure, ultimately Lawrence Walsh was appointed Special Prosecutor in late 1986, where most criminal details of the affair were exposed.

Special Prosecutor:

Lawrence Walsh

Role of Congress:

Congressional investigation uncovered many details of the arrangement, but was marred on several counts. The first was granting limited immunity in testimony to key participants, notably Oliver North, which ultimately allowed the conspirators to escape criminal prosecution (in North’s case, on appeal). The second was in having a significant split between the majority (then Democrat) report and the minority report, which differed on levels of culpability and the degree to which the senior political members of the administration were involved.

What happened to the perps:

13 members of the conspiracy were indicted from crimes ranging from perjury to defrauding the government to destruction of evidence. Two were given immunity for testimony for the prosecution, 1 was convicted of crimes and had his conviction overturned due to Congressional immunity (North), 1 was convicted of crimes and had the conviction thrown out on a technicality (Admiral John Poindexter) and the remaining nine defendants were all given probation ranging from six months to two years. President George Bush then later pardoned: Secretary of Defense Caspar Weinberger, National Security Advisor Robert McFarlane, Assistant Secretary of State Eliot Abrams (who almost got a similar role in the Trump administration) and two CIA deputies who were in charge of the covert operations, erasing their criminal records and ending their probations.

President Reagan, forced to testify in criminal trials after his term was over, essentially pleaded he couldn’t remember anything, so his role may never be known in full.


Administration:

George W. Bush

Constitutional Crime:

Conspiracy to manufacture evidence to convince Congress to  pass an authorization of a war; subsequent cover-up and political dirty tricks, including uncovering the identity of US covert agents as retaliation, intended to mask the manipulation and manufacturing of evidence. Evidence extended to strongly implicate the Vice President, Dick Cheney, although evidence of the President’s involvement and knowledge of these conspiracies has never been made clear.

How it was uncovered/investigated:

Following the illegal exposure of the identity of its covert agent, Valerie Plame, by the planned leak to discredit Plame’s husband as a source — intended to cover-up the manufacture of evidence concerning Iraq’s alleged desire to obtain uranium from Niger —  the CIA requested the FBI and Department of Justice investigate the particular offense. John Ashcroft, then attorney general, had a conflict of interest in that he had received nearly a million dollars of consulting fees from several members of the administration (including Karl Rove) who had peripheral or direct involvement in the conspiracy, and recused himself in late 2003. A special prosecutor, Patrick Fitzgerald, was appointed (by none other than  Acting Attorney General James Comey), who conducted a remarkably discreet investigation with virtually no leaks about suspects and crimes for which insufficient evidence could be produced.

Most other aspects of the false Weapons of Mass Destruction propaganda campaign were uncovered by the press, but in some cases (Judith Miller, Robert Novak) the press were willing participants or unwitting dupes in the initial misinformation campaign. Subsequent Congressional investigations concluded there were no weapons of mass destruction, but little came of them in terms of practical consequences, and Libby was the only criminal defendant ever charged and convicted in the affair. Most of what is known about the broader WMD conspiracy came about through independent reporting by multiple parties, although the Special Prosecutor shared explicit details of the Plame affair with the public in bringing the sole indictment.

Special Prosecutor:

Patrick Fitzgerald (limited to Plame Affair)

Role of Congress:

Several Congressional Committees, including the House Select Committee on Intelligence and Armed Service committee, conducted both closed door and open hearings and investigations surrounding the WMD events, and released summary reports that there were no WMDs without assigning culpability for the misdirection. Republican members of congress frequently repeated administration talking points conflating 9/11, Sadaam Hussein, and WMDs even after the issuances of fairly definitive evidence as to the lack of such weapons or weapon programs. Congressional action was ultimately blunted by a deeply partisan divide on the war itself.

What Happened to the Perps:

Vice Presidential Chief of Staff Scooter Libby was sentenced to 30 months in prison and fined, but George W. Bush issued a commutation of his sentence, but never issued a pardon. Libby’s law license was revoked, and later restored in 2016. Other notables involved, including Karl Rove, Richard Armitage, Donald Rumsfeld, and Cheney, never were charged. Cheney was an advocate until the end of the Bush administration for a pardon for Libby. There was no criminal investigation of the manufacture of evidence of WMDs itself, nor has the classified version of the major Congressional investigations ever been released. Use of government money to pay sources who faked evidence (“Curveball”, et alia) has never been accounted for formally.

A New Hartford Convention?

n 1812, we were tripped into a war that did not enjoy the full support of a majority of the American polity, one that quickly turned into a disaster. The schoolbook history pretends this war was was a victory, because we happened to win the biggest and last battle of the war, which was actually fought *after* the peace treaty settling the war had been signed (thanks to communication delays of the time). That the war was largely expansionist (freedom of the seas, while indeed a serious problem with Britain, was not a new problem in 1812, but made a convenient cassus belli) is often forgotten. It was desired by southern and western blocs because those persons desired more land, British land, for expansion, and more room for slavery to grow.

The reason the declaration of war was possible was because of the 3/5 rule. If you're not familiar with this, check out the Constitution. It gave slave-holding states extra representation in Congress, as part of the compromises of the Constitutional Convention of 1787, by counting all slaves as 3/5 of a person for purposes of representation, even though they weren't considered human beings with representational rights. This paradox -- relying on slaves to maintain a political majority despite having a populational minority -- was at the heart of the political fighting that went on until the 1860 Presidential election finally put the matter to head when a plurality-winner in the popular vote, Abraham Lincoln, won the clear majority of electoral votes.

In 1814, a group of New Englanders -- devastated by the war most of them hadn't supported, and unable to find purchase in a government that was not proportionately representational to their numbers -- met in Hartford to consider a number of means of forcing constitutional redress. Although characterized by contemporaries and many later historians as a "secessionist" movement -- and secession from the Union was in fact discussed as an option, to be sure -- the primary problem discussed was how the Republic had been advanced to the point, 38 years after independence was declared, that the power of the federal government could be moved to war, the most extreme state of affairs possible for a nation, on the basis of a minority of its electors.

The Hartford Convention sort of fizzled out after a few months of deliberation, because of the Battle of New Orleans and the succeeding news of the Treaty of Ghent having been signed in late December, 1814, ending the war, removed the most urgent and immediate problem the convention was called to discuss.

I wonder how the history of our country might have played out differently had the sequence of events not been as it was -- if we had had, in effect, a second constitutional convention addressing this inequality in our political balance that went to its logical conclusion of making a concrete proposal, possibly an ultimatum. The compromises of 1820 and 1850, splitting the baby down the middle, forestalled the civil war but didn't address the major problem of discord in the 1850's, which was that a conservative Supreme Court and a slave-state minority increasingly tried to impose slavery on the rest of the country -- through attempted expansion to the west, and the abrogration of the rights of non-slaveholding states to provide sanctuary for escaped slaves, or even those born free (such as Solomon Northrup) who were kidnapped into slavery.

Might we have averted the civil war? And would the electoral college, already considered a problem in 1815, have been addressed by the threat of a split in the Union?

And I am in turn wondering if we might today convene a sort of rump convention of our own, Hartford style, to discuss these parallel modern issues among the aggrieved majority in our country, in solidarity with one another, and not in quaking fear of the tyranny of the extremist minority which controls our government?

Neologism: Emailzheimers

emailzheimers. The inability to find a message in your inbox you left as a reminder to yourself, due to forgetting the keywords upon which to search and dredge it up out of the archives.

David Bowie

David Bowie

There are many eulogies for David Bowie today, and many personal reminiscences, and I cannot say that I have much to add to the discussion of his musical or cultural legacy in the broadest sense. I liked a lot of Bowie, loved some of his work (probably not yours - my favorite LP is Low, a hit-free record; I always thought “Let’s Dance” was literally a joke by Bowie, maybe to settle a bet he could get a number one hit if he chose to), but I was not a hardcore fanboy the way I am or have been for some other contemporaries.

But Bowie was my avenue to becoming a better human being in a particular way, which in many ways is superficial, not profound, but real nevertheless. Bowie converted me from being a homophobe as an adolescent; not entirely directly, but by understanding he was very important to people around me, and in that subtle walk between establishing my own identity and unearthing empathy and activating it for adult use, I’m pretty sure he saved me from being (more of) an asshole than what could have been.

Let me set the wayback machine to the mid-70s. If you were a boy living in the midwest back then, you can be pretty sure you’d be called a faggot as a routine insult. It was part of the territory-marking process of males, setting pecking orders, and if you were different in any way from the pack, you were a “faggot”. Adults made disparaging remarks about homosexuals, particularly men, routinely. Without much understanding of what it was, it was made clear by people around me all the time that being gay was just about the worst thing ever.

It’s hard as hell being an adolescent, and I can’t ever quite appreciate how hard it must have been back then to be gay in that kind of culture.  Developing a sexual identity is a universal part of being a human being, and the conflicting mass of messages from societal norms, moral strictures, the throbbing mass of our tribal and family cultures come into paradoxical conflict with one’s own developing personal identity.

I do know that as a young, virginal straight male, in the 70’s. it felt imperative to establish I AM NOT A FAGGOT from well before the age of physical sexual maturity. The urge to do this was strong and came with many perceived advantages. Advertising availability to the opposite sex; having access, at least in theory, to mainstream groups of peers; not getting beaten up.

So in my earliest teen years, I participated in the disparaging jokes. I called other kids “fag”, although it never felt as satisfying being on the giving end as it felt degrading being on the receiving end. I wore “Death Before Disco” t-shirts with an explicit anti-gay message (and no one called me out on it). And I hated David Bowie. Because, you know, he was a faggot.

Bowie’s gender-ambivalence/questioning need not be explicated, but it should be remembered the concept of gender spectrum and identity was pretty much binary back then. As a consumer of pop culture, I had little appreciation of nuance. I picked my first 7 inch record purchases because the songs were popular, and I wanted to be part of that feeling, if not the reality. (For the record - my first purchases, in 1976, a year before I discovered punk, were “Silly Love Songs” by McCartney/Wings and with recognition of the appropriate retro-irony, “Don’t Go Breaking My Heart” by Sir Elton John and Kiki Dee. I’ve always been a romantic.)

Why would I like Bowie? The word down from the older kids, especially the boys, was if you liked him you were a fag, too. So other than the odd song on the radio, I never listened to any Bowie, nor did I seek him out.

Evolving one’s taste in music, at least pop music, is also a common exercise of adolescent identity-building. Like the John Cusack character in High Fidelity, I’ve occasionally rearranged my record collection in autobiographical order. It’s a history of influence as much as self-discovery. First, following my older sisters’ favorite artists (Carole King! Gilbert O’Sullivan!), and the ones popular with other kids in my class (see also: Don’t Go Breaking My Heart.) Buying an album because I liked the single on the radio. Finding a record at the public library and taking it home based on the cover and finding something new. Reading about a song, or an artist who influenced another artist, and buying the album of the influencer. Hearing the unknown opening act at an early concert experience and finding their obscure record in the bargain bin. Finally, finding other people who liked those things, and having them play their records for me. I can show you my evolution from the Beatles’ 1967-1970 compilation to Zen Arcade, from the Ohio Players to Howlin’ Wolf, with at least one other person responsible for my step from spine to spine. Culture is by definition a collaborative project.

It’s a process of listening, but with open ears, and not to get too schmaltzy, an open heart. Questioning the concept of “liking” something, making choices between intellectual aesthetics and the logic of moving your butt to the beat, being dogmatic and wrong or dogmatic and right and then graduating to accepting and willing to listen, literally and figuratively, to what moves another person. You find all sorts of things that way.

I was a dedicated and soon to be hardcore punker for quite a while, but an omnivore at the same time. It was among my punk friends — a group safely outside the inward-spiraling social orbit of school, for the most part — I first became aware that I actually *knew* some other people who were gay. And they didn’t try to convert me, rape me, or by their mere presence brainwash me. The path from glam to punk was unknown to me at first, but the New York Dolls were all that it took to sell me on the idea that cross-dressing was no impediment to a good thrash song. It was one of these friends who had the imported version of the first Clash album, who had a copy of Too Much Too Soon, and a stack of seven inches actually purchased in England, who re-introduced me to Bowie.

The particular album was Station to Station, which is a pretty damn good album, strange (for the day) in the long length of its tracks and the low number of cuts on the album. As in the glory days of vinyl, it was a record that demanded you sit in the dark and listen. It was definitely more disco than punk, in retrospect, funky, layered; fun. And I got a dub tape of this friend’s “greatest hits” of Bowie that day, giving me a chance to really listen to the lyrics of anthems like “Rebel, Rebel” and “Changes” and “Fame” and the like.

I listened, instead of of reacting on face value to my perceived image of Bowie, because I’d learned that there were great rewards in discovering new music that way. And slowly, understood the larger lesson of discovering new people, and not being afraid of them, that way. Bowie mattered to this friend, quite a bit, and while he never quite penetrated my soul to the same extent, from then on I could understand how important he was to others.

I can’t say as I remember a particular epiphany about connecting Outsider status on matters of simple taste in music, or in politics, or the condition of oppression based on class or ethnicity, with that of sexual identity, but I do remember taking out my “Death Before Disco” t-shirt one day a few months after getting that personalized Bowie “hits” tape and listening to Station to Station all the way through in the dark, with my friend — a person as weird and outcast as I was, maybe in different ways, but a person, whole and individual and connected to me. I didn’t have to love Bowie to like my friend; he didn’t have to be a Ramones fanatic to be a good person. He didn’t have to be straight to be a friend. The t-shirt had been a staple for concert-going, once upon a time — and on this day, I looked at it anew, realizing the illustration on it was making fun of gay people. And on that day it felt wrong, and I put it away.

Turn and face the strange.

The Undemocratic Republican Primary Calendar

The fix might not be in, but the mechanics for making the fix are all in place.

Republican voters this Presidential cycle, do you think your vote counts? You might want to think again and consider the potential manipulations and shenanigans in your party's rules and voting schedule.

I won't lay out conspiracy theories here or pick the potential winners and losers of this system; you can do that yourself. This just lays out the rules and the calendar and you can work out how to manipulate this.

If you vote in the Democratic primaries for President, your vote will be counted proportionately for the candidate you’re voting for. So, if Clinton gets 50% in a state, Sanders 40%, and O’Malley 10%, Clinton will get 50% of the delegates for that state, Sanders 40%, O’Malley 10%. There are rounding issues here and there, but that’s basically the same rule for every Democratic contest.

Now, for the Republicans, instead there’s a weird quilt of rules about allocation of delegates based on the amount of votes they get in a caucus or primary as to whether they get delegates proportionally, if the winner by plurality gets all of them, who gets “bonus” delegates and at-large delegates assigned to the state delegation to the RNC convention, and so forth.

The bottom line is, your vote may count double, triple, or tenfold, or may not count at all, or may count proportionately. Whether it’s going to count or not has a lot to do with state party rules, which are set up basically so they can be manipulated around a party-favorite candidate.

Details:

For the first two weeks of March of 2016, the RNC requires sort of proportional representation of delegates - but leaves up specific rules about what the thresholds are to receive delegates on a state by state basis. They also allow states to set up a system to award at-large and bonus delegates (delegates given to a state because they have Republican elected officials at the state or federal level) as winner-take-all, either by Congressional district or statewide.

After March 14, state parties can set their delegation rules anyway they want. They can actually change the rules at any time; so one state could be winner-take-all, another could be strictly proportional, another could be proportional with thresholds for candidates to earn any delegates.

The intent of this latter rule was (ostensibly) to allow states to adopt winner-take-all rules once an apparent front-runner had started leading the field, so it would force everybody to effectively rally around the leading candidate. However, note that the flexibility in state by state rules allows each state party (run, by definition, by the Establishment) to basically pick their rules based on which candidate they want to earn delegates or be denied delegates based on the polling going into primary day.

Note also caucus rules are wildly variable; some caucuses have their own threshold requirements on a site-by-site basis (such as 15% of voters present must support a candidate to get a vote in the state totals, otherwise the voters are forced to caucus with another candidate) and the allocations of groups of votes can change by county, congressional district, or special district in the state. There’s so much room for shenanigans here it’s hard to describe in detail.

Here’s how this will play out (Republican calendar only):

States locked in to the semi-proportional format: * = caucus, otherwise a primary

February:  (basically one a week) 2/1 Iowa*, 2/9 NH, 2/20 SC, 2/23 NV.

(Washington caucuses are on 2/20, but their Presidential delegates are not selected at the caucus. It’s complicated but the bottom line is there are no delegates to go into the delegate count and thus affect the overall race.)

March:

3/1 - Alabama, Alaska*, Arkansas, CO*, Georgia, MA, Minn*, ND*, OK, TN, TX, VT, VA, WY* (“Super Tuesday” this year)

3/5 - Kansas*, Louisiana, Maine*.

3/6 - Puerto Rico

3/8 - Hawaii*, Idaho, MI, Miss.

OK, so now we’re at the end of the enforced proportionality window and will have a “leader” in the delegate count.

States where the states can basically change the rules about delegate selections anytime, including winner-take-all:

3/15 - FLA, ILL, Missouri, NC, OH (<— actually more delegates to be awarded than “Super Tuesday”)

3/22 - AZ, UT*

4/4 - WI

4/19 - NY

4/26 - CT, DE, MD, PA, RI

5/3 - Indiana

5/10 - Neb, WV

5/17 - OR

5/24 - WA delegates actually selected

6/7 - CA, MT, NJ, NM, SD

6/28 - UT (delegates actually selected)