American Greatness and its Enemies

There is real greatness in the American character. The profound desire for vesting sovereignty in the people themselves rather than in an hereditary monarch or aristocracy, the wish to maximize individual freedom, and the hope for the securing of economic development and security for all are among our noblest of traditions. But there is also venality and naiveté that have endured in American politics, and those deleterious traits have always threatened the American experiment.

Two of the worst blotches on American culture and politics are the extraordinary hatred Americans have often manifested against those with whom they have political disagreements, and, somewhat paradoxically, the ridiculous belief that federal legislation can somehow cure inherent weaknesses in the human heart or enduring problems in the polity. We have seen in the Javert-like pursuit of the President by Special Counsel Robert Mueller, and in the raid by the FBI of the papers of President Trump’s lawyer, Michael Cohen, a clear demonstration of these difficulties.

There may have been much more involved, but it is significant that many in the media saw in this raid—a raid that honest analysts such as Alan Dershowitz pointed out undermined attorney-client privilege and would never have been tolerated by the ACLU if the target was a liberal—an attempt to uncover evidence of a purported campaign violation that wrongly sought to aid the President. This was, of all odd things, the payment of $130,000 to pornstar Stormy Daniels to buy her silence regarding an asserted brief affair with Mr. Trump.

One would have thought that this non-disclosure agreement (NDA), dealing as it does with a matter of private reputation would have been something that liberals would have thought did not belong in the public square, given their attitude toward President Clinton’s escapades that Democrats believed ought never to have been a part of impeachment proceedings. Yet, their argument was that Mr. Cohen’s $130,000 payment was a campaign contribution to Mr. Trump designed to increase his chances of being elected, which violated the absurdly low $2700 individual contribution limit for campaigns for federal office. It is, of course, ridiculous to believe that a limit on individual contributions, in the age of PAC’s and other sophisticated means of aggregating political investments would make any difference, but such is the blind faith in the utility of legislation to combat evil.

There was already precedent in the case of a court decision holding that similar payments to Democrat Candidate John Edward’s mistress and the mother of his love child were not campaign contributions, but such, apparently was the blind hatred of all things Trump, that the possibility of using a prosecution against him to get evidence that might lead the President’s lawyer to turn on him in the hope of some leniency, was irresistible. The move against Mr. Cohen was cheered by the very partisan mainstream media, but Mr. Trump’s supporters quite properly wondered whether they were seeing the kind of pollution of the legal system which existed in Mao’s China, Soviet Russia, or South American dictatorships. There is a strain in our jurisprudence which allows the unthinking or the prejudiced to follow Beria’s famous dictate—find me the man, and I’ll find you the crime.

It is not just the Democrats who sometimes let hate and political manipulation get the better of them, the Radical Republicans in the horror following the civil war let their loathing of the South perpetrate many injustices, and the Republican Joe McCarthy unscrupulously tarnished the reputations of many. Richard Nixon’s famous “enemies list” was yet another contemptible use of government power for unscrupulous purposes. But lately it is the Democrats who have sought to crush their foes through the evil manipulation of the engines of government, from Lois Lerner’s IRS’s targeting of conservatives, through Loretta Lynch’s justice department, James Comey’s FBI, and even John Brennan’s CIA concocting the myth of Russian corruption to smear and debilitate President Trump and his associates. The appointment of Mr. Mueller, who may actually be an honest man and a patriot, ought to be seen as an unfortunate by-product of both the wrongful criminalization of politics and the evil intolerance of those whose views differ from one’s own.

President Trump’s railing against political correctness, and his disparaging of the deep state, show that he has a visceral understanding of these two core fissures in American culture and society. It is that understanding that resonated with the Americans who voted for Mr. Trump, a group that was enough to hand him a victory in the electoral college. So committed are his enemies, so unyielding are their beliefs, and so dangerous is the Kafka-esque legislative structure that we have created, that the American understanding of sovereignty and experiment in popular government is now at grave risk.

In his efforts to return the courts to the rule of law, to reinvigorate the separation of powers, and to restrain the federal leviathan, Mr. Trump offers the greatest promise of fidelity to our ideals in a generation. Those of us who support him must be vigilant in exposing and lamenting the machinations of his unscrupulous opponents.

Photo credit: NICHOLAS KAMM/AFP/Getty Images

About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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