Why do we admire mobsters?
Months ago I was attending a town council meeting when a discussion developed about one of the town workers who had sustained lasting damage when a trench collapsed on him. He had no safeguarding caisson because when he asked for one not long earlier, the council refused to buy one. They are fiercely expensive. As it turned out, the treatment for his wrenched back is also costly. Now the town owns the protection and the workers use it, though it’s a hassle.
That’s not the point. At the meeting we were talking about possible major future costs and I mentioned the remaining possibility of the worker suing the town. One of the council members became all upset and insisted that OSHA had imposed its judgement and that was the only law that mattered. I tried to convey the idea that there are many kinds of law and that government regulation like OSHA is only one of them. It is not the same as criminal law and not the same as “tort” law, which means that anyone can sue anyone, regardless of laws, if there is an injustice involved. He couldn’t get it. He was thinking of classroom rules in grade school.
Likewise, the heated debate over the seizure of materials belonging to Trump’s lawyer, NOT Trump, involves kinds of laws. Some people are so intent on impeachment, which is a remedy provided by the Constitution of the United States and therefore a governmental law, that they are attacking Mueller. But the evidence that will turn up is not likely to have anything to do with governmental matters — rather it is expected to be valuable in a kind of law called RICO.
“The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization.” There are in addition state laws against the same offences. So this is a bit of a blend, but in this instance is being conducted and prosecuted by state entities, which Trump has no control over. In any case, the focus on these papers is divided. I suspect Trump had just an inflated idea of the presidency that he thought he could not be prosecuted for what he had done earlier.
Now special teams are sorting materials into at least three piles: those that relate to criminal charges against Michael Cohen; those that relate to any charges against Trump specifically which I presume will require another search warrant or other document of entitlement before they can go to Mueller; those that relate to the specific case of paying off Stormy — and maybe some that don’t relate to anything interesting. Until this is done by these teams who have a special name and special training, we don’t know whether “nothing was found”, as Trump claims. He judges the world by TV, so he expected bodies and smoking guns, I guess. Probably the search warrants related mostly, if not exclusively, to criminal materials about Cohen. It’s hard for Trump to think of himself as incidental, but technically that’s probably true.
Cohen has no protection. Trump cannot pardon a state crime. The idea will probably be to squeeze Cohen hard enough to get criminal evidence against Trump and also, I’m sure, there is a hope that hard criminal evidence against Trump will show up in these materials. Then the issue becomes whether a sitting president can be arrested and tried for crimes. Precedents (which are always a part of law and almost every professional endeavor) are mixed. The issue of impeachment is separate.
As someone pointed out, we know how Trump has conducted business all his life, we know how many civil suits are filed against him, and we know the stories that go around. We know about bribes and threats and governmental backscratching. The piles of papers from legal boxes are simply the proof of what we know. The difference is between an unindicted criminal who has been elected president and an indicted, tried and convicted man who was elected president.
Going back to the local level, the careful and conscientious people of this little town voted for a man to be sheriff who was soon removed for family violence, general vulgarity, and failure to do his job. He was repulsive in appearance by some standards and obsessed with sex by almost any observer. He immediately fired every more attractive and competent officer. Then he was thrown out. The interim sheriff is an experienced tribal man, whom many careful, conscientious and racist people would never elect.
We’re looking at the dark side of the rule of law. When there are many kinds of law, when they apply to different kinds of people (professional guidelines for judges and doctors; business law for insurance and shops), so many levels of law from the Constitution to shipping regulations, so much that is in a new gray area (computers and copyrights), and when the cultures are so different — then we struggle as we invent new words, frame new concepts, try to figure out what a new consensus might be like.
David Brooks is wandering in the wilderness — once a convinced Republican, the columnist is now alarmed and baffled by the people who want all this ambiguity to just go away, even if it means putting an authoritarian with no respectable standards in charge. Some of us have expected a New Puritan attitude to arrive and for it to have some connection to money, which is the new moral measurement, but I don’t think anyone expected a joke like Trump, with achievement about as real as the bustline of his women.
In the Seventies when I was much more persuaded that people were good and rules were flexible enough to accommodate everyone with good intentions, I participated in the PNWD-UUA Leadership School. It was young and savage and led by the Rev. Peter Raible who walked edges. In the third year we tried being a community from scratch, using all the ideas we had learned in the first two years. We made rules, discovered they didn’t work, added sub-rules, looked at our assumptions, tried to think of alternatives, and finally got into such a tangle that we couldn’t think what to do. Peter forced an election of a Queen — not the kind that cross-dresses but the ideal kind who can hatch dinosaur eggs. She was simply an older woman with common sense and experience.
After everyone went off to take a nap and let the Queen think (she was more like a good mother) we came back to see what to do. “Go here, do this, forget that,” she said. And we did. It worked. But there were only thirty of us, we were all pretty much alike including the part Brooks points out about being too big for our britches, and we really wanted this to work. No one was making money off it. I don’t remember that anyone was even sleeping with the wrong person.
I’m deliberately being a little silly. Criminal law is not silly, even as portrayed on Fox News. The consequences are real — as soon as we figure out what they are.