The American Declaration of Independence (1776) was the promise. The U.S. Constitution (1787) was the fulfillment. The soul of both documents has always been ordered liberty. Expressed differently, Chief Justice Warren Burger (1969-1986) said it best: "Ever since people began living in tribes and villages, they have had to balance order with liberty. Individual freedom had to be weighed against the need for security of all."
Today's Department of Justice must be measured by these concepts. For these measurements have made America, until the age of Trump, a unique environment. That uniqueness stemmed from the creation of energies and talents of a diverse population of an ever-changing America.
Regretfully no more. The present Department of Justice, under the stewardship of Attorney General Jeff Sessions has, for all intents and purposes, abandoned its central mission. It no longer defends nor enforces civil rights. Though Trump has peddled his regime as one of "law and order," the facts on the ground prove that the reality exists outside "law and order."
No legal argument can prove this point like the recently-published book entitled "Fascism" by Madeleine Albright, former US Secretary of State. That book shall be reviewed in a future posting of this blog. Other good books have been recently published along the same theme of Trump's failure to govern this great union of 50 States effectively.
The global effect of that failure? America can no longer be a global guide to other sovereign States in the pivotal area of concern of the world of today -namely human rights. What compounds this dilemma are the constant attacks by President Trump against the Department of Justice (DOJ) and its head, Jeff Sessions. Trump labels DOJ and Sessions as "Disgraceful."`
In these thoughtless attacks by a President on his own cabinet member, Sessions, lies an irony. The U.S. President sees in DOJ a role which has never been intended for the executive branch of the US Government. Since its establishment, DOJ has been regarded as an independent cabinet department which is immunized from interference by the White House.
But not under Trump. He, with no prior experience in government, has regarded DOJ as existing for his own personal legal protection. This thinking has been evidenced by the first and only conversation between president-elect Trump and the then outgoing President Obama. This conversation has been reported as follows: Trump, referring to Obama's former Attorney General, Eric Holder, is reported to have extolled to Obama: how effectively has Holder protected Obama. The surprised Obama responded: Holder was not there to protect me. He was there to protect the American people.
So as the legal challenges to his presidency multiply, including the ongoing investigations into Russia's role in electing Trump president of the U.S., Trump has continually manifested his disgust with the Mueller investigations. These are focused on the alleged Trumpian obstruction of justice and possible collusion with Russia in Trump elevation to the occupancy of the White House.
The issues demonstrating the abandonment by the present DOJ of its historic responsibilities cover a very long list of items. This imposes on us the task of selecting only two primary ones:
Voting Rights:
The right to vote is the gateway to self-rule. Tampering with that franchise is the pathway to suffocating democracy. Under Sessions, those rights have been under constant attack. For twenty solid years, the Republican party has surpassed the Democratic party in building up its representation from the ground up: from school boards to state government, to occupancy of congressional seats.
The Republicans spoke the language of the changed American street. This is while the Democrats focused on urban cities and the language of the elite: urbane, nuanced, and nearly incomprehensible to the half-educated or even the non-educated populace. The most current phrase of the Tea Party, which ushered in the Trump dark ages, was: "We need people who look and speak like us."
The Republican Party of today, a winner among the non-elite, evokes the memory of the defunct "Know Nothing Party" of the American post civil-war. The Trump governance ethos, now supported by 49 million Americans, is "don't trust either institutions or politicians."
With the Trump rallies, a modern Roman circus, becoming the Trump's mass way of governance, "America First" now means "America is for the whites only."
- The Voting Rights Act of 1965 was adopted in order to ensure and facilitate access to voting. The ballot box is the ultimate container of the popular will. Texas, a traditionally "red State" (Republican) has now adopted voter identification requirements. The introduction by the Texas legislature of those requirements had the hallmarks of racism as affirmed by a ruling by a federal judge against it.
- DOJ has now abandoned its opposition to that measure of voter suppression, a shift in line with the preferences of Trump and Sessions. The non-white population is known to vote democratic. This is an electoral fact which has pushed Trump to claim that Hillary's surpassing him in 2016 in the popular vote by 3 million has been due to millions of people voting fraudulently, a charge which is wholly without merit.
- In Ohio, about 50% of the population, like other Americans, don't vote. It has been reported that 80 percent of the notices sent by the state to eligible voters were never returned. Though there was no indication that such result was due to voters' moving out of that jurisdiction, Ohio took the drastic measure of removing them from the voting rolls.
Thus the citizens of Ohio, upon presenting themselves at their assigned voting station, only to discover that their names were not on the record, were turned away from exercising their constitutional right.
The upshot was a Supreme Court case (Hsted v. A. Philip Randolph Institute). That case challenged in January 2018 Ohio's practice of purging voters from the rolls if they failed to vote and/or failed to return the voting notice mailed to them. Remember that 80% of such notices were never returned.
The DOJ during the Obama administration had supported that lawsuit. Its support was solidly based on the National Voter Registration Act which clearly prohibits a State from removing voters from the rolls for failing to vote. But with Sessions, the DOJ abandoned a position which it had maintained for two decades under both Republican and Democratic administrations.
Voter suppression, gerrymandering by States of electoral lines in order to reduce the effect of voting by a browning America, and non-substantiated charges of fraud, all point to one sorry conclusion. The Trump's Department of Justice's role in defending and enforcing civil rights, access to the ballot, and equal treatment, has nearly evaporated.
Trump's only ascertainable concern is for saving his own skin from the looming disaster of successful investigations by special counsel, Bob Mueller, into the alleged Russian intervention in the choice of an American president.
Justice System Reform:
The American Bill of Rights (the first ten amendments of the US Constitution) delineates the shape of America's respect for the rights of the accused. One is presumed innocent until proven guilty, through a fair and open court of law. Upon an arraignment of a suspect before a judge, the pleading of the suspect is invariably: "Not guilty, Your Honor."
Both Trump and Sessions have made the phrase "tough on crime," the vehicle for downgrading the right of the accused. Not only has the DOJ been active in selecting very conservative federal judges. The President himself has encouraged police officers not to be too concerned about injuring suspects during arrests. And his Attorney General, Sessions, has never abandoned exaggerating the volume of violent crime.
- The DOJ stands in opposition to bipartisan reform of sentencing guidelines. This is evidenced by Sessions ordering all federal prosecutors across the 50 states to seek the most extreme charges possible against criminal defendants. That is regardless of any extenuating circumstances.
- By contrast, Eric Holder, the Attorney General under President Obama, had a completely different approach. Holder had directed prosecutors to stay away from filing charges which carry unnecessarily harsh mandatory minimum penalties. That is with the exception of cases where the defendant had a significant criminal history, including gang leadership and drug trafficking.
- The result of this shift in charging has been an increase in mass incarceration. Harsher charging decisions made by prosecutors in the age of Trump/Sessions have been the primary cause.
- Just look up the book by Fordham Law professor John Pfaff, titled "Locked In: The True Causes of Mass Incarceration -and How to Achieve Real Reform." It clearly demonstrates that charging decisions have been the cause.
As compared to Germany, for example, we find that per capita, the American incarceration rate is nearly four times as large as in Germany. Germany's emphasis is on rehabilitation and eventual integration in society, rather than on punishment and revenge. The law, if it is worthy of its name, is not meant to "get even," but to effect behavioral change.
One of the most egregious attacks in America on reforming the criminal justice system is the project of privatizing the prison system. An owner of a private jail does not care about the legality of how his residents got to his jail. Like a hotel owner, he is focused on "full occupancy." The profit motive is the primary motivation. The main loser is justice.
It is a great irony that the reduction in crime in America, which began in the Bush/Obama era, is now bold-facedly, claimed by Trump as resulting from his being "a law and order president," a leader who is "draining the Washington swamps." In reality, the age of Trump demonstrates that the persistent swamp is located in Trump's White House. Including the racist and ethnic ban of citizens from seven Muslim-majority countries from entering America.
Walling off of Muslims from entering America, is a part of the Trumpian march towards selectively disengaging the US from world affairs. Witness Trump's persistent call for a wall on the American/Mexico border. This reflects Trump's growing reliance on the popular myth that America is under attack.
The use of American laws as divisive tools within and outside America, especially when it comes to the Muslim world, ignores some basic American facts. In the US of today there are an estimated 3.5 million Muslims from 75 different countries (1% of the US population). Reporting on these facts, the American magazine, National Geographic of May 2018 said about them: "They (the American Muslims) are forming communities, building mosques, and thriving."
To this, I should add that many of these Muslims are enrolled in police departments all over the US, as well as in the armed forces. They included the son of Kizr Khan, formerly of Pakistan, an officer, who died in Afghanistan trying to save his troops from the carnage caused by a suicide bomber.
The father of that officer who died for the U.S. remains a strong advocate in America for the Rule of Law. His famous admonition to Trump shall live on for a long time. He shamed Trump at the Democratic National Convention of 2016 as he said: "Sir!! Have you even read the U.S. Constitution?!"
Michael Hayden, a former director of the Central Intelligence Agency has wondered in his forthcoming book as follows: "How do you brief a president (Trump) who isn't interested in facts?" The title of this awaited book is "The Assault on Intelligence: American National Security in an Age of Lies."
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