Mark Twain once wrote, “A southerner talks music.”
U.S. Rep. Trey Gowdy’s operatic molasses-and-cream voice, and a wardrobe’s worth of changing hairdos, memorably color the politics of the last decade. Who can forget the South Carolina Republican’s virtuoso performance of Immolazieone delle Spoliazioni (The Immolation of Spoliation)? In hearings on IRS misconduct, the tenor warbled over inferences against parties who destroy evidence—who engage in spoliation—sonorously filling the air to the delight of his adoring fans. Bravo! Unfortunately, other than the beauty of it, the performance had little effect. No one at the IRS paid for their spoliation.
Gowdy’s latest opera—let’s call it Comportarsi in Modo Innocente (Comport Yourself in the Way of Innocence)—premiered earlier this week. In Comportarsi, Gowdy plays a former prosecutor and lame duck congressman hoping to become one of the town’s celebrity newsmen.
Gowdy’s character becomes troubled when President Trump and his counsel mount a sharp defense to the efforts of the special counsel to investigate the non-crime of “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” As the president and his lawyers work to parry the inquisition of Special Counsel Mueller’s chorus of hired prosecutors, Gowdy steps to center stage, cantillating, “If you are innocent, act like it!”
Though moments of hilarity punctuate the action, Comportarsi is an opera seria. We laugh, for example, at the vanity of a parade of bespectacled newscasters who interview the divas of print and film pornography. But we grimace at the whole of the drama because the stakes—the right of the people to be governed by ballots, not selective prosecution—are tremendously high. The extreme tension awaits final catharsis.
The libretto for Comportarsi may be Italian but the setting is distinctly Anglo-Saxon. While Gowdy in his aria sings in general terms about the character of innocence, he does so in a specific system of justice. Anglo-Saxon law uses an adversary system, a descendant of trial by combat. Long ago in medieval England, plaintiff and defendant would prove their innocence or guilt in single combat, often using hired champions. God would strengthen the hand of the righteous and resolve the dispute with the death or defeat of one of the combatants.
With experience, the brutish practice brought forth the method of using advocates, attorneys, who use words instead of weapons. Today, the method of Anglo-Saxon litigation is for the verbal combat of two partial adversaries unfolding before an impartial—and passive—judge and jury to produce justice based on who raises and makes the stronger arguments. In this system, aggression is bred in the bone.
A prosecutor in this system is never the accused’s friend. The prosecutor does not—is not supposed to—have the accused’s interests in mind. The code of ethics obliges the prosecutor to use all lawful and ethical means—of course, he must have probable cause and must not lie or conceal exculpatory evidence – to produce a conviction on behalf of his client, the state. The accused is presumed innocent, but the adversary system assumes that defense counsel will nonetheless zealously represent the defendant, because justice will only emerge from the clash of zealous advocates.
If counsel for the defense does not aggressively defend his client, the adversary system fails; the defendant is not “acting innocent” but conspiring to a miscarriage of justice.
Faced with prosecution, the job of the defense is not cooperation but the destruction of the credibility of the witnesses for the prosecution, where plausible, the credibility of the prosecutor and, where necessary, the credibility of the prosecutor’s client, the state. The only circumstance where a defendant might not speak vigorously against the prosecutor and his case is where the prosecutor fails so badly that to say anything strengthens a weak showing.
While Gowdy has played his part in the first act, painting a deeply misleading picture of innocence in an adversary system, the opera is far from over. The curtain is up for the second act of Comportarsi.
Trump has dismissed John Dowd, an excellent lawyer, but one whose largely prosaic task of getting along with the special counsel is now done. With McCabe out at the FBI for misconduct, and with Strzok, Page, Comey and others exposed, new counsel, led by Joseph diGenova, will shift to building a zealous defense that Mueller’s effort—wittingly or unwittingly—is part of a widespread conspiracy to frame a president.
As the final scenes of Comportarsi unfold, expect diGenova to serenade the audience with his own account—contra Gowdy—of the title theme of “acting innocent” in the Anglo-Saxon adversary system, a paean to hitting back hard.
Bravo Maestro! Bravo!
Photo credit: Al Drago/CQ Roll Call