Prosecution of Presidents for Political Revenge: A Bankrupt System

By: Donald L. Swanson

“Any judicial process brought about as the direct consequence of . . . a political struggle is political.”
“Score-settling, blood-letting, revenge and political calculation played a crucial role in these and many other post-war trials and purges.”

Tony Judt, Postwar: A History of Europe Since 1945, at 49 (Penguin Press 2005).

One of the great tragedies in these United States, over the past half-century, is the criminal prosecution of our presidents for political revenge.

This political-revenge system is bankrupt.  And it is a bi-partisan / non-partisan problem that needs to be defeated.

A Bi-Partisan / Non-Partisan Problem

–Richard Milhous Nixon

Richard Milhous Nixon served as President of these United States from 1969 to 1974. By the time he resigned from office, he had become one of the most-reviled U.S. presidents of all time. But that wasn’t always the case.

In 1972, Nixon won the election for President in a landslide, receiving 18,000,000 more votes than his Democratic opponent (47,168,710 to 29,173,222). Other details from that election include:

–Nixon received 520 electoral votes to McGovern’s 17

–Nixon carried 49 states to McGovern’s 1 plus the District of Columbia

–Nixon received 60.7% of the popular vote to McGovern’s 37.5%

But Nixon was dogged, after that election, by his continued prosecution of the Vietnam War, and his enemies were committed to his demise. All it took was some incredible stupidity, a Nixon cover-up, a special prosecutor and an obstruction of justice charge, to run him out of office—less than two years after his landslide win.

That immediate and stunning success created a long-term problem for democracy in the U.S. and throughout the entire Western world. The problem is this:

–political-revenge prosecutions are now an essential ploy for election losers.

–William Jefferson Clinton

Political-revenge prosecutions affect both parties.

The shoe went on the other partisan foot, once William Jefferson Clinton took office. Republicans saw shady Clinton dealings everywhere. So, they turned to criminal investigations to run Clinton out of office, since they couldn’t keep him from office through the ballot box — just like the Democrats did with Nixon.

What resulted was a special prosecutor’s investigation, perjury and obstruction of justice charges, and a partisan-line vote for impeachment. Yet, Clinton remained in office and served out the entirety of his two terms.

–Hillary Clinton

When Hillary Clinton became the Democratic candidate for President, and when it looked like Republicans would lose that election, “Crooked Hillary” and “Put her in jail” and similar chants became the cries of the projected losers. They were ready, willing and eager to make good on such sentiments.

But they didn’t lose. And efforts toward prosecuting Hillary Clinton for political revenge have, thus far, faded in victory.

–Donald Trump

Donald Trump won the election and abandoned his prosecution threats. The election losers, however, resurrected the loser’s ploy of the Nixon days and began focusing on getting Trump charged with a crime, impeached, and removed from office: “Surely there’s a crime that he committed?!” “Surely, there is?” “There must be, and the prosecutor will find it.”

It is the job of a special prosecutor, after all, to fish far and wide, to extract damning testimony from people close to the President (using criminal duress—just like the Nixon and Clinton cases), to identify a crime, and to get the President convicted, impeached and thrown out of office—and to punish people close to the President as well.

After all, all’s fair in love, war and political revenge.

Collateral Damage

Collateral damage is one of the great tragedies of all this. Political prosecutions sweep otherwise-innocent people, trying to do public service, into the net of revenge.

Indicted, convicted and/or jailed partisans, from the Nixon and Clinton prosecution efforts, include:

Nixon. Forty government officials indicted or convicted, including Haldeman, Erlichman, Dean, Mitchell, Hunt, Liddy, Colson and McCord put in jail.

Clinton. Fifteen people convicted of more than 40 crimes, including Tucker, Haley, Smith, Hubbell, McDougal and Hale.

Collateral damage works like this:

–People caught in the web of revenge are charged with crimes, real or stretched; then, they either, (i) have testimony extracted from them (under criminal-duress) against the real revenge target, the President, or (ii) go to jail — or both.

Among the tragedies of collateral damage is this result:

–No sane, decent, capable person would ever, in his/her right mind, serve in a supportive role to a president or presidential candidate, because the risks and costs are much, much too high.

Is this how we want our political system to work?! The answer is an emphatic, “No!” Public service is hard enough, without the added risks and costs of being swept into a prosecution for political revenge.

Stretching the Criminal Law

When a special prosecutor is appointed, in our political-revenge system, the prosecutor’s implicit directive is clear: you must prosecute and convict the revenge target.

There is no such thing as an objective examination of evidence toward the possibility of clearing the target, if that’s where the evidence leads.  “No; No; No . . . That’s no way to extract revenge!”

Instead, the tendency is to stretch standards of criminality and to stretch characterizations of evidence. This is unacceptable behavior in our system of criminal justice!

Historical Precedent in Postwar Europe

“Collaboration with the enemy” was no more a crime in post-war Europe than “collusion with the Russians” is today. The closest thing to it, in 1945 Europe, was treason. But how could people be convicted of treason in France, for example, when what they actually did was collaborate with the Vichy regime?

Yet, people in previously-occupied Europe wanted and demanded revenge.  So . . . prosecutors had to be creative.

Similarly, in today’s world, special prosecutors will rarely find a direct criminal act by a president. So, they need to be creative.  Nixon, for example, did not do or authorize the burglary—he covered it up and, thereby, obstructed justice.

–Sexual Misbehavior Crimes, When All Else Fails

Clinton’s Special Prosecutor could not, apparently, produce evidence of actual corruption.  So he ended up focusing on salacious details like an intern, a cigar and a little blue dress, to produce charges of perjury and obstruction of justice.

[And it looks like Trump’s Special Prosecutor may be heading in a similar sex cover-up direction.]

img_0725
Convicted of “Collaboration Horizontale” (Fn. 1)

There is some history of focusing on charges of sexual misconduct for political revenge, when other charges don’t work. One of the frequently-leveled charges against women, in Post-War Europe, was dubbed by cynics as “collaboration horizontale.” Here are some observations from Tony Judt [see Footnote 1]:

The charge of “collaboration horizontale” was often made by other women. The crime involved “offering sexual services in exchange for food or clothing” or other “personal help.” For many women and families in “desperate straits,” at that time, sexual services were the only “avenue” open to them for survival: the Nazi occupation was experienced by them “above all” as “the humiliation.”

All the foregoing is, of course, unseemly.  And this is particularly so in today’s revenge system, where partisans are (or were) willing to overlook tomcat behavior from a President of their own party yet demand criminal charges against the other party’s President for similar behavior.

–Stalin’s Criminalizations

In a recent CBS interview, Harvard Law Professor Alan Dershowitz calls for an end to the criminal investigation of Trump.  He decries the “criminalization of political differences” as a misuse of our criminal justice system.

He also cites, as a chilling illustration, the manner in which Stalin dealt with political enemies through criminal processes.  Dershowitz quotes the head of the KGB, who advised Stalin:

“Show me the man, and I’ll find you the crime.”

Today’s danger in the U.S. is that our special prosecutors, and their political-revenge efforts, are getting perilously close to this Stalin-era quote.  Dershowitz also expresses a bi-partisan / non-partisan concern that goes something like this:

Today they are coming for Trump and his people; but

Tomorrow it could be for you or for me.

Exporting the Bankrupt System to Others

Worse yet, political-revenge prosecutions are spilling over, as standard and common practice, into other democracies of the Western world. This is an even-greater tragedy and perversion.

Short-Lived Impact of the Loser’s Ploy

–The Nixon Aftermath

Back in Nixon’s days, the immediate and wildly-successful impact of the loser’s ploy (i.e., getting Nixon out of office) was short-lived.

Granted, in 1976, Democratic Jimmy Carter became President, but he won in a close vote (receiving only 50.1% of the popular vote) and served only one four-year term.

However, in 1980, Republican Ronald Reagan defeated President Carter’s re-election bid. And, like Republican Nixon eight years earlier, Reagan won in a landslide. Reagan’s election numbers are strikingly similar to those of Nixon: Reagan received 525 Electoral Votes, carried 49 states, and won 58.8% of the popular vote (a 17,000,000 vote margin: 54,455472 to 37,577,352).

Except for the four Carter years, presidential vote results (comparing the last Nixon and first Reagan elections) are as if nothing had happened: the loser’s ploy, whatever its short-term impact may have been, was insignificant in the longer term.

–The Clinton Aftermath

The effort to prosecute Clinton had no positive effect for Republicans, and they probably paid a price in public cynicism over the short-term.  For the long-term, there is no discernible effect, other than to solidify political prosecution as an accepted ploy for election-loser revenge.

Conclusion

Political-revenge prosecution is not a partisan issue! It is, instead, both bi-partisan and non-partisan. The issue matters to us all!!

Here’s why:

While political-revenge prosecution is hitting Republican public servants today, it has hit Democratic public servants in times past — and will, undoubtedly, hit them again in the future; and

Revenge prosecutions will always provide equal opportunity destruction of public servants from both parties, alike.

Vengeful actions are never final. They bring retribution in return.  We’ve been watching, over the past half-century, a higher-class and political version of the feud between the Hatfields and McCoys.  Only, it’s worse today because:

We’re dealing with highest levels of government, instead of a bunch of back-woods miscreants from centuries ago; yet

The escalating cycle of retribution is just the same.

All sides have been, and will continue to be, hurt by continued prosecutions for political revenge.  These prosecutions need to stop for the benefit of all sides.

Footnote 1: See, Tony Judt, Postwar: A History of Europe Since 1945, at 43 (Penguin Press 2005). Also, the photograph above is from this same book, appearing on the second page of a series of photos located between pages 237 and 241.

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