In Dante’s vision of the afterlife detailed in The Divine Comedy, Hell did not get hotter as one descended
into its depths, it got colder. The transition from hotter to colder reflects
the nature of the sinners who sins consigned them there.
The hot sins, often committed in the heat of passion – lust,
gluttony, greed – were near the top of the Inferno. While most religions and
the laws they have been allowed to shape historically have obsessed on those
hot sins, the graver sins of violence, fraud and treachery fell near the bottom
of the Inferno.
Even today, “white collar crimes” of the elite which entail
all of the colder sins are largely not prosecuted or punished at nearly the rates of the “common crimes” nvolving
mainly the working poor. Ironically, white collar crimes inevitably are more
costly in terms of property, injuries and human lives than all of the common
crimes collectively. It's a reminder that law and justice are often not the same thing. Law is inevitably about power and the question we must always consider is who makes the law, for whose interests and at whose expense
With his gradient of sins which increased in gravity as one
declined into the Inferno, Dante was demonstrating that it is with ever increasing
coldness of heart that depravity is measured. The bottom of Dante’s Hell was
ice. The ninth ring (of nine) was the place where those who had betrayed others
were punished.
As with all of Dante’s system, it was their own sins which
punished them. The coldness of their calculated deeds – from the betrayal of
family to nation-state – punished them, freezing them into place for eternity, there
watched over by the great Satan, the father of lies, the prince of darkness.
Presuming Guilt
I’ve always been taken by Dante’s work and the way he
categorically deals with human failings. But his system has been on my mind a
lot lately as I have watched the painful but inevitable fall of Trumpland and
the long overdue exposure of its depravities.
As a defense attorney, I have always been insistent upon
the presumption of innocence, a presumption that in my observation has always
been much more of a theory than an actual practice. Truth is, most of us
confuse accusations regarding crimes as proof in themselves that the crimes
occurred and that the persons accused perpetrated them.
We are a people of instant gratification. We want to resolve
any matters which cause us dis-ease quickly so we do not have to worry about
them. In the case of accusations of wrongdoing, whether the persons accused
actually are guilty of what they are accused of doing is beside the point. Our
peace of mind, which is revealed here as largely superficial, is the most
important concern.
We want to reassure ourselves that we are safe, even if that
safety is merely ephemeral. And in our consumerist culture we presume an
entitlement to feel comfort. Worrying about crimes makes us uncomfortable. Best
to make quick judgments and return to binge watching streaming programming and social media.
Thank G_d They’re Not My Clients
So I have resisted presuming the guilt of the Trumpland
cartel (and increasingly, the machinations of Trumpland do reveal themselves to
be the version of the Mafia that James Comey, a longtime organized crime
prosecutor, observed them to be in his book, A Higher Loyalty). But I
have also said to myself all along that I would never want to represent any of
these people for a number of reasons.
The first is that they cannot keep their mouths shut. The
most precious right of any criminal defendant is to be silent, to require the
state to prove the case against them without any coerced statements from the
defendant. Virtually every one of the cartel – Pompeo, Giuliani, Barr, Pence – all
of whom take their marching orders from their Don(ald) - have found it impossible to resist the
temptation to play the press and the waves of the internet in talking about
their misdeeds. And in virtually every case, they have dug the hole in which
they found themselves even deeper.
They are a criminal defense attorney’s nightmare.
The second is the character issue. The criminal law
requires specific acts to be proven before punishment is merited and the
Constitution (remember that thing?) requires high crimes and misdemeanors be
proven before impeachment is merited. It never helps a case when some of the key
players in your accused deeds have already been convicted of criminal acts or
are in the process of being tried for the same.
That includes patterns of business dealings with organized
crime syndicates in other countries. While character is never officially on
trial, there is something to be said for birds of a feather flocking together.
The third is that the cases against these targets of
inquiry continue to build. While the proof of their misdoing must be proven
before both any punishment is merited, a good attorney would already be
advising such clients of the precarious nature of their cases. This is often
the point in case developments where plea bargaining begins to be a part of the
discussion.
And that points toward the
fourth reason I would not want to represent such clients. Their behaviors
routinely have indicated a desire to stonewall, to coverup, to spin when challenged
for evidence. It’s one thing to remain silent. It’s quite another to actively
seek to prevent evidence and testimony from being taken.
Such behaviors have a common
description: coverup. They also have another more criminal description: obstruction
of justice. If the accused who protest the investigations of their behaviors
as public officials with words like “witch hunt” and “lynching” (this, ironically coming from the child of a Ku Klux Klan affiliate) are so
innocent, the vociferousness with which they have resisted producing any of the
evidence they are legally and constitutionally compelled to provide, much of it
under subpoena, itself suggests otherwise.
What I observe is that at
least in the case against the Don(ald), the evidence is there for both
constitutional and criminal infractions. The question now is less whether the
man has violated the law and the Constitution but whether the courts and the Congress
will act responsibly in light of those violations.
I wish I were more confident that
would, in fact, happen. But a judiciary increasingly stacked with Federalist
Society ideologues, some of whom have never even practiced law, and the best
Senate corporate moneys could buy (several of the members of whom appear to be involved in their own potentially criminal behaviors) makes that less than assured.
Contempt for Sacred Writ
In all truthfulness, as a
recovering defense attorney I find it strange to find myself thinking like a
prosecutor. What has prompted that view says more about me than them.
From the beginning in law
school I saw the Constitution and the interpretations thereof as the most important
aspects of the law. I excelled in Con Law courses and won honors in an appellate
advocacy competition involving a constitutional question regarding special education.
My practice as a juvenile defense attorney routinely involved the protections
of the Constitution. And I taught the Constitution in classes at two different community
colleges and in my Philosophy of Law course at the university.
For me the Constitution is a
sacred document much like the holy scriptures of a religion. But like any sacred
document, it is not well served by engaging in any form of fundamentalism regarding
its provisions, least of all a brittle form of "originalism" which ultimately is revealed
to be little more than conservative ideology in colonial drag.
I admire the Framers and their document
cobbled together by deeply flawed human beings that has only been amended 27
times in its 230 year history. And I have always recognized that the ideals in
the Constitution (and the other documents that form the corpus of holy writ for
our civil religion such as the Declaration of Independence and Gettysburg
Address), however imperfectly realized over history, represent an eruption of
post-conventional moral reasoning that supersedes any personal, partisan or
even nationalistic urges. Little wonder those peering through tribal
conventional lenses rarely see those ideals, much less those who see through pre-conventional, self-interested lenses like the Don(ald).
It has been painful to me to
watch the Constitution be so routinely ignored if not deliberately contravened
all of these years. But that slide down a slippery slope has reached an apotheosis in Trumpland.
I have found the erosion of
Constitutional restrictions of executive behaviors and the unwillingness of
Congress and now the Courts to enforce the same troubling since the days of
Ronald Reagan deeply troubling. The “Great Communicator” got away with direct
violations of the federal law in the Iran-Contra scandal that ended up
destroying much of Central America and setting the stage for the current flood
of refugees to our border.
While Bill Clinton was
impeached for lying under oath about having oral sex with an aide, a behavior
completely unrelated to the matter the special prosecutor was charged with
investigating and thus an abuse of his delegated power, that was never the kind
of “high crime” or misdemeanor that impeachment was designed to correct. That,
however, never justifies the willingness of any witness to lie under oath. And the
slide into the moral sewer accelerated under George W. Bush whose appointed Attorney
General was willing to pimp the Constitution to rationalize his administration’s
violation of human rights and torture.
But the flood of
constitutionally repugnant behaviors that has been building for four decades
now have come to a crest in a Don who clearly has either not read the Constitution,
does not understand it, or, more likely, simply does not believe he is bound by
it.
With his army of cronies who
have abused the law and procedures of the federal government with regularity,
Trumpland has become a case of impunity unrivaled in its own modern history though comparable to authoritarian states from Russia to Turkey to the Philippines.
Not surprisingly, the leaders of all those states are admired – and increasingly
imitated - by the Don.
Deep Betrayals, Constitutional
Contempt
I do not by nature have a
punitive soul. If anything I am a believer in restorative justice, a justice
process designed ultimately to heal injured communities and restore to full membership
those who have caused it harm.
But my love for the
Constitution and the ideals of the Framers which animate it suggest to me that,
like Dante’s Inferno, these are matters that transcend the usual hot sins over
which our breaking news and crime porn shows obsess. Dante would have not
trouble recognizing the obvious here: These are sins of betrayal.
That betrayal takes two forms.
The first is the betrayal of
the Constitution that the ongoing violations of the emoluments clause were
designed to prevent. While the Don recently withdrew his plans to house an international
conference in one of his hotels in Miami, in fact US representatives and soldiers
have routinely been housed in Trump properties around the world. The purpose of
the clause is to prevent the very situation which is occurring currently: a
president who uses his office for self-enrichment.
The Constitution is also
violated by the stonewalling and obstructions of the Congressional attempts to
investigate everything from tax returns to unedited copies of the Mueller report.
It is violated by the prevention of witnesses from appearing before
Congressional committees.
The Framers intended for Congress to be the preeminent
branch of the government. The argument that executive privilege prevents them
from engaging in their lawful, constitutional duties was not true when Richard
Nixon sought to prevent his own crimes from being uncovered and it is not true
now.
But the second betrayal is
graver. From the beginning the Don has shown an inordinate interest in and willingness
to cater to the interests of the Russians. What the Mueller Report actually
showed was that while conspiracy was not readily provable from the facts of the
case, his collusion (secret cooperation with others in order to cheat or deceive
others, elements of the definition of collusion) with competitors if not
enemies of this country, was in fact readily demonstrated despite the Twit-in-Chief’s
midnight mutterings.
Nowhere was the betrayal of
our nation more evident than having the man holding the Presidency of our
country stand on the stage with Vladimir Putin - a leader known for his
corruption, his abuse of the law to punish critics and his willingness to do
anything to return to prominence on the world stage - and there deny the
credibility of his own intelligence agencies. Worse yet, he did so to exonerate
a Russian regime which Mueller had decidedly shown had tampered in the last
election.
Attacking the electoral
process of our country makes one an enemy by definition. And while that
betrayal in itself broke no laws, it broke the hearts of many of us who love
this country.
Challenging Impunity, Preserving Legitimacy
We have no rings of Hell to
which the Trumpland gang can be confined. And punishment of finite human
misdeeds with infinite punishment is ethically if not theologically
problematic. If nothing else, substantive Due Process and our 8th
Amendment’s prohibition of Cruel and Unusual Punishment would rule that out.
But crimes against the people
and the nation cannot go unpunished if our law is to have any legitimacy at
all. And the violation of the Constitution with impunity with no response to
that violation reveals it to be empty.
Terre Haute Federal
Correctional Institute is the prison where serious offenders in our federal
system have been sentenced. Timothy McVeigh, who blew up the federal courthouse
in Oklahoma City, was housed there before he the federal government killed him on
site. I propose that a wing of the prison be designated for the Trumpland gang.
I propose that the sentences to imprisonment be moderate, enough time for these
offenders of the nation, its people and its Constitution to actually consider
their deeds before release. And perhaps enough proximity to one another that at some point they might ask one another, "What were we thinking?"
I take no delight in saying any
of this. My defense attorney sentiments strongly incline me against punitiveness
as a rule. And my empath heart always feels the pain of the other, even pain
that, like Dante’s Inferno, their own actions have caused them.
But my love for my country and
its Constitution are greater than my aversion to punishment. We live in a time
when our very ongoing existence as a democratic-republic under law and Constitution
are in question. We are in a profound existential crisis as a nation. And if
Dante has any parting advice to us, it is this: “The darkest places in hell
are reserved for those who maintain their neutrality in times of crisis.”
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Harry Scott Coverston
Orlando, Florida
If the unexamined life is not worth
living, surely an unexamined belief system, be it religious or political, is
not worth holding. Most things worth considering do not come in sound bites.
For what does G-d require of you
but to do justice, and to love kindness, and to walk humbly with your G-d?
(Micah 6:8, Hebrew Scriptures)
Do not be daunted by the enormity
of the world's grief. Do justly, now. Love mercy, now. Walk humbly now. You are
not obligated to complete the work, but neither are you free to abandon it. - Rabbi Rami
Shapiro, Wisdom of the Jewish Sages (1993)
© Harry Coverston 2019
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