In the United States there are occasionally such great failures of verisimilitude between law and reality that competent persons of normal awareness are astonished at them. Here are two such cases, both of which involve unscrupulous actions by the Republicans. I know of no actions of similar enormity taken by the Democrats, which is why I am a Democrat.
The Attempted Impeachment of President Clinton
As everybody knows, an impeachment attempt was made against President Clinton on the basis of his having lied about having had some sort of sexual intimacy with a White House intern. This is called the Lewinsky Affair.
Clinton's lie was not a violation of any law. In this country, perjury is not prosecuted when committed as part of a testimony that is not pertinent to the proceedings at hand. Even were it true that Clinton ever lied about having had some kind of sexual contact with Monica Lewinsky, he would only have been lying in response to the question about whether he was intimate with her. There was no other inquiry.
Hello, sexual intimacy between consenting adults is not a crime. There could be no question of whether he should have been prosecuted for lying about it. It was not a crime, and it was not public business. There should have been no legal proceeding whatsoever. Observation of correct legal proceedings, in which Bill Clinton had no fewer rights than any other citizen, would have meant that no prosecution should have been possible, and his enemies' vindictiveness should have been severely limited to the media, at most.
For example, if you are testifying about where you were during a murder trial in which you are not the accused and it has nothing to do with the proceedings, you are not supposed to be prosecuted for lying. When anybody else does this sort of thing, they are not prosecuted for it. Because the Republicans wanted to prosecute Clinton, they acted as if his action, if there ever was such an action, was illegal to lie about. It was not. Clinton's sex life was never at any time any of their business. As a peccadillo that is none of our business, it is something between him and his wife, and they seem to have resolved the question. But even that is, of course, irrelevant to the question. It is just the most that can be said about Bill Clinton's accountability.
It is important to observe that the only accusation the Republicans could make against Clinton was of "high crimes and misdemeanors."
Hello, except to prosecute a civil officer, there is no category of American law called "high crimes and misdemeanors." There are no prosecutions in this country for "high crimes" because there is no clarity to this term. There is a vague and redundant reference to it in the Constitution but it is quite literally not in the legal dictionary. The most that can be said is that it is a vague term than meant something to the Founding Fathers, but only because they were working with a term more traditional than truly functional. If you read Section Four of Article Two of the Constitution you will find it in a run-on sentence. When they accused Clinton of a crime, they didn't even name a crime he had supposedly commited. And they could not name a type of law he had broken, since he had not, in fact, broken any law. So they called it "high crime," to make it sound like the big deal it wasn't.
simply made him seem as bad as they could and, having no case whatsoever to make, they used verbiage that simply sounded bad, even though the terms they used do not even come from American law.
We do not have a category of "high crimes." And guess what, we never prosecute federally for misdemeanors. That's another antiquainted and unnecessary term in the Constitution.
Again, "High Crimes and Misdemeanors" is not any longer American terminology at all.
It is English. It was the accusation made against Charles I of England in the Seventeenth Century, during the English Civil War.
And even if you don't know that a so-called "high crime" is not a category of legal offense, everybody who speaks English is supposed to have a clue that no President gets impeached for a misdemeanor! When the Constitution says "misdemeanor, it can't mean 'misdemeanor.'"
The use of the expression "high crimes and misdemeanors" is pure legal "boilerplate." The American people were so stupid they could not figure out that the Republicans were only using legal templates.
The impeachment documents prepared against George W. Bush contain actual crimes, but the legal process was stalled. The loss of both houses of Congress, and the success of initial impeachment proceedings against Dick Cheney caused Bush to play a lower-key game from about 2006 on. Bush should have been prosecuted, not Clinton.
People from all over the world that I spoke with at the time, and have spoken with since, were, and continue to be, amazed at Americans for getting so worked up over unimportant matters. As a nation, Americans just don't behave like adults.
The bottom line was simply that if Clinton did not tell the truth at all times about matters regardless of whether they were relevant or even anybody's business, some people, especially Republicans and their stooges and dupes, thought he should be prosecuted not to the fullest extent of the law, which did not provide for such prosecution, but as severely as they could get away with prosecuting him.
In short, the Clinton impeachment attempt was an instance of what I call "Television ethics" being brough into politics. In Television Ethics, no one ever tells a lie, not even if the questioner is being an obnoxious nosey jerk. In Television Ethics, you never harm a fly, not even if the fly is blowing eggs all over your picnic. The "ethics" to which Clinton was held were the ethics of very young children with no ability to discriminate the real matters at hand.
America behaved in an infantile way. Only a very ignorant, immature, and crudely unsophisticated population could have allowed the fiasco.
Every lawyer in America knew that the problem was insanely handled. Any lawyer who did not point out that the "impeachment papers" were wrong, and that the idea of prosecuting Clinton under those circumstances was wrong, was acting in an opportunistic way toward society at large.
In my view, all persons involved with law and the media who did not speak out against the very idea of such a prosecution are culpable in the sustaining of the igorance of the population, and for all events that have occurred wrongly since.
To be sure,
President Clinton ought also to have something, but he did not. He ought to have said something to the effect that "Who besides me ever has gotten this kind of strident treatment and disallowance of basic rights?" There seems to me to be something wrong with a man who will not defend himself in the most obvious and simple way possible. Why did he not offer the simple rejoinder that such prosecutions are simply not done? I think that question is still on the table. But the question about whether he should even ever have been asked about intimacy with Monica Lewinsky should never have been on the table.
The whole affair was only a little bit less stupid than a person being prosecuted in federal court for writing in a library book.
However, since it does not involve consenting adults and does perhaps represent a violation of agreements of social responsibility concerning levels of trust by libraries of citizens with their library books, writing in a library book would be a more serious infraction than an adult man getting a blow job from an adult woman, both of whose consenting participation was never questioned. If it involves sex, America as a nation seems unable to behave in an adult way. Republicans will do anything that gives them a chance to make hell for Democrats.
The "Election" of George W. Bush to the Presidency
Millions of people have marvelled at the capture of the White House by George W. Bush in 2000. It was completely illegal.
The Constitution states clearly that in the event of the very controversy we faced in 2000, a disagreement between the popular vote and that of the Electoral College, the deciding body is to be the Congress. Nevertheless, the decision was made by the Supreme Court. Since the Supreme Court made the decision they knew perfectly well was to have been made by the Congress, their action was illegal. The Supreme Court should have refused to hear the case, and referred it to the Congress. My point however does not rely on this.
The real sustance of the accusation that George W. Bush should never have been President is this. In order to "enforce" its decision, the Supreme Court did something it does NOT have the power to do: it issued what is called a "stay" on the Florida court, demanding that the State of Florida should stop counting votes.
The Florida court balked. It CORRECTLY pointed out that the Supreme Court does not have the power to issue a stay ON ANY COURT ANYWHERE. The Supreme Court does not function through the use of stays at any time - except, apparently, in the case of Bush vs. Gore.
When therefore, and correctly, no action was going to be taken such as the Supreme Court demanded, Jeb Bush, then the Governor of Florida, stepped in to enforce the Supreme Court order of a "stay."
Hello, State Governors do not enforce Supreme Court decisions on stays the Court has no authority to issue.
In short, George W. Bush became President of the United States through political maneuvering and by excercising a corrupt authority over the Supreme Court, which acted corruptly to support Bush's claim out of sheer preference without regard to its actual powers.
Again, every lawyer and judge in America ought to have screamed bloody murder that the Court had no right to do what it did. Any lawyer or judge in America who did not scream bloody murder was not competent to the level of trust assumed of them by the people of the nation.
I, for one, wish there
were a more down-to-earth interaction between the United States and foreign observers. I think that it would not be to little to hope that each country would take as plain as possible a view of foreign nations' laws and practices. Someone somewhere, even if not in the United States, ought to have said "But since when does the Supreme Court of the United States issues stays?"
Again, the enormity of the violation of law is astonishing. That an entire nation would not notice it, puts the intelligence and the most basic powers of observation of that entire nation in question. The violation was so simple that many persons must have been aware it was completely out of order. Yet very few of them said or did anything to even register on the national consciousness that a gross violation of law had occurred. Where were all the professors of Constitutional Law? Where were the statements from the Congressmen?
As with the case of Bill Clinton not responding with sufficient simplicty to an accusation that would not be brought against any other citizen, so too Al Gore
failed in the most basic way to maintain his rights; at least, he failed to speak in the straightforward way about what ought to have been done or not done. I am sorely disappointed with Albert Gore for having failed to win the case by stating the simple facts that needed to be said to correct the problem that faced him, and by extension the rest of the world.
Since the Democrats historically get along better with the Muslim world than the Republicans do, it seems to me that most of the suffering caused by the conflicts in the Near East might well have been avoided if Bush had not been allowed to assume the White House.
Whenever it makes a new decision, the Supreme Court "references" how earlier decisions are consistent with the new decision. But the Supreme Court has never again mentioned that it ever made a decision about Bush vs. Gore. The court has maintained an effective silence about Bush vs. Gore. That decision had nothing to do with actual legal proceeding, and is certainly something for which the Court should be ashamed.
Where are we, really? Who are these people who call themselves Americans? Perhaps John Kennedy O'Toole is right: America is a Confederacy of Dunces!
Posted 1/26/2010. Updated 2/1/2010.