Thursday, October 13, 2016

On the brink

It has been a while since I've foisted one of these blog entries on the 2 or 3 people who read this blog--just over three months--and for that I am sorry. It's been an extremely busy summer, and something had to give.

I am spurred to write, however, by some genuinely disturbing developments in the presidential campaign.

There are not many "things" that I love in this world.  People, sure.  Ideas, sure.  But I am at the stage in my life when things matter to me only as much as they are useful to me.  I have lost virtually all of my sentimentality toward objects.

But there is one thing that I love, that I have genuine reverence for, that means more to me than just about anything in the world, save my family.  It might sound corny, but that thing is the Constitution.

In the last couple of weeks, the Donald Trump campaign has imploded.  His polling numbers are showing a precipitous decline, and he keeps making unforced political errors that have cost him support.  At this point, I am reasonably confident that all Hillary Clinton has to do to get elected is keep quiet and let Trump continue his nose dive. 

I have had little doubt about this development since I asked the Republicans to nominate Trump about 15 months ago.  People thought I was joking; I wasn't.  I knew that Trump would not be able to sustain a long campaign without becoming a caricature of himself.  I think Hillary could have beaten pretty much anyone in the GOP field--she would've had a tough time with John Kasich, I think--but Trump held the right combination of appeal to the average GOP voter and utter political incompetence.

He's going to lose.  You can read it on his face, as his comments become increasingly volatile and desperate.

But there have been three developments over the last couple of weeks that I regard as exceptionally dangerous--an existential threat to our Constitution that has not been seen since the election of 1860.

The first development was Trump's decision to invite to the second debate a woman who, as a 12-year-old girl, was raped by a man whom Hillary Clinton was appointed by the court to defend.  She was reluctant to take the appointment, but as a new female lawyer in a small town, she did not believe she could turn it down without incurring the wrath of a judge before whom she would likely have to appear many times.  She strongly believed her client was guilty.  She put him through a polygraph, which he passed--and which she noted later, with a chuckle, that the experience undermined her faith in lie detectors.  But, as all attorneys must do, she gave him the best defense she could, guilty or not.  She hired an expert witness to test some evidence--a pair of the victim's underwear, allegedly with a semen stain--that the Arkansas State Crime Lab had already tested and found consistent with the defendant's blood type.  Recall, by the way, that this was 1976, well before the availability of DNA testing.  All they could do at that time was test for blood type, a blunt instrument, but effective at ruling people out.

And it turned out that the crime lab had destroyed the evidence in the process of testing it.  For that reason, she was able to get that evidence excluded (properly).  And because the rest of the prosecutor's case was weak, she got them to agree to a one-year jail term and five years' probation on a plea bargain; he could've gotten 40 years on the original charges.

Now, what happened to that girl was a terrible thing.  I don't think anyone would argue otherwise.  But Hillary's involvement in the case had nothing to do with what happened to that girl.  Hillary's involvement was to provide the defendant with the defense the Constitution says he was entitled to.  That is how our system works, and to some extent or another, the existence of the right to counsel in criminal prosecutions is very likely the most fundamental right that an individual has in being able to stand up to the government.  It is un-American to criticize an attorney for defending a criminal defendant, especially on an appointment.  But Trump has now done so.

The second development was the response from the Trump campaign to an article in the New York Times detailing the allegations from several women who claim to have been groped or otherwise sexually targeted by Trump in the past.  Recall that in the second debate, under persistent and heavy questioning from Anderson Cooper, Trump denied that he ever groped a woman as he described in the Access Hollywood video that became public last Friday.

That kind of denial is like waving a red flag in front of a bull.  Several women have come forward to allege that he did just what he claimed never to have done, and the New York Times has reported their allegations after corroborating their stories.  Trump's response:  To have his attorney write a letter to the Times, calling the allegations libelous, and to demand a retraction with threats to litigate.

For its part, the Times has stood its ground, and good for it.  Even if he doesn't know it, his attorneys should:  Public figures are fair game when it comes to comment on matters of public concern.  The First Amendment guarantees the right to publish such allegations, even if they are false, as long as the publisher is not motivated by actual malice, a standard that in practice is impossible to meet.  Fun fact:  In the Supreme Court case that established that standard, the defendant was none other than the New York Times.  (See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).)

Trump's threat of a lawsuit--which is far from his first against the press--is inconsistent with the First Amendment.  The free press is an important part of our country's Constitutional foundation.

The third development has come more subtly.  Now that it's clear that Trump's campaign is failing--slain by the candidate himself and his inability to keep his mouth shut--he has begun to murmur about a "rigged election."  Now, to be clear, I think we fall well short of fully fair elections in this country.  There are serious questions, questions that deserve examination, about gerrymandering, voting apparatus, registration issues, and concerted efforts to keep certain (pro-Democratic) groups from voting.  But those problems are primarily structural in that they are geared toward gaming the outcome of an apparently fair election, not toward "rigging" the election in the sense of falsifying the outcome.

Our elections are not "rigged."  By and large, the results we will receive on the night of November 8 will reflect the votes as they were actually cast.  Any "rigging" that occurs is at least a step removed from that:  gerrymandering that allows one party to maximize the effectiveness of the votes it receives; election officials who decide to "purge" voting rolls based on spurious criteria; voting machines that don't work properly or that are arranged to make it difficult for votes to be cast; and onerous registration requirements that deny citizens the ability to exercise their voting rights.  We can and we must do something about those things, but no one is sitting in a lonely county clerk's office flipping vote totals.  The votes we see will be the ones that were cast.

But Trump says otherwise--and that's something no major-party candidate has said since the election of 1860, in which Republican Abraham Lincoln prevailed over a fractured Democratic Party, and which led directly to the Civil War. Not even Al Gore, who has as strong a claim as anyone to having been the victim of a rigged election, allowed himself to make that kind of statement.

Trump knows that many of his supporters are volatile.  Many of them are looking for an excuse to use the "Second Amendment remedies" he praised at one point in the campaign--a thinly veiled threat of violence if they are unhappy with the result.  That, too, is against the very concept of our Constitution.  Our system provides for free and frequent elections, with transitions based on voting, not violence.  If you cannot commit to the orderly, reasonable, nonviolent transition of power from one administration to the next, then you have no place holding office in this country.  Our Constitution demands at least that much.

When I became an attorney, I swore an oath to support the Constitution of the United States.  Though there were other elements of the oath of my office, that was the first part, clearly set forth at the beginning and clearly the most important part of the oath itself.  That oath is much the same as the oath sworn by every officeholder in this country.  It is implied and imposed on all of us.  After all, it is our Constitution that makes us who we are as a people--not our national origin, or our race, or our sex, or our color, or our religion, but our common belief that the Constitution is the supreme law of our land.  We owe it to ourselves and to those who come after us to guard against all who would do damage to it, Donald Trump and his supporters included.

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