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CONNECTIONS: Crime and punishment

Without a consequence for bad behavior the lesson is that that behavior is acceptable.

About Connections: Love it or hate it, history is a map. Those who hate history think it irrelevant; many who love history think it escapism. In truth, history is the clearest road map to how we got here: America in the 21st century.

Apparently, the political and cultural landscape of the United States is changing. Whichever side of the debate you are on, whether you think the change is good or bad, no one denies it is happening. No one disputes that things are now being done that have not been done before, that we are breaking with tradition. Whether the new becomes the new normal or remains an aberration may depend on one thing.

I knew a man who asked: What’s the consequence? His position was: If the consequences for breaking the law are insignificant or avoidable, why obey the law? For most, the answer is that this country is based on the rule of law. If that changes, this government changes radically or crumbles utterly. Therefore all citizens – rich and poor, elected, employed or unemployed, Black, White or Brown – are subject to the laws of the land. That argument has no value for the man who merely calculates the consequences and who once asserted he did not have to follow a judge’s order because he made more money than the judge. Now before you discount him entirely as a dork or a sleaze, thank him for pointing out the importance of consequences.

Many regretted that there were no consequences for the bankers who had a hand in the 2008 economic meltdown. Absent consequences, they believed it could and would happen again. Similarly, whether this new behavior persists and is normalized or not may be a function of whether or not there are consequences.

The president attacks members of his own party–announces that, if hit, he will hit back harder. He humiliates people, kicks people when they are down and withholds support from those suffering. Some think he is justified, refreshing and doing just what the country needs. Others find him cruel, crude, out of control and not fit for office. However, everyone agrees: For a president of the United States, this behavior is new. Those embarrassed or chagrined by him want there to be a consequences before his behavior becomes acceptable behavior. So what consequences are there for a sitting president?

While we still have freedom of speech, we could call the president names when he calls other people names. On a loftier plain, however, is the president of the United States subject to criminal or civil law or is he above both? Can he be sued or arrested? The answers are: naturally and not really; in principle, yes and, in practice, no. For example, the court ruled that while in office, President Clinton could not be sued in civil court by Paula Jones. As for criminal court, can you form a mental picture of a D.C. beat cop arresting the president in the White House, getting into the White House, getting into the same room with the president or getting by the Secret Service? If not, then are there no consequences?

Rep. Jackie Speier, D-California, said, “POTUS is showing signs of erratic behavior and mental instability that places the country in grave danger; time to invoke the 25th Amendment.”

There are two amendments to the Constitution that address consequences for a president. The 25th Amendment is almost unique because the Constitution deals largely with individual rights whereas the 25th deals with procedures: specifically the transition of power from president to vice president in the case of the president’s inability to carry out his duties. Section IV does touch on grounds for removal.

The procedure is that the president can invoke the 25th Amendment or 14 people–the vice president plus 13 members of the Cabinet–can. The grounds are trickier.

Rep. Adam Schiff, D-California

“I think what the authors of the 25th Amendment principally had in mind was some kind of physical incapacity or serious mental illness or breakdown, an inability to function in office.” — Rep. Adam Schiff, D-California.

One of those authors, law professor John D. Feerick explains that the 25th Amendment cannot be invoked for “policy and political differences, unpopularity, poor judgment, incompetence, laziness, or impeachable conduct — none of that is intended to be covered by Section IV.”

In practice, the 25th Amendment has only been invoked three times and all three times by the president himself. Passed in 1967, President Reagan took advantage of the 25th when he needed surgery. During the few hours he was anesthetized and in recovery, he authorized Vice President George H. W. Bush to fulfill the duties of president. Similarly, President George W. Bush authorized Dick Cheney to carry out the duties of the president twice when he was hospitalized. When Schiff says the 25th amendment relates to physical incapacity, he is on firm ground because there is precedent. When he mentions mental incapacity, he may or may not be on firm ground. So that’s that: If a president is conscious, he is assumed to be competent? Or is there more?

Sen. Bob Corker, R-Tennessee

Sen. Bob Corker, R-Tennessee, said of the president, “His recklessness threatens World War III.”

Washington Post columnist Eugene Robinson wrote that abandoning Puerto Rico would be an impeachable act.

The Second Amendment, Section 4, defines impeachment. Impeachment proceedings can be instigated in the House of Representatives for treason, bribery or high crimes and misdemeanors. Is abandoning Puerto Rico dereliction of duty and, if so, is that a high crime? Is taunting a foreign leader sufficiently to threaten the safety of the United States treason? If so, the president can be impeached. To impeach him according to the Second Amendment or remove him from office according to the 25th Amendment requires elected and appointed officials to act.

In fact there may be no consequences for a sitting president for one of two reasons: Either his behavior does not rise to the level of incapacity or criminality, or it does and the people with the authority to do so do not have the will or courage to act.

Trump once said he could shoot someone on Fifth Avenue without losing votes. If true, we will be irrevocably changed. Whether one believes his behavior is justified or not, it is different. Without a consequence for bad behavior the lesson is that that behavior is acceptable. Moreover, if he is rewarded for it with wealth and power, others will emulate it.

It would be nice to believe we are punished by our sins since, increasingly, we are not punished for them.


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