The Law is Our Last Bulwark against Tyranny?

By Dan Davis and John R. “Buck” Surdu

We all have witnessed the aggressive, “creative,” and putatively unethical behavior of a few of our prosecutors. At the same time, they have facilitated significant rises in violent crimes by creating novel excuses for releasing the most violent among us, all the while they were focused on seemingly flimsy accusations of trivial offenses. Some of their proposed cases were virtually never before prosecuted and were for actions for which the evidence was insufficient. The fact that the prosecutions were blatantly and admittedly politically motivated seems not to have bothered the partisan media, who are willing to sacrifice civil freedoms to fulfill their philosophical biases and thirst for blood sports. This slippery slope was laid before us decades ago, yet we did naught to stop or even impede it.  Some redundant safeguards have also eroded, so we face a major possibility of societal collapse into modern-age feudalism. There is a range of issues that contribute to this impending implosion, yet the madding crowd is so obsessed with the building of gallows for their foe that they are celebrating the imminence of their own destruction.

Some of us may remember “Norman Rockwell’s America.” Much of his art was just reflective of the pleasant evenness of life in a bountiful land and a sense that we were all in this together. Some of it was realism, showing how blessed we were, as in his series called the Four Freedoms. Some of it was the challenges of resisting foreign tyrannies like his art during World War II. Some of it was the portrayal of our confidence in our leadership, as in his illustrations entitled: “So You Want to See the President.“, but he did not ignore our domestic challenges either, as depicted in “The Problem we All Live With.” But his work always seemed to say: “We’re in this together.”

 

One of the co-authors (Davis) grew up in a small (10,000 population) college town in the mid-west (Carbondale, Illinois). It was the post-WWII era. In the late 40s, we had won The War, and virtually all adult males had served; many were still in the Reserves. There was universal respect for authority and law enforcement. Education was a right and an opportunity for all. There were no restrictions on who could live where in Carbondale, but as people are wont to do, most clustered with people of their own ethnic backgrounds. There were issues to be resolved, but there was high confidence that those resolutions would be civil and peaceful. The sense was that the law was one foundation upon which one could rely for equal treatment.

There were exceptions, of course. The lawyers would tell you, “Justice lies in the hands of God; the Law is our fallible human attempt to maintain order.” But, by and large, people who did bad things were caught and punished; people who obeyed the law were left alone.” But we knew there were exceptions. Some very bad people seemed to escape the law and we saw them portrayed in fiction (movies) and in real life (newsreels). We knew that sometimes men who had done nothing wrong were punished (we had seen the Fonda movies: The Wrong Man, The Ox-Bow Incident, and Twelve Angry Men). But we also learned that such mistakes were rare. A lawyer once said that of the hundreds of Criminal Defendants he had represented over the years, not one was innocent, but many were found not guilty. The mantra of the Founding Fathers and subsequent believers in the law was “Better a hundred guilty men go free than that one innocent man be convicted.”

Nevertheless, the Law was hoped to be above passion and personal vendettas; it strove to be blind and facilitated, but did not guarantee, the orderly conduct of daily life.

Two illuminating events occurred during that time. One occurred in the mid-fifties and centered around the study of one of the ostensibly evil: Alphonse Gabriel Capone. Many of us studied his story and knew of his disdain for the law and his putative role in violence, e.g. the Saint Valentine’s Day Massacre. But, as portrayed in films and the news, he avoided the consequences of his malfeasance by luck, intimidation, and strategically placed lucre.

But the people demanded justice (or was it vengeance they sought?), so Al was targeted by the Federal Government and charged with Federal Income Tax violations. As a 12-year-old, reading about this decades later, one might have anticipated that such news would imbue a sense of triumph in me, an upper SES middle-school student, which it did. But that faded for some unidentifiable reason. It seemed unfair! Even at that age, it seemed like he should have been charged with his “real” crimes. He was, in fact, charged with several but served less than one year in prison. One could argue that had he only been guilty of Tax Evasion, we would not know his name today. As maturity and contemplation advanced through the years, part of the unease of the 12-year-old was morphed into a universal concern that the Government must never “target” someone, no matter how bad we think they are. Justice should stay in the hands of the Almighty. (The parallels between the government targeting Capone and former President Trump and his supporters should not be taken lightly.)

One of the most difficult concepts to teach is the right of the accused to have competent counsel. A discussion was observed about John Hinkley’s right to a fair trial. A classroom of some 60 college sophomores was vociferously arguing that it was a waste of time and money to try someone who could be seen shooting President Regan in TV footage.

People today still show astonishment that a lawyer with a client who is not “innocent” would even consent to defend them. The mob seems to say: “We are tired of waiting for God to judge this person; we demand they be hung today.” If lawyers were responsive to such social pressure, they might be induced to refuse any case where they believed the defendant is guilty. But, what does that do to the Law? Such a situation would make the lawyer the Judge and the Jury. Ethical lawyers see their obligation as not to the defendant but to the orderly administration of the Law. For an excellent dramatic portrayal of that obligation, see the Tom Hanks and Mark Rylance movie Bridge of Spies; we ardently recommend it. No person should be stripped of his humanity and made to face the awesome power of the State alone. Cf. the First Century Israeli Sanhedrin’s dictum that unanimous verdicts were invalid, as that meant there was no one to argue on the defendant’s behalf (Mark 14:55 says the men of the “… whole Sanhedrin …” were against Jesus, which should have invalidated their findings of guilt).

Similarly, the concept of “going after” a person deemed worthy of punishment begs the question: “Who makes that determination?” Not far from that quandary is the challenging question: “It is 1935. You are in Berlin with a .380 caliber Walther PPK in your pocket, and Adolph Hitler walks in; what do you do?” Some think that Mother Theresa was a danger, so if they had the same opportunity to shoot her: “What should they do?” For a dramatic representation of that dilemma, we recommend the dialogue between the Amish Grandfather Eli Lapp and his Grandson Samuel in the Harrison Ford 1985 movie Witness, concerning the use of a handgun used to kill other people. “Can you see into another man’s heart?” asks the wise old Grandfather.

It was just a few years after the above-listed revelation of the need to constrain the power of the state that another insight came from another source. In 1960, John F. Kennedy was elected President. At that time, there was a rumor that J. Edgar Hoover, who had been Director of the “Sacrosanct” FBI for 25 years, asked to see the new President. It was alleged that, after assuring him of his support, he offered to show evidence of his good faith.

He passed over a file folder and said: “To better protect you from inconvenient truths being brought to bear on you, I had my agents do a little investigation of potential blackmail risks. This folder contains some issues I am sure you do not want to be made public. As long as we are friends and colleagues, I can assure you that I will do whatever is necessary to ensure they remain between us. By the way, in four or eight years, you will be gone, but I will still be here.” History notes that JFK was gone in two years, but J. Edgar Hoover was there for another ten years, some saying that was because he had the same “friendly talk” with every President from FDR to Nixon.

Even as teenagers, many of us thought there were definite reasons to distrust JFK, so we were a little too gleeful with the image of J. Edgar’s talk with JFK. But just like the “prosecutorial targeting” above, we were uneasy with anyone who is a career civil servant deciding who should or should not be President. Of course, during that time, such a blatant matter of overreach by the Director of the FBI would have caused a great uproar in the media, as they were very suspicious and not at all fond of him. Accordingly, Hoover was careful to keep his tyrannical overreach just between the Presidents and himself. So it remained just a rumor. It was a warning to us, however: Never get too comfortable when someone abuses their power to hurt someone you do not like; you may be the next target of a power that has virtually no real interest in your well-being.

The 14th Ammendment of the US Constitution states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [authors’ emphasis]

Today, however, the equal protection clause seems to be a forgotten myth. Other than leftist talking heads euphemistically self-styled news programs, many (most?) Americans admit that we have multiple standards of justice – which means we have no justice. Evidence? We point to the unequal way in which the response to the mishandling of classified documents by Presidents Trump, Biden, and Obama, Vice President Pence, and Secretary of State Clinton. Anyone who has handled classified documents and has held a high clearance must admit that Biden’s and Clinton’s transgressions are the more egregious. Yet, the government and media are targeting Trump differently than the others. The government declared parents at school board meetings to be domestic terrorists. Admitted (and bragged about) Biden quid pro quo is ignored while imaginary quid pro quo by President Trump is used to justify impeachment.  Trespassing in the US Capitol is “insurrection,” but trespassing on the Tennessee Capitol is “protest.”  Theatrical and unnecessary raids and seizures of the property of conservatives demonstrate the government “going after” the ruling party’s political opponents. The Federal Bureau of Intimidation has treated attacks on abortion centers significantly more seriously than similar attacks on pro-life centers. Elected “representatives” like AOC assert that the government can ignore rulings from the Supreme Court with which they disagree. In New York, a bodega owner was incarcerated on Rikers Island for defending himself against deadly force, yet Soros-backed District Attorneys refuse to prosecute violent criminals.

The Pledge of Allegiance promises “liberty and justice for all.”  Do we really think that is true in modern America?  Or do we have liberty and justice for some and serfdom for others? Does justice remain blind? Are the scales of justice tipped in favor of certain demographics and political leanings?

There is good evidence that societies thrive due to a common acceptance of behavioral norms. These norms are common across most cultures. Don’t kill other members of one’s society; don’t steal others’ possession; don’t mess around with other people’s spouses; don’t injure others; treat people the way you want to be treated; etc. As societies became larger, more complex, and more crowded, these fairness doctrines were codified for convenience and reference. Sometimes not appropriately implemented, reliance on the Law has been, in general, a safer approach than relying on the whim of a lord and master for justice. When we ignore the Law and pursue personal justice, we risk, nay, we facilitate, the conceding of power to those who would rule us.

Where has this approach led us so far? Even given the enthusiasm of partisans, one must admit this Nation’s achievements have been noteworthy. Upon which foundations do we rest our progress so far, and which ones are currently showing signs of deteriorating? Are they just silly oppressive rules from old men? We offer the below as important attributes:

1. An endemic independence of individual spirits
2. A drive to recognize that we are all in this together
3. An educated public that reasons and does not succumb to rage
4. A balance of power between various segments of government
5. A belief that there are common and codified standards of behavior
6. A responsibility to preserve an effective but constrained government
7. An acknowledgment of a higher power that wrought these principles
8. A free and ethical media to keep the nation informed, not indoctrinated

We leave it to the reader to discern which of these are currently the most weakened:

1. Do we seek freedom and opportunity, or grants and security?
2. Are we all still “Americans” or racially “hyphenated”?
3. Are we educated to cogitate analytically or to react emotionally?
4. Have we given too much power to diverse government agencies?
5. Do we still see Law today as a valid list of “fair and just” behaviors?
6. Do we favor non-intrusive rule, or do we want others to decide?
7. Do we believe there is some entity greater than us, or are we all Gods?
8. Is there any hope that an objectivity ethos moderates the media?

Today we don’t have a J. Edgar Hoover; we have an army of unaccountable bureaucrats who think they are above the law, nay they are the law. Time (of all publications!) bragged about how a group of businessmen, labor leaders, and government agencies conspired to determine the outcome of the 2020 election. We see a whole-of-government effort to eradicate opposition. We have strong evidence that the Injustice Department and Intelligence Community colluded with social media companies to censor inconvenient truths (e.g., the Hunter Biden laptop). We see some lawbreakers (e.g., January 6^th trespassers) prosecuted while others (e.g., thousands of BLM and Antifa arsonists, rapists, murderers, looters, and thugs) are ignored. We see the government condemn parents at school board meetings as domestic terrorists while we allow real criminals to pass through our non-existent borders without hindrance. We see the ruling junta blatantly persecuting political opponents like any banana republic we are becoming.

Some fear that the collapse of this nation will surpass the disintegration of the Soviet Union and that it will happen as rapidly. History indicates that most nations would take advantage of that collapse in a way that would not be as benign as the U.S. reaction to the USSR’s collapse. The Founding Fathers worried that the Republic would not last very long. We now have the answer in sight: the Republic will have lasted 250 years. Not a bad run, but how many among us would not have wanted it to last longer? Who among those that live elsewhere will mourn the passing of their dream for a better life here when we look like a third-world country? Yet we ate yesterday and will eat tomorrow, so no one will step up to lead us out of this. If anyone tries, won’t they be slaughtered like the “good officer” on the way to the front in Doctor Zhivago? He was shot when he began to effectively encourage his men to defend Russia. We are reminded of the tale of the man who, upon entering the “pearly gates,” asked Saint Peter: “Considering the tragedy and the corruption on the earth, why didn’t God send someone to do something about it?” to which Saint Peter replied: “He did; He sent YOU!!”

Consider some of these issues and the ugliness of the news of this era.

 

 

Epilogue: Is George Soros our generation’s Capone or J. Edgar Hoover? He uses the same tactics and tools. Tales of Chicago during the 1920s and glorified representations of gangsters in Hollywood are replete with leaders of criminal enterprises using money to purchase law enforcement and government officials, such as leftist District Attorneys and America-hating politicians.

 

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