Rock or Sand

In short, if you work for a Federal agency (nb:  the White House is the highest Federal agency), you cannot use your taxpayer-funded office to advocate your political beliefs.  This principle is actually a law called the Hatch Act.  Americans deserve a government that works for all of them, not just the people they agree with; that’s the philosophy behind the Hatch Act — it prevents Federal employees (nb:  the President of the United States is the highest ranking Federal employee) from engaging in political activity while on the job.  The Hatch Act was enacted into law during the Great Depression era after Democratic officials were found to be using Federal workers of the Works Progress Administration (WPA) set up by the then-Democratic presidential administration of FDR to help Democrats campaign for office in swing states.  One intention of the 1939 law was to protect Federal workers from such pressure — vote for this Democratic candidate or lose your job.  The idea being that Republican-supporting citizens deserved help from their government even if they didn’t support the New Deal Democrats.  I think we’d all agree that’s fair.  And if not, well, it’s the law.

Former White House adviser Kellyanne Conway was one of the most blatant, obnoxious, and unapologetic violators of the Hatch Act in modern memory; she constantly bashed Democrats as an official for the White House, often on camera on White House grounds.  In 2017, she weighed in on the special Senate race held in Alabama that year to replace Senator Jeff Sessions who had become Attorney General under President Trump.  In 2019, Conway made disparaging political remarks about then-former vice president Joe Biden, which prompted reporters to remind her of her previous run-ins with the Hatch Act.  She responded, “Blah, blah, blah, if you're trying to silence me through the Hatch Act, it's not going to work.  Let me know when the jail sentence starts.”

In a very cynical way, her hubris was well founded.  She knew she was not in trouble for her Biden remarks because she had suffered no consequences over her Alabama campaigning.  And she said as much.  Kathleen Clark, an expert on legal ethics at Washington University in St. Louis, notes, “It [violating the Hatch Act] is not a criminal offense; it’s a firing offense.”  Ultimately, your boss is the one who metes out the punishment; some Federal employees have lost their jobs for violations of the Hatch Act, but as Conway demonstrates, the higher up you are, the more wiggle room you have to avoid punishment.  And, as Conway demonstrated through her words which amounted to an “up yours” to American law, without the threat or reality of punishment, the law is seen as a joke to be laughed-off and brushed aside like an annoying fly buzzing around you while you try to enjoy a piece of apple pie.  It would be wonderful if we all did the right thing for the right reasons without having rules policing our behavior, but we don’t and we do — we can’t rely on all of our fellow citizens to behave ethically, so we enact laws to encourage them.  But a law is only as persuasive as its enforcement:  if there are no consequences for breaking it, or if the consequences do not result in a real loss for the law-breaker — money, reputation, status, freedom, etc. — two things happen… (1) no one is deterred from breaking the law in the first place, and (2) the law-breaker is emboldened once s/he realizes, “hey, I can do what I want and get away with it.”

Yesterday, the United States Senate delivered both those messages to America and to the world.  The Senate’s failure to convict Donald Trump of a high crime after it was amply and dramatically proven he was guilty of one — namely inciting a rabid mob to violence that resulted in grievous bodily harm, death, and destruction of property — is such a profound betrayal both of the Constitution and of our organizing principle as a country (the rule of law, not of unaccountable monarchs), that it stands as a repudiation of democracy itself.  When someone’s lawlessness is not punished, we have placed that person above the law — answerable to no one.  In that rarefied atmosphere is where monarchs, dictators, and now Donald Trump, dwell.

Whether you support Trump or oppose him, yesterday was a loss for you, because the man Trump is a symptom of a much deeper infection in the body politic.  Placing any man, or woman, above the law is like saying, “yes, we are all equal on account of the fact that we are all human and mortal and subject to the same ‘condition’ but some are more equal than others.”  Democracy dies when we do not enforce equality before the law.  Some other definition must be used, be it plutocracy (government by the wealthy), kleptocracy (government by those who seek chiefly status and personal gain at the expense of the governed), aristocracy (government that places strength in the hands of a small, privileged ruling class), or theocracy (government in which priests or “the chosen" rule in the name of a god).

defiant Trump

I ask you to reflect this morning on which we have become.

Moments after voting to acquit Donald Trump on the charge of inciting an insurrection against the government of the United States, before even leaving the room where the vote took place, the Minority Leader of the Senate, Republican Mitch McConnell, accused Donald Trump of inciting an insurrection against the government of the United States:

There's no question — none — that President Trump is practically and morally responsible for provoking the events of the day. No question about it. The people who stormed this building believed they were acting on the wishes and instructions of their president. The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.

Senate Minority Leader Mitch McConnell

Practically and morally responsible.  But not culpable.  He hung his hat on the very tenuous argument that you can’t remove someone from an office they no longer hold, and he equated conviction with removal.  But by equating those two things, he effectively said you are only guilty of breaking a law if you are eligible to suffer the punishment for your breach.  You cannot incarcerate a dead person, so does that mean you cannot convict them for a crime worthy of jail if they die before their trial?  I think, if the evidence shows it, you not only CAN but you SHOULD convict them of the crime regardless of the ability to endure the punishment for said conviction; anything else is like saying, “you are not guilty of X because we cannot do Y to you which is the punishment for X.”  You still did X; justice demands we say so.

rock or sand

Imagine, if you will thoughtful reader, two large trays set on a table before you; on each tray is a doll house, one atop a mound of sand, one atop a large rock.  Then imagine a watering can poured out over each house.  Gravity takes hold as the house on sand lists to one side and then slides to the edge of the tray; meanwhile, the one on rock withstands its downpour and remains upright.  This is how trials work — the sand and the rock are evidence, the water deluge is the arguments made by the prosecution and the defense — attorneys are watering cans in my quaint little analogy.  If the evidence is solid — ahem, “rock solid” — the defendant (doll house) will still be standing after arguments (water) are applied to it.  On the other hand, more porous evidence will be washed away by argumentation as sand is by water and the defendant will fall.  The forces of gravity were omitted from the impeachment trial so I hope it isn’t impudent to mention their role here, because exactly the opposite transpired in the senate yesterday, rock collapsed under the weight of water, sand stood firm.  It defies the laws of physics.  And of common sense!

Copyright © 2021 — all rights reserved.