Thursday, April 12, 2018

Rod Rosenstein, American Hero

It is curious--curious that physical courage should be so common in the world, and moral courage so rare.   
                    --Mark Twain

     I met Rod Rosenstein one time, back in 2008 when I asked if I could interview him in his role as Maryland's U.S. Attorney.  I was a recently retired local prosecutor writing a little blog with a limited audience.  But he agreed, and gave me all the time I wanted to ask questions.

    I told Rosenstein what I thought:  that despite the eagerness of local officials to claim credit for Baltimore's dramatic decrease in homicides, he deserved the credit for focusing federal efforts on violent and gun-wielding criminals.  Rosenstein demurred.  He talked only about the initiatives he presided over and praised the cooperation of his local law enforcement partners.  His display of utter professionalism left a deep imprint upon me. 

     So I was surprised to read last year that he had taken the job of Deputy Attorney General.  To me, Donald Trump's lawlessness was so apparent before the election that I wondered how any person of integrity could work for him.  But I decided that he, like many others, thought Trump was more bluster than danger, and that as a career federal attorney the post of Deputy Attorney General for the entire United States represented the pinnacle of his career.  He probably also thought he could do tremendous good from there. 

     Almost immediately Rosenstein found himself skewered with liberal contempt for writing a memo used by Trump as a pretext for firing FBI director James Comey.  Again, I have no knowledge of Rosenstein's motivations or whether he knew how the memo would be used.  But I read his memo, and Rosenstein was exactly right in what he wrote:  Comey had on more than one occasion acted improperly in his FBI role, beginning with his scathing public criticism of Hillary Clinton when he declined to recommend charges against her.  If his boss had asked him to write his opinion of Comey's actions, there would be no reason for Rosenstein to refuse.  Most importantly, what he wrote was correct.  He didn't lie to serve a corrupt master.

     So while many in the liberal community distrusted Rosenstein, I felt confident that he, now in charge of the Russian investigation, would do the right thing.   I felt a thrill when he appointed Robert Mueller as special counsel (and read Mueller's simple but profound response:  “I accept this responsibility and will discharge it to the best of my ability.”)  Rosenstein brilliantly picked the one person everyone agreed would be non-political, who would follow the evidence and the law wherever they led him, whether liberals or conservatives liked the results or not.  Only as evidence seemingly mounted against Trump did he and his stooges mount their campaign to discredit Mueller and Rosenstein, to the point of labeling them mob bosses.  (There are no suitable words I can think of to describe this conduct.  They are the actions of morally degraded persons who care nothing for what made American great, the dedication to the rule of law etablished by a constitutional and democratic process.)

     For the entire length of his service as deputy attorney general Rosenstein has performed his duties with a figurative guillotine over his head.  Yet he has consistently maintained in the face of Trumpian pressure that there is no cause to fire Mueller.  And he had to know he would trigger the descent of that guillotine by referring an investigation into Trump lawyer Michael Cohen to federal prosecutors in New York.  Unlike some, who transition back and forth from public service to private law firms, Rosenstein has spent his entire career as a federal attorney, and loss of his job will sting him more than most.  He may also be saying goodbye to a federal judgeship, if he wanted that.  But Rosenstein has acted courageously anyway, in stark contrast to all the toadies who have groveled and dissembled or actively subverted justice.  (Devin Nunes is our modern Joe McCarthy -- or McCarthy junior, after Trump.)

     Worse than potential loss of job has got to be the endurance of all the barbs, lies and despicable characterizations.  That is probably why moral courage is harder to come by.  Physical courage contains no ambiguity.  One runs into the fire, or falls on the grenade, and everyone agrees about courage.  But those who whistleblow, or defy unethical bosses, or speak truth to power, are objects of suspicion at best and public humiliation and loss of livelihood (or, in other countries, life) at the other end.  Yet they act anyway.

     Rosenstein would probably demur again at the credit I am giving him, like Acting Attorney General Sally Yates after she was fired by Trump for telling him the unpleasant truth about his national security advisor Michael Flynn.  ("I was just doing my job.")  Doing one's job is very difficult when it means crossing a power greater than oneself.   

    Rosenstein, Mueller and Yates make me proud that I chose prosecution as my career.  The discipline it takes to stick to evidence, obey the rules, and ignore politics is nutured in that profession, and they are shining examples of ethical public servants, champions of the rule of law and unsullied by politics.    

     Here's to you, Rod.  

Monday, February 26, 2018

One Chance, Two Many Choices

Baltimore is facing a local election more important than anything else - the governor's race, congressional seats, assembly seats, everything else.

State's Attorney Marilyn Mosby is up for re-election.  The Mosby who immediately upon taking office in 2015 proved her unfitness, first by purging experienced prosecutors for grudge reasons and then by persecuting six police officers for the death of Freddie Gray who were innocent of any crime.

I won't reiterate the facts of that folly.   Here is what relevant now:  that Mosby and her team have presided over a rate of crime that exploded with her Freddie Gray prosecution and shows no sign of abating.

And while the Police Department hasn't helped matters with a corrupt Gun Trace Task Force that the feds had to bring down (in a real prosecution), the fact remains that no good cop on the street can do his or her job with any confidence that the city's top prosecutor won't charge them criminally for any mistake or accident that occurs on their watch.  No wonder the Police Department faces problems recruiting qualified candidates.  And what lawyer of any competence and experience would want to work for Mosby?  Criminals are walking free on her watch and the crime rate proves it.  

Fortunately, we have two men ready to challenge Mosby, willing to take on the herculean task of repairing the damage she has done to both the prosecutor's office and the police department.  Unfortunately, we have one challenger too many.   

Most city residents outside the criminal justice community do not understand Mosby's incompetence.  What they see is a young African American woman who "tried" to do something about bad police officers.  Many are willing to blame the "system" for her failure, and credit her for taking it on.  

So to defeat Mosby, the challenger will have to make people understand not that Mosby has made them less safe, but that he can make them more safe.  It's a delicate tightrope to walk.   He will need low voter turnout, an energized base of his own, and one more crucial component:  the ability to get every single non-Mosby vote. 

Instead we have two challengers to divide that vote, neither of whom agree with me.   Both Ivan Bates and Thiru Vignarajah told me that while having a second challenger makes the task of defeating Mosby more difficult, each believes he can win anyway.  Vignarajah is counting on his fundraising ability, and Bates on his church base.  

Which candidate do I prefer?  It doesn't matter, because the presence of both of them will re-elect Mosby.  Two of them equals four more years of Mosby.   Perhaps city residents need that extra four years of high crime to convince them that Mosby needs to go.  I just shudder at the cost. 

I respect and admire Bates and Vignarajah for their efforts.  Being a serious candidate for any office is one of the most difficult and energy-sapping endeavors I can think of, especially in an era of anonymously vile internet attacks that candidates must ignore.  And I hope that I am wrong and they are right, that one of them will defeat Mosby. 

If both men file to run for State's Attorney this week then I will offer my view for voters wondering what to do, for what it's worth.  But here's hoping one of them puts the defeat of Mosby above their own candidacy.  

Wednesday, November 16, 2016

The Day America Lost Its Greatness

On November 8, 2016, America elected a lawless man to the White House.  For this reason, and not for any other, it forfeited its claim to greatness.  

Policies come and go.  Health care, immigration, taxes, foreign policy - these things don't make or break the character of a country.  Policies change over time, edge forward and backward, left and right, as people with differing points of view advocate and, in a well-functioning democracy at least, compromise.  

No, we lost our greatness when we handed the power of the people to a man with absolute disdain for the basic principles on which this country was founded.  In 1787 we agreed to be ruled by laws created by public consent, subject to constitutional limitations that protect basic freedoms.  We have also agreed through the years on rules of conduct that guide our behavior in a democracy.  Yet we elected a man with no respect for any of it. 

As a former prosecutor, I blasted Baltimore State's Attorney Marilyn Mosby for her failure to follow the facts and the evidence when she charged six police officers in the death of Freddie Gray.  She saw only what she chose to see.  Now the American people have followed suit, ignoring the facts before their eyes and entrusting their power to man without dedication to the rule of law, be it moral, political, civil or criminal.  Winning and power is all that consumes Donald Trump. 

It's not as though he hid who he was.  We weren't fooled into voting for him.  He told us from his own mouth, from his own actions, who he is and what he wants.  He poured out and doubled down on the insults, the bullying, and the repeated, documented lies, so many that we lost track. He privately boasted of sexual aggression, and publicly laughed about visiting young women in various states of undress in their beauty pageant locker rooms.

He ignored well-established, importance practices of accountability and responsibility in political life such as releasing tax returns, transparently lying about the reason. He refused to say he would acknowledge the legitimacy of the election if he lost, blatantly undermining confidence in our process by calling it "rigged."  He even suggested that a hostile foreign power should interfere with the election, mocking the reality of that interference.  He threatened to lock up his political opponent upon taking office, and encouraged followers to harass minority voters at the polls. He "joked" that "Second Amendment" people should handle judicial appointments by his opponent.

He routinely breached his business contracts, created enterprises to defraud customers, and criminally assaulted women. He illegally used his charitable foundation to pay the Attorney General of Florida a campaign donation when she was contemplating a fraud investigation.  He refused to accept the DNA exoneration of the Central Park rape defendants who he had originally wanted put to death.  His disdain for international law and civilized boundaries revealed itself in his approval of torture not only for persons he deemed enemies but for their families.  

None of these matters are under factual dispute, and none have to do with policy.  It's about his abuse of power. He threw it all in our faces, gloating that he could publicly shoot someone and get away with it.  He was right.  He could violate any law, any rule of decency and civility, and we would still elect him to the highest office in our country, the most powerful in the world, even handing him complete power through a party that collectively refused to repudiate him and ensure his defeat. 

In fact, his candidacy was the natural result of that party's growing evolution over the years to refuse to govern, to block all initiatives (while blaming gridlock on the party in the White House), and to decline to exercise its constitutional duties, including a hearing for a Supreme Court nominee.  It was even gathering momentum to deny any nominee of the opposing party a position on the Court had it won the election. Power was the goal, not respect for the law, the Constitution, or for the American traditions we have held up to the world as "great."  The American people, rather than rejecting this lawless behavior, have now rewarded and empowered it.  

The FBI probably tipped the election when it violated its own rules of investigative conduct.  FBI agents in New York, tight with Trump enabler Rudy Guiliani (who represents their association), let him know they were cooking up a "surprise" that would "turn this thing around."  And sure enough, they resurrected the non-existent email "crime" just in time to allow Trump to claim the entire week before the election that Clinton would be a president under indictment.  This was lawlessness from the premier law enforcement agency in the U.S., an entity that had worked so hard to resurrect its image from the dark days of J. Edgar Hoover.  Imagine this agency now in the hands of Trump and Guiliani.

That Trump had the enthusiasm and votes of bigots and haters is indisputable.  He gave them voice, enabled and encouraged their venom and disdain for civility at his rallies, on their t-shirts and bumper stickers, and in their vile chants and slogans.

But they didn't elect him.  No, the decent people of America elected him, the ones who rationalized his behavior, who felt that Obamacare or liberal policies or economic pain or whatever personal grievance they had with the status quo outweighed the threat he clearly posed to the American rule of law.  Someone said before the election that this would be both a test of the American IQ and a look in the mirror.  What we see is a country, the self-proclaimed "greatest", willing to sacrifice its traditions and ideals and hand over the keys to a man who "alone can fix" their problems, who not only admires totalitarian figures, but behaves like one in his rejection of civil and legal boundaries.

The key to rationalizing a vote for Trump, a non-vote for Clinton, or not voting at all, all of which elected Trump, was the notion that his opponent was "just as bad," a corrupt criminal and liar who at best could not be trusted and at worst belonged in jail.  To talk about Trump with a Trump enabler was to get a giant dose of "But Hillary..."  Voters who ignored the documented facts about Trump also chose to believe the unsupported accusations about Clinton.

I was sure that my uncle, an educated, intelligent conservative with a wide knowledge of history would vote for Clinton. Wrong.  "She's a crook!" he practically shouted to me. "She stole money in Arkansas and Washington."  No, she didn't.  For partisan reasons he refuses to accept that years of investigations yielded no proof whatsoever. Another thoughtful man told me that Clinton was a "pathological liar" and pointed me to a New York Times story documenting that her Foundation paid for her daughter Chelsea's wedding. Except no such Times story existed.  He cited an unproved accusation from rag journalism derived from the leaked email of a person hostile to Chelsea. That about sums up what people were willing to believe.

Over and over again, this candidate was persecuted with multiple investigations for the stated purpose of taking her down politically, and people chose to ignore both the intent of these investigations and the lack of evidence that they yielded.  It's the game of making the accusation so many times it sticks, even without facts, and tires voters of a candidate. The actual evidence was that Clinton was a dedicated, tireless public servant, found by professional fact-checkers to be more accurate than most politicians, but twisted by political enemies into some kind of lying criminal.  Ordinary people heard the words "untrustworthy" and "untruthful" so many times that they internalized them and repeated them without being able to provide factual examples. 

The failure to follow the facts and the evidence, for whatever emotional reason the voters had, gave us Trump, a man with no respect for rules and laws.  Some want to blame Clinton, others the media. But the blame falls squarely on every Trump voter and those who claimed their "conscience" would not let them vote for Clinton.  Their conscience placed politics or ideology higher than country. 

The German people once put in power a man who appealed to their basest instincts.  He played to racial hatred and resentment (the Jews) and to economic anger caused by the post WWI Versailles treaty.  He created political scapegoats. He was the savior who would fix things.  And the people who elected him (and the politicians who enabled him) were not the ignorant people he incited to rally for him, but the decent people of Germany who peacefully handed over their power.  Someone said to my nephew, who was upset about Trump, "It won't be that bad.  He's not really going to do the stuff" that he said he would. Just what the good Germans of the 1930s told themselves.  

The test of our judgment and character is not upon what happens over the next four years, but rather on the risk we took now.  We elected a mendacious bully of a man who has spit on the law and on civilized discourse between Americans.  We adopted the Hitler blueprint for electing someone who could be "that bad", a blueprint that uses demagoguery and the Big Lie, plays on hatred and resentment, and depends on Americans who are too partisan, too lazy or too ignorant to ensure that we place the rule of law before political policies.  We just proved that we are as willing as any other country to put our cherished freedoms into the hands of an authoritarian.  We have given the greatest possible power to a man who has always done what he can get away with, and who, we can be sure, will use the White House for the same lawless purposes to whatever extent that he can. 

I have tried in my blog to stick to criminal justice issues, the field of my expertise. But I will have some more things to say on this election that comes from my experience in criminal justice, insights regarding race and gender that I think influenced the behavior of voters.  Reasons why I, as a prosecutor, was sometimes frustrated in my job when facts and evidence were rejected by juries.

But no lost case was as big as this.  Kathleen Parker, a conservative columnist, wrote on the eve of the election that no matter who was elected, America would still be great.  She was dead wrong.  A country that could elect a Donald Trump is not great. Our greatness does not depend upon military might or economic power.  It depends, as we have boasted to the world, on our democracy, on our tolerance for those who both look and think differently, for our unique institutions, for our checks and balances, and on our respect for the law no matter what.

When mobs tried to prevent court ordered school integration in Little Rock, Arkansas, it was Republican Dwight Eisenhower who called out the National Guard to enforce the law.  Secessionist sympathizers once attended a White House dinner with their southern Democratic party leader and President, Andrew Jackson.  They were toasting to state's rights, and looked to Jackson for encouragement. Instead he toasted: "To the Union: may it be preserved."

We won't see such commitment to law and country from our president-elect.  That makes us, to use his term, losers.