Above Photo: President Joe Biden at the White House in June. White House / Cameron Smith.
Governmental bodies in the U.S. aren’t meant to be owned by those who lead them.
They aren’t possessions to be disposed of according to the will and inclination of the governors, writes Michael Brenner.
The abuse of executive powers has become so commonplace as to be accepted as the norm.
We experience it in organizations public and private – ranging from the Oval Office to elite universities to charitable NGOs and foundations, and of course across the business world where the MBA mindset and CEO hubris reign.
In this era of impunity, autocratic behavior is taken as a perquisite of office, if not indeed part of the job description. A general condition of social nihilism entices and emboldens the willful who crave arbitrary power for its own sake.
The drifting attention of our political class and an inert citizenry are critical facilitating factors. The result in an overall weakening of the country’s dedication to civic principles.
The most consequential manifestation of this multiform phenomenon has been the assault on civil liberties. Actions that infringe on the Constitution and compromise civil liberties are inflicting wounds so deep to the body politique’s vital organs that it is not at all farfetched to refer to post-Constitutional America.
Most derive from the collective terror psychosis; the existential Russia cum China challenge to the United States’ enduring belief in its Providential superiority; while others are associated with the emergence of a two-tier criminal justice system that privileges the plutocratic layer of the rich, the famous and the powerful – as exemplified by the free reign given the financial powerhouses, the IT tycoons and brazen political outlaws by all three branches of government.
Public office-holders in our constitutional democracy are trustees. They are custodians who supposedly act in the collective interest of the citizenry who have a stake in how our institutions perform. Governmental bodies in the United States are not meant to be owned by those who lead them. They are not possessions to be disposed of according to the will and inclination of the governors.
It follows that officials are authorized to exercise their proper powers within a set of constraints. Empowerment together with accompanying limitations are designed to ensure that the functions of leadership are performed in a responsible manner. It is a fiduciary responsibility in the broadest sense.
Custodianship in concept and practice is the antithesis to autocracy, to rule by diktat. Yet, today we observe the abuse of power in arbitrary action on a growing scale. High public officials, from the president on down, too often see no obligation to explain or justify why and how they do things that drastically affect the general welfare.
In the more extreme cases we examine below, they act with impunity in violation of constitutional or legal principles. That distain often is accompanied by deceit and outright lying – lying whose eventual revelation evokes a shrug of the proverbial shoulders rather than a mea culpa or repentance.
It usually takes the form of a pro forma “I take responsibility” – an empty phrase that means “I want closure now – so get off my back.” The examples are legion. Moreover, each occurrence of illicit action that escapes condemnation lowers inhibitions on the commitment of subsequent abuses.
Theoretically, the checks on abuse of office in the American system are four-fold: socialization into a political culture whose norms are upheld communally by other participants; monitoring by the media and the general public; enforcement of legal stipulations by the courts; periodic elections; and, ultimately, the resort to impeachment by the legislative branch of government in accordance with procedures embodied in law at every level of government.
None is an absolute guarantee of fidelity to proper conduct.
Peer pressure or pressure from monitors of various kinds presupposes a strong consensus on the legitimacy of behavioral norms, a readiness to exert such pressure and a sensitivity to it on the part of the executive.
These conditions do not exist today. We live in an era wherein careerist self-interest; often crudely partisan, rules thinking; a sense of diluted citizenship; and an ethos of anything goes has become pervasive.
The Judiciary
The judiciary has been corrupted by some of the same societal trends. Cavalier arrogation of personal prerogative by judges to impose their own standards and preferences is commonplace – most egregiously in the federal District, Appeals and Supreme Court.
The last now satisfies itself with providing the thinnest veneer of legal exegesis to justify what manifestly are subjective convictions (the rewriting of the First, Second and Fourth Amendments in the Bill of Rights provide the outstanding examples). The Roberts Supreme Court’s acts can have profound systemic consequences not only by virtue of their decisions in cases that they hear – but in deciding which cases they will hear.
Thus, Hobby Lobby is granted the Court’s attention to consider a far-out claim of religious liberty while the Justice Department is denied that attention when a fundamental question of financial criminality is at issue (the Dewey insider trading case).
Similarly, the federal courts denied legal standing to the father of Anwar Awlaki – murdered by a C.I.A. drone after being personally selected by Barack Obama from his ‘kill list’ – on the grounds that a litigant had to be direct target of the questioned action. Only a resurrected Awlaki, making his way back to the U.S., could launch such an appeal. Encouragement is thereby given lower courts to act in similarly cavalier fashion.
Consequently, when the Supreme Court takes the liberty of granting inanimate corporations the status of homo sapiens, enjoying the full rights and privileges of flesh-and-blood citizens, it comes as no surprise that a racist Georgia judge should allow a racist state legislature to criminalize the subversive act of an individual offering water or food to a prospective voter who is forced to stand in line for hours due to a prejudicial rigging of polling stations.
The Court jesters justify these malicious dictates as “strict construction’ or “original intent.” So nihilistic has American society become that the country ponders the legal rationalizations for this blatant power grab instead of greeting it with the mockery and impeachment petitions it deserves.
Elections
Competitive elections are frequently cited as the surest check on abusive executive behavior in a constitutional democracy. They have intrinsic shortcomings, however. Voting preferences are formed in response to a multitude of an office-holders’ actions; attention spans are short – especially in the age of declining journalistic standards and trivial pursuits; and partisan loyalties are the main determinants of how candidates are appraised.
Republican delegations in particular demonstrate a disciplined bloc voting that is reminiscent of the old Soviet Central Committee – and belies their pretense of being the cynosure of those traditional American values of rugged individualism.
Under the fluid terms of reference that mark an expanding, nihilistic, national culture, everything becomes ambiguous and pliable: words, principles, factual history, individual character. In this unsettled state of public life, outcomes are liable to be determined by the most willful individual or faction.
That is how Donald Trump and his MAGA phalanxes so easily seized control of the Republican Party and turned it into a subservient instrument of an extremist program. It is a triumph of the will – whether driven by dogma, prejudice, follow-the-leader compulsions, or fear of a fanciful enemy that frightens insecure lost souls.
In a political environment of confusion and disorientation, wherein all seems subjective, it is the audacious and ruthless who prevail. The “common ground” naïve types get devoured – just whetting the appetite of the Trumpites.
Party loyalty now dictates how legislators, militants, and donors appraise acts by an Executive that could raise a question of abuse of power. Even those who in private believe that conduct is unlawful, unconstitutional or excessive are inclined to give greater weight to policies and rhetoric that conform to his own thinking or simply because his electorate’s sympathies lie with the executive – both as to program and personality.
In regard to Republican legislators today, the truth is that they fear a primary challenge from somebody even more radical than they are than one from a prospective Democratic opponent. Extreme gerrymandering, backed by the courts, reinforces that logic.
Moreover, the caliber of persons in legislatures (in the states as well as in D.C.) is low and declining – in terms of intelligence, professional responsibility and elementary ethics. For the most part they are strivers or placeholders with weak convictions – except perhaps for one signature issue, agents for some well-heeled special interest, or small men (and women) searching for a balcony.
Public good is almost universally subordinated to individual advantage and political ambition. One doesn’t look there for profiles in courage. These days, more than ever before, members of Congress dread the termination of their comfortable, high-status Washington lives.
Yes, on the stump they praise to the heavens whatever “heartland” state or locale they hail from. In fact, though, only a rare few don’t fear spending the rest of their days brokering real estate in Missoula, Montana or hanging out an Attorney-at-Law shingle in Caribou, Maine. At the least, they want to acquire enough presence in the capital to parachute into a lucrative lobbying job were worse come to worse and the republic is deprived of their services.
Impeachment
As a deterrent threat and control it fails for two reasons. For one thing, the frivolous approach taken by many in Congress in recent years has tarnished its dignity and seriousness. First, we had the Clinton-Lewinsky farce.
Then, the Tea Party inspired movements to get rid of Barack Obama for one nominal reason or another when their base motives were that he is black or his attitude “un-American” in the view of Bible Belt uber-patriots, or because they need an outlet for their personal frustrations and insecurities.
The other reason is these acts of partisan pettiness make it impossible even to broach a sober discussion of possible offenses against the Constitution. Hence, the Clinton-Lewinsky farce; hence, the two burlesque Trump trials in the Senate.
The latter was boycotted by Chief Justice Stevens who refused to perform his duty to preside – thereby sending the stark message that a presidential project to invalidate a national election and to allegedly instigate a violent assault on the Capitol was not a legitimate matter of interest.
He relegated it to a partisan feud rather than a grave constitutional matter. Set alongside the Nixon-Watergate impeachment process marked by decorum and conscientious probing of the legal issues, these recent episodes demonstrate vividly how degraded the most serious business of the commonweal has become.
Hence, high officers of the Republic feel less and less inhibited about assuming a presumed authority to do things that border on, or enter into the realm of the illegal. The government, its policies and the country somehow are theirs to use as they see fit.
“We the people” get their say at election time; otherwise, the citizenry are identified by lobbyists and media as those to be cajoled, spun or appeased to secure leaders’ expansive prerogatives. That is the extent of the perceived commitment to a democratic polity and an informed citizenry. Yes, there is constant reference to a national “conversation” on this or that or the other issue. But two-way communication of a meaningful nature is studiously avoided.
Mass Surveillance
Consider electronic monitoring of private communications. The vast network of spying first was put in place secretly by a small coterie of persons in the George W. Bush administration, Congress (including the Democratic leadership) and Chief Justice Rehnquist without any legal cover whatsoever. There was zero public discussion. Its elaboration was justified on the basis of generous readings of the Patriot Act, which accorded the executive powers equivalent to those of autocrats everywhere.
Obama and his successor followed an analogous course. The public was kept in the dark until programs that raised grave legal issues were exposed by NSA whistleblower Edward Snowden. One key feature of the White House’s mode of formulating the troubling surveillance question is telling. Its central element is the reiterated claim that “security must be balanced against civil liberties.” This has been adopted by nearly all commentators, including distinguished law school professors.
So stated, the formula in effect affirms that government actions which violate constitutionally guaranteed privacy rights need only meet a standard of practical value in supposedly reducing some arbitrarily assessed security risk.
But these are not considerations of the same order. The one is an explicit, constitutionally grounded right of citizens. The other is a subjective policy judgment based on a loose reading of inherently ambiguous legislation. The blurring of this fundamental distinction serves to radically expand the range of discretionary action by rulers while subordinating a principle inscribed in the Constitution for the very purpose of circumscribing that claimed prerogative.
The Obama administration’s systematic resistance to having the constitutional issues adjudicated in the courts is, in effect, a declaration that it “possesses” not only the executive branch but the United States governmental system itself.
As for Trump, alleged criminality itself overtly replaced accountable governance. The countless alleged felonies are so serious, that one need only throw a dart at the list of illicit actions to hit upon what appears to be open-and-shut cases.
What is the likelihood of Trump’s being indicted, much less convicted? As the Sicilians say “between no and nothing!” Just look at the kid glove treatment given Allen Weisselberg – long-time legal adviser to the Trump organization and personal consigliere – whose admission of guilt in committing multiple felonies earned him a sentence of 100 days in a so-called plea bargain wherein he refused outright to testify against “The Donald” himself. It is an all too characteristic art of the deal when heavy hitters encounter attorneys-general and prosecutors with an ingrained reverence for those who embody the status quo.
Consequences of Getting Away With It
Our discussion of the ever-expanding abuse of executive power and position would be remiss if we didn’t address yet another ingredient in the pathological mix. Unaccountability and arbitrary behavior feed upon each other. The more that miscreants can get away with and/or see others doing so, the readiness to skirt legal and ethical rules and to push the envelope is strengthened.
That leniency implicitly sets higher criteria for initiating investigation and criminal proceedings – whether consciously or by cultural assimilation. In turn, leniency and lethargy condition potential law and rule breakers to adjust their risk and gain calculations when contemplating illicit acts.
For all parties, new norms are crystalizing about what is acceptable, what judicial authorities will tolerate and how one balances the vow to uphold legal stipulations against an officer’s careerism and risk avoidance. That generates an accelerating downward spiral.
There is massive anecdotal evidence in support of this assertion. Consider just one. The Savings & Loan scandal of the 1980s resulted in the conviction of 4,000 + individuals (live bodies). The far more extensive misdeeds associated with the financial meltdown of 2007-2008, involving sums measured in the trillions and inculpating far more people produced the punishment of less than a dozen.
That includes the designated scapegoats like the young traders at Société Générale de Banques in Paris and Barclays in Singapore, forced to walk the plank by their superiors who needed human sacrifices to protect themselves against judicial action.
Countrywide Bank, along with CITIBank the worst offender, was headed by Steven Mnuchin – Trump’s treasury secretary – let off the hook by then California Attorney-General Kamala Harris, who turned a blind eye to over-the-top fraud and larceny – thereby sparing herself political complications and a lot of hard work. Mnuchin is now in an Equity Fund partnership with Jared Kushner to cash in on their ties with Mohammed bin Salman to make a killing around the Gulf. ****
A Collective Super-Ego
A democratic system, especially one that vaunts individual freedom as its hallmark, needs a collective super-ego. As norms of public conduct are blurred, and constitutional legal principles elided, the risk of an unravelling of our institutions and personal conduct grows.
The sine qua non for stopping or, at least slowing the rot by everybody who is cognizant about how perilous is the path we have taken, is activism at every level, in every sphere. Narcissism, the obsession with selfish gain and simple cowardice are admittedly formidable obstacles. Still, we should bear in mind the admonition of John Adams:
“Be not intimidated… nor suffer yourselves to be wheedled out of your liberties by any pretense of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery and cowardice.”