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

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):

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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.