Of Special Counsels and Slave Masters

For weekend reading, I chose a volume of slave narratives, The Classic Slave Narratives, edited by Henry Louis Gates, Jr. I started with The Narrative of the Life of Frederick Douglass, An American Slave.

Douglass’ story is one of savagery within the clutches of America’s institution of chattel slavery. One can read of the gory Aztecs, the savage colosseum, and the merciless Genghis Khan, but the shock of these accounts will not exceed that felt reading Douglass’ personal story of bondage.

Douglass’ incomparable pen distills events into sharp, perspicacious phrases, capturing keen insights into the very essence of intelligence, humanity, and freedom. Douglass’ penetrating observations illustrate the way in which American slavery distorted every institution and every person, master and slave, with which it came into contact.

Consider how Douglass tells the story of Sophia Auld, “a woman of the kindest heart and finest feelings,” whom the “fatal poison of irresponsible power . . . commenced its infernal work.” She learned that “education and slavery were incompatible with each other.” Her mistake: she taught Douglass the alphabet.

Douglass’ narrative is replete with wickedness, but few heroes. Most characters are weak but altogether ordinary human beings, who cannot resist the currents of slavery and social position. City-dwelling slaves, for example, escaped many of the evils visited on the rural slave, but their relative ease was not explained by the inherent kindness of the urban slaveholder. Middle-class ambition forbade aspiring Baltimore households from displaying beaten and underfed slaves.

More Than One Way to Jockey for Status
John Marini’s Unmasking of the Administrative State: The Crisis of American Politics in the Twenty-First Century, edited by Ken Masugi, has arrived in time to sharpen thought for the 2020 election and the narrative it expounds has commonalities with these slave narratives. The administrative state is also an institution that twists and confounds the systems and people with which it comes in contact, without any one individual caught up in it—save perhaps Woodrow Wilson—really intending it. The administrative state has exerted a will of its own that is supreme over the constitutional authority of the sovereign American People. Indeed, it usurps their sovereignty.

The administrative state has instruments of its will, including one forged from the elite litigators coming out of and headed into the Department of Justice. Some, like their historical counterparts among the urban slaveholders of Baltimore, are motivated by simple middle-class aspirations. They want their peers to see them looking their best by the ethos of the Washington, D.C. elite.

Others, like Robert Mueller seem more profoundly inspired. Forgive me, but reading Douglass, one cannot help but paraphrase his prose:

Mr. Mueller is proud, ambitious, and persevering. He is artful, cruel, and obdurate. He is just the man for the special counsel, and the special counsel is just the place for him.

The thing first and most thoroughly dispensed with on Douglass’ plantation was due process: “To be accused was to convicted; to be convicted was to be punished; the one always followed the other with immutable certainty.” So, too, apparently is it for the administrative state. The pre-dawn, 27-gun, amphibious no-knock raid has become a tool for use against white-collar sextugenarians.

Of the 34 guilty pleas or indictments obtained by the special counsel, the handful directly related to the Trump campaign involve process crimes bordering on entrapment of lying to the FBI. These are the charges that have upended and destroyed the lives of Michael Flynn, George Papadopoulos, and Roger Stone. The charges pleaded to by Michael Cohen, brought by the Southern District of New York, relate strange theories of election law and bank fraud and, admittedly less strange, tax fraud, for all appearances independently carried out by the recently disbarred and uniquely untrustworthy Cohen.

Paul Manafort—a 69-year old man who has been placed in solitary confinement at the request of Robert Mueller—and Rick Gates have plead guilty to or been prosecuted for crimes that would not likely have been further investigated had these men not connected themselves to the Trump campaign. Their crimes may not have been political but these men are, by any reasonable definition, political prisoners.

I cannot help but paraphrase Douglass once more:

Mr. Mueller is a grave man who indulges no jokes, says no funny words, seldom smiles. His words are in perfect keeping with his looks and his looks in perfect keeping with his word. Prosecutors will sometimes indulge a witty word, even with a target; not so with Mr. Mueller. He speaks but to command, commands but to be obeyed; he deals sparingly with his words, and bountifully with his prosecutions and threats of prosecution, never using the former where the latter would answer as well. When he prosecutes or threatens prosecution, he seems to do so from a sense of duty, and fears no consequences. He does nothing reluctantly, no matter how disagreeable. He never promises but to fulfill. He is, in a word, a man of the most inflexible firmness and stone-like coolness.

The forgoing paraphrases are taken nearly exactly from Douglass’ description of Mr. Austin Gore, the third, the most vicious, and, above all, the most effective overseer of the Lloyd plantation. Think of that when you read the Mueller Report, should it ever reach the public after two years. I know I will.

Photo Credit: Smith Collection/Gado/Getty Images

About Jay Whig

J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.

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