(IS IT TOO EARLY TO ASK) CAN THE CONSTITUTION BE SAVED?*
Untitled, Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Institutions of self-government established in the Constitution are under assault. Due to the systemic lawlessness, criminality and corruption of Individual-1 and his loyalists, including the complicity of Mr. McConnell and Individual-1’s base in the Senate, I question whether mechanisms to protect and preserve the institutions of self-governance enshrined in the Constitution are enough. We may be approaching critical mass. From where I sit, they appear to be in serious jeopardy.
I do not claim that policy differences, honest or otherwise, and their consequences are what has placed the Constitution on a path to implosion. For that reason, I’m setting aside the following for this post, while noting that some of Individual-1’s most significant geopolitical decisions and so-called polices may be motivated by скомпрометированы and/or عَرَّضَ للخَطَرِ, which still has not been fully investigated and could have been among many reasons for his serial obstruction of the Mueller Investigation and public and private efforts to influence witnesses not to cooperate or to lie:
• science denial; • withdrawal from the Paris climate accord; • withdrawal from the Intermediate Range Nuclear Forces treaty; • proliferation of nuclear weapons; • destroying or seriously compromising longstanding allies necessary to the security to the United States, including the members of the NATO alliance; • emboldening despots through incompetence, unpreparedness, arrogance and jealousy; • propping up the murderous North Korean dictator while seriously compromising the reliability and trustworthiness of the United States; • otherwise undermining United States’ credibility throughout the world; • backing the murderous Saudi crown prince and ratifying his crimes; • effectively giving Saudi Arabia the bomb; • enabling, aiding and abetting genocide in Yemen; • withdrawing from the Iran nuclear deal; • taking aggressive measures to precipitate war with Iran; • placing American soldiers in harm’s way; • undermining honor, service and the military code of conduct, and placing men and women at greater risk, through anticipated grant of pardons to war criminals and murderers; • becoming the laughingstock of the world; • attacking the LGBTQ community in the military, education, healthcare, adoptions and elsewhere, reversing momentum towards equality; • encouraging and bolstering the resurgence of white supremacy resulting in a dramatic increase in domestic terror and hate crimes; • growing epidemic of gun violence; • immigration policy; • genocide and other human and civil rights violations at the southern border and, effectively, in Puerto Rico; • Dreamers; • growing economic disparities where 60% of American’s cannot withstand an unexpected $400 expense; • unprecedented deficit spending; • tax laws and policy; • tariffs (a tax hike for Americans) and trade wars; • welfare (socialism) for farmers; • relentless attacks on affordable healthcare, the ACA and people with pre-existing conditions; • growing costs of prescription medications; • attacks on the environment and regulations to keep air and water safe; • leasing and selling national treasures to the highest carbon-producing bidders; • crumbling infrastructure; • nominating incompetent supplicants, sycophants and criminals to fill his cabinet.
The Biggest Chill: Attacks on and Attempts to Control the Press
“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”
My opinion is the First Amendment contains the most significant protections and assurances to sustain open self-governance. The First Amendment serves to inform the public, particularly about the conduct and levers of government, and is predicate to the other constitutional mechanisms on which we rely to sustain a reasonable balance of power. We know under certain circumstances a free and open press, uninhibited by despotic control or intimidation, is more imperative than the putative constitutional checks and balances or even the franchise which, as explained below, are also under serious assault by Individual-1, his party and loyalists. We all know, and see, that politics and greed, corruption and dishonesty, partisanship and power often prevail over oaths of office, undermining the constitutional truism that the separate branches serve as legitimate checks on the others’ powers and abuses. I assume McConnell’s satellite office is in the West Wing, within earshot of outbursts from the Oval Office.
We all know that whenever the media accurately publishes investigative reports that are not flattering to Individual-1, he exclaims “fake news,” and attacks the media as dishonest and failing, tells that strongly suggest the media got it right. Thanks to the dedication and professionalism of responsible media, both print and televised, the astonishing, serial high crimes and misdemeanors and otherwise indictable offenses of Indivdiual-1 identified in the Mueller Report were, for the most part, no surprise. (On this point, please listen to Sam Harris’s interview of Benjamin Wittes of Lawfare on the former’s podcast Making Sense, episode 157). His criticism of the media — that it does not publish all or even any of the positive — is flawed because so little about him or administration falls within that definition. And actual journalism — the serious kind, as Mr. Obama and his predecessors will tell us — is not in the business of reporting manufactured feel good stories or flattery to an audience of one.
Individual-1’s relentless attacks on the media have risen to a qualitatively different level, however, a “four alarm situation,” as Chris Hayes said on May 23, 2019. Don’t get me wrong. My personal disdain for Julian Assange is beginning to register on the antipathy scale I use to monitor my contempt for Individual-1 which maxed out at “11” several years ago. But use of the Espionage Act to prosecute the publication of leaked government secrets, something journalists have done for time immemorial, will and is meant to have a serious chilling effect on the press. I do not concede, by any means, that Assange is a journalist. But prosecuting him for what news agencies and journalists do on a regular basis as a constitutional check on government is clearly meant to send a signal to the media. If we don’t like what you publish and the executive and his loyal Attorney General can find a way to manipulate — torture — the language of the Espionage Act to capture your conduct, you will think twice about whether to publish it. That’s a big chill on the press that will result in a much less informed public and significantly less oversight and public scrutiny over what we all know is a morally and legally vacuous wannabe authoritarian.
Can we trust the courts to find such prosecutions in violation of the First Amendment? With Individual-1’s attacks on and politicization of the judiciary and the Senate’s largely rubber-stamping his loyalist and sometimes unqualified nominees, the amount I’d be willing to wager is growing smaller by the day. And even if journalists and the press are confident they will ultimately prevail in court, the fact of the prosecution alone, the occurrence and process themselves, will seriously curtail the willingness of the media to incur the risks. Which journalists will step up as sacrificial lambs for further test cases?
In connection with the Speech Clause of the First Amendment, it is not altogether clear, at least to me, when Individual-1 speaks/tweets as a private citizen and when he conducts the business of the United States, such as he does. Regardless, I acknowledge and respect his right to spew hateful rhetoric and vicious attacks, including against those from his party who display the courage to challenge Individual-1 by, for example, pointing out his impeachable conduct. Political suicide? Possibly, unless a sufficient number of members find the moral wherewithal to keep their Oaths of Office, refuse to remain silent and stop defending the indefensible.
Oath-takers’ fear of political consequences is assuring Individual-1’s despotism.
Oaths of Office have Become Empty Truisms
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God”
Each United States Congressperson swears or affirms this Oath at the beginning of the new Congress after the election. The newly elected or reelected United States Senators swear or affirm the same Oath, also in January.
In the face of astonishing, unimpeachable evidence of Individual-1’s criminality and impeachable offenses, his obstruction of justice, blanket obstruction of Congress, attacks on the media and efforts to chill responsible journalism, manufactured emergency orders after Congress has rejected demands for wall funding and weapons sales, invoking the resources of the Department of Justice (without legitimate predicate) to investigate and threaten political enemies, the criminal syndicate that makes up the cabinet, emoluments, corrupt efforts to award lucrative contracts to friends and political donors, campaigning with the North Korean dictator against his opponents and, of course, the conspiracy with his personal attorney general to selectively release and manipulate intelligence to create a false narrative about the already-settled origins of the counter-intelligence investigation into Russian interference, the Senate aids and abets.
I understand the argument: Members of each political party believe in their party’s agenda. In order to have any meaningful opportunity to advance that agenda, the parties must have and maintain majority control of the elected branches of government, whether Executive or Legislative. This is, of course, all in the interests of serving the constituents. And, the argument continues, these goals can be achieved while keeping both a straight face and one’s Oath to defend and protect the United States Constitution.
This unprecedented series of assaults on the institutions of government falls well outside that argument. Individual-1 is attacking, undermining and compromising the bedrock constitutional and democratic principles. One cannot keep his/her Oath to defend and protect the United States Constitution, straight face or no, from domestic enemy Individual number 1, while changing the subject, averting one’s gaze, pretending otherwise, engaging in political doublespeak, or affirmatively regurgitating Individual-1’s talking point. Nor can one maintain any credibility as a legitimate “check” while compromising independence from the other branch. Here, the assault is so dire and of such consequence, the Senate’s refusal to take constitutionally responsible measures is steeping the country in despotism.
As an aside, growing up I often heard my Mormon church leaders proclaim the Country’s Founding Fathers (slave owners and all) were “divinely inspired,” and the Constitution was the product of that inspiration. I was also taught the time would come when the Constitution would “hang by a thread” but would be saved by — you guessed it — Mormons. The “hang by a thread” and Constitution savior references came from what is known as the “White Horse Prophecy,” which alludes to the Four Horsemen of the Apocalypse in the Book of Revelations. Joseph Smith, the church’s founder, purportedly proclaimed The White Horse Prophesy in 1843. The Mormon church has chosen not to endorse or embrace the White Horse Prophecy as church doctrine. It’s a good thing because I don’t see any Mormons stepping up to do any Constitution saving. The ones I am aware of are on the wrong side of history and, if you believe that sort of thing, of the White Horse Prophecy.
Bartering United States’ Sovereignty, Individual-1 Supports Foreign Interference and Influence in Elections When He Thinks it Benefits Him
Elections, of course, serve as a constitutional check on government power and its abuses, opportunities for renewal and change. That foundational part of the democratic process, however, is and continues to be attacked and undermined at home and from abroad. We are all familiar with the systemic efforts, primarily by the party of Individual-1, to curtail or restrict the right or ability of certain categories and classes of people to vote, people the corrupted party believes would vote for others than them. I leave for a later post their serial efforts, through myriad pretexts to orchestrate means to choose their voters and effectively bar many of the rest.
As for foreign interference, Individual-1’s total exoneration, “no collusion,” in the Mueller Report is nothing short of fantasy. United States’ sovereignty was compromised and possibly to the tipping point. We all know nothing is beneath Individual-1 to gain any benefit, any advantage. Indeed, conspiring to violate campaign finance laws by directing his fixer to purchase women’s silence in order to influence the outcome of the 2016 election was, most likely, among his least serious offenses, impeachable and otherwise, leading up to the election.
Individual-1 took an oath to defend the Constitution from enemies foreign and domestic. Unfortunately, that oath is anathema to his ego and personality disorders. What is Individual-1 doing to protect our elections from the conduct identified in the speaking indictments and Mueller Report? Other than claiming total exoneration, “no collusion,” nothing. Taking any measures to protect United States’ electoral sovereignty would be tacit admission that Russian interfered and, frankly, call the legitimacy of the election into serious question. Besides, Mr. Putin told Individual-1, “very strongly,” Russia didn’t do it. “Why would they?”
The problem for elections with Individual-1 on the ballot is he has direct, unmonitored access to the Russians and can use any excuse, any pretext, to hide further “collusion” with a hostile foreign power. Is it beneath Individual-1 to offer sanctions relief for further Russian meddling that benefits Individual-1? He has no beneath. We all have seen his willingness to sell America’s soul if he thinks it benefits himself.
So what did Mr. Mueller find in Volume 1’s three parts? If you are not up to reading or listening to the Report, I strongly recommend Sam Harris’s interview of Benjamin Wittes of Lawfare on the former’s podcast Making Sense, episode 157.
Part one found no evidence to implicate Individual-1 and his campaign as conspirators with Russia in its criminal social media operation. Did they stop reading there?
The second part was not quite so flattering. Again, Mr. Mueller reported no evidence that Individual-1 and his campaign engaged in conduct that met the elements of criminal conspiracy to hack the emails that were actually obtained and eventually released. Why? Shear incompetence. Individual-1’s operatives knowingly engaged with people responsible for hacking the emails and with those responsible for their release, respectively Guccifer-2 (Russian intelligence) and Wikileaks. The campaign was, in fact, involved in coordinating media strategies around Wikileaks’ release of the DNC hacked emails.
Shortly after Individual-1’s “Russia if you’re listening” speech in which he encouraged the illegal hacking of Candidate Clinton’s emails by a hostile foreign adversary, he directed Mr. Flynn to obtain the emails which he believed Russia possessed. The campaign, as with Jr Individual-1, was eager to receive Ms. Clinton’s hacked emails. Those were not the emails Russians had stolen, however. People involved in the campaign engaged with Russian hackers to retrieve emails it turns out Russia didn’t have.
Part three of Volume 1 describes the contacts between Individual-1’s campaign operatives and the Russian government. Mr. Mueller needed more than 100 pages to lay out that evidence. And, of course the candidate lied to the electorate throughout the campaign that he had nothing to do with Russia, granting the Kremlin even more компрометирующий материал.
The sovereignty of the United States continues to be at serious risk by Russia and possibly other foreign actors who seek to sow discord and influence the outcome of elections in their best interests. Individual-1, with direct access to the Kremlin and the ability to manipulate sanctions, is all in. He has made clear he is not a “loser,” regardless of what it takes for him to win. Hell, he plans to be in the Oval Office for four or five terms.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers