The Misrule of Law

BLM and conservatives both don't trust our justice system.

It may seem hard to believe, but Scragged has been publishing for well over a decade.  We've seen administrations and politicos come and go.  Some of them brought us joy: most, when they left the public stage to our jeers and catcalls, and a bare handful, when they occasionally did something useful and beneficial to the American people.

Similarly, we've had individuals among the vast throng of our Gentle Readers who've brought themselves to our attention.  Some rewarded us with applause, others with jeers and catcalls of their own.

Every so often, though, we rejoice in a reader who does neither: they do not agree with us, but they frame their criticism in such a way as, while of course by definition wrong (since they disagree with Ourselves, don't you know), nevertheless prod us to think more deeply.  In a world that increasingly consists of two clans who neither desire nor are able even to so much as talk to each other, this is a hugely enjoyable consummation devoutly to be wished.

Such an one is "Tony the Liberal," who pops up from time to time to poke holes in our arguments, over many years.  As befits an Internet argument, we rarely convince him to change his mind, and he never knocks us off of our principles, but he often causes us to more carefully examine our premises.  And for that, we're thankful.

After a long absence, Tony surfaced to hold forth on a recent article discussing the slings and arrows of outrageous fortune that have been besetting President Trump.  His position was that The Donald deserves every bit of the opprobrium he receives at the hands of our media because he and his are so surpassingly corrupt, unlike the saintlike Barack Obama and his administration of angels.

As soon as we'd recovered from a choking fit of hysterical laughter, we promptly began rebutting him with a long list of Obama scandals, many of which we've written about ourselves, and dismissed the accusations against Trump as largely "fake news."  But as the discussion ping-ponged back and forth, a strange dichotomy took shape:

In mirror image, we were both doing exactly the same thing - dismissing the charges against Our Guy as themselves corrupt, while trumpeting charges against That Other Scoundrel.

Whither Reality?

Now, no doubt some folks will opine that both sides are correct and everybody's political enemies are indeed utterly corrupt.  Based on Mark Twain's observation that 90% of American politicians give the other 10% a bad name, it's very easy to believe that all politicians are equally and infinitely venal and foul.  We don't believe that - yes, all human beings are fallen, and nobody is perfect, but there are nevertheless gradations of error and of evil.

For instance, we all know that Donald Trump has been, let us say, less than faithful to his wife at any given time, whereas (so far as anyone knows), Barack Obama has been the very soul of moral rectitude as regards Michelle.  No doubt Mr. Obama, like any man, has appreciated other pulchritudinous females, but unlike The Donald, there's no reason to believe he's acted on his natural instincts.

For this personal moral uprightness, we give Mr. Obama due honor.  As regards Mr. Trump, well, we cannot and do not defend that aspect of his personal life.  Only a fool would say they are morally equal in this category.  If morality means anything at all, they simply aren't.

Is it therefore too much of a stretch to say that the same is true of politicians with respect to public corruptions - some are, some aren't, and some are far worse than others?

The problem arises because it has become so excruciatingly difficult to consider evidence - one man's hard fact is another's fake news.  For instance, a moment's Googling will find many websites claiming that the reason Barack Obama has no women problems is that he's actually homosexually-inclined.  There is no unimpeachable documentary evidence of this, and lacking FBI wiretapping capabilities, we cannot actually know what goes on inside his mind or his bedroom.

We choose to dismiss these accusations.  Anybody can sling mud, but without evidence a sensible and fair-minded observer ignores Unidentified Flying Objects of this sort.  There is suggestive and circumstantial evidence from Mr. Obama's writings that could potentially lead one to wonder about him, but does anyone believe Agatha Christie was a serial killer simply because she wrote about more different sorts of murders than anyone since Tacitus?

No, logic demands evidence - the kind that can hold up in court under our longstanding rules therefor.  That's where we run into a problem that Tony's staunch criticism is clearly revealing to be even vaster and more devastating than we've feared.

Courts of Justice... or Kangaroos?

Let's consider the case of Gen. Michael Flynn, erstwhile National Security Adviser to President Donald Trump in the early days of his administration.

It is a fact, acknowledged by all, that Gen. Flynn pled guilty in open court to the crime of lying to the FBI.  We can argue whether lying to the FBI when not under oath should be a crime; we can argue whether Gen. Flynn in fact lied; but what nobody can argue is that he did say, under oath, to a judge, that he did "willfully and knowingly" make "false, fictitious and fraudulent statements" to the FBI.

Logic dictates that, either the General did in fact lie and thus is a criminal... or, he lied when he confessed under oath to lying, which is perjury, another well-defined crime.  Therefore, either way, he is a criminal, and as a senior Trump administration official, the very definition of high-level Trumpian corruption.  Right?

Well, we'd argue things slightly differently.  It's now been proved that the FBI wrongfully set out to catch him in a perjury trap, over an issue that they knew was not a crime, and under false pretenses.

But if he knew he was innocent, why then would he plead guilty?  We've explained how that works, and TheHill reports on the evidence presented by his lawyers:

They maintain that Flynn was coerced into pleading guilty nearly a year later by special counsel Robert Mueller’s team of hyper-aggressive prosecutors. Prosecutors did this, Powell argues, by threatening that if he refused to plead, they would prosecute his son. The son, also named Michael Flynn, worked in Gen. Flynn’s private intelligence firm, which Team Mueller was scrutinizing over its alleged failure to register with the government as a foreign agent — a dubious allegation that was rarely handled as a criminal offense before Mueller’s probe.

After DOJ’s revelations last Friday, Powell filed a submission with the court, asserting that the new disclosures demonstrate that Mueller’s prosecutors not only pressured Flynn with the possibility of indicting his son; they also secretly assured Flynn’s former counsel, the well-connected Washington firm of Covington & Burling (C&B), that Flynn’s son would not be prosecuted if Flynn pleaded guilty. This “side deal” (a) was not explicitly memorialized in the formal plea agreement, (b) was not otherwise disclosed to the court as federal law requires, and (c) was designed to enable prosecutors to evade their due process obligations in future cases.

To back up her claims, Powell’s submission included exhibits.

It is unjust, to say the least, to borrow from Mafia extortion techniques and threaten prosecution of Person B on a totally unrelated charge when prosecuting Person A.

Furthermore, to protect against abuse of this prosecutorial power, the law requires prosecutors to explicitly document all agreements made with the defendant as part of a plea agreement.  They did not - nowhere in the filing where Gen. Flynn pled guilty did the prosecutors say "As part of this agreement, we won't prosecute his son."  If the documents prove that they did actually promise him that to get him to plead guilty, but didn't tell the judge, they have committed major prosecutorial misconduct that should lead to disbarment, much as eventually happened with Mr. Nifong of the Duke Lacrosse "rape" case.

Since then, the case has gotten stranger: The Trump Department of Justice has replaced the lead prosecutors; the new prosecutors have filed to have the case dismissed and all charges expunged; the presiding judge has refused to do so, even though there's no prosecuting official still involved who believes Gen. Flynn has any crimes to answer for.

Other reports have emerged about an Oval Office meeting where Sleepy Joe Biden suggested applying the Logan Act to Gen. Flynn and where lame-duck President Obama told everyone to make sure "the best people" were on the Flynn case even though the FBI had concluded that in this area at least, Gen. Flynn was crime-free.

There are two ways to look at this: Either the Obama administration subjected Gen. Flynn to the most unfair sort of Star Chamber politicized prosecution and abuse, aided and abetted by a corrupt Mueller team and an unjust judge; or, a corrupt Trump DoJ is letting a confessed criminal and traitor off the hook.  We'll leave you to decide which perspective is held by Scragged, and which by Tony.

But in reality - how the heck can us, you, or Tony really be sure what's the truth?  Many of the documents, being very sensitive national security records, are sealed from public view.  None of us know anyone who can see them.  And even if we could, how many of us are lawyers, well-versed in the hundreds of thousands of pages of relevant laws, jargon, claims, and counter-claims?

It comes down to a question of trust.  For Scragged, and for many of our readers, we see the reporting about Gen. Flynn in light of the many credible statements of bias against Mr. Trump and all his works by FBI agents and other bureaucrats; by demonstrated prosecutorial misconduct against Republican officials; and, of course, by the analyses we read that are written by more knowledgeable people we trust - no doubt quite different from the analyses Tony reads that are written by more knowledgeable people he trusts.

What it comes down to is this: yes, conservatives and liberals in modern America do in fact live in two completely different alternative realities, with little or no overlap.

Is there any common ground left?  Possibly: the same logical principles apply in both directions.

A World of Lies

For instance: sad to say, there is no doubt that, over the years, there have been many corrupt and unjust cops who've taken citizens of all colors into the basement of the police station for a session with the rubber hose, resulting in bogus confessions.

As law-and-order conservatives, our natural instinct is to point to the eventual trial and say, "He's a confessed criminal, convicted in open court!"  Liberals would say, "That's a bogus confession, the cops beat it out of him!"

Sometimes that's the truth, and the poor sap really was an innocent choirboy.  How many "convicted" criminals has the Innocence Project freed by compelling authorities to revisit evidence?

Other times, the cops were honest and the criminal lied about the abuse.  Still other times, as in the O. J. Simpson murder case, the criminal was genuinely guilty and also the cops took the opportunity to give him extra-legal what-for.  As one of OJ's jurors put it, "The cops tried to frame a murderer."  How can you, we, Tony, or the American people in general really know, without dedication your own personal life to digging deeply into one particular case?

Any organization run by human beings will make honest mistakes.  And, any organization containing human beings will have a certain number of corrupt, evil individuals who do things contrary to the purposes of law, justice, good, and right.  Our operational assumption has been that most of the time, our justice system generally did produce justice, with occasional sad exceptions both famous and unknown... but we're starting to wonder about that.

We're old enough to remember when people of good will looked toward technology for a solution: cameras get cheaper all the time, so just wait until all cops wear them all the time, then we'll always know the truth!  Yeah, how well has that been working out recently?

The media lies with video in the same way as they've always lied with words.  From Rodney King decades ago right down to Jacob Blake the other day, our corrupt and biased "journalists" always roll tape showing a gang of cops pounding away on a prone figure; the facts showing the "victim" violently assaulting police and endangering innocent civilians are left on the cutting room floor.

When necessary, the media even manufactures false evidence: they faked the recording of the 911 call which Mr. Zimmerman, the "Hispanic-American," placed to express his concerns about Trevor Martin wandering around his gated community.  CNN finally reported that the chief witness against him lied.  Mr. Zimmerman is suing Mr. Martin's family, claiming among other things that the major witness against him at the trial was an impostor.  If so, carelessness with witness identity is more prosecutorial misconduct.  Voter ID, anyone?

It's gotten so bad that we now are getting mass riots and looting as a "protest" over supposed police abuse of a murderer who, the video clearly shows, killed himself.  It didn't matter that a respected black community activist took to the streets of Minneapolis shouting the truth - nobody believed him or his testimony of what he'd seen with his very own eyes, and the violence continued unimpeded.

That's perfectly understandable: in just the last few months, we've seen the CDC ridiculing Americans for buying and wearing masks, then turning on a dime and ridiculing them for not wearing masks.  Do you believe anything you're told?  Why should you?  We disbelieve the overwhelming majority of what we hear and read.

Most likely Tony is just as skeptical about what he reads - and if not, it can only be because he's quite selective and far less catholic than we are as far as his reading tastes.  But we doubt it - if he were the sort of person who only wants to read stuff he agrees with, what on earth is he doing at Scragged?  No, all evidence indicates that he is far more fair-minded and well-read than that - he just chooses to disbelieve a different majority of what he reads than we, and for reasons that are by no means bogus.

A Power Keg

Why do we have these ongoing riots?  We can argue forever about underlying causes, but there's one overriding, overpowering, direct cause: the governing authorities in those various jurisdictions choose not to put them down.

Does anybody question whether any mayor, city council, or governor could, if they wished, stop the riots this very night?  Does anybody imagine that any group of BLM or Antifa thugs would stand up to the 1st Airborne?  Why, then, don't they?

We could well imagine it's because they agree with the rioters and looters that they're just collecting "reparations" - certainly that's the case in places like Portland, whose political leaders have flat-out said that they themselves are Antifa.  Most politicians, even urban Democrats, aren't willing to go that far.

But calling in the military is no light decision.  Unlike police, soldiers have neither the training nor the inclination to handle people nicely: they are trained to identify targets and eliminate them with extreme prejudice while taking minimum risks to their own safety.  That's exactly what you want an army to do, and our army is the best at killing people and breaking things in all of history - which is why you really, really, really don't want them tooling around American cities in tanks and attack helicopters unless there's absolutely no other choice.

Everybody from Donald Trump on down has at least a basic understanding of this, which is why it hasn't happened yet.  In the meantime, as law-abiding citizens see their police defunded, their towns looted, and the lifework of their businesses destroyed, they will not stand still and let it happen forever.

In Kenosha, we saw the beginning of what was always inevitable with ongoing violence of this nature: a private citizen took the unenforced, brutalized law into his own hands and started shooting people.  It sounds like he shot people that needed it - in one case a looter, in another armed men who attacked him - but details are scarce in spite of this frame-by-frame analysis of one video among many and we don't want to rush to judgment.

Yet in what amounts to a war zone now, will there ever be enough evidence to convince all America as to what actually happened, who was in the right, and who was in the wrong?  No, never.

One way or another, though, there will be peace, and soon.  The best case possible is if our trained law enforcement is given the authority to keep the peace at the point of their guns under an organized chain-of-command headed by elected officials delegating lawful responsibility to use standard police-based riot control procedures.  Mistakes will be made, innocents will be killed, and some bad-apple cops will commit horrible atrocities - but, we hope and expect, far fewer unwarranted casualties than by any other approach.

The next-best-case, though far inferior, would be if the army enforces peace with shoot-to-kill-looters-and-arsonists orders.  That would work, but only as long as an armed man in fatigues and carrying a machine gun is standing on every corner, and with a media as rabidly opposed to Americans in uniform as any enemy nation ever was, that couldn't be for long, as each bullet-riddled thug is magically transformed through the power of TV into the second coming of St. John the Baptist.

And then?  The answer is plain - gun sales are through the roof, dwarfing peaks that occurred when Mr. Obama, until now the greatest gun salesman of all time, spoke of confiscation.  Absent due process and the rule of law, peace will be enforced by disorganized, unaccountable, untrained, ordinary American citizens fearing for their lives, possessions, and families, petrified and jumpy, opening fire at anyone that seems the least bit threatening.  And, by those who get shot at and return fire, fearing for their own lives - shortly followed by the peace of the grave.

This is why the rule of law is absolutely essential for a functioning nation.  We have to trust that our systems, though imperfect, generally are operating more or less along agreed-upon lines.

And we don't.  Nor do BLM and Antifa, obviously.  Nor do either the Democrat or Republican leadership, since both have long since pronounced that the upcoming election will be rife with fraud.  In our opinion, both are correct.  Does anyone really want our elections decided on the basis of who can cheat the most?

What's the solution?

Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

 - John Adams

The trouble is, half the country hates religion, and thus we no longer agree on what morals even are.  Fix that, and you've solved all our problems at one go.

For ten years, Tony and the writers of Scragged have been able to peacefully agree to disagree, and consider our differences through the nonviolent medium of words.  We've never met in person, but if we ever did, we could probably sit down in friendly fashion with a beverage of choice and argue things out without resorting to fisticuffs.

If all Americans felt the same way, as we've mostly done for 150 years, all would be well.  The way things are going, though, we'll be facing each other across a literal battlefield before we know it.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments

I was a prosecutor many years ago, in two states. I saw people plead guilty to crimes they did not commit. The reason is the pressure the police and prosecutors bring to bear --- not only on the accused, but the friends and family of the accused. Just as was done with General Flynn.

August 28, 2020 10:39 AM

Democrats would be well advised to throw the upcoming election to Trump.
They played their "free stuff reparations" card and immediately lost control of their gladiators. They are now afraid of BLM/Antifa.
Democrats have made the election as black militant vs white law and order. Good luck.
Flynn was too dangerous to allow in Trumps administration. Flynn knows of Obama and Biden's foibles. Flynn's exoneration will follow the election.
Trump is the Democrats Moby Dick. They failed to tip him over.
This upcoming election will be entertaining....Venezuela or the United States?

August 28, 2020 12:21 PM

Given the millions of guns sold this year, I think it's very likely that vigilante groups will form if the police don't protect lives and property.

I went to grade school in Montana. State history is filled with vigilantes because the rule of law was very weak in gold rush towns. In early 1864, people banded together to fight a large band of outlaws led by the sherrif of Bannoch, MT, Henry Plummer. His gang had killed over 100 miners. The vigilantes hung Henry Plummer and chased some of his gang members about 200 miles through the January snow to Missoula, MT, to hang them.

Because of my grade school history, I always assume that any breakdown in law and order will result in vigilante action once people feel threatened enough. The only thing stopping it so far is the threat of prosecution from leftist district attorneys who favor rioters over citizens. However, this deterrent won't last once people feel threatened enough to se prosecution as better than being killed in a riot..

August 28, 2020 2:08 PM

I wonder if, when the history of this time is written, will the " peaceful protests"/riots be a result of the Covid economic shut down ? It seems that the folks doing the protesting/rioting/looting/shooting are young people with a lot of time on their hands . My guess is that many of them were furloughed/discharged/fired from jobs or classrooms that evaporated to try to stop geezers from getting sick and dying. On top of that, many got govt compensation greater than what they got from their start up job. I'm sure that their Marxist instructors assured them that they were being screwed by older folks.
Take idle people being paid to do nothing, add some left wing " hate the establishment" teachings plus some incendiary videos of " police brutality" ( or tough arrests) and it seems to guarantee this outcome. Indulgent Dem mayors made it worse . But it seems like there was plenty of fuel for the fire.

August 28, 2020 3:43 PM

Petrarch, thank you writing this article. While it goes without saying that I disagree with a lot of it, I enjoyed reading it nonetheless. I especially appreciated the kind words, and tone with which you characterized our interactions...Particularly with regards to our potentially being able to sit down and enjoy an amicable, but rousing debate over our "favorite beverage" -To which I heartily agree!

Unfortunately, while I started composing my response immediately, some extremely extenuating circumstances have arisen that will demand my complete concentration and energy for the foreseeable near-term, and will forestall a timely response.

I will continue to compose my response as I can, and will respond in due fashion at some point..

Again, thank you again for the time and thought you expended in expanding upon some of the points that arose during our most recent interaction, and in some places, bringing an interesting perspective to the current "partisan divide".

I look forward to re-engaging at some point in the relatively near future.

Tony - Liberal (i.e. I care)

August 29, 2020 5:30 PM


August 31, 2020 10:23 AM

Liberal is the term many Democrats use to describe themselves. But the term has been hijacked, so it no longer means what liberalism has always meant. The Democrats’ perversion of this word has upended our national political discourse.
Just as the term ‘liberal’ has been hijacked by the Democrats, they have also abused several words that have had clearly defined meanings in the past. Democrats advocate abortion under the guise of the word “choice” because it sounds so much better than what they are truly advocating.
Democrats assign new meanings to ordinary words to those more suitable for them to express their political messages. Normal Americans risk being chastised for not using the politically correct words.
Public scorning works well for the Democrat’s suppression of ideas contrary to their own ideas. The news and entertainment media, mostly Democrats, reinforces these new meanings by using these words in the same context as Democrats use them. Are they working from the same script, the same playbook? Maybe they are.
Control of media is the first step toward controlling our culture. The news and entertainment media have re-defined many words they use. The news and entertainment media both speak the same language, but it is the language of a different culture from that of conservatives.
Nothing justifies the Democrats siccing their young people on unsuspecting citizens with their uncivilized rampaging through Democrat controlled cities. These cities, where life is worst for minorities, have been controlled by Democrats for decades. A conundrum like this cannot last.
The backlash of normal citizens will finally burst upon them and woe betide these child-like Democrats who are provoking this violence. As long as normal people allow it, the Democrats will continue using racism to demean those it opposes.
Americans are not systemically racist. But some have been misled into believing the lies of the party of slavery and of the Ku Klux Klan; the party that has lied to African-Americans to create strife between the races. Yet they have the audacity to say America is systemically racist. This is classic projection; accusing others of being what they themselves are.
The Democrat party will not admit the subtle truth. The Democrat’s pejorative use racism has always been about class not race. But they cannot allow this truth to be recognized as they conduct their class warfare by means of racism.
Most astute political observers readily admit the Democrat party is beginning to fragment, to come apart. They have been sliding toward socialism for years. Add their racism to this and we find a complete failure to represent America’s aspirations. .
When the Democrat party lands in the ash heap of history, another quite different kind of party can rise out of the ashes to take its place. A completely new party is inevitable because few people can tolerate the present form of the Democrat party. That is ironic because the Democrat party itself has become intolerant of American culture and society.
Republicans can no longer speak of the Democrat party as the loyal opposition. That may have been true at one time, but no longer. The Democrat party has removed itself from all civil discourse by its divisive acts that began with Obama and his economic and social stratification and the general contempt both he and his party hold for ordinary Americans – the Deplorables as Hillary Clinton once called them. She who said in 2016, that she wished for more civility in elections did her best to urge the most uncivil ideas and attitudes that now define the Democrat party.

August 31, 2020 8:23 PM

Of course the Left changes the meanings of words. What they can't get by lying, cheating and stealing, they try to get by force. Changing the meaning of words is part of the lying and cheating. If they were clear about what they were doing, few would agree with them.

September 1, 2020 10:44 AM
Add Your Comment...
4000 characters remaining
Loading question...