Crisis upon Crisis:

Crisis upon Crisis:

May 29th, 2017 // 4:01 pm @ Oliver DeMille

Comey’s Firing, Trump and Russia, Hillary’s Emails, Obama and Surveillance, a Special Counsel,
Spying on Americans, etc., etc., etc…

WHAT WE REALLY NEED RIGHT NOW

If the newly appointed Special Counsel investigates only President Trump and collusion with Russia, or obstruction of justice with James Comey, and doesn’t investigate and find the facts about alleged impropriety with Clinton’s emails, possible illegal acts of the Clinton Foundation, alleged Obama surveillance of political opponents, unlawful unmasking, and illegal leaks from government employees, we’ll know without a doubt that the entire operation is an elite liberal witch hunt. If the Special Counsel only investigates the Clinton and Obama teams, in contrast, we’ll know it’s conservative McCarthyism.

This is the good news. Put bluntly: As these investigations proceed, we’ll know clearly if we have a fair and open government, or if our nation is truly controlled by a small group of elites. It’s that cut and dried.

Part I

Before we get to the bad news, however, let’s back up and see how we got to this point. In the current news about the Justice Department, special counsel investigations, interference from the White House in investigations, etc., one word keeps popping up: “constitutional.” In reality, this word is out of place in such conversations. Of course the White House, Justice Department and other government entities should work within the Constitution. But for most Americans, especially those who have actually read the U.S. Constitution, how all this fits into the seven Articles of the Constitution and the Bill of Rights, Preamble, Amendments or checks and balances is pretty fuzzy.

Talking heads tell us that one leader (Trump) isn’t following the Constitution, while other pundits say the other party was the problem (Obama, Clinton, etc.). Anyone who consults the Constitution will find that it doesn’t contain the answer. Why? Because when most experts use the word “constitutional” while discussing these topics, they mean something different than following the Constitution as written.

This cuts to the heart of one our biggest modern challenges. There are two main meanings of the word “Constitutional.” On the one hand, “constitutional” means “as contained and outlined in the words of the Constitution.” This is what the American Framers and Founders meant by “constitutional.” The second meaning is more complex, and includes numerous decisions, commentaries and traditions from the Supreme Court, cases and interpretations from various lower courts, and even certain historical (before 1787) and international court decisions, writings, and traditions (before and since 1787). In this second definition, the regular citizen is left at the mercy of experts to know the truth—and the experts frequently disagree with each other on specifics and details.

Put simply, there are two competing traditions of what is “constitutional” versus “unconstitutional.” For the Framers, there were two ultimate categories of manmade law: Constitutional Law (rules written and ratified by the people telling a government what it can and cannot do; found in a constitution), and Governmental Law (rules established by a government telling the people what they cannot do). This is the first definition of Constitutional Law, what could easily be called the American Model of Law.

Another tradition, the Roman Model of Law, later known as Continental Law (the continent in question was Europe through most of the middle ages), held that constitutional law is whatever the government says—to the people, to itself or its branches and parts, and to anyone else. W. Cleon Skousen called this Ruler’s Law. In modern America, this second approach sees “Constitutional Law” as something determined by the Court, something everyone else is bound to follow—even when the Court differs with the actual words of the Constitution itself.

In the American Founding view of constitutions, the people created a Constitution as an ultimate check on government. This was a great power designed to keep the people free from rule by any dominant group of elites. According to the second, revisionist view, in contrast, the courts are supreme above the people, the government, and the document itself, though in the case of the document, the Court’s supremacy consists of the self-proclaimed power to tell everyone else what the document actually means. Thus the American Framers gave us a federal government with three branches and gave the people the power to read the Constitution and hold the government to the document’s specific words, while today’s legal theory is that the Court has the authority to read the Constitution, interpret it at will, and keep the other branches of government and the people in check. This is a very negative shift.

Most Americans today have been taught, bought into, or at least acquiesce to the second view. This constitutes perhaps the biggest threat the United States has ever faced to the original intent of the Framers and the future freedoms of the American people.

Let’s apply this directly to current events. When told that certain actions of, for example, the Justice Department are constitutional, or unconstitutional, a person from the Founding Fathers viewpoint would immediately want to ask: “Which part of the Constitution is the Department of Justice following? Or not following? Is it Article I? Article II? Article III? Which clause?”

In truth, the Justice Department is operating under the famous Article VIII of the U.S. Constitution. Go read the Constitution, and when you get to Article VIII, you’ll see what I mean.

Specifically: there is no Article VIII in the U.S. Constitution. The sad reality is that much of what the federal government now does comes under these same Article VIII powers—never written in the Constitution, never ratified by the people, never part of the document, but still very much a part of our government. To be clear: most of these things are by definition unconstitutional. But the Court calls them constitutional, so they are part of our system.

Part II

One of the biggest problems with this arrangement is that the Framers established the Constitution (and the people and states discussed, debated, and ratified it) based on a widely understood theory of government. This pattern or design is still occasionally taught in our schools, and if pressed many people still understand it. It goes something like this:

• The Constitution establishes a federal government with three separate branches: Legislative, Executive, and Judicial.
• There are checks and balances between the Legislative, Executive, and Judicial branches of the federal government, and between the states and federal government. These checks and balances were designed to keep any level or branch of government from abusing its power or doing anything not explicitly allowed by the Constitution.
• There are also private institutions in society, such as families, churches, businesses, schools, media organizations, etc.—they operate freely, as long as they don’t violate the inalienable rights of anyone in the society. Such private institutions do not have the power of force to arrest, imprison, kill or punish people. Only the government has such powers, given to it by the people; but no single branch of government has such powers on its own—it must receive the cooperation of other branches in order to imprison or punish its citizens.

This is all clearly outlined by the Framers. But what happens when a government entity doesn’t work for any one branch of the government? When it has two masters? Or perhaps just operates with its own agendas in mind? When this happens, the whole Constitutional arrangement breaks down—or, at the very least, is weakened.

Specifically, consider this question: Is the Justice Department part of the Executive Branch? Originally, this was the case. When the DOJ was established in 1870 (during the Ulysses S. Grant Administration), its main purpose was to expand the ability of the White House to prosecute the many cases it found itself dealing with in the aftermath of the Civil War. The Court couldn’t investigate or prosecute such cases—it had to remain impartial in order to adjudicate.

Before the Civil War, most cases were prosecuted within states. Only cases between states, or where one of the states was a party to the case, or dealing with issues on the high seas or international jurisdictions, needed the Supreme Court, along with certain cases that directly affected multiple states. These were manageable by the Court.

After the Civil War, however, the Court found itself dealing with numerous cases where no state courts were in operation—indeed where a number of state governments were defunct or even considered themselves foreign entities. The DOJ was wisely created to fill the void.

Even when all the states were back to full operation, many in Washington understandably felt little trust for state courts in the South, and over time the scope and size of the Justice Department grew. In the original act that created the Justice Department, it was called “an executive department” of the executive branch—meant to relieve the White House of domestic law enforcement. In all this, the DOJ was understood to operate as a part of the Executive, to be overseen by the President, appointed by the President (with Congressional approval), and removable by the President. In other words, it was an Article II agency of government, governed by Article II—meaning, by the President.

Today, the approach is different. The currently accepted perspective is that while all other members of the President’s Cabinet and ambassadors serve as advisors to the President, and entirely at the President’s pleasure, the Attorney General is a special case. This applies also to U.S. Attorneys and top officials at the FBI; they are selected by the President (many with Congressional approval) and he may remove them at will. But they are expected to have dual loyalty: to the President, and also to the Law.

This creates “two masters,” as a Duke Law article put the issue using Biblical terms. Top DOJ officials are, in the current tradition, supposed to represent the President and also the Law, and if the two ever diverge, they must stand for the Law. This is by nature very complex. First, the Law isn’t a person, so the DOJ official or Special Counsel is left to determine his/her own view of how the Law applies in a given case. This is literally a power over facts and how they are interpreted and applied—something the Framers only gave the Court and juries the authority to decide. Second, the Framers considered it a breach of the entire “separation of powers with checks and balances” system to allow a direct inferior the power to investigate and/or charge a direct superior. Naturally, this could encourage an ambitious official to get rid of a boss and personally benefit from the action.

Third, the complexity is increased by the fact that in many cases it is up to the individual official to determine when a divergence occurs. Where one official doesn’t see a problem, another might. Or, if a problem arises, investigators who look into the situation at a later date may determine that the official should have seen and acted upon a divergence—even though the individual didn’t think so at the time. Or vice versa.

In other words, in contrast with all the other separations of powers and checks and balances outlined in the U.S. Constitution, the separations, checks and balances on top DOJ and FBI officials when investigating the White House, and top officials at the White House when interacting with such officials, is full of innuendo and complexity. When a Special Counsel is appointed and given the power of a U.S. Attorney, this moves to yet another level of complexity. The Special Counsel and the White House are supposed to apply special rules, and the Special Counsel must do so while simultaneously investigating and judging how others who were supposed to follow special complex rules did—even though different people in the relationships frequently understood things differently.

In short, it’s a mess, giving huge power to the discretion of unelected officials. This doesn’t follow the otherwise clear lines of separate powers, checks and balances that characterize the Constitution. To be clear, the mess arises from attempting to make a President’s advisors investigate and decide whether or not to legally charge their boss. This amounts to exactly what it is: a “band aid” on the original Constitution. Moreover, this model was never ratified by the people through Amendment. Some experts consider it part of the Constitution, but it simply isn’t. The Constitution is what it is. These rules are something else. Some good, some bad—but not actually part of the U.S. Constitution, except by mental construct. Some experts call it “constitutional,” others don’t. The Constitution itself says nothing on the topic, except that members of the Executive Branch work for the President via Article II.

The solution to this confusing and sloppy band aid that was patched onto the Constitution is simple: Let the states handle most of the legal issues in the nation and reduce what has become largely extra-constitutional federal involvement in litigating things Washington should leave alone. Moreover, have the Attorney General and anyone else working at the DOJ report directly to the President, just like any other Cabinet Secretary and all other Executive Branch employees. If a case arises where the President is the subject of investigation, Congress must run the investigation. That’s why the Framers put the entire impeachment process in the Constitution. Only another branch of government can correctly check the Commander in Chief. This was the Framers’ view of the Constitutional separation of powers.

Of course, this is not what is currently happening. But before we throw our hands in the air and give up, accepting that “Washington will be Washington,” and “that’s just politics,” or “what a mess our government is,” it is important to acknowledge that there is a better way. The American Framers understood it. Specifically: It is an inherent Constitutional conflict of interest for the President’s employees to have the duty to investigate him/her.

Such a check and balance is vitally important, and it is, according to the Constitution, the job of Congress. Again: The Framers gave us three branches of the federal government, with separations, checks and balances. Not three branches plus an Attorney General that sometimes works for the Commander in Chief and other times for the Law; and other times, when things gets hard, delegates to a Special Counsel.

We need to get back to the Constitution. Three branches. That’s freedom 101. And no matter what your political view, we should all see this alike: following the Constitution is the right approach. Anything else is inferior at best. If we decide as a nation that we need a non-Congressional way to carry out investigations of the president, there is a Constitutional way to approach this: by amendment. Anything else is a piecemeal end-run around the Constitution. In other words, it’s unconstitutional—meaning that it’s not what the Constitution says or what the Framers intended. This is true no matter what the Court says or allows. The people, the Founding Fathers clearly taught, are the final guardians of the Constitution. No government entity (including the Court) can usurp this role—not if we expect to maintain our freedom.

Part III

Although many of the investigations today are occurring in an unconstitutional manner with little hope for real change any time soon, there is still the chance of a good outcome. Here it is: If the Special Counsel does a truly honest and fair investigation he could still get things right. As far as I can see, there is only one way to do this. If such an investigation is necessary, then simply investigate the entire thing, impartially and thoroughly:

• Russian interference in the campaign, if any
• Trump collusion with Russia during or after the campaign, if any
• Hillary’s emails and whether or not they broke national security laws
• Obama Administration surveillance of the Trump campaign and any other political opponents (e.g. Rand Paul, etc.), if any
• Improper unmasking of Americans by Obama officials, if any
• Clinton Foundation impropriety with Russia or with anyone else, if any
• Clinton Foundation “pay to play” incidents, if any
• Improper influencing of the election by both sides, if any
• Trump obstruction of justice in the investigations, if any
• Obama Administration obstruction of justice in Hillary email investigations, if any
• Illegal leaks from government officials
• Illegal government spying on Americans (including big data) under Obama and also Trump, if any

Get to the truth, on all of it. Tell the American people what really happened.  And openly share the evidence so we know what actually occurred. If this is what happens, citizens can weigh the evidence and decide how to be good voters and take our nation in the right direction.

But the danger is very real. If this is all about a few elites getting Donald Trump out of office, or weakening his presidency, because they don’t think the voters made the right choice, then the Special Counsel will hurt the election process much more than Russia could or did. The only solution is that the American people must be let in on the whole truth. Don’t leave this to experts behind closed doors.

And, emphatically, don’t use “national security” as an excuse to keep American voters in the dark on anything related to this. Just tell us the truth. Having our decisions made for us behind closed doors by a few elite experts is much more dangerous to our nation and our security than openly sharing whatever “national security” truths are part of the story. Much more dangerous.

This bears repeating. Do a full investigation—of both sides, and of everyone involved. The Clintons, Obama, Trump, etc. And tell us openly and entirely what happened.

Anything less is either a government cover-up or a one-sided witch-hunt, or both.

By the time this investigation ends, those who watch this closely and carefully will know the clear truth about one thing: whether or not this is a government “by, for, and of” the people, or a government “by, for, and of” a few elites who quietly rule from behind the scenes.

Again: Investigate it all, on both sides, and tell the American electorate everything—transparently showing us all the evidence. No hidden agendas, no secretive backroom deals, no elite Establishment privileges to anyone—even if they are named Clinton, Obama, Trump, etc. Above all: no choosing to investigate and tear down one side while giving the other a free pass. Investigate it all, and openly show us what happened.

If the Special Counsel does this impartially and honestly, the American people can assess where we are, warts and all, and lead the nation where it needs to go. If the Special Counsel doesn’t do this genuinely, openly, honestly, and on both sides of the political aisle, we’re going to know, clearly and without equivocation, that we’ve lost our nation to a few powerful elites who control things regardless of what the voters choose.

Finally, just because there is a Special Counsel doesn’t remove Congress’ responsibility to do this right. Ultimately, the Congress must fulfill its Constitutionally mandated job and investigate this all. It can’t rely on a Special Counsel without shirking its own Constitutional duty. And it must decide what is right in this matter and take action—regardless of what the Special Counsel does or says, even if the truth ends up flying in the face of Special Counsel actions. The Framers gave this duty to Congress.

If there is one thing we desperately need right now in the United States, it is for Congress to get serious and active about fulfilling its Constitutional duties—not kowtowing to the media, executive agencies or bureaucracies, special interests, or anyone else. This is especially true of the majority party in Congress.

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