John C. Eastman
June 22, 2017
t her press conference following last week’s assassination attempt on Representative Steve Scalise and other Republican members of Congress, Minority Leader Nancy Pelosi stated: “Somewhere in the 90s, Republicans decided on a politics of personal destruction as they went after the Clintons, and that is the provenance of it, and that is what has continued.”
She apparently has forgotten (or believes the rest of us have forgotten) the utterly false case made against the distinguished jurist Robert Bork, which derailed his nomination to the Supreme Court in 1986, or the scorched-earth, scurrilous attacks on then-judge Clarence Thomas that attempted similarly (albeit unsuccessfully) to block his confirmation to the Court in 1991.
Perhaps even more to the point, Congresswoman Pelosi seems to have forgotten that the phrase “politics of personal destruction” was coined for the purpose of describing Hillary Clinton’s mean-spirited attacks against women who accused Bill Clinton of sexual assault (though, admittedly, it was later resurrected by Bill Clinton himself to rebuff the criminal investigation of him arising out of those credible accusations). Lest we forget, Gennifer Flowers was “trailer trash” in Hillary Clinton’s public statements; Monica Lewinsky was a “narcissistic loony toon;” the string of accusations of sexual impropriety were simply “bimbo eruptions;” the woman solicited by state troops for a sexual tryst on Bill Clinton’s behalf had to have her story “destroy[ed].”
The New York Times likewise, embarrassingly, sought to lay the blame on Sarah Palin, recycling a long-discredited story that Palin’s political efforts, via a website, to “target” in the 2012 elections certain swing districts held by Democrats actually incited Jared Lee Loughner, a paranoid schizophrenic, to attempt to assassinate Democrat Congresswoman Gabrielle Giffords in January 2011. The Times failed to mention that U.S. District Court Judge John Roll was the government official actually assassinated that day, apparently because the fact that he had been appointed to the bench by a Republican President did not fit the narrative the Times was trying to advance. Neither did the Times mention—at least, not until it was embarrassed into making a retraction—that there never was any evidence indicating Loughner had ever seen, much less been influenced by, Palin’s website in particular or political rhetoric more generally.
Nevertheless, most across the political spectrum took the occasion of last week’s assassination attempt to call for a new spirit of civility in our politics. Alas, I predict it won’t last. I am reminded of the fate that met one such past effort, following a decade of rancorous judicial confirmation fights in the U.S. Senate. In 1991, more than a year before the 1992 presidential election, President George H. W. Bush nominated District Judge Terrence Boyle to a seat on the U.S. Court of Appeals for the Fourth Circuit. Democrats, then in control of the Senate, refused to act on the nomination for over a year, then allowed it to lapse at the end of Bush’s term. (As an aside, those who recently accused Republicans of unconstitutional conduct for failing to act on President Obama’s nomination of Merrick Garland to the Supreme Court less than a year before the 2016 presidential election seem to have forgotten that the same appointments clause applies to both nominations). Republicans responded in kind, refusing to take up the nomination of Roger Gregory to the Fourth Circuit seat that President Clinton made in June 2000, just four months before the 2000 presidential election. President Clinton’s response was to make a relatively rare recess appointment of Gregory to the seat anyway, an appointment that could last only a year.
The tit-for-tat refusal to consider qualified nominees was poisoning the confirmation process itself, so upon taking office in January 2001, President George W. Bush decided to act magnanimously, taking advantage of the fact that by then there were two vacancies on the Fourth Circuit. He re-nominated both Boyle and Gregory to those permanent positions, but instead of accepting the olive branch of civility thus offered, Democrats in the Senate promptly responded by confirming only Gregory; they continued to block Boyle, whose nomination would languish for another six years—the longest in U.S. history—before it was finally withdrawn by President Bush in 2007.
Another recent effort to reinstate civility to our politics is in the process of meeting with a similar fate. During the contentious presidential campaign just passed, candidate Donald Trump repeatedly promised to appoint a special prosecutor to investigate the various criminal scandals swirling around his opponent, Hillary Clinton. But two weeks after the election, he backed away from that campaign pledge (much to the chagrin of his supporters), announcing that Clinton had suffered enough and that it was time for the country to heal. Declining to pursue an investigation, even where there is pretty solid evidence of criminal conduct, when there are such mitigating circumstances, is well within the President’s prerogative as the nation’s chief executive, a long-honored exercise of prosecutorial discretion.
But the president-elect’s magnanimity on this score provoked the exact opposite of civility from the opposing camp. A false narrative of Russian interference with the election was pushed out by leading Democrats and their hallelujah chorus in the major media. That was followed by false narratives of Russian collusion with the Trump campaign when the first narrative failed to yield any evidence that the election had actually been compromised. And those false narratives have now been followed by legally erroneous claims of obstruction against the President for merely suggesting to former FBI Director James Comey his hope that Comey could see his way clear to letting go of any further investigation of former National Security Advisor Michael Flynn. Merely suggesting, mind you, not ordering or directing, as he had done with the prospective investigation of Hillary Clinton.
The utter hypocrisy on display from the left side of the political spectrum on these matters is astounding. Was there ever a claim that the President’s preemptive termination of an investigation into criminal conduct by Hillary Clinton was “obstruction”? Of course not. But quite apart from that, there is a huge difference in the cancelled investigation of Hillary Clinton and the ongoing investigation of Russian hacking/collusion/obstruction that poses grave dangers for our body politic and our liberty more broadly.
In the Clinton case, there was and is evidence that a crime (actually, several crimes) had been committed. Emailing classified information to people not authorized to receive it is both a crime in the choice of recipient and a crime in the mode of transmission. Knowingly storing classified documents on an unsecured server is a crime. Destroying government documents, whether stored on a government server or on a private one set up to avoid detection, is likewise a crime. And accepting significant cash payments from foreign nations and interests into a family foundation, sometimes laundered through innocent-sounding third parties, in order to obtain favorable decisions by someone related to the foundation while she was serving as the nation’s Secretary of State—things for which there is significant circumstantial evidence—would likewise be a crime or at the very least a serious political scandal if proved to be true. An investigation into those crimes is the usual stuff of criminal investigations conducted every day by the FBI and numerous state and local law enforcement agencies around the country.
In the Trump case, on the other hand, there has never been evidence of any crime. But unlike with the Clinton “matter”—that special Clinton campaign talking point word that the FBI Director was directed to use when describing the Clinton investigation—a special prosecutor nevertheless has been appointed. The special counsel will not track down the details of a crime known to have been committed and determine “who dunnit,” but will scour the personal and business affairs of a select group of people—the President of the United States, members of his family, his business associates, and members of his presidential campaign and transition teams—to see if any crime can be found (or worse, manufactured by luring someone into making a conflicting statement at some point). This is not a proper use of prosecutorial power, but a “witch hunt,” as President Trump himself correctly observed. Or, to put it more in terms of legalese, this special prosecutor has effectively been given a “writ of assistance” and the power to exercise a “general warrant” against this select group of people, including the President of the United States, recently elected by a fairly wide margin of the electoral vote.
That is the very kind of thing our Fourth Amendment was adopted to prevent. Indeed, the issuance of general warrants and writs of assistance is quite arguably the spark that ignited America’s war for independence.
Writs of assistance gave the King’s men the power to search the homes, papers, and belongings of anyone they wanted, to look for evidence of crime—usually contraband goods, but they were not limited to that. The writs required no judicial oversight (though they sometimes were issued initially by the King’s courts) or probable cause. Instead, they delegated “practically absolute and unlimited discretion” to the officials who carried them out. And they were good for the life of the King who issued them.
When King George II died in 1760, Charles Paxton, the chief customs officer in Boston, petitioned the local court to issue him new writs of assistance on the authority of the new King George III. James Otis represented a group of local merchants seeking to prevent the reissuance of the writs, calling them “the worst instance of arbitrary power, the most destructive of English liberty, that was ever found in an English law book,” according to historical accounts at the time. Otis lost the case, but the concern about this arbitrary power, and its sister power, the general warrant, which allows for general searches rather than searches for specific things or persons, was “the first scene of opposition to the arbitrary claims of Great Britain,” as John Adams described it. Indeed, a century and a quarter later, the Supreme Court described the Paxton case as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.”
One of the more frequent criticisms of the Constitution as it was proposed in 1787 and ultimately ratified was that it did not include a prohibition on the issuance of writs of assistance and general warrants. James Madison and his fellow members of the First Congress rectified that by proposing the Fourth Amendment, which protects people against unreasonable searches of their “persons, houses, papers, and effects” (contra the writs of assistance), and requires that warrants be issued only “upon probable cause, . . . particularly describing the place to be searched, and the persons or things to be seized” (contra the general warrant).
No such limitation seems to be in place with the special prosecutor. He is reportedly looking into the financial records and meeting schedules of several top aides to President Trump, for example, including Trump’s son-in-law Jared Kushner. It is hard to imagine that a court would issue “probable cause” warrants for such things, when there is no evidence of an underlying crime, but “probable cause” has given way to political pressure.
Woe to the official who insists on a warrant before giving the special prosecutor unfettered access to his papers and effects, for “he must be hiding something” would be the narrative leaked to the all-too-willing press. Moreover, much of that information, in today’s “data-everywhere-on-the-internet” world, can be obtained even without a warrant, so the need for prosecutorial restraint is even more pronounced than it once was. Dangerous enough when there is already evidence that a crime has been committed, the power to deploy the full resources of the United States government against a select group of individuals, to churn up the soil and turn over every rock on their personal path of life, to see if ever a crime had been committed along the way, is a dangerous threat to the liberty of all of us. It is intolerable under the Fourth Amendment. And it should be intolerable in any nation committed to principles of liberty.
That so many on the political left who would have been howling “foul” from the mountain tops had the President made good on his campaign pledge to appoint a special prosecutor to investigate the crimes quite arguably committed by Hillary Clinton and her associates, are nevertheless giddy with glee over each new leaked bit of information about the Russia/obstruction investigation, just proves that we are a long way from the politics of civility that is necessary for this body politic to heal. I am not optimistic.
Unfortunately, the only antidote may be to fight fire with fire. President Trump: Perhaps it is time to make good on that old pledge to appoint a special prosecutor to look into the Clinton “matters” after all. And while you’re add it, add in referrals to the grand jury for the contempt of Congress committed by the IRS’s Lois Lerner and former Attorney General Eric Holder, an FBI investigation of the destruction of government documents and servers in the midst of the IRS scandal, an investigation into alleged perjury committed by IRS Commissioner John Koskinen in testimony about those matters given under oath to Congress, an “obstruction of justice” investigation against former Attorney General Eric Holder and others (and related perjury charges against Assistant Attorney General Thomas Perez) for allegedly ordering that an egregious voter intimidation case against the New Black Panther Party be dropped shortly before a default judgment was about to be entered in the government’s favor, etc., etc., etc. Maybe then, those on the left calling for your head will understand the dangers of playing with fire, and be a little more willing to accept olive branches of civility when offered in the future.
This piece originally appeared at American Greatness.