Don’t create a history to judge

In about the space of one week in June, Donald Trump suggested a newspaper committed “virtual” treason; joked (perhaps) about staying in office beyond term limits, while at the same time, saying two major papers would be out of business by then; said he is “all in” for an amendment banning flag-burning; said (before later backtracking) he would accept campaign help from a foreign power and that he wouldn’t call the FBI in such a circumstance; and fired pollsters because he didn’t like the numbers they produced — but declined to fire his chief counselor, who was found to have repeatedly violated the Hatch Act.

That’s one long sentence, and it only partially sums up one short span of days.

Trump’s assaults on decency, honor, the law and the underpinning principles of the republic are by now predictable. That predictability, though, makes it all the more frightening — the more we become numbed to his conduct, the more exhausting it is, and the more exhausting it is, the greater the tendency to just surrender. The temptation is especially great when one sees his devotees either ignore his conduct, or worse, defend and excuse it. No matter what facts come their way.

Still, that’s just a loud minority of gullible people whose vulnerabilities have been exploited (or, among a minority of that minority, whose hatred has been validated). And in the broad scheme, Trump is just one crass and selfish man with no impulse control.

But then there are his enablers — not just certain power-hungry members of Congress, but the people he installed in his administration, or put to work for him. Make no mistake: These people, too, think they are above the law, or they argue Trump himself is. The danger they pose is neither a small nor partisan matter.

In an attempt to reverse a federal court ruling allowing a House committee to subpoena records from his accountant, Mazars USA LLP, Trump’s attorneys argued Congress doesn’t have the authority to subpoena such records.

As reported by Bloomberg, attorney William Consovoy argued to a federal appeals court in May that the records are not tied strongly enough to Congress’ legislative function to clear the bar. That court rejected the argument; the ruling will be appealed. (Just days later, Treasury Secretary Steven Mnuchin refused to comply with a congressional subpoena for six years of Trump’s federal tax filings, invoking the same argument; the Justice Department later issued a finding backing Mnunchin. And round and round we go.)

In unpacking this, it can be said that here, at least, Trump is working through the court process. But as others have noted in published reports, what happened in May fits with the White House’s repeated refusal to comply with subpoenas and boils down to claiming Congress does not have authority to investigate a president.

“Apparently,” writes Washington Post columnist Aaron Blake, “the White House has landed upon saying Congress can’t investigate anything the president does unless it pertains to legislation.” For a White House to assert such a thing defies not just logic, but reality. To draw a bright line: The president has in effect said a coequal branch of government does not have the power of checks and balances, and his lawyer has the nerve, in making that argument, to wring his hands about separation of powers.

Speaking of nerve, one should never doubt Trump chief counselor Kellyanne Conway has plenty.

In June, the Office of Special Counsel recommended that she be fired for repeatedly violating the Hatch Act. The act prevents federal employees from engaging in campaign activity in their official capacity; it can even prevent local agency employees whose places of employment receive federal grant money from engaging in campaign politics in their official capacity.

Conway was found to have made “statements directed at the success of (Trump’s) reelection campaign or at the failure of candidates for the Democratic party’s nomination for president,” OSC Special Counsel Henry J. Kerner wrote June 13. In doing so, she used her official authority to advocate for or against candidates, he said; despite multiple warnings to stop, Conway proceeded.

“To make matters worse, Ms. Conway is a repeat offender,” Kerner went on, citing a 2018 report he said Conway also ignored.

“Ms. Conway’s disregard for the restrictions the Hatch Act places on executive branch employees is unacceptable,” he also said, adding that, if Conway were any other federal employee, her “multiple violations of the law” would get her fired. Her actions, further, “stand in stark contrast” to the culture of compliance the White House had promised.

So, Conway, despite her value as a propagandist, was summarily dismissed … Actually, of course she was not.

White House counsel Pat Cipollone claimed the OSC’s report was riddled with legal and factual errors as well as the result of an “unfair” process that “chills” Conway’s free speech rights, and the First Amendment rights of other federal employees. (An interesting shift, from a White House that last year pressured staffers to sign nondisclosure agreements.) Conway herself cried victim: the Hatch Act matter was an attempt to silence her, and “put a big roll of masking tape over my mouth.”

Prior, Conway had said of the Hatch Act: “Blah, blah, blah. If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

She meant, of course, that nothing is going to happen to her, not even if she admits violating the Hatch Act in front of the world, and then lights the OSC’s report on fire.

But the Hatch Act issue speaks to a much broader matter than whether Conway was appropriately mindful of her words while on the clock:

“As a highly visible member of the administration, Ms. Conway’s actions, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act’s restrictions,” Kerner said. “Her actions erode the principal foundation of our democratic system — the rule of law.”


But Conway-itis, so to speak, is catching.

Witness DOJ attorney Sarah Fabian trying to make a credible case that migrant children being detained in government camps are not entitled to basic hygiene items. The same week reports detailing appalling conditions at some of the camps emerged, Fabian came before a 9th Circuit Court panel. She argued that because the 1985 case establishing how kids in federal immigration custody must be treated didn’t specifically state they need towels, toothbrushes, soap — or even a bed other than a concrete floor — well, then, the government doesn’t have to provide those things.

The jurists rejected the argument; Fabian indicated the administration will appeal.

At this point, we should be beyond arguing who is to blame for why migrant children are here, and the way they are being treated ought to transcend political viewpoints.

The fact is, these children are here, and when we chose to detain them, we became fully responsible for them, regardless of what our immigration policy is. Ditto for adult detainees — who, in one instance, were crammed so many into a room that they stood on toilets in order to breathe.

The rule of law matters. But Trump’s team repeatedly and brazenly flouts the law, and nothing happens, except that more and more are emboldened and there is a cascading effect.

History will not judge them kindly, it is said — but in the end, that is a tepid response.

These people are on track to usher in a period of lawlessness, except for laws that will protect the powerful and punish those without any. Those who now rejoice at Trump, or excuse him, should know that one day, they will turn to the law for redress and not find it.

So forgive me for not finding comfort in the prospect of history wagging its finger at those who wrote this sorry chapter.

The best strategy is acting before there is a more of a history by which we can be judged.

What we face is the alarming combination of the blindness of rank and file Americans, the opportunism of those at the levers of power, and the corrupt soul of one man. The majority must assert itself through established, lawful means, before these means are no longer available. Don’t wait on history to sort it out.

Katharhynn Heidelberg is a journaist in Montrose, Colo.

From Katharhynn Heidelberg.