To distill the meaning of our form of government into a few words, most quote what Abraham Lincoln said at Gettysburg: “A government of the people, by the people and for the people.” Equally, we should mention that the Constitution was written of, by and for gentlemen.
It was written by men who could not imagine that elected and appointed officials would not obey the law. Gentlemen who would do the right thing. Gentlemen who would feel shame if they acted immorally or unethically. Gentlemen who would hide illegal or immoral acts out of the knowledge of right and wrong and the fear of consequences.
That is where this country began, and then we elected a lout to the presidency. For that reason, our Constitution, our way of life, is under stress. The commentators and the historians say the system will withstand the stress, but they don’t say how or in what condition.
The popular pastime is comparing this year to 1974—comparing Trump to Nixon. However, the knowledge that he was breaking the law caused Nixon to hide his nefarious doings.
The simple threat of impeachment caused Nixon to resign. The uncovering of the plot through investigation was enough for both political parties to cry in unison “shame on you,” and for the public to agree. That is what our Constitution envisioned. That was a time when right was distinguished from wrong, and truth was distinct from lies.
What if the current president is impeached, subsequently tried in the Senate and found guilty? What next? He leaves office as Nixon did, but what if he refuses? Do you send in a D.C. beat cop with a six shooter to tell POTUS to start packing? Alternately, what if there is impeachment but, at trial, no agreement between political parties is found about what is right, what is constitutional, what is worth standing up? Our form of government doesn’t work if you don’t work with it. Our form of government does not work if there is not agreement on basic underlying truths.
I knew a man who constantly asked, “what’s the consequence?” He was a rich man, and he was not asking out of academic curiosity or in jest. He asked because that is how he made his decisions. It was a cost-benefit analysis. He would do what he liked—what benefited him the most, even if illegal or immoral, unless there was a consequence that dissuaded him. He did not obey the law out of honor or duty or for the common good. He obeyed the law if not doing so injured him. He would beat or cheat his wife, accept insider information on a stock purchase, or rig outcomes.
“Why not?” he would ask. “What’s the consequence?”
Now I know another such man. He is in the news every day and sleeps in the White House each night. He breaks the law in plain sight because what’s the consequence? Besides, he told you he would.
It was Jan. 23, 2016, he was running for the highest office in the land and he said, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, okay? It’s like incredible.”
Yes, it is. Even more incredible, we elected him. Now, our whole system of government is under stress and our way of life is challenged.
When he challenges the balance of power, he opens the door to tyranny. That was the reason our Founding Fathers divided power among three co-equal branches and gave to each the power of checking the other. It was the safeguard against autocracy. What if the power of one branch is challenged by another branch? Is there a consequence? Does one have the power of enforcement over the other? The legislative branch can only check the executive branch by investigating, calling witnesses and subpoenaing documents. If the power of the legislative branch is challenged, what is the consequence?
Since it was considered a power obvious to the balance of power and oversight, the power to hold someone in contempt of Congress was implied, not explicit, in the Constitution. Since it was considered essential to maintaining our form of government, it was made manifest in 1821. In 1857 contempt of Congress was deemed criminal. Contempt of Congress included bribing a senator or representative, refusal to comply with a subpoena to appear or produce documents.
The last time anyone was jailed for contempt of Congress was 1935. Between 1935 and now, if anyone ignored a subpoena to appear or produce documents, what happened? There was a finding of contempt followed by “substantial compliance.”
For 84 years, why did they all comply? Personal honor, respect for our form of government, and adherence to their oaths of office “to preserve, protect, and defend the Constitution of the United States.” Notwithstanding, the current president loudly and publicly refuses “to allow” those subpoenaed to appear and produce documents. If, therefore, former White House counsel Don McGahn, Treasury Secretary Steve Mnuchin and Attorney General William Barr are not held in contempt and do not then “substantially comply,” it is an attack on our form of government. What is the consequence?
If there are no consequences, the bad guys will dance in the street and the good guys will mill in confusion. Everyone keeps asking what happens next. Absent compliance or consequences, the balance of power will tilt. The executive branch will gain more power than the Constitution intended and, simply put, that is another form of government. That is the exact government from which our Founding Fathers meant to protect us.
People always ask me what Mary Flynn would say. In this case she would say, “We get the government we deserve.”
