This is going to be my final post about Trump and his Mar-A-Lago fiasco. The temptation to apathy is real at this point, but we shall endeavor to persevere!
First things first, thank you to my followers, I’m up to 60, and that is fantastic. We may not be able to change the world, but maybe we can awaken a few here or there. It’s been a year since I started this journey. Two hundred blog posts later, I hope I’m beginning to find my voice.
I intended to be finished on this post weeks ago. I hope the quality reflects the time I put into it.
As always for those of you who have never read my stuff or want a review of what I’ve posted before, I will leave links below.
https://wordpress.com/post/tiredmidnightblogger.com/2861
https://wordpress.com/post/tiredmidnightblogger.com/2914
https://wordpress.com/post/tiredmidnightblogger.com/3001
https://wordpress.com/post/tiredmidnightblogger.com/3074
https://wordpress.com/post/tiredmidnightblogger.com/3170
Here are the five reasons Mar-A-Lago matters:
- 1) The Imperial Presidency needs to end.
- 2) We need consistent, intelligible rules for what happens to Presidential documents during a transition of power.
- 3) We need consistent, intelligible standards for search warrants.
- 4) We need more specifically lined out rules for the search of ex-Presidential persons and establishments when there should be warrants to search them.
- 5) Most important of all, we need to return to the ability to have civil debate and boundaries for how far we are willing to go to win in politics.
Let’s dig in.
1) The Imperial Presidency Has to End
If you are like me, you have heard this one all your life. “The President has too much power.” “The Founding Fathers meant for the Legislature to be the most powerful brand of the government.” Song lyrics lament “this tight old man that we elected king.”
The thing is, it’s been true all my life, if not longer. The President seems to assume more and more power, and despite Congressional, and sometimes Supreme Court efforts to curtail the usurpation, it continues to grow. The pattern I see has been war, followed by an urgent need for strong Executive power and promises that “this is only for the war, once peace returns, we will return to normalcy.” But we never do.
Most of our Founding Fathers were terrified of having an overly powerful Executive.
The sad truth is, though, that it is difficult to imagine the US growing to Superpower status had we continued with the hamstrung government in extent during the Revolution. While I am a huge fan of the Founding Fathers, I have few illusions about the competency of the Federation during the Revolution, and for a few years afterward when we were governed by the overly vague Articles of Confederation.
I sure hope Captain Kirk was working with a better system. Do you think our current Electoral College is lame? Imagine if each state had but one vote? Oklahoma would count equal to Texas, to California, to New York, to Alaska, to Rhode Island. The Federal Government had no power to tax…wait…scratch that…maybe this was a better system…
One of the main purposes of the current Constitution was to provide adequate powers so an excellent Executive could lead the nation, but with enough safeguards, and checks and balances that an incompetent buffoon hopefully wouldn’t destroy us. Nearly every President has been accused of overreaching at some point. The complaints increased sharply under Andrew Jackson. But even with Lincoln leading the Civil War and sometimes running roughshod over the Constitution to win, most folks feel the modern “Imperial Presidency” began with Harry Truman.
https://www.govexec.com/federal-news/2006/02/imperial-presidency-has-long-history/21214/
Since my focus here is on Trump and current events, I’ll allow you to do your own reading, but suffice it to say that arguably many Presidents pushed the Constitution further and further from the time of Truman till today. Ironically the best site I can find for communicating what a President can’t do is https://www.trumanlibrary.gov/education/three-branches/what-president-can-do-cannot-do
A PRESIDENT CANNOT . . .
- make laws.
- declare war.
- decide how federal money will be spent.
- interpret laws.
- choose Cabinet members or Supreme Court Justices without Senate approval.
I’m trying to stay on point, but I think most of us can agree that many of these items are flagrantly ignored. With the exception of William Henry Harrison, every single President has issued Executive Orders. It is debatable how MUCH power a President has to write orders, but every single President who lasted more than a month in office has issued at least one. Many of them have had the force of Congressional law, and in the case of Lincoln’s Emancipation Proclamation, even the Constitution itself would be influenced and ultimately reshaped.
One of the best sites I’ve found for the history of impactful Executive Orders is https://www.history.com/news/10-historic-presidential-executive-orders
Another great site with a similar but still different list is https://www.ranker.com/list/bold-executive-orders-by-presidents/mike-rothschild
And here I will leave a link that explains what I think was likely the worst
Presidential power was never meant to be as heavy-handed as it became. It certainly was never intended to circumvent the Constitution. It’s been the instrument of celebrated efforts like the Emancipation Proclamation, the creation of the Peace Corps, and the desegregation of the US military, to highly controversial and often condemned orders, such as the WW II mass incarceration of Japanese Americans, the funding for the Manhattan Project, and the confiscation of all the gold and removing the gold standard as the backing of our money.
The other abuse of power since the time of Truman has been the Presidential use of troops without a formal Congressional declaration of war. This was something that would have appalled most of the Founding Fathers. You can debate all day long whether or not we “should” or “should not” have been in Korea or Vietnam, but the fact is, if you believe in the Constitution, those were illegal wars. The Declaration of War was one of the powers of Congress because the Founding Fathers feared that one man deciding to go to war unilaterally without the consent or backing of the people would lead to tyranny, needless bloodshed, and wars fought for greed and power rather than for a righteous cause. The last time we fought a war formally and Constitutionally declared by Congress was WW II. We just have become too used to trusting our Presidents to make war. That needs to end, in my humble opinion.
One more question from your Tired Blogger and I’ll move to the next point. We jump up and down that tyranny is “taxation without representation.” We insist that the right to an abortion for a woman exists because no man should have the right to “tell a woman what she should do with her body.” Yet…since WW II we have sent 102,526 people to their deaths in undeclared wars. Wars are waged, not by the people, not declared by Congress, but simply decided on by a President. Even the War on Terror, which had enormous public support at first, was never officially declared. There is more than enough death without representation.
2. We need consistent, intelligible rules for what happens to Presidential documents during a transition of power.
I’m in no way meaning to let Trump off the hook here, but looking at the rules for what happens to Presidential documents during a transition of power…I don’t doubt I would have messed it up even worse (hense reason number 329 why I don’t run for President). Looking again at the NARA website, I’m already confused.
https://www.archives.gov/presidential-libraries/laws/1978-act.html
Specifically I want to turn your attention to this: “Establishes a process by which the President may restrict and the public may obtain access to these records after the President leaves office; specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years.”
Unfortunately Trump had hundreds of documents at Mar-A-Lago. Is it possible the Executive Orders of George W. and Obama might impact this? Or for that matter, is it possibe Trump himself wrote an Executive Order that might bear on this topic?
Executive Order 13489, signed by Obama, states:
“Sec. 4. Claim of Executive Privilege by Former President.
“(a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.
“(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.”
I can’t find any Executive Orders Trump signed having anything to do with NARA.
Should Trump have been more responsible with the documents? Unequivocally I agree this was carelessness of a profound degree. Having said that…the law as it stands sounds like NARA may have the authority to demand the documents, but there is something missing in the law that from Trump’s perspective is very telling.
Can somebody tell me what the penalty is for disobeying this law? I’m not talking about the biggy, the Espionage Act is, I think, something Trump never saw coming. I’m talking about the Presidential Records Act. I finally did find the penalty, but I didn’t find it in the original sources. This website provides the answer:
The penalty for breaking this law is: “Under 18 U.S.C. § 2071, individuals who willfully remove or destroy records “filed or deposited” in “any public office” — or who attempt to do so — may be subject to fines or up to three years of imprisonment if they deprive the government use of those documents (United States v. Rosner, 352 F. Supp. 915 (S.D.N.Y. 1972)). Supervisors who direct supervisees to violate this statute can themselves be found guilty under 18 U.S.C. § 2(b) (United States v. Salazar, 455 F.3d 1022, 1023 (9th Cir. 2006));”
So…neither Congress nor Obama felt any need to provide a penalty. It took court cases to determine what the penalty should be. Now…I’m no lawyer, but I have some experience with business types. If a rule has no penalty, then it is irrelevant. If the dog has no teeth we won’t fear its bite. If I’m Trump, and I’m surrounded by an echo chamber of lawyers and business persons telling me only what I want to hear, I’m not going to fear some arbitrary fine and three years in prison. I’m the President for the love of Pete.
I’m not saying Trump was right to be a neglectful Ex-Executive. But Professor X might have less of a leg to stand on if the branches of government were doing their jobs. The Legislature is the branch that makes laws. They passed this law because of the example of Nixon. There is no excuse for saying “we didn’t ever think something like this could happen.” If you need the law at all you need to spell out the penalties for breaking the law. It shouldn’t be up to some arbitrary court, or worse yet, the arbitrary whims of the next incumbent President. That just sets us up to accusations (whether just or not) of being a third world tyranny.
If we truly are a nation governed by Law and not Men, then the Law needs to lay out the consequences of breaking the Law.
3) We need consistent, intelligible standards for search warrants.
Don’t get me wrong, I appreciate that at least we require search warrants or some probable cause to initiate a search. But having said that…it still seems awfully arbitrary which warrants are issued and which are not. There need to be consistent standards that any citizen with average intelligence could understand.
One of the arguments my conservative friends have is that the warrant to search Mar-A-Lago is too broad. Whether that is true in this instance may be debatable, but I feel it is absolutely true in some instances I will cite here.
https://casetext.com/analysis/search-and-seizure-particularity-of-things-to-be-seized
In United States v. Bridges, 344 F.3d 1010 (9th Cir. 2003) we have another example of an overly broad warrant: “The search warrant in this case…was overly broad. It listed, among the items to be seized, “All records . . . documents . . . computer hardware and software . . .” Though this list was detailed, it was too expansive. There was simply no boundary to what could be seized. In addition, the warrant did not specify the crimes that were the subject of the search (nor did the warrant incorporate the application) so there was no limitation in that manner. Though the application was detailed, the warrant was not. All evidence should have been suppressed.”
In the case of “In re Grand Jury Investigation Concerning Solid State Devices, Inc., 130 F.3d 853 (9th Cir. 1997)” it was found that “a warrant which resulted in the seizure of approximately 90% of the corporation’s records over a five year period, including 2,000 file drawers, was overbroad.” If you search the site the list goes on and on.
Such arbitrary warrants should never be happening. If we really lived in a free society, there would be no examples for me to find. But the grandaddy of them all…
A Warrant was signed allowing the NSA the “right” to spy on American citizens. Readers may remember I wrote a post analyzing Snowden. I found one article that chastised him, I will leave the link to that article here: https://www.newyorker.com/news/daily-comment/edward-snowden-is-no-hero
Some of my readers may recall the argument that “These were legally authorized programs; in the case of Verizon Business’s phone records, Snowden certainly knew this, because he leaked the very court order that approved the continuation of the project.” And you may recall my rebuttal. I will elucidate some more…
To quote The Guardian: “You don’t need to be talking to a terror suspect to have your communications data analysed by the NSA. The agency is allowed to travel “three hops” from its targets — who could be people who talk to people who talk to people who talk to you. Facebook, where the typical user has 190 friends, shows how three degrees of separation gets you to a network bigger than the population of Colorado. How many people are three “hops” from you?” So what does that mean?
Likely some of you will see the one or two glaring holes in my argument, but I’m afraid the defense rests on this one. Trump may or may not be correct that the Warrant he is dealing with is overbroad, but please don’t insult my intelligence by claiming the government is innocent of overreaching its tyranny. Such arguments are on par with Trump having the capacity to declassify documents with his mind.
4) We need more specifically lined out rules for the search of ex-Presidential persons and establishments when there should be warrants to search them.
The genie is out of the bottle. There is currently no precedent for a President being searched. We may as well spell out the rules now, rather than allow chaos and strife to rule the day. Whether via Congressional law, Executive order, Judicial ruling, or Constitutional Amendment (which would be best) we need to spell out the rules in the future so we know when it is acceptable, and how we ought to proceed. If it has happened once it can happen again, and we might as well be ready.
We need an actual definition of what the penalty is if a President breaks the law about documents, rather than simply throwing charges at him that will seem to political opponents to be arbitrary whether they are or not. This is the only way to avoid this issue in the future. Let’s face it, do you want a repeat of this when the next President comes around, and that President decides to have previous Presidents of the opposing party searched? Or worse, arrested? You say it can’t happen, but we never imagined a President keeping several boxes of documents and hiding it in his basement.
One suggestion to Biden or any other future President. Wanna keep the documents? There’s a little something called an “iphone.” Take photos and store them in some secret location in the desert. You’ll save us all a lot of grief.
5) Most important of all, we need to return to the ability to have civil debate and logical boundaries for how far we are willing to go to win in politics.
This is one of the running themes of this blog so far. Unless what we want is tyranny, terror, uncertainty, and fear, we have to get back to being a civil society. If you want more in depth information, I’ll leave some sites here:
https://wordpress.com/post/tiredmidnightblogger.com/1937
https://www3.weforum.org/docs/WEF_FutureRoleCivilSociety_Report_2013.pdf
As long as we remain polarized, we will never focus on building a better world. We will continue to be slaves of the hegemony of big government, big corporations, and big media. But even if the Hegemons win, ultimately they will have to stop this foolish game, or even their well planned schemes will be flushed down the toilet.
The World Economic Forum acknowledges this to some extent. They posit four possible futures (don’t you just love speculative fiction?):
1) Mad Max-a dystopian world of depleted resources rife with international conflict and chaos.
2) Transparently Blurred-a world of high tech where national boundaries have become much more permeable.
3) Turbulence and Trust Deficits-a world where the population and economic growth have crawled almost to a stop; meanwhile people have been burnt so badly by their governments and corporations they trust nothing, except possibly one or two family members or close friends.
4) A Privatized World-if I am not wrong this one is closest to the endgame the WEF is aiming for. In this scenario governments have proven so inept that finally the megacorps stride in to take command. For the public good. Of course.
While I have an acknowledged dislike of the WEF, I also acknowledge that they are not perfectly evil. They do some good. The article I site above is actually very thorough and thoughtful, spelling out plainly the need for a civil society:
“Networked citizens have started to change the interface and
expectations of civil society empowerment. Since 2010, there has
been a renewed energy of citizen expression and participation
in different forms around the world, including the Arab Spring
revolutions; the Occupy Movement as a response to growing
inequality; citizen protests against austerity measures in Greece
and Spain; and the “For Fair Elections” protests in the Russian
Federation.”
Grass Roots movements have made ingenious use of Social Media to cut through red tape and social barriers to “git ‘er done.” At least till 2020. Suddenly, Social Media is being choked. I don’t know if that is a permanent monolith, or if it is merely the worlds biggest Rick Roll. The above article was written in 2013, since then Social Media is much more controlled.
WEF also reports reduced trust in government, business, and the media. Whatever is birthed from the pains we are undergoing, the new paradigms have to be about winning our trust. There are still a great number of people willing to comply, but most are motivated by fear. If the traditional sectors that have moved us can’t find something better than fear to motivate us, they deserve to crash and burn. And frankly, if they don’t, the rickety structure that will ensue will be built on the cells of terror. How long do you think you can keep that up? How long before someone comes along more terrifying? Is that really the world we want?
Last of all, the WEF lists six “critical driving forces” that will impact whether or not our society will ever return to civility:
The level and sources of funding for civil society stakeholders
− The social and political influence of increasing access to
technology
− The extent and type of citizen engagement with societal
challenges
− The state of global and regional geopolitical stability and global
integration of markets
− The effect of environmental degradation and climate change on
populations
− The level of trust in governments, businesses and international
organizations
If you watch CNN only you will have the erroneous idea that we are all gun-toting, woman-hating bigots. But there are some on the right who understand that the survival of the Republic could be at stake, and if we are going to break it up, it had best be for a better cause than Trump’s ego.
The Heritage Foundation is a think tank that has strongly influenced American Conservative thinking since the 80s. According to their website: “Heritage’s mission is to formulate and promote public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.” Their strategy to implement their policies has three foci: providing solutions, mobilizing conservatives, and training leaders. Again, from their website. So what do they think of all the incivility of our times? The President of the Foundation, Dr. Kevin Roberts, spells out his thinking:
“We who describe ourselves as conservatives have our work cut out for us. This is not true merely because of the policies of the current presidential administration, or the increasingly radical stances of the modern American Left, or because of the state of American culture. What presents the greatest challenge to conservatives is, well . . . conservatives.
“Our movement is deeply splintered. That tends to be our historical default, but today the movement’s fissures are especially deep. In fact, veritable chasms have emerged, ever widening as political currents erode the bedrock on which generations of agreement, or at least detente, have rested.
“It’s now fashionable to carve out one’s ideological niche and verbally assail other conservatives, as some sort of dystopian competition on the American Right. Consequently, American conservatism now totters on shifting sands.”
He goes on to discuss the problem as he sees it. I agree with some points and disagree with others. Then he shares his ideas for solving the problems.
“Three forces will soon converge, providing a once-in-a-lifetime opening for our side—provided we can minimize the tribalism that currently besets the Right. First, the healthy wrangling among conservatives will soon evolve into some semblance of the agreement…Second, the unraveling of the new political order and its strange oligarchical amalgam of…big government, and big business will begin (the last of which may believe least in the ideals of America). And third, most promisingly, will be the organic emergence of regular Americans announcing they’re fed up with the technocrats, the elites, and…all the ways those malcontents have exploited a virus to accelerate the imposition of their radicalism.”
Big tech is not left out of his (partially justified) castigations:
“There’s even a proper place for government in helping us understand that the free market isn’t the ultimate principle we’re aiming for. Witness, for example, why The Heritage Foundation issued a report against Big Tech, arguing for antitrust action to be pursued against their business practices. We lament deeply that antitrust action is, right now, the best tool in the toolbox. And the fact that it is the best tool in the policy toolbox suggests the work we have to do in rebuilding our institutions, including the regulatory state.
Big Tech is the enemy of the people not merely because they have taken advantage of our free-market principles. They have earned this untoward distinction because of what Big Tech does to us in our relationships with one another as human persons. And it might be nice if one of the intended consequences of this action that Heritage is proposing would be to help to restore those relationships. So once again, even that comes back to culture.”
One last quote from the Conservative side and then I will move on:
“This emphasis on federalism used to be conservative dogma, but it has gotten lost in the flurry of executive orders and D.C.-based proposals by leaders on the Right. Let me be clear: those are problematic, not just for our movement, but for the common good, for just order, and for freedom and flourishing.
“There must be a place for the states in conservatism. Federalism is the constitutional recognition that federal power in America is forever limited by the robust and diverse circumstances of states in our continental republic. A federal government that ignores the self-governing traditions of the states and attempts to nationalize virtually every policy problem will falter under the weight of its own incompetence.”
The Federal government is just too big. Having said that, I live in one of the most corrupt states in the Union, so there’s that…
According to NPR, if we don’t obtain serenity now…we may be in for a Civil War. And while the last one was pretty messy:
What could make the next one so ugly is that few states would be truly united. Nearly every state is divided: rural against metropolitan.
“But the most meaningful geographic separation in our society is no longer as tidy as North and South, or East and West. It is the familiar divide between urban and rural, or to update that a bit: metro versus non-metro.
“Thus a “blue state” such as Maine has populous coastal counties that voted for Biden and sparsely populated interior counties that went heavily for Trump, enough to tip the majority to him in one of the state’s two congressional districts. Conversely, in ruby red state Nebraska, one congressional district anchored in the city of Omaha went for Biden.
“This dynamic also shows up in the biggest population states, the top prizes in the Electoral College. In California, where the coastal cities are famously liberal, the Central Valley counties are still far more conservative.”
I remember as a child I hated the big cities. I felt they were full of rude, small-minded people who had never gone more than a few miles from their own homes. The idea of paying a water bill, having an HOA dictate what you could and could not put on your property, and city ordinances that could dictate if you had a business in your home. All of this, to me, was antithetical, anti-liberty, antihuman.
I read a sifi novel, City, by Clifford D. Simak, about a future where increased technology caused our transportation and communications to become so fast that cities were obsolete. At the end of the book there was just one city, the Capital of the Planet. Everyone else lived the life of Riley on their own estates.
Since I’ve grown up and moved to the city, I find that those from the country are considered “rednecks,” uneducated trolls that breed with their cousins (or sisters, or mothers), and that farmers still live in tepees and fight the Native Americans.
It’s honestly a similar dynamic to the original Civil War. And whether you are Right or Left, or even whether you are pro or anti-secession, surely we all agree that if it is possible, we need to learn once again how to manage our differences without shooting each other.
Here’s hoping we can all grow up, before its too late.
Tired Midnight Blogger (What Blogs at Midnight) 