Presidential Crime

I was listening to NPR yesterday. They were talking about the information the NSA was collecting on phone records.  In the course of the conversation, there was an offhand remark to the following effect: “Obama is doing the same thing Bush did, although now it may be legal.”

Now, there are a lot of places to go with this. We can discuss whether it actually is legal, and we can chuckle about how, in effect, we’re now in the fourth term of Bush’s presidency.   We can talk about how they skimmed past the “may be.”  But what hit me at once was something different: a journalist casually mentioned that a President of the United States had committed crimes, and then breezily went on to other matters. The fact that the President had committed a crime was treated (correctly) as simply something everyone knew, and at no point was there the least hint there could, would, or should ever be any sort of prosecution for it.

How far have we come?  Think about it.  A major news organization mentions in passing that a President has committed a crime, and it isn’t even worth a pause in the conversation.

Are you angry yet?  Disgusted?  Appalled?  I am.


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40 thoughts on “Presidential Crime”

  1. It is appalling that major crimes are passed over without particular notice. It is also appalling that those crimes may not be crimes any longer–both in the “may” and the “not”.

  2. The problem is not that the president may have committed a crime – the problem is that people look at the president while congress is doing, or not doing, almost everything that hurts the country. It’s like watching Penn and Teller do the old cups and balls. If Penn is waving his arms around and explaining something, the smart person watches Teller. Most of America, however, would glue their eyes to Penn.

    After years of abuse, not just starting with the Bush years, Congress decided to codify what our security agencies could and could not do a week after 9/11. Nothing like emotionally driven congressional resolutions, right? The AUMF clearly gives a vague and unchecked amount of power to the President and the agencies he authorizes. There was only ONE elected official who voted against it. One.

    I’m not defending Bush 2.0 at all here either, he’s stood solidly against every single word he said about open government, personal privacy, responsible America, etc…

    But the real problem is not the office of President, in my opinion anyway, the problem is that we spend so much time and effort talking about the President or who the next one should be, that we give no real energy to the people that we elect to wield the real power in this system.

    Did the President commit a crime? Sadly, no. Congress did, however, when they granted all future presidents, and their agencies, the ability to use private corporate data, without warrants, without reason and for anything that could even kind of be considered anti-terrorism.

  3. I don’t know. Hasn’t his always been true? The earliest brazen example I can think of is Andrew Jackson baldly refusing to comply with a Supreme Court decision, but there is a long history of open to tacit to understood examples of American Presidents violating “the law”.

    Now, I personally take this as part and parcel of the logical and justified history of organized dissent in this country, particularly the last hundred years of Anarchist criticism of the Federal government, but it’s not “new”, so far as I can tell.

    Legality in our society is already a compromised political process, so inasmuch as I can shrug at activists and agitators and other heroes living outside it, I’m obliged not to theatrically gasp that a authoritarian figure on the other side colors outside the lines as well.

    I suppose, given the way Presidents use legal fictions as weapons and rhetorical cudgels, we can lay the additional charge of hypocrisy at their feet, but that’s not much on top of everything else.

  4. Justin: In the case of Andrew Jackson, there was considerable discussion and debate over whether and for what he should be impeached and/or prosecuted. In this case, it was a casual mention in passing.

    These are the articles of impeachment drawn up against Nixon:

    Now, compare what Nixon was accused of to what we know Bush did, and what Obama has admitted to.

    This is not business as usual. These are new developments.

  5. In other news, Obama stated that his embezzlement activities were “modest and necessary” and his cannibalism was “within reasonable bounds” and “well supervised with appropriate protections”.

  6. We lost the republic after WWII when we kept a large standing army and required a lot of secrecy. The citizens are uninformed and cannot get informed.

    Like, if you think the welfare budget is too high for what we’re getting — if you think we need to cut waste and fraud and get more for our money — do you know how much of that money is going to secret military projects? No, you don’t. There are people who know. “I could tell you but then I’d have to shoot you.”

    We have elections in 16 months. The campaigning is starting and the current scandals are part of that campaign. Political fanatics leak scandalous information in a coordinated way to get a good scandal going.

    We have the technology available for the government to collect and store all your phone conversations and online activity. They keep what they want, but they don’t have time to look at it. They will ignore your records unless you get interesting to them. If you do get interesting to them that probably means they think you are a potential terrorist, so why should people complain if they look then?

    The Obama administration is probably not looking at the communications of their political opponents. They seem not to have that kind of initiative, and if they did then political fanatics with government jobs would leak that they were doing it. When the time is ripe those leaks will probably happen whether true or not.

    “Are you angry yet? Disgusted? Appalled? I am.”

    You display an admirable lack of cynicism.

  7. I perceive this as being driven by…something I don’t have a good phrase for, but I’ll call it “politics as sport”. Sports fans are not objective; mostly, they don’t try to be, and don’t think that being non-objective is a fault. Barry Bonds was a steroids-abusing cheater to the fans of 29 teams, and a local hero and the best batter in baseball to San Franciscans.

    Why didn’t they care? Because they wanted their team to win, and because there was just enough murk and confusion in the situation that they could say that nothing had been proven, and besides, it’s just a game, and what’s wrong with using the most up-to-date medical technology to improve one’s game anyway?

    So in politics. We have two “teams”, both of whom have a large number of rabid supporters who support their guys to the hilt even when they are engaged in jaw-dropping, egregious wrongdoing, because /we can’t let those other guys win/. And there’s often just enough murk and confusion that the “fans” can believe that their guy was innocent, or at least not all that guilty, and besides, what about the other team and their new scandal, and also, in this case, Make America Safe, and It Only Matters to Bad People.

    And underlying that, perhaps, the feeling this is all a game too. The part of politics we see–the races and the horse-swapping and the polls and the scandals–are splashing around at the surface, and the real powers that be are rolling steadily along underneath all that froth in the direction of their choosing.

    And thus, the President (and the past President) have been committing crimes, and the only people who care are 1) the fans of the other team, 2) the intellectually honest fans of the President’s team, and 3) the people who are fans of neither team who are still paying attention and not totally jaded. Apparently the NPR commentator did not fall into one of these groups.

    I feel my metaphor has escaped my control and was perhaps not very illuminating to start with, so I’ll leave this here and go back to work. :P

  8. I’ve been angry, disgusted, and appalled about this stuff since the the PATRIOT Act was passed in late 2001. I supported Kerry in large part because I wanted the Bush Administration out of office, so this kind of thing could be moderated quickly, before it got too entrenched. When that didn’t work, I supported one of the few Democrats that hadn’t supported it in 2001 (Obama) and who claimed he was opposed to it, in the hopes that he would correct it at least somewhat when he won. And I’ve decried the Obama Administration’s persistent failure to do so for 5 years since. Far too few OTHER people seem to care, though, so it goes on.

  9. I hate to say this, but in the case of the phone records, the President did not commit any crime. The gathering of those records were perfectly legal since the Bush 2 Administration when Congress passed the acts allowing it.

    Now, targeting an American citizen for death without due process? Can we scream about that?

  10. I’m…I don’t know. I feel like I should be appalled. Mostly it’s just depressing. I don’t see any way to remove excesses of power from the office when both major parties collaborate to keep expanding it. It’s not like voting does me (or anyone else) any good, though I keep going to the polls like it means something.

  11. Caliann: Well, targeting ANYONE for death without due process is a crime according to the Bill of Rights. That includes the killing of Bin Laden, much less all of those killed by drone attacks.

  12. Surely the bill of rights only applies to US citizens and other residents of US territory who are actually subject to US law.

  13. Miramon: I do not believe that is the case, no. The laws apply to all people, regarding what the government may or may not do, and under what circumstances. Absent a war, for example, life, liberty, and property are protected from the US Government everywhere. I am no constitutional lawyer, so I’m prepared to be corrected on this; but that is my understanding.

  14. “Surely the bill of rights only applies to US citizens and other residents of US territory who are actually subject to US law.”

    I’m pretty sure that’s how it usually gets interpreted. The bill of rights is mostly about rights of “the people” mostly meaning citizens. A few places it’s about rights of “the accused” which could perhaps be a noncitizen subject to US law.

    We do have various treaties with other nations, though, and treaties we have signed amount to law until we repudiate them. We particularly have a lot of obligations to the UN.

    If we are at war with a nation then there are things we can do which get considered war crimes. We promised not to do those things.

    If we do those same things to citizens of a nation we are not at war with, they are not war crimes. We get to negotiate with the other nation about it.

    So if for example we kidnap a Canadian citizen out of Canada and secretly hold him, and we torture him for information, and never give him any sort of due process, well we have an agreement with Canada that we won’t do that and we have an agreement with the UN that we won’t do it. But not so much the bill of rights. The Canadian government has a right to complain if they find out. They can disrupt trade deals or whatever if they are too displeased, and if it’s too much disruption for us we might wind up giving them some sort of compensation to make up for our wrongdoing.

    Like that.

  15. CaliannG:

    I hate to say this, but in the case of the phone records, the President did not commit any crime. The gathering of those records were perfectly legal since the Bush 2 Administration when Congress passed the acts allowing it.

    Congress does not have power to pass a law contravening the Constitution (including the Bill of Rights). Any laws passed by that body that do violate the Constitution are therefore null and void, and unenforceable.

    If a president ignores this, and enforces such laws in spite of this, his only possible defense against having committed crimes can be “I was only following the orders of Congress”.

    That line of defense has, shall we say, not worked out so well for defendants, historically.

    It is expected that a President of the United States will use his judgement and discretion when choosing which laws to enforce, and to what extent. When this stretches into unconstitutional actions, he should therefore be held accountable for his actions.

  16. “…this article suggests that foreign nationals are generally entitled to constitutional rights…”

    Very nice! He argues that they deserve those rights but have often been denied them by the courts.

    “I hate to say this, but in the case of the phone records, the President did not commit any crime. The gathering of those records were perfectly legal since the Bush 2 Administration when Congress passed the acts allowing it.”

    ‘Congress does not have power to pass a law contravening the Constitution (including the Bill of Rights).’

    So the question is whether the law is constitutional. (Assuming the Bush law actually did allow this.)

    The argument against would come from Amendment 4, unreasonable searches. To search your private papers they need a warrant and to get the warrant they need probable cause.

    It would be possible to create a jesuitical argument that things you send over telephone wires are not really private.

    More important to my way of thinking, if a court decides that your privacy was wrongly invaded, the main thing they do about it is not allow the information to be presented at your trial. If you don’t get a trial then that doesn’t much matter.

    So, if they search your private files or private emails etc and find something they can blackmail you with, who do you go to? You can’t complain without letting the truth come out. They can blackmail you until you are ready for the world to know your secret. Then you can perhaps charge them with blackmail, if they were overt about it and left evidence, and if they don’t have immunity.

    The FBI has a long history of blackmailing legislators and public figures. If you become a politician it really makes sense never to do anything you can be blackmailed for. Although they might make something up anyway….

    If they wanted to arrest you, they could perhaps look at your private stuff to find something illegal, and then look for some other way to get the evidence about it. If they never admit they looked at your data, who could prove that they did?

    If you have say a political goal, their purpose in examining your stuff may not be to arrest you but only to stop you. By finding your plans they have a big step up in thwarting you, without needing a warrant to collect info leading to an arrest.

    But then, it may be possible to kill you without a trial too. If they can make it believable that you might be making explosives, they could blow you up at home and announce that you were an incompetent bomb-maker and you blew yourself up. No trial needed, and no big investigation into the details of what happened. And if you self-incriminate by getting exploded, they have a perfect excuse to investigate all your acquaintances.

    The courts might rule that this-or-that is unconstitutional, but they tend to do that only when something comes to trial. If you don’t get the chance to participate a civilian trial then that probably won’t happen. And they can declare that everything you need to know to conduct your side of the trial is secret and must not be shown to you or your lawyers or maybe even the judge. If the court doesn’t find out about it in the context of a trial, how likely will they rule whether the law that allows it is constitutional?

    I figure, if you haven’t given up completely on the US government, send a message to your congressman asking him to make a law that clearly bans whatever it is you think shouldn’t be done. I would figure that for mass data collection, also the law should say that the machinery used to do the stuff you don’t want must be destroyed and not rebuilt.

    When it’s a question of changing a couple of lines of code to secretly do the same old things, a law that says not to might not be very effective. Destroy the machines.

  17. The opposite of “legal” is not “criminal”, and just because a President has done something illegal that doesn’t necessarily mean he’s committed a crime. For example, and relevant to this case, it is generally illegal but not criminal for a government body to take an action that exceeds the powers granted to it by law.

  18. @evergreen,
    the word you want is “tribalism”.
    As you noted, serious sports fans will tolerate darn near anything from their team’s star players. This attitude has come, in the last 40 years, to infect politics as well. I also hear examples related to one’s hometown, favorite bar or restaurant, or whatever. Some people perceive any opinion at odds with their own as an attack on their tribe (family, clan, whatever). There is less and less of what was far more common when I grew up: “I used to like that guy until he screwed up.” Now many folks will bend over backwards to justify, or just gloss over, anything done by their favored icon. One hopes that we don’t get to the point of Huey Long’s standard of evil deed necessary to oust criminals from elected office.

  19. Arnt we still techincally at war ? If this surveillance is, as the president claims, only on overseas non us citizens then doesnt this come under military jurisdiction and military discretion ?

  20. The easiest solution to having the government listening to your phones etc. is to simply not say/write anything that anyone might be able to interperate as illegal over the phone or on an email etc. If its not there then they can’t find it can they?

  21. “Arnt we still techincally at war ?”

    Technically, no.

    Metaphoricly, we lost the war on poverty but the war on drugs is pretty fierce. The war on Islam has settled into a confused proxy war on terrorism.

    We hate terrorists who act against our friends but we want to give weapons to terrorists who act against our enemies, and often we have trouble telling the difference.

  22. “The easiest solution to having the government listening to your phones etc. is to simply not say/write anything that anyone might be able to interperate as illegal over the phone or on an email etc. If its not there then they can’t find it can they?”

    How do you prove you weren’t talking in code?

    Proving you haven’t said anything illegal is a lot like proving you aren’t a witch.

  23. yeah I guess you are right. Oh well. It is much easier to “prove” someone did something than for said individual to prove they didn’t.

  24. Well, at times like this I try to cheer myself up by looking at that picture of Ronald Reagan having tea with the Mujahideen…

  25. The position of aliens vis-a-vis Constitutional rights is a little complex. Aliens do not, for example, have the right to vote. In 2011, the Supreme Court upheld the ruling that aliens could not donate to presidential campaigns. Etc.

    But what’s handy about the Constitution is that it explicitly mentions citizens in some places and persons in others, so one can draw a pretty clear line between citizen-only rights and all-person rights. That said, once upon a time, many justices argued that slaves did not qualify for all-person rights, so it’s not like there isn’t precedent to deny them. It’s just among the ugliest most evil precedents in our nation’s legal history.

    Greenwald, in 2009, wrote a good piece on this, from which I drew the tl;dr –

    Because of the technology, this is new. I’ve been thinking about whether it’s new in kind, rather than in scope. I think it is, but will have to spend some more time pondering the relevant history.

  26. Sure I’m appalled – about this aspect of human nature. The powerful have always done what they want (if they were powerful enough to get away with it).

    Technology changes who is powerful and how they are powerful. Including which organizations have power. I can easily see a future where “small” crimes can no longer happen without being caught – criminals will be those with the best lawyers defining what they do as legal.

  27. James, are you for real?
    No, not saying anything illegal on the phone is not the solution, because there are plenty of legal things you can say that are still a basis for law enforcement authorities with other priorities to choose to act against you,. Like who you vote for, or what you think of the people currently in office, or who you know, or what god your worship, or who you’d like to have sex with, or how you spend your money, or where your friends are going to peacefully demonstrate, or what you were up to at the same time someone you never met was killed.

  28. Howard: When conditions of life produce changes in thought–especially when it’s for the worse–some people, instead of analyzing the thinking and the conditions that produced it, just shrug it off as “human nature.” Now, my question is, is that kind of thinking a product of a given society in a given period under given conditions, or is it just human nature?

    NotheBuddha: I had assumed James was either being ironic or had accidentally wandered into the wrong blog space.

  29. Well, it’s human nature to be lazy, both physically and intellectually, but not always both at the same time. Physical laziness gave rise to the arts, science and engineering, and mental laziness gave rise to superstition, religion and tyranny, so it’s kind of a wash…

    But obviously attributing things to human nature is the same as being lazy, and being lazy is human nature.

  30. “Like who you vote for, or what you think of the people currently in office, or who you know, or what god your worship, or who you’d like to have sex with, or how you spend your money, or where your friends are going to peacefully demonstrate, or what you were up to at the same time someone you never met was killed.”

    If your conversation is with very good friends, then you can try to say everything important in the form of in-jokes.

    Language evolves and fragments under oppression, as note “shuck and jive”.

  31. JThomas: “So, if they search your private files or private emails etc and find something they can blackmail you with, who do you go to?”

    Well, in the case of a woman being sexually harassed at work by her immediate supervisor, the system that seems to work best is to go to the next highest authority that is not complicit in the illegal behavior.

    In this case, where the problem goes up to the highest elected officials in our government, the equivalent recourse is to go to the President’s boss. The people.

    This is exactly what Snowden did. Now certain members of the media are branding him a “traitor” for not using the “systems in place” within the government to resolve his grievances.

    They would like him arrested and tried for treason. To me, this is the same as a boss firing the woman in the previous example for not “adhering to the correct chain of command” when filing her harassment complaint.

  32. It’s important to pay attention to trends; derivatives (the ones in calculus, not finance) are useful because they demonstrate how a function operates with new input.

    The fact that the government is using advances in technology that the letter of the 4th amendment couldn’t have anticipated to justify clear violations of its spirit should have us all terrified of just how thin the line is between invasive administration and oppressive regime.

  33. I’m afraid we are all still too comfortable to really react as we should to the increased power of the federal government. It’s just so easy to sit back and say, “well, I don’t want to be associated with those crazy TEA BAGGERS and their conspiracy theories. What would my friends say?”

    When your nephew is manning the .50 cal crows nest that keeps the bread lines orderly, and you have to stand in six different lines to buy a really bad pair of shoes from a government bureaucrat…, that ought to help shake off the depression and resignation.

    Or maybe we’ll just continue our evolution into good little Tolstoy-ian peasants. Wish I could read a good history book from 200 years on.

  34. When I was in HS, we ridiculed the Soviets because no one could travel without an internal passport. They call it a driver’s license here. We ridiculed the Soviets because they listened in to all all phone calls. We ridiculed them because of all their citizens who were in the clink.

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