The term of art is “slow-rolling Constitutional crisis.”
Following the New York Times’ report on May 19 that the FBI sent an informant to talk to two Trump campaign advisers, prompted by suspicious contacts linked to Russia, the president tweeted on Sunday: “I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump campaign for political purposes — and if any such demands or requests were made by people within the Obama administration!”
On Monday, the US Justice Department duly caved and announced it would ask the Inspector General “to expand the ongoing review of the [Foreign Intelligence Surveillance Act] application process to include determining whether there was any impropriety or political motivation in how the FBI conducted its counterintelligence investigation of persons suspected of involvement with the Russian agents who interfered in the 2016 presidential election.”
Of course, the Justice Department is supposed to operate without interference from the White House to ensure that no one, not even the president, is above the law. This politicized investigation of the investigation effectively allows Trump to claim that any finding by Special Prosecutor Robert Mueller is illegitimate and politically motivated. And further prejudicing public reception of Mueller’s eventual findings, at the White House’s instigation, FBI Director Christopher Wray will brief two Republican House chairmen, Reps. Devin Nunes and Trey Gowdy, on the investigation on Thursday, while excluding Democratic lawmakers.
Democratic partisans and political progressives are waiting for a grand reveal from the Mueller investigation. Whatever the findings, if they are even made public, they will likely confirm the aggregate picture of foreign manipulation and collusion that millions of words of newsprint have already uncovered. It’s difficult to imagine the Republican leadership in Congress taking any action to remove Trump under any circumstances. The other shoe has all but dropped.
“Rule of law” is a nice idea that suggests that citizens may go before the courts with the expectation of equal treatment, that an impartial finder of fact will weigh the evidence, and that eventually the accused will accept the verdict. For this social contract known as “rule of law” to have any force, at least a majority of citizens must believe in its legitimacy and agree, despite their differences, to abide by the ground rules of a shared structure of governance.
Absent buy-in by the majority of the electorate on “rule of law,” we’ll have something else: victor’s justice. In victor’s justice, legal rulings merely ratify the outcome of contests of brute force. As my friend Chad Nance — documentary filmmaker and former editor of the excellent and now lamentably retired news site Camel City Dispatch — once said, “The reason we have courtrooms is so people have some way to settle disputes besides punching each other in a cow field.”
In truth, the United States has always operated through victor’s justice when it comes to people of color, whether it was Indian removal, the denial of property rights to Mexican-Americans in the Southwest, the Chinese Exclusion Act, or Chief Justice Roger Taney’s declaration that black people “had no rights which the white man was bound to respect.” The legacy of these practices shape-shift and repeat as white denial redoubles.
People of color know they won’t get fair treatment from the legal system. In North Carolina, some of the examples of black people who have been railroaded by the legal system and later vindicated include the Wilmington Ten, Darryl Hunt, LaMonte Armstrong, Henry McCollum and Kalvin Michael Smith.
President Trump, who now claims to be the victim of a political witch hunt, once called for the execution of five black and Latino boys who were wrongfully convicted of rape after coerced confessions in the 1989 Central Park Jogger case. Democratic politicians might be slightly less racist than their Republican counterparts, but their hands are hardly clean. As Nicholas Kristof writes in the Sunday Times, sheriff’s deputies in San Bernardino County, Calif. investigating a 1983 quadruple murder ignored compelling leads pointing to a white suspect and instead fabricated evidence to implicate a black man, Kevin Cooper. Now, as Cooper faces execution, Democratic Gov. Jerry Brown refuses to allow a DNA test that could exonerate him. Democratic US Sen. Kamala Harris, who previously served as attorney general, likewise opposed DNA testing for Kevin Cooper. And let’s not forget that Roy Cooper, North Carolina’s Democratic governor, remained silent as attorney general in the face of compelling evidence that the investigation leading to Kalvin Smith’s conviction was seriously flawed.
While Trump cries wolf about the Mueller investigation, most people of color have never had the luxury of confidence in the legal system. What’s new about the political maneuvering surrounding the Mueller investigation is that victor’s justice now being deployed for partisan ends, not only to uphold white supremacy.
What Trump’s Republican enablers have failed to grasp is that if they ignore the rule of law, they will be dismantling the very system that has protected their privileged status as governing elites. Without the rule of law, all power will consolidate in the hands of one impulsive, tempestuous executive. Republican lawmakers have the most to lose, and they should be working the hardest to restore confidence in the system.
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