After 20 people had been brutally put to death in 1692 (one pressed!) for the crime of witchcraft in Salem, Massachusetts, merchant Thomas Brattle, Jr. wrote a letter to a cleric associate that was widely circulated among the citizens of a fearful and angry Salem. His thoughtful, reasonable answers to the religious and legal questions at hand were a carefully worded argument against the ghastly trials. His letter could be considered a founding document of the United States, a forceful rebuff to the judges and accusers in the ‘oyer and terminer‘ court of the time. The ultimate proof of power was that the trials ended less than a month after it’s circulation and opinion shifted virtually overnight. No one has ever been convicted of witchcraft in America since. That, of course, until the sad case of United States v. Donald Trump – as he has continuously tweeted, the Russia investigation is nothing but a ‘WITCHHUNT.’
Brattle attended Harvard College in 1676, after graduating from the Boston Latin School, where classmate Cotton Mather (son of Harvard President Increase Mather) would go on to become one of the leading prosecutors of the Salem Witch Trials. Donald Trump is such blithering moron that his cries of ‘WITCHHUNT’ have little meaning when Twittered to his 30 million Celebrity Apprentice fans. The red hats will probably confuse the reference with Frankenstein anyway and carry torches to Congress in some midnight, Roger Stone-led ‘protest’ when he finally gets impeached.
The 1692 trials have spawned eternal clichés about witchhunts since the servant and sassy slave got devilish in the forest. Their acts and words have had reverberations throughout American history, lately verbed by our President, Donald J. Trump. He claims he’s the worst treated president ever! The Russia investigation is fake news cooked up by the Democrats! The case against him for obstruction of justice (real or not) is a WITCHHUNT! What’s lost in much of the discussion, as per usual with Don John, is what actually happened. Playwright Arthur Miller struck back in the same way Thomas Brattle struck back at the original time of the trials, only in his medium, drama. The Crucible stands as a powerful indictment of lying and manipulation, highlighted by the powerlessness, fear and humiliation associated with an aggressive and unjust prosecution. Cotton Mather, stung the most by Thomas Brattle’s even-handed indictment, never recovered his reputation and was denied the presidency of Harvard College. He is remembered today as the personification of pompous and brutal judgement.
With the Salem trials, Miller saw a weapon to wield against the folly of Cold War fear-mongering, namely Joseph McCarthy and the obtuse House Committee on Un-American Activities. His defiant stance (insuring his blacklisting in 1956) culminated in 1953, when The Crucible opened in New York – and it’s been performed to this day as a canon of the American stage. “I began to despair of my own silence,” he said, “I longed to respond to this climate of fear.” Miller, a ‘Presbyterian’ Communist more interested in attracting bombshells like Marilyn Monroe than politics, was caught up in the storm of fear that swirled around Joseph McCarthy like flies. In Miller’s play, he wanted to dramatize the powerlessness of being persecuted, “Rather than physical fear, there was a sense of impotence,” he said. McCarthy and the committee blacklisted him and made his life miserable during the Red Scare. In 1956, the committee subpoenaed him to testify and Miller complained that it was only because of his marriage to Marilyn, and that House prosecutors were only seeking yet more publicity. When he refused to name names, Miller was cited for contempt of Congress.
Of the many dramatic works of the Salem trials, few can compete with Arthur Miller’s groundbreaking play. He was aware of the strain created while being under investigation, and the consequences for fighting back. His passport was denied by the State Department and he was unable to attend the European premiere of his play and he would suffer years of scrutiny and humiliation under red baiters. It’s interesting that Donald Trump would choose the same trope that Miller so adroitly staged, more interestingly, witchcraft is currently a crime in Saudi Arabia. Trump made sure to visit the King of Arabia first in his inaugural trip overseas, the first president ever to do so. It’s not like the crime of witchcraft is some outdated misdemeanor in Saudi law, as with most Sharia Law guided nations, Saudi Arabia regularly features a witch or warlock in Chop Chop Square, the most recent executed in 2014. I doubt that Trump really knows anything about the Salem trials, and as he has done repeatedly since being nominated, he has inspired me to read up on my history! I suppose I should give him some credit for that and for every stupid thing he blathers, he inspires millions to refute him with knowledge and fact.
The investigation of the Trump campaign began last year, started by James Comey and the F.B.I. as part of the overall attack on our election system. The Russian involvement in tampering has been confirmed by all U.S. intelligence agencies and that is the main thrust of Special Investigator Robert Mueller’s job. His team is also investigating any and all leads and will prosecute those crimes that they believe they can convince a grand jury took place. Now the Trump campaign’s Mike Flynn (along with son, Mikey, Jr.) is directly implicated in illegal election tampering. Peter W. Smith, in his final act of ratfucking after a long, fulfilling life of ratfucking, just rat fucked Donald Trump from the grave. This is only what we know now, what the so-called ‘fake news’ journalists have somehow stumbled upon these past 160 days.
The whole election tampering thing is just so disorienting. Listening to the Trump family itself is disorienting. Trump sounds like Ted Knight as Ted Baxter from the Mary Tyler Moore Show – every single day of the week for four years, only much meaner and not even remotely as funny. His sons sound like mini-Donalds, with slightly higher intelligence. I waited to hear something, anything from Jared Kushner and when he finally approached the mic to hype his boring ‘technology summit,’ he sounded like a pimply-faced high schooler at a science fair. His exuberance and good looks are certain to land him the cover of this month’s Tiger Beat magazine! Ivanka Trump is the only Trump I can listen to for more than five seconds, and even she sounds like the brilliant Meryl Streep in The Devil Wears Prada (2006), only a little nicer. She obviously loves Jared, yet even she’d admit he’s a cold fish. It will serve him well as he defends himself against all those mean federal prosecutors. Melania Trump’s words on cyber-bullying (on the same day that President Donald tweets that low IQ, crazy Mika Brzezinsky’s face was all bandaged and bleeding badly due to cosmetic surgery back in January) was a reasonable and thoughtful statement on bullying – yet was completely lost because all anyone heard was Eva Gabor saying something about how unhappy she was living the country life in rural Washington.
Joseph Story, famously remembered as the presiding judge in United States v. The Amistad case, was portrayed by Supreme Court Justice Harry Blackmun in one of Steven Spielberg’s finest films, The Amistad (1997). Associate Justice of the Supreme Court from 1812-1845, Dane Professor of Law at Harvard University and one of the most articulate voices of American Federalism, Story was one of John Marshall‘s strongest allies on the Supreme Court – of the Marshall Court’s landmark opinions, Story wrote more than any other than Marshall himself. Story argued that the language and intent of the Constitution made it clear that federal power and the power of the judiciary was total and absolute. He saw state power as a threat to stability in America, asserting the sovereignty of the people of the United States, rather than the states themselves, as integral to the successful founding of our republic. Story noted that, “The Constitution of the United States was established, not by the states in their sovereignty capacities, but emphatically, as the preamble declares ‘by the people of the United States.” After Justice Marshall died in 1835, Story fell out of favor with the Taney Court during the Jackson Administration and his opinions were far more often in dissent. In the famous case preceding the Civil War, which foreshadowed the conflict between the states, Story dissented in Charles River Bridge v. Warren Bridge in 1837:
I seek no new principles, but I apply such as are as old as the very rudiments of the common law. Upon the whole, my judgment is, that the act of the legislature of Massachusetts granting the charter of Warren Bridge, is an act impairing the obligation of the prior contract and grant to the proprietors of Charles River bridge; and, by the constitution of the United States, it is, therefore, utterly void. I am for reversing the decree to the state court (dismissing the bill); and for remanding the cause to the state court for further proceedings, as to law and justice shall appertain.
The case went back to the 1640s, where Harvard University operated a monopoly ferry service across the Charles River for over two hundred years. After years of handsome profits, when an enterprising engineer proposed to build a bridge across the Charles River, Harvard and the State of Massachusetts were vehemently against it. The bridge builder, true to his name, proposed a solution: a toll bridge, of which all three parties would share in the profits for 40 years. The contract was signed and the bridge was built and became a big hit, connecting the towns of Boston and Cambridge to this day. Six years after the first bridge was built, the state entered negotiations with a different bridge builder (after public outcry ensued when it was revealed that the first bridge had already paid for itself) and signed a new contract with the Warren Bridge Company to build a cheaper bridge 240 yards upstream.
In his dissenting opinion in 1837 America’s version of Bridgegate, Joseph Story wrote that the federal government, in the role of defending American and international rights of contract over local and state interpretation, should not allow the new Warren Bridge to be built. After the 7-5 ruling, the new bridge was built and the old bridge went out of business, bankrupting the speculative investors of the first bridge who bought the company from the original builder expecting 40 years of steady returns. In the twenty years prior to the Civil War, the Supreme Court changed the foundation on which the Constitution was based – from federal power to state power. This move reflected the the times and in doing so, helped shape them. The Civil War was 100 years in the making, yet there were crucial moments in American history that pushed us toward civil war. This landmark case was one of them.
The work of the U.S. Supreme Court, while often the final arbiter on decisions at the state level, such as with the Christian school Trinity Lutheran Church v. Comer, where the court recently ruled, is primarily concerned with issues that meet a constitutional standard. The court seeks to hear cases that represent larger constitutional issues that are (hopefully) drawn from the lower court cases at hand. In Trinity v. Comer, the Roberts Court made a decision on whether the Trinity Lutheran Church could participate in a federal voucher program (it may) and the opinion speaks to the current court’s interpretation of the Establishment Clause:
Establishment Clause erects the backstop. Government cannot, through the enactment of a “law respecting an establishment of religion,” start us down the path to the past, when this right was routinely abridged. The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that— at least in this case and perhaps in others, it must do so whenever it decides to create a funding program.
Cases that are heard by the Supreme Court meet larger constitutional requirements that can only be resolved by amending, or leaving in place, current law as written in the document of the Constitution itself. In this case, the U.S. Supreme Court has ‘amended’ or interpreted the Establishment Clause in favor of making taxpayer funds available to religious organizations. In it’s wisdom, the court sought this case of the thousands of disputes that it could have chosen for review. Another case decided in this term, the limited, idiotic, immigration ban – held for the Trump Administration as well. This ruling increases Executive Branch power (incrementally) in the area of immigration enforcement.
In another case the Supreme Court heard this term, Davis v. Bandemer, the court held that claims of partisan gerrymandering were subject to trial, but failed to agree on a clear standard for judicial review. The word ‘Gerrymander,’ by the way, is a blending of Massachusetts Governor Elbridge Gerry‘s last name, ‘Gerry,’ and the word ‘salamander‘ – the weird shape his partisan district in Massachusetts then resembled. Gerry was also involved in a famous secret negotiation scandal named the XYZ Affair, which was a political and diplomatic scandal in 1797-98, early in the John Adams Administration. It was a diplomatic situation between the United States and France that led to an undeclared war (the Quasi-War), where an American delegation to France had been told that the American government had to pay $250,000 just to see the French ambassador. The affair was scandalous in America, infuriating both the Federalists and the Democrat-Republicans. The diplomats, Charles Cotesworth Pinckney, John Marshall, and Gerry, were approached through informal channels by agents of the French Foreign Minister Charles Talleyrand, who demanded bribes and a loan before formal negotiations could begin. This revelation caused a political firestorm in the United States when the commission’s reports were published. The Federalists, who controlled the government, took advantage of national anger to build up the U.S. military. They attacked the Jeffersonians for their pro-French stance, calling them ‘Jacobins,’ and the Federalists also attacked Elbridge Gerry (nonpartisan at the time) for his ultimate role in the failure:
Nicholas Hubbard, an Englishman working for a Dutch bank used by the Americans (and who came to be identified as “W” in the published papers), notified Pinckney that Baron Jean-Conrad Hottinguer, whom Hubbard described only as a man of honor, wished to meet with him. Pinckney agreed, and the two men met the next evening. Hottinguer (who was later identified as “X”) relayed a series of French demands, which included a large loan to the French government and the payment of a £50,000 bribe to Talleyrand. Pinckney relayed these demands to the other commissioners, and Hottinguer repeated them to the entire commission, which curtly refused the demands, even though it was widely known that diplomats from other nations had paid bribes to deal with Talleyrand. Hottinguer then introduced the commission to Pierre Bellamy (“Y”), whom he represented as being a member of Talleyrand’s inner circle. Elbridge Gerry resolutely refused to engage in any substantive negotiations with Talleyrand, agreeing only to stay until someone with more authority could replace him. The release of the dispatches produced exactly the response Adams feared – Federalists called for war, and Democratic-Republicans were left without an effective argument against them, having miscalculated the reason for Adams’ secrecy.
The XYZ Affair, when you really look at it, was a fart in the wind. John Adams sent diplomats to France who refused blackmail and seemed to act with good judgement and integrity. The media-fueled backlash resulted in a pyrrhic victory for Adams and the Federalists – their overreach in the subsequent Alien and Sedition Acts of 1798, which allowed the president to arrest and deport anyone who was not an American citizen and called dangerous, or to jail and fine anyone who criticized Congress or the President, pissed off a lot of Americans. The Adams Administration shut down the press and arrested the editors of many newspapers – and the public reaction was so severe that Adams lost to Jefferson in 1800 and the Federalists were all but finished as a political party twenty years later.
The investigation into Trump and the Russians, and the subversion of our election, portend to make the XYZ Affair look like a pastoral primer for the Republicans. If the Grand Old Party intends to last the next twenty years, they better get used to the idea of impeaching another of their own. Joseph Story believed that the government represented, above all, the people, and wrote in Commentaries on the Constitution of the United States in 1833, regarding the parliamentary history of impeachment in England,
It will be found that many offenses, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power.
Story makes a distinction between advisors to the king and the king himself. He relates the case of Charles I, second son of King James VI of Scotland. After his succession, Charles had major problems with the evolving Short, Long and Rump Parliaments of England, which severely limited his royal prerogative. Charles held the divine right of kings and thought he could govern according to his own designs. The Recall and Impeachment of Thomas Wentworth, 1st Earl of Strafford stands, for William Blackstone, Edmund Burke and the history of the Commonwealth of England itself, a cornerstone in English law, right up there next to the rights of habeas corpus enshrined in the Magna Carta.
The impeachment of Strafford was the first time in history that a Parliament, and a people, stood firm against the military power and immense wealth of the sovereign kings, in this case the Stuart King Charles. It was less than a year later that Charles, himself, would be impeached by Parliament. His prosecutor, John Pym, was grouped with five other Parliamentarians after his clear and concise prosecution revealed a possible treasonous Royal Army plot involving arch-enemy France and the Catholic Church. The ‘Gang of Five’ flew the coop when Charles and his troops barged into Parliament seeking their arrest – to this day, on the State Opening of Parliament, an emissary from the House of Lords must knock three times with a big ‘ol stick before entering the chamber because of Charles’ rude behavior.
From 1642, Charles fought the English and Scottish Parliaments in the First English Civil War. After his defeat in 1645, he surrendered to the Scots, who handed him over to the English. Charles refused to accept his captors’ demands for a constitutional monarchy, and escaped. The legal history of impeachment was born during the reign of King Charles I, where impeachment was nearly identical, in definition and application, to trial and execution. Before the First English Civil War, the despotic and tyrannical leadership of the Stuart Kings paved the way for the rise of Parliament and the birth of the English Commonwealth as a democratic republic. Story closely examined this British precedent and found the keystone for impeachment:
Some of the offences, indeed, for which persons were impeached in the early ages of British jurisprudence, would now seem harsh and severe; but perhaps they were rendered necessary by existing corruptions, and the importance of suppressing a spirit of favoritism and court intrigue. Thus, persons have been impeached for giving bad counsel to the king, advising a prejudicial peace, enticing the king to act against the advice of Parliament, purchasing offices, giving medicine to the king without advice of physicians, preventing other persons from giving counsel to the king except in their presence, and procuring exorbitant personal grants from the king. But others, again, were founded in the most salutary public justice; such as impeachments for malversations and neglects in office, for encouraging pirates, for official oppression, extortions, and deceits, and especially for putting good magistrates out of office and advancing bad.
What a wonderful, little used word malversation is, from the Latin male or bad, and versari or behave. Described as ‘corrupt behavior in a position of trust, especially in public office,’ it’s been forgotten in the English speaking world today. From Old French, the word shows up more often in places like Angola and in the Philippines. Strangely, it has also survived as a legal definition in another foreign place called ‘New Jersey.’ In fact it was one of the charges levied against New Jersey Governor Chris Christie in Bridgegate, or the innocuous-sounding Fort Lee lane closure scandal.
In recent weeks, moderate people who are paid (handsomely) to talk about this stuff, people like David Brooks, Chris Matthews, David Gergen and Alan Dershowitz, have been warning against impeaching Trump. Some argue ‘too soon,’ and ‘let the investigation take it’s course.’ Some say, ‘look, Trump won.’ David Gergen and others go so far as to imagine Trump winning again in 2020 because of the overreach of a failed impeachment. If the lies of Donald Trump (that we already know) haven’t been enough to tip the balance of the impeach-o-meter, let’s consider this list of malversations. We have a dishonest, uniformed, obnoxious, corrupt and potentially treasonous Commander in Chief. If we are unwilling to face facts, then we are as philosopher Charles Sanders Peirce pitied,
The person who confesses that there is such a thing as truth, yet dares not to know the truth and seeks to avoid it, is in a sorry state of mind indeed.
Remember James Rogan? No? He was one of the House Managers in the 1998 Impeachment of Bill Clinton. One of Georgia Representative Bob Barr’s attack dogs, he lost his House seat in the 28th Congressional District of California as a result of his constituency blaming him and his role in the failed impeachment. Nonetheless, Rogan was rewarded by George W. Bush with a plum appointment to the federal bench. The man who defeated him? That would be Democrat Adam Schiff, the current Ranking Member of the House Intelligence Committee, who recently said that there is “more than circumstantial evidence now” that Trump and his advisors colluded with Russia and who is also currently seeking any and all secret recordings made by Trump regarding James Comey. And Trump calls it a WITCHHUNT.
In I, Tituba, Black Witch of Salem, writer Maryse Conde brings Tituba to life as an amalgamation of her possible Arawak and African-American identity. She represents a post-feminist view of the trials (the book’s forward was written by Angela Davis) from the perspective of the least powerful – yet perhaps the most intelligent – participant in the Salem trials. A cynical, smart and frankly lovable character, Tituba is the ultimate survivor. She was also a liar. After slavery and imprisonment, her survival may have depended on her gift of gab, yet in saving herself (she survived, but is lost to history), she condemned others to die in her place. In an illuminating article written for Smithsonian, writer Stacy Schiff tries to make sense of the life of Tituba and the witch hunts that have followed since:
We continue to favor the outlandish explanation over the simple one; we are more readily deceived by a great deception—by a hairy creature with wings and a female face—than by a modest one. When computers go down, it seems far more likely that they were hacked by a group of conspirators than that they simultaneously malfunctioned. A jet vanishes: It is more plausible that it was secreted away by a Middle Eastern country than that it might be sitting, in fragments, on the ocean floor. We like to lose ourselves in a cause, to ground our private hurts in public outrages. We do not like for others to refute our beliefs any more than we like for them to deny our hallucinations.
Trump is caught up in a perfect storm of prosecution and hysteria, caused by his incessant lying – and his impeachment should be a foregone conclusion. What will 65% of the American population who might want to see President Pence do? What of the 35% of the public who want President Trump to keep up the good work? The framers of our Constitution, aware of the brutality and violence of Stuart Kings and Short and Rump Parliaments, gave the power of impeachment to the people, through representatives who speak for them in Congress. These powers reside in the very House and Senate Committees that are coordinating with Special Prosecutor Robert S. Mueller, III, who is then under the jurisdiction of U.S. Attorney General Jeff Sessions, who has recused himself in this investigation leaving Deputy Director Rod Rosenstein in charge.
Trump’s Russia ties include associations with Russian organized crime figures, Russian, Azerbaijani and Ukrainian intelligence operatives (Army, GRU and former KGB) and Russian government spies under the control of Putin himself. When we click on the final Mueller report, a .pdf file to be posted on the Bureau web site, Republicans and Democrats will have to seriously consider articles of impeachment against an undeniably corrupt and untrustworthy president. As our American image suffers internationally to historic new lows, it’s interesting to note that America still wins praise for its people, culture and civil liberties, according to a recent Pew Research Center poll. Our people and our civil liberties. That Trump can’t seem to manage normal press briefings and flouts open meeting law indicates how he feels about the people and our civil liberties. From Benjamin Franklin’s copy of Cato’s Letters
Guilt only dreads liberty of speech, which drags it out of its lurking holes, and exposes its deformity and horror to day-light. Horatius, Valerius, Cincinnatus, and other virtuous and undesigning magistrates of the Roman commonwealth, had nothing to fear from liberty of speech. Their virtuous administration, the more it was examined, the more it brightened and gained by enquiry. When Valerius, in particular, was accused, upon some slight grounds, of affecting the diadem; he, who was the first minister of Rome, did not accuse the people for examining his conduct, but approved his innocence in a speech to them; he gave such satisfaction to them, and gained such popularity to himself, that they gave him a new name. Misrepresentation of publick measures is easily overthrown, by representing publick measures truly: When they are honest, they ought to be publickly known, that they may be publickly commended; but if they be knavish or pernicious, they ought to be publickly exposed, in order to be publickly detested.
An honest man would welcome an open and thorough investigation. What does that say about a man who thwarts an investigation and seeks to discredit the investigators? What of the people who continue to support his lies and innuendo? Perhaps we should look back to the old days when America was really great, when the Constitution was framed in Philadelphia – the Founders considered these issues and wrote for all Americans on what we should do. Joseph Story, too, considered what might arise if we were to elect a corrupt Commander in Chief, at the dawn of the Age of Jackson:
Cases may be imagined where a momentary delusion might induce a majority of the people to re-elect a corrupt chief magistrate, and thus the remedy would be at once distant and uncertain. The provision in the Constitution of the United States, on the other hand, holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws.
When Bill Clinton was impeached in 1998, I walked among the hallowed symbols of our democracy at the Mall in Washington as I listened to the Senate votes being counted one-by-one on my Walkman. I had voted for Bill twice, and even though I was totally pissed off about Monica Lewinsky, I thought his impeachment was an overreach. I found myself in the nation’s capital on that sunny day, the first and only time since, fully participating in our national democracy.
June 29, 2017