By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s Neither Left nor Right, but Catholic column appears monthly [sometimes bimonthly]. He is a professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists and a lawyer. Among his books are: Abortion: Politics, Morality, and the Constitution; Liberalism, Conservatism, and Catholicism; The Transformation of the American Democratic Republic; Catholicism and American Political Ideologies, and a Catholic political novel, American Cincinnatus. This column originally appeared in Crisismagazine.com. The views expressed here are his own.)
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Even though the Mueller report seemed to bring an end to the long investigation of the 2016 Trump campaign for something that is not even a federal crime — collusion — the left can’t seem to let it go. Even though they expressed full confidence in Mueller as the investigation went on, after the report seemed to exonerate the campaign and President Trump from wrongdoing, suddenly they questioned his credibility.
The Democrats in the House of Representatives are proceeding to push ahead with a renewed investigation; after all, it just couldn’t be that Trump and his crew weren’t guilty. Almost from the beginning of his administration, Democratic spokesmen have invoked the specter of impeachment.
This entire collusion episode has raised troubling questions concerning the state of the American political order and federal law. First, despite an exhaustive investigation of Trump and his people that there may not even have been probable cause to begin, the congressional Democrats have persisted to seek to oust a duly elected president. While the grounds for impeachment were much debated during Watergate in the 1970s and it does not appear that criminal action is constitutionally required to initiate proceedings, in practice this is the prerequisite.
Nevertheless, the founding fathers hardly viewed impeachment as a means to circumvent the results of a presidential election. While it has seemed from the beginning that this has been the left’s objective — for some reason, they haven’t been able to fathom how Hillary Clinton could possibly have been defeated — their persistence after the Mueller report doesn’t leave much doubt. It seems as if they are aiming for something approaching the functional equivalent of a coup d’etat.
At the very least, they seem to be somehow challenging the legitimacy of Trump’s election, since Hillary narrowly won the popular vote. This is irrespective of the fact that the Constitution makes the electoral vote and not the popular vote determinative in selecting the president — in fact, the main body of the Constitution doesn’t even mention a popular vote — and Trump won the electoral vote convincingly.
It wouldn’t be surprising that the left wants to oust Trump from office, irrespective of constitutional considerations. It has long showed itself willing to deviate from or twist constitutional principles to achieve its ideological objectives. Where, for example, does the Constitution or the historical or common law background behind it say anything about a right to abortion or even to privacy applied to such a thing? Apart from ideology, the left’s persistent assault on the Trump presidency suggests the even baser objective of gaining power at any cost.
It’s not just Trump whom the left wants to illegitimately remove or exclude from federal office. Despite the thorough investigation of the claims against him during his confirmation — which as with Trump discovered nothing — the congressional Democrats are talking about impeaching Supreme Court Justice Brett Kavanaugh. Again, the lack of evidence doesn’t make a difference.
That means that the guiding principle of our entire legal tradition of not sanctioning anyone in the absence of evidence — “innocent until proven guilty” in our criminal law — can be disregarded in the cause of ideological and policy objectives. This disturbingly rings of the doctrine of “socialist truth” in Marxist ideology: Something is true if it helps further the cause of bringing about the Revolution.
The congressional left’s readiness to discard constitutional provisions when it suits them has been further witnessed by their challenging judicial nominees like Amy Coney Barrett on the basis of their religious background despite the Constitution’s forbidding religious tests for federal office.
What seems to have distinguished the Democratic Party in Congress in recent years is its almost reflexive — and, it seems, completely unreflective — attachment to leftist principles and positions (or at least the positions determined to be leftist by the interest groups who now form the backbone of the party). So, only a few congressional Democrats now can be said to be pro-life.
There used to be a time when compromise was the order of the day in Congress, especially in the Senate (which had a distinctly bipartisan ethos). One now looks long and hard for compromise in an increasing number of issue areas. The Democrats seem to care little about how their absolutist, ideologically grounded positions — which often go contrary to basic morality — deepen the divisions that tear at American political society.
They should consider what Aristotle taught long ago about the need to sustain a community of friendship. As important as maintaining conditions of justice are for a good political order, he understood that they are not sufficient.
Justice can sometimes have a hard edge, as can be witnessed in all too many Third World countries where one group that has long been in power and oppressed the other is ousted and then the previous out-group gets control and seeks to punish, even if legitimately, their former oppressors. They overreach and themselves violate justice and it goes back in the other direction, and then proceeds to go back and forth. There is no serious effort to forge civic friendship.
In the case of what we witness of the American left today, however, there is not only a lack of a concern for civic friendship and charity, but also a fractured notion of justice.
The left needn’t even look to Aristotle to see the danger. A simple check of American history is easily illustrative. In the decades before the Civil War, as the slavery issue heated up and public sentiment, perhaps beginning with the Southern slaveholders and their defenders, became increasingly rigid and uncompromising, the deepening national division finally led to war. That happened when the disagreement did not involve principles as numerous or as fundamental as those causing today’s divisions. One wonders if such developments as the Antifa attacks on peaceful demonstrators, the Charlottesville confrontation, the violence on campuses against conservative students, and the shooting of Cong. Scalise are not harbingers of spreading civil disorder and violence.
The Ethical Mandate
As far as justice is concerned, the whole Mueller investigation highlights the extent to which it has been compromised in American law. As has often happened with special prosecutors, they range over matters beyond what they were charged with investigating. So, we saw people charged with several other offenses, most notably the dubious one of lying to federal investigators. We also saw different people under investigation copping a plea to a lesser offense in the face of the threat that they’ll be hit by big charges with massive penalties if they don’t.
Such prosecutorial tactics arguably aim more to showing that their investigation has been successful and their big expenditures justified than they are in ensuring that justice has been done. Indeed, racking up the indictments seems more important than the ethical mandate under the American Bar Association Model Code of Professional Responsibility that prosecutors cannot just or primarily be focused on that but, indeed, on seeking justice.
Unfortunately, this has become too much the way things are done among prosecutors nowadays, especially federal ones, as has been amply demonstrated by such writers as Paul Craig Roberts, Lawrence Stratton, and Judge Andrew Napolitano. This is something that both the left and the right have been part of. It is worth noting how some of the biggest opponents of criminal justice reform — the current proposals about which don’t go anywhere near as far as needed (which is a wholesale reassessment of the provisions of the U.S. Criminal Code) — are many political conservatives.
So, in contemporary America we are witnessing the breakdown of both justice and civic friendship — the twin pillars of what Aristotle said was needed for a good political order. The absence of either in a pronounced way — to say nothing of both — does not portend well for our future.
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