“Our country is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation of power first, and then corruption, its necessary consequence.”
— Thomas Jefferson
“History is a relentless master. It has no present, only the past rushing into the future. To try to hold fast is to be swept aside.”
— John F. Kennedy
“Information wants to be free.”
— generally attributed to Stewart Brand
Among the most compelling pieces of evidence that our federal government, and specifically the executive branch, is undergoing a historic crisis in its capacity to govern can be found in the recent actions of the FBI and its director, James Comey, in relation to the investigation of Hillary Clinton’s email server.
Whereas the FBI and its legendary “G-Men” have traditionally personified the steady confidence of American federal authority on domestic soil, as I’ve previously noted, this particular investigation culminated in the unprecedented and rather extraordinary public spectacle of Comey attempting to justify the FBI’s controversial no-prosecution recommendation by defending, in a televised 15-minute statement, what was ultimately Attorney General Loretta Lynch’s prerogative to exercise prosecutorial discretion. Given that a substantial portion of Comey’s apologia was devoted to delineating and excoriating Clinton’s “extremely careless” (but apparently non-indictable) conduct, one might reasonably have taken it to be as much an expression of frustration on Comey’s part as a legal justification for why Clinton should not be prosecuted.
Yet, subsequent to the investigation’s official close, a portrait of an even more defensive Comey has emerged, alongside evidence strongly suggesting the FBI’s own complicity in the Justice Department’s unabashed endeavor to shield Clinton from prosecution. First, on September 7, there was the release of a memo by Comey to FBI employees further defending the investigation, while announcing the “unprecedented” production of the investigation files to Congress. Comey took the opportunity to label the case against Clinton “not a cliff-hanger,” while explaining that “we [the FBI] don’t play games,” and calling his critics “full of baloney.”
Then, as the files produced to Congress have come to public light, they have revealed facts showing the FBI to be not just reluctant or unwilling to initiate criminal proceedings against Clinton, but, indeed, affirmatively engaged in covering up criminal conduct. While the FBI’s legal justification for non-prosecution depended on the supposed lack of evidence of willful or intentional misconduct (notwithstanding that the applicable statute requires the lesser mens rea of “gross negligence”), the files contain clear evidence of willful and intentional misconduct by Clinton’s inner circle. For example, there is evidence that Clinton’s State Department chief of staff, Cheryl Mills, asked Clinton’s IT aide, Bryan Pagliano, about “wiping computer data.” There is also evidence, gleaned through an examination of now-deleted posts on Reddit by members of the public, that another Clinton IT employee, Paul Combetta, was directed to destroy Clinton’s emails and portions thereof. All three of these individuals (along with one other Clinton associate and a former State Department employee) were granted immunity from prosecution in the course of the investigation. And in the latest Wikileaks publication of leaked emails from the files of Clinton’s campaign chairman, John Podesta, there are explicit discussions among Clinton advisers suggesting how to shirk compliance with Congress’s subpoena of her emails issued in connection with its Benghazi inquiry.
Taken together, these revelations present a compelling case that the FBI not only deliberately ignored evidence of criminal intent in the course of its investigation, but actively assisted the Justice Department in shielding Clinton’s associates from prosecution through grants of immunity.
As an item of American political history, this is no insignificant development. That the Justice Department would be so compromised as to publicly and deliberately assist in shielding Clinton and her associates from prosecution would, at the very least, hearken back to Watergate, and, specifically, the activities of Richard Nixon’s Attorney General, John Mitchell, and FBI Director, L. Patrick Gray, in facilitating the cover-up. But the extent of corruption today appears to be even greater given the circumstances of the immunity grants. While immunity was extended during Watergate to two top Nixon officials, John W. Dean and Jeb Magruder, in exchange for providing testimony before the Senate Watergate Committee, it was their resulting testimony that ultimately forced Nixon’s resignation and enabled the successful prosecutions of numerous Nixon associates. By contrast, no testimony resulted from the five grants of immunity in the Clinton investigation, and the investigation has been terminated with zero prosecutions.
If the corruption of America’s political institutions can be compared a disease, the best analogy is HIV/AIDS: it is like an infection that has now directly undermined the government’s own “immune system,” i.e., the very structures designed to root out and eliminate public corruption itself. This includes the Justice Department and its constituent parts, including the FBI. And as with HIV/AIDS, the task of conquering the underlying syndrome is thereby rendered all the more difficult, given that corruption itself has significantly compromised the natural political pathways to fighting off corruption.
There is a ray of light in the fact that the American political system — which has often been heralded as ingenious, if unusual and cumbersome in many ways — may very well be just the type of governing structure equipped to generate a cure to a level of political corruption that would be capable of easily toppling the governments of most other countries. As one with an abiding optimism in the ability of the United States to right the ship, I cling to the hope that we can still peacefully transition from our Neo-Gilded Age to a New Progressive Era.
The problem of corruption is as old as political philosophy itself. In Book VIII of The Republic, Plato describes it as a natural process of “decay,” bound to infect and ultimately destroy even the most perfect of polities, as natural human frailties spread to overwhelm governing institutions over time. In Nicomachean Ethics and Politics, Aristotle analyzes and ranks the various types of political regimes based on the specific tendencies to corruption within each. Oriented more pragmatically, and inspired by the French thinker Baron de Montesquieu, James Madison advocated for the dispersal of American federal power across several branches. In 1788, writing in Federalist No. 51, Madison stated that the most effective bulwark against creeping corruption is a divided government where each branch is given “the necessary constitutional means, and personal motives, to resist encroachments of the others. . . . Ambition must be made to counteract ambition.” Hence, our vaunted doctrine of the “separation of powers” was born.
In conventional parlance, separation of powers has come to be identified with the federal government’s three branches — legislative, executive, and judicial — that check and balance each other to forestall any of them from abusing power. At the same time, when one considers the American political system in its entirety, “separation of powers” exists in a more pervasive and deeper sense.
Perhaps the most prominent example of this “second-order” separation of power is the role of state governments in our federalist system. The Constitution, through the Tenth Amendment, explicitly reserves all powers not explicitly otherwise delegated to the states. As a consequence, states have retained critical autonomy in areas such as the ability to regulate their own judicial systems as well as the power to regulate firearms within their jurisdiction.
The Constitution also explicitly delegates power to the states vis-à-vis the very functioning of the federalist system. Article II, Section 1, for example, delegates to the states a vital role in the presidential election process, through the Electoral College. And Article V enables the states, by “the Application of the Legislatures of two thirds of the several States,” to require Congress to call a Constitutional Convention.
There is also a second-order separation of power at work in a “molecular” sense, i.e., within each of the three branches of government. Thus, for example, Article III, Section 1 establishes the judicial branch — with the judicial power vested not just in “one supreme Court” but dispersed throughout “such inferior Courts as the Congress may from time to time ordain and establish.” Once established, the judges of the “inferior Courts,” like those of the Supreme Court, “shall hold their Offices during good Behavior” and their compensation “shall not be diminished during their Continuance in Office.” In this way, the Constitution lays the groundwork for our system of Federal District Courts and Circuit Courts of Appeal, which while subject to the Supreme Court’s jurisdiction, are also independently possessed of their own judicial power and, through lifetime appointment of judges protected from downward salary adjustments, shielded against certain forms of undue influence from the Supreme Court and the other two branches.
Similarly, and somewhat less appreciated, the very same statute whereby Congress established the federal court system as authorized under Article, Section 1, also created the Office of the United States Attorney to be situated within each federal district. Section 35 of the Judiciary Act of 1789 provides that,
“[T]here shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned[.]”
Our nationwide system of federal prosecutors, as such, is another site of independent jurisdiction, that not only predates the Department of Justice (which was created in 1870), but locates the origin of its establishment in the Constitution.
The deep infusion of the separation of powers doctrine into our system of government ought to produce some confidence that it is capable of warding off even the extremely, perhaps unprecedentedly, virulent strain of corruption currently gripping it. So far, the most publicly visible manifestation of the doctrine in action lies in the activities of Congress. Through the Committee on Oversight and Government Reform and Judiciary Committee, the House of Representatives has taken testimony from those responsible for the Clinton investigation including James Comey and Loretta Lynch, pushed the FBI to release its internal files and notes, passed a resolution seeking to hold one of Clinton’s aides in contempt for dodging two congressional subpoenas, issued a formal request to the U.S. Attorney for the District of Columbia to pursue criminal charges against Clinton and her associates for obstruction of justice and destruction of evidence, detailed the case for charging Clinton with perjury, and called for an independent investigation of the special treatment afforded two key witnesses, Cheryl Mills and Heather Samuelson, in the course of the Clinton investigation. Taken together, these activities might not only lay groundwork for criminal proceedings, but, ultimately, impeachment proceedings should Clinton accede to the presidency. (A federal officer may be impeached, it should be noted, based on conduct occurring prior to assuming office).
The separation of powers has also presented in less discernible, albeit no less significant, ways. For instance, it has been reported (although not officially confirmed) that the U.S. Attorney for the Southern District of New York, Preet Bharara, is leading a joint investigation with the FBI into possible corruption charges against the Clinton Foundation. One report indicated that Bharara’s office is in contact with witnesses willing to testify that as Secretary of State, Clinton “granted quid-pro-quo favors to foreign businessmen and foreign governments as well as to American corporations and wealthy individuals in exchange for huge cash contributions to the foundation.” While such illicit connections between the State Department and Clinton Foundation donors have been publicly documented for some time, the FBI, through Comey, has been notoriously tight-lipped about whether it is actively investigating these ties.
Investigative activity concerning the State Department, Clinton Foundation, and Clinton’s private server has also taken place within the judicial branch. Indeed, it was a federal lawsuit filed in 2013 under the Freedom of Information Act (FOIA) by the private watchdog organization, Judicial Watch, that was the first attempt to probe Clinton lieutenant Huma Abedin’s dual role at the State Department and Clinton Foundation. And in 2015, after it was revealed through the congressional investigation into Benghazi that Clinton had used a personal email account for government business, multiple new FOIA actions were filed by various organizations, which have led to the ongoing public disclosure of her State Department emails.
While one can point to numerous examples of how our government’s defenses have “activated” in response to the specter of corruption within the executive branch, these defenses are themselves susceptible to erosion and/or debilitation. For example, the capacity of a congressional investigation to produce criminal charges is dependent on the executive branch’s cooperation; while Congress can formally request that charges be brought, the Department of Justice must ultimately act on the request. And while Article I of the Constitution specifically designates Congress as the site of impeachment proceedings, it vests the power to impeach in the House but the actual trial of impeachments in the Senate. In a hyper-partisan political climate such as our own, therefore, the ability to successfully pursue an impeachment through to a judgment of removal and disqualification from office would, practically speaking, depend on one party controlling both houses of Congress.
Meanwhile, U.S. Attorneys are appointed by the President, upon the Senate’s confirmation, to four-year terms. They are subject to removal by the President at any time, and for any reason. This presents an obvious limitation on any U.S. Attorney’s ability to vigorously pursue a corruption investigation and/or prosecution against the executive branch.
Federal judges, by contrast, are appointed for life terms and, as such, are significantly more insulated from the influence of other branches or outside forces. At the same time, when it comes to criminal corruption prosecutions, courts cannot act alone — they must depend on the existence of ready and willing prosecutors. More concerning, however, the appointment of federal judges has recently become a site of hitherto unseen hyper-partisanship — exemplified most starkly by the present impasse between the President and Senate concerning the appointment of Merrick Garland to be Justice Antonin Scalia’s successor. The stalemate has leveled a direct blow to the Supreme Court by depriving it of a Justice for over eight months and counting, directly interfering with its capacity to function. Ultimately, the capacity of the judiciary — which Alexander Hamilton famously referred to as the “weakest” branch — is appreciably limited by its own dependence on the other two branches and concomitant vulnerability to the spread of corruption therein.
As much as our separation of powers “defenses” can do to identify and, in some cases, thwart specific cases of corrupt practices in government, the inherent limitations on these defenses suggest there is only one true antidote: the democratic process. The most direct route to removing leadership is for the citizenry to act through the ballot box. Yet, if there is one overarching observation drawn from this election season by a broad-based consensus, it may very well be the shocking frailty of the process in its practical ability to effect the will of the American people against the corrupt and entrenched interests of their leaders.
Both major party candidates, Donald Trump and Hillary Clinton, have consistently been viewed unfavorably by more than 50% of those polled — with Trump’s unfavorability rating reaching as high as 65% and Clinton’s as high as 56%. As the alternative to entrenched corruption, the persona of a temperamentally unsound business mogul cuts an uninspiring jib, to say the least. Trump’s recent campaign promise to appoint a special prosecutor with respect to Clinton’s private email server offers perhaps the thinnest of reeds on which to cast the election as a plebiscitary referendum on levying criminal charges against her. At the same time, Trump’s own prolific record of failing to deliver on his promises to the general public casts a long shadow on even this narrow band of hope.
Disillusion with the ostensible “choice” yielded by the democratic process is accompanied by disenchantment with the actual mechanics of the process. Substantial reports of election irregularities and statistical anomalies during the primaries; the government’s own pronounced concern with the vulnerability of the process to “hacking”; and the unprecedented illumination of the Democratic Party’s inner machinations by Wikileaks and other publishers of leaked internal documents have laid the groundwork for not only widespread distrust, but a plethora of legal challenges. Indeed, Trump, perhaps shrewdly, has made suspicion of a “rigged” election the newest plank in his platform.
It seems almost natural to look back to history, as a lens to both clarify and aesthetically soften the contours of a murky and jagged future. While several presidential elections (e.g., Bush-Gore, Kennedy-Nixon) have been proffered as useful bases of comparison, the election of 1896 presents an intriguing, if underappreciated, vantage point. That year, the extraordinarily well-financed, pro-business Republican candidate, William McKinley, won an electoral landslide over a deeply divided Democratic Party and its nominee, the populist Nebraska attorney, William Jennings Bryan, who on a whistle-stop tour, railed to large crowds against the evils of banks and the gold standard. Many establishment Democrats denounced Bryan’s nomination; a number of them supported other candidates or ignored the presidential election altogether, and many traditionally Democratic newspapers refused to endorse Bryan. The first lines of one of Bryan’s famous speeches, “An Indictment of Plutocracy,” are as poignant today as ever:
Plutocracy is abhorrent to a republic; it is more despotic than monarchy, more heartless than aristocracy, more selfish than bureaucracy. It preys upon the nation in time of peace and conspires against it in the hour of its calamity.
While McKinley’s success in executing an effective, modern campaign through his campaign manager, Mark Hanna, enabled him to defeat Bryan, the more enduring legacy of 1896 proved not to be in the resulting McKinley administration. Rather, Bryan’s losing campaign manifested a larger movement in American politics that ultimately swept through the halls of power and re-charted the course of history as the Progressive Era. More than a little ironically, the Progressive Era’s leading presidential exemplar was Theodore Roosevelt, the brash and theatrical former governor of New York, whose signature accomplishments included imposing regulation on the nation’s giant corporate monopolies and prosecuting rampant corruption within the federal government. Roosevelt became president upon McKinley’s assassination in 1901. He had been chosen as a surprise running mate for McKinley during the 1900 Republican National Convention in Philadelphia, when one of New York’s notorious party bosses backed his nomination as a means of ending Roosevelt’s anti-corruption governorship in New York.
While no doubt imploring a respect for and deference to the vicissitudes of history, the election of 1896 contains within it a truth that would only come to light through the historian’s pen. In mounting his losing campaign, Bryan succeeded in giving much of America’s economic underclass a booming voice in the political process which would come to shape the ebb and flow of our domestic politics right up through the New Deal. It remains to be seen, of course, whether the election of 2016 will prove to be a “realigning election” in the same vein as 1896.
But I already know it will embody a realigning for me personally.
For the first time in my life, I will not vote for the Democratic nominee for president. I will vote for Jill Stein on the Green Party ticket. With any important “realigning” in one’s life, there comes some degree of introspection in the moment.
Growing up in the vicinity of Albany, the political energy emanating from the Empire State Plaza was never that far. In eighth grade, some 25 years ago, I was transported on a weekly basis from my suburban middle school to the New York State Capitol, where did I an internship, of sorts, in the office of Assemblyman Angelo Del Toro, a Democrat representing the 72nd District in East Harlem. There, I performed such tasks as licking envelopes and stamps while getting to observe the political process, and its personalities, from inside the State Capitol’s walls. One such personality was the Assemblyman’s staff member and brother, Bill Del Toro. As far as I could tell, Bill (who once sent me down to the street to fetch him a hot dog) spent most of the day reading the newspaper.
Little did I know that Bill was a convicted felon and the Del Toro brothers ran an extensive and long-running political corruption scheme encompassing skimming, tax avoidance, election fraud, and other blatant graft.
At one end of my personal political transformation, I was an unwitting teenager permitted to leisurely roam the vast expanse of the State Capitol on school days. But the revelation of concealed truths has stripped those schoolboy memories of no small degree of innocence.
Wikileaks and other journalists, investigators and publishers — the Gutenbergs of our time — have detonated an entire constellation of hidden truths about our government before our eyes. In so doing, they have seriously undermined a general mode of relation between the governed and those who govern that, since Machiavelli, has largely been accepted as irreducible. Some of us may be temporarily blinded by these newly revealed truths, but our collective transformation is inevitable. The realignment of our society will be felt in the coming election and beyond, for many years.
Jared H. Beck has a B.A. from Harvard College, an M.A. in government from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review. In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami, which is one of the law firms representing the plaintiffs in a class action against the Democratic National Committee based on fraudulent conduct in the 2016 Democratic presidential nominating process. Beck & Lee dedicated to the practice of civil litigation, including disputes relating to business, personal injury and real estate, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Beck can be reached at 305-234-2060 or firstname.lastname@example.org.