My thoughts about culture and our present conditions. As Dianne Moore says in Learning to Love a Wounded World, "This requires a willingness to feel everything…. the horror and the beauty of what is here…. the fear and the Love.”

Constitutional Crisis

Presidential brutality an extension of presidential power

Note: First published on Facebook this morning, but I wanted to preserve it somewhere else.

I love Facebook. It asks me what’s on my mind when I visit. So here goes: For those who are bouncing around in the media’s portrayal of a dramatic binary opposition, represented as two political parties vying for the attention and support of the political will of the people of this nation, I just want to call attention to the underlying truth that’s been with us — and building in strength — through most of my life time. Deep, institutionally-based presidential power.

Simply put, the difference that all this daily uproar we are currently experiencing as “news” is supposedly all about is superficial. In psychology family dynamics it’s called uproar. Uproar is a power play game where one individual gets everyone else confused in a chaos of personal argumentation while they advance an agenda of their own underneath the atmospheric haze that results.

I think this current administration has done us a favor and made no effort to disguise that superficiality. But now we have to come to grips with the facts. It WAS disguised all along.

Apologists for the Democratic Administrations of one of those two parties need to look at what the last, inappropriately-awarded Peace Prize version of their party was really about. And face this: it was not a big deviation from the previous administrations, including Clinton’s, and certainly including the one that put my generation into Vietnam, and of course the one that put us on this path to unending military engagement in the Strategic Ellipse, an engagement ever seeking to expand across The Arc of Instability (search those terms, you’ll find the descriptions if you don’t know what they refer to; your military leaders and political policy professionals certainly know what they mean) where, incidentally, you’ll find many of the raw materials needed to keep industrial civilization growing. And that’s what most people really want, isn’t it? So who really wants to look beneath the uproar?

Well, in case you do. There are voices out there talking about it.

Here’s one just this morning, I’ll link it below. It came through what amounts to my news feed of headlines in one of my email accounts.

As a little background to the article: I’ve looked (deeply) into the upwardly growing arc of power in the executive branch of the U.S. I found that the basis for that growth in power was put forward as a coherent theory during Reagan Administration. Remember Reagan? A favorite and a hero president to many? Also, incidentally, a grade B movie actor, but good with remembering his lines, and talented enough to act presidential on stage in front of a nation tuned into those news feeds with their televisions.

Well… during his administration this thing came up called the Unitary Executive Theory (UET). It is a legal theory that delves into the intentions of the Founders and their Constitution we now live with, and their constructive concepts about the relative powers of the Executive Branch. The legal scholars who were advancing this theory also started a legal “club” known as the Federalist Society. Please look it up if you don’t know what it is. At least five of the SCOTUS justices are associated with it. It didn’t even exist before the Reagan Administration.

Hmmm. A legal society intent on changing the nation’s interpretation of the Constitution that didn’t even exist thirty eight years ago now one of the biggest and most influential legal societies in the nation….? According to their textualist and originalist-based theory, the President was supposed to have more power than they thought presidents at that point, in the early 1980s, had.

And, guess what, presidents since then have been trying to act out that theory in order to make it a reality. That includes Clinton and Obama. Presidents want more power. It makes their job easier. Trump isn’t disguising that in any way at all. And I, for one, appreciate that he’s bringing it out in the open. That way this nation can decide, finally, if it wants to be a nation of authoritarian followers or not. I hope we get to decide for ourselves.

The UET, of course, can be a troubling idea to anyone who might be concerned that a presidency can move towards something more dictatorial in nature — which, as a political system, is one of the noted dangers of a presidential system. I don’t know if they teach that in high school political science classes. It wasn’t mentioned in mine as I recall. I had to find it on my own.

Jacob Bacharach doesn’t mention the UET in his article. But what he is describing is the result of it, especially as it was expressed throughout the much maligned previous Obama Presidency — maligned by the people who now support the current President, whose Presidency is following the Obama arc of seeking ever greater presidential power, with a few hyperbolic steroids added to buff those presidential muscles, but not maligned by most of those who are now in binary opposition to the current Trumpians. Like I say, superficial.

Trump’s Brutality is Part of Obama’s Legacy Now by Jacob Bacharach

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Obstruction of Justice and the President

Obstruction of Justice: A felony under federal Law.

 

According to the official record, Obstruction of Justice has been the core of the last two articles of impeachment brought against American Presidents Clinton and Nixon. The currently appointed Special Counsel Investigator, Robert S. Mueller III, is carrying out a broad investigation of links between the Russian government and individuals associated with the Trump Campaign, and any matters that arose subsequently to the election in relation to that association. That includes current charges of obstruction of Justice that Trump has incurred related to his firing of FBI Director Comey on May 9. This is my attempt to try to organize the structure and meaning of obstruction of justice as a legal concept related to that investigation.

My concern is that too much has been made of the hyperbolic features of this President. Yes, to many of us, he appears both erratic and incompetent. But the larger issue overshadowing those features — leadership features that have brought about reams of, to me, hyperbolic description of the person himself from those who are understandably aghast by his sudden ascendancy — has to do with standing in resistance against what also appears to be an accelerating, ill-conceived effort to deconstruct years of work towards putting in place of a carefully structured oligarchy by Founders who were the propertied elite of their day, democratic policies and institutions.  These were necessary to put in place because of a Constitution that was, to begin with, a poor effort at creating a truly democratic social arrangement in what’s come to be called the United States of America.  We the People kept discovering these deficiencies and, at the grass roots level, so to speak, began efforts, time after time over the past two centuries, to correct them.

In response to over two centuries of democratic correction, what’s now occurring appears to be an accelerating expansion of a developing inverted totalitarian rule by what has come to be called the “one percent”, with the current president as a very visible member of that group, elected under circumstances intractably set up by the Constitution that are in their very nature, undemocratic. In Trump’s case, this effort is being accomplished in the name of “restoring” something ambiguously described by him throughout his election campaign and so far through his brief reign, as American greatness.

So, to resist — and I consider myself a member of those who resist — is to resist this oligarchic-inspired reversion to what I see as a deeply entrenched oligarchic structure that we have so doggedly dragged ourselves out of over the years.  The “truthful hyperbole” of Trump’s sales pitch — that he wants to “make America great again” — barely disguises his true intent: that he wants to restore the original intent of those who set this nation up for a specific group of property owning white males, like himself.

My hope is to inform myself about the law of obstruction so I can articulate the seriousness of this charge to anyone I happen to talk with about this subject.

Federal laws defining obstruction of justice are found in Title 18, sections 1501 through 1521 of the United States Code. In looking at those sections, one can see they define 21 separate obstruction crimes.

Robert Mueller will be looking at the accumulated evidence, as it has been accumulated so far, and as it will be as his investigation unfolds, in an attempt to discover if anything President Trump has done (and may continue to do) can be legally defined as obstruction of justice.

Bill Blum, a former judge and death penalty defense attorney, now a writer, has provided me with a lot of legwork in paring down the legalities of Obstruction of Justice. Here are three of his most recent articles, all focused on Obstruction of Justice (Please note: although for some inexplicable to me the following do not appear as links like all the others in this post, they are actually links, and each can be clicked on to get to the article at their source):


Constitutional Crisis issues

A Suggested Cure for a Constitutional Crisis   

(note, you can watch the complete segment at Bill Moyer’s Journal site: Tough Talk on Impeachment)

My thoughts:

Whatever the Founders may have imagined when they were designing this governing system we’ve inherited was inevitably based on the availability of only a very few democratic prototypes to choose from at the time.  And their own imaginations were, by the very nature of constructed imagination as we now understand it with our modern cognitive sciences, an accumulation of memes of organizational boilerplates mishmashed together through 12,000 years of humanly evolved social complexity experiments. This appears to have begun after some of our species began experimenting and leaving behind the simple, easy to self manage group problem solving strategy of wandering bands of hunter gatherers, a strategy that had brought us through several million years of evolution to the beginnings of a brilliant innovation: the agricultural subsistence strategy ages and their correlated social organizations somewhat arrogantly coined as “civilizations.” And now, perhaps, the creative combining of various cultural memes developed through this period has brought us all to the edge of our doom — but that’s another story.

 

While apparently Ben Franklin brought in some ideas from the Iroquois participatory democracy model, it would appear that for the most part the US prototype drew from the Roman Republic model, and thus we got the vestigial Roman Senate thrust into our bicameral legislature to represent what they imagined was in need of representation, and that was the states themselves, somehow abstractly separated in concept from the people. After all, there simply wasn’t a big supermarket of democracy prototypes to choose from, and these guys had to finally, somehow, come up with something.

Most of those Founders were of the elite of their time, educated in the classical traditions of Europe, so knowing what we know about the mind now, we can assume their imaginations conscribed to what they knew at that time. That’s one reason why our Constitution is called an experiment. They really did not know how it would actually work out once in play.  Since then a lot of different democracy models have evolved. Ours is arguably something of an antique, being an early experiment founded in the horse and buggy mentality of its day.

Perhaps 19th Century American Exceptionalism still holds sway in our thinking and the accumulated traditions of American hubris makes questioning the document’s greatness inhibitory.  Because I find that trying to bring up the subject of actually redesigning the Constitution does not perk up many ears.

One of the problems I suspect embedded in our Constitution’s design is that power in any hierarchical order of society acts like a drug, and it works in many nefarious ways. Most of the Founders were from a European class structure in which as elites they had advantages they took for granted. The “drug of power” of their very positions can be expected to have dimmed their imaginative faculties, no matter how excited they each may have been about the new “revolution of individualism” they were in, and they had difficulty extending full humanity and a corresponding application of the Bill of Rights to all the individuals we are now willing to consider fully human in this country after some 200 years.

What they didn’t know was that a presidential system itself has ontological implications built in, and no matter how much they didn’t want it to become like the monarchies of Europe, they didn’t recognize how evolution of institutions themselves can supersede the individual. We ourselves still focus on personality, when it’s the institution itself that the next president will inherit, and much of what they say while stumping for election will vanish once they sit in the seat of power.

With the evolution of society, the growth of corporations, and the economic system that altogether has evolved, all along the way the government has had to try to adapt to meet the Constitutional mandates and the contingencies of reality. What’s being tested in the process is the legal structure itself. Often the resolutions are an unhappy result of paradox, like applying the 14th Amendment, which is about individuals, to a corporate entity, the private corporation, and declaring that a corporate entity is a person under the law. The very notion of the revolution of individualism and the Bill of Rights is thrown into some sort of conceptual chaos with that.

What’s evolved is a result of basic structures that were in place, some of those results have memic features that are almost Frankensteinian in their very DNA. The point is there may have been no way to interpret the Constitution that could have come out to look anything like what the Founders hoped for, and a kind of legal fundamentalism calling upon an originalist interpretaiton itself puts a chain around the pressures calling for a creative approach to problem solving that maintains democracy. If we find we are giving up our democracy for anything — security from terrorism, for instance — then perhaps there may be an inherent structural problem worth considering in the Constitution itself.