Tuesday, May 22, 2018

The D.O.J. - One Step Closer To Being Like The Nazi Reich Justice System?

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"To a frightening degree the masses themselves....showed a suicidal frenzy in breaking with their customary ideals, connections, parties, leaders. They looked on in silence as their political world fell into ruins, and tacitly acknowledged that a new, uncertain, but bold edifice was growing up. This was no sudden general flocking to National Socialism, but a cynical lack of resistance.." - Konrad Heiden, The Fuehrer, 1944,  p. 468.

For those who missed my Sunday update of the May 17th  post let me re-reference the key part here, as it is germane to the content of the current post:

As per a NY Times front page article ('Trump Demands Inquiry Into Whether Justice Dept. Infiltrated or Surveilled His Campaign') Trump tweeted earlier today:

"I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes,  and if any such demands or requests were made by people within the Obama Administration!”

This is a confirmation not only of Trump's obstruction of justice ("on steroids" as I put it- by using an investigation to stop an investigation - of him)  but also of Trump's declaration in 2017, in a NY Times interview:

"I have absolute right to do what I want to do with the Justice Department"

Making clear in no uncertain terms that he is a despot, much like Adolf Hitler (when he took over the German Judiciary - which I will get to) and hence telegraphing that he doesn't believe in any independent judiciary. Now, while it is true that the Department of Justice is included in the Executive Branch of government, it is also true that laws passed since Watergate establish the D.O.J. as an independent entity within that branch. It cannot be otherwise, else the executive can manipulate the judiciary and defile the rule of law - as Hitler did. Trump's Sunday tweet and his earlier declaration disclose he is not of any different mindset from Hitler.

As many of us know, in the film 'Judgement at Nuremberg' the defendants standing trial  were all members of the German Judiciary who had been co-opted by Hitler and made to act on behalf of the deformed laws of the Third Reich.  As the Wikipedia entry for the film notes:

"The film centers on a military tribunal led by Chief Trial Judge Dan Haywood (Tracy), before which four German judges and prosecutors (as compared to 16 defendants in the actual Judges' Trial) stand accused of crimes against humanity for their involvement in atrocities committed under the Nazi regime. The film deals with non-combatant war crimes against a civilian population, the Holocaust, and examines the post-World War II geopolitical complexity of the actual Nuremberg Trials."

In the film, the judges on trial for their crimes against humanity argue strenuously that they were only "following the law" as it pertained to the Third Reich. But as the prosecutors made clear, this law was a deformation of the actual rule of proper law, based on a foundational grasp of morality.

This elicits the question: What happend that changed the proper German law to the debased form?  To answer that one can do no better than to get hold of the superb book, The Fuehrer (1944) by then German journalist Konrad Heiden.  We learn for example (p. 566) that the first step the Nazis made was to convert the existing judiciary into their own handmaidens.  This was done by "enlisting all the officials entrusted with the administration of justice - including the judges- into the National Socialist organization, e.g. The National Socialist Jurists"  which Hans Frank (Hitler's favorite lawyer) had founded.

Effectively then, the initial judiciary of the Weimar Republic became Nazi judges, i.e. National Socialist jurists, if they succumbed to the change and agreed to it. (One of the prosecutor's witnesses in the film was challenged by the defendants' lawyer how he could act so morally superior when he never refused to join the Nazi Jurists).   Heiden, for his part, observed (p. 567) "at least for a time some German judges tried to oppose the rape of the law by the National Socialists"  - for example declaring part of their mission was to "protect the weak". To which Herr Frank responded contemptuously (ibid.): "yes, previous justice did protect the weak and created a morality for slaves."

Ultimately, all this rhetoric and manipulation was to create the deviant judicial path by which Hitler could flout all the original laws and thereby destroy the rule of law in Germany. For example, Hans Frank echoed Hitler when he said (ibid.): "Law should not protect the weakling but make the strong even stronger."  This echoes Hitler's words (p. 257):

"If Germany should get a million children each year and eliminate seven to eight hundred thousand  of the weakest, in the end the result would be an increase in power."

The key point made by Heiden regarding the  Nazis' assault on German justice was:

"The German judges' backbone was broken down when the Government broke down the security of their existence."

This meant that the original tenure for life was abolished. In Heiden's words (ibid.):

"The privilege, designed to ensure the independence of the courts, was eliminated by the National Socialists."

This is important to note in order to make the analogous comparison to what is now happening here in this time, in the U.S. - under Trump.  While the judicial authorities of the DOJ lack lifetime tenure - there is still the expectation that they will exercise their authority independent of the executive and not become its political pawns.  As law professor Paul Butler put it on 'All In' last night: "If Trump can get away with ordering documents, or an investigation for an FBI source, he can do it for anyone, even a sitting Senator."

Further, this should not ne a left-right issue, but of decent citizens supporting an independence of the DOJ from the executive.  It is emphatically not a case of the left trying to grab control of the DOJ against Trump! (Though FOX's brainwashed minions might believe this.)

Carrying on with  the rough analogy, did Rosenstein give Trump what he wanted? In one way, yes, and in other, no. In the former, Rod Rosenstein went through the motions and just tossed Dotard a bone by agreeing (in a way) by having Trump's twitter frets turned over to the Inspector General for parsing.  This would be roughly like the Weimar judges agreeing (in a way) to do Hans Frank's bidding but not joining the National Socialist Jurists.  Rosenstein absolutely did not give Trump what he really wanted - which was for Rosenstein to resign so Trump could them appoint a new deputy AG - as his personal puppet- to then fire Mueller. 

As former assistant Watergate special prosecutor Jill Wine -Banks put it on 'The Last Word' last night:

"I think Rod Rosenstein   played this exactly right. It's not an ideal world, because in an ideal world the president would not be demanding this.  In the ideal world the answer would be 'we only do this if there is probable cause and there is no probable cause here.'  In this case, we have to play chess with the president - who doesn't know how to play chess- and the fact that Rod Rosenstein is still the deputy attorney general is still a good thing.

I am still outraged the president is asking for this, and I don't believe the president or his base will like the answer when it comes out."

Which latter point makes it even more of an atrocity that The Wall Street Journal yesterday (p. A1) openly published the identity of the FBI source who acted as an informant on the de facto Russian agents, Carter Page, George Papadopoulos et al.  All this while also defending the rights of traitors like Devin Nunes to get their paws on further documents related to the FBI source (see editorial p. A16,) and eliding the Snowden affair with this.(To remind readers, Snowden never disclosed actual source names, but rather the extraordinary utilities, e.g. XKeyscore,  MUSCULAR, PRISM etc. that the NSA used to grab citizens' data without their knowledge and in violation of the 4th amendment.)

On the other hand, David Frum diverged  from Wine-Banks take, pointing out:

"Rachel (Maddow) said a very good thing, you respond to the lizard brain, you treat this as a confrontation with a dangerous predator. And you show it what you have. And maybe we're into constitutional crisis territory..  But this slow moving dissolution of normal expectations - maybe crisis is the wrong word - is a corrosion and a corruption,  We're all worse off than we were. At some point, someone is going to have to fight, and maybe today was that day."

I tend to concur with this - in the sense I believe we're at a critical inflection point- not too different in kind from when the Weimar jurists had to make the choice to become National Socialist, aka Nazi, jurists, or be rebuked and lose their positions. Once that 'Rubicon' was crossed - as Heiden notes - and the principle of equality was violated, then "homicide was no longer homicide and murder no longer murder."  In other words, when sanctioned by Hitler or the state, radical differences in kind emerged, and no punishments necessary if committed for the Reich.   This difference was punctuated when amnesty was declared for previous Nationalist Socialist murderers, e.g. who slaughtered trade unionists, Marxists, others.  Thus, the five murderers of Potempa were summarily released from prison, no questions asked.

Perhaps then, Jill Wine-Banks response to Frum is most germane here:

"David definitely made a very compelling case. This is something that concerned me since the election, And I think we saw in Hitler's day - people don't like that analogy - but he didn't change everything all at once, he ate away at the fabric of the society. A little at a time.  First it was one thing, then another extension, then another. So David's point is that's what we're seeing, one step at a time."

The key difference, as Ms. Wine-Banks noted, is that even if Rosenstein is fired - Mueller as well - the DOJ staff  plausibly remain and can continue their work. But up to now we don't know if that will happen or not. (During Watergate, after the 'Saturday Night Massacre', public outcry spared the staff of Archibald Cox) So far, history's negative drumbeat marches on, and no one seems willing or able to turn back the Trump Despot Tide. If we don't, one way or other, we shall rue what transpires even as we cogitate on George Santayana's words: "Those who forget the past are doomed to repeat it."

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