The Trump Presidency And The Iran-Contra Precedent

Perhaps because it has been over three decades, memories of the ginormous political clusterfuck that went by the name of Iran-Contra seem to have faded from our collective memory. As our nation’s polity lurches from one scandal to the next, and as cries of ‘impeachment, if not now, then when?‘ fill the air, it is worth reminding ourselves of just how badly things seemed to be going–back in the 1980s–for another US President, and how, miraculously, he survived:

The scandal began as an operation to free seven American hostages being held in Lebanon by Hezbollah, a paramilitary group with Iranian ties….Israel would ship weapons to Iran, and then the United States would resupply Israel and receive the Israeli payment….a portion of the proceeds from the weapon sales was diverted to fund anti-Sandinista, or Contras, in Nicaragua.Reagan was aware of potential hostage transfers with Iran, as well as the sale of Hawk and TOW missiles…. large volumes of documents relating to the scandal were destroyed or withheld from investigators by Reagan administration officials….Several investigations ensued, including by the U.S. Congress and the three-person, Reagan-appointed Tower Commission. Neither found any evidence that President Reagan himself knew of the extent of the multiple programs….the sale of weapons to Iran was not deemed a criminal offense but charges were brought against five individuals for their support of the Contras. Those charges, however, were later dropped because the administration refused to declassify certain documents. The indicted conspirators faced various lesser charges instead….fourteen administration officials were indicted, including then-Secretary of Defense Caspar Weinberger. Eleven convictions resulted, some… vacated on appeal. The rest of those indicted or convicted were all pardoned in the final days of the presidency of George H. W. Bush.

No criminal charges were ever laid against the US President, and then, as now, the only institutional pressure that could be brought to bear was a Congressional and independent investigation. It did not seem credible that Reagan would survive the scandal. But he did. Obfuscation, denial, selective loss of memory, underlings willing and able to cover-up; these all aided in the Gipper‘s Great Escape. Selling arms to Iran in 1986, six years after American hostages had been freed in Tehran was outrageous; doing so illegally, in order to aid another clandestine operation that involved negotiating with a ‘terrorist organization’ to release American hostages, was beyond the pale. It was that era’s ‘collusion with the Russians,’ that era’s ‘hacking of our elections.’ But after the smoke cleared, matters proceeded much as before; before the nation’s disbelieving eyes, no charges stuck. The capacity of the nation’s political institutions to pay host to, and absorb, considerable wrong-doing was demonstrated rather spectacularly then; and we may bear further witness to their capacity for doing so. Damaged, limping, presidencies that barely make it to the finish line are not unknown in American political history; this could be one of those. If we are lucky, its ability to wreak further damage on the polity will have been considerably diminished.

The ‘But The Supreme Court’ Argument For Hillary Clinton

One ‘hold-your-nose-and-vote-for-the-lesser-evil’ argument currently making the rounds for the Hillary Clinton candidacy–ostensibly intended to address the ‘schism’ in the Democratic Party, among the ‘Left’ and ‘progressives’–goes something like this. Vote for Hillary Clinton, even if you disagree with many of her policies, do not consider her entirely trustworthy, and would much rather vote for Bernie Sanders–because she will nominate the right person, the right Justice, to the US Supreme Court. (The Senate will not confirm a nominee put up by President Obama, so this will be one of the first tasks awaiting the new President next year.) No matter what you think, you cannot allow a President Trump to nominate a right-wing ideologue to the Supreme Court, who will then roll back years of hard-won legal victories in many domains: perhaps abortion restrictions, perhaps voting rights, perhaps the power of regulatory administrative agencies to keep our work spaces safe and our drinking water clean.

It is worth noting how much this argument presumes and concedes.

First, and most importantly, the American political system is broken. There is no separation of powers; the judiciary and the executive branch are the new legislatures. The Supreme Court is now a full-blown political institution. Political change will not come about because people’s representatives will legislate their desires and demands into existence; rather, an unelected group of Yale and Harvard educated lawyers will respond directly to petitioners who seek to address some perceived injustice. Persuade the justices; do not bother with the ballot box. Unless you are voting for President.

Second, it places too much faith in the ability of the Supreme Court to drive substantive social and political change. The poster child for this sort of claim is Brown v. Board of Education, which left segregation intact; and as a vigorous debate among professional court watchers–a motley crew of legal scholars and political scientists–confirms, supporting examples can be found quite easily. Despite the expressive impact of the courts and their rulings, political change does not happen because courts direct the polity to change; rather, it occurs because citizens organize and exert pressure at and on the right places and the right actors–in a variety of political domains and institutions.

Third, it suggests–as if acknowledging the unprecedented obstruction of a sitting President by the Republicans over the last eight years–that the President is a lame-duck from the moment he or she drops his or her right hand on being sworn in. No substantive legislation can be driven by that office; the Constitution offers no escape; a recalcitrant House of Representatives and Senate cannot be forced to do perform their legal duties. The President can merely nominate a Supreme Court Justice; and that too before the final year of office (apparently the new normal now given what has transpired since Justice Scalia’s death.)

It is into this impoverished and diminished political landscape that we are steered by the ‘but the Supreme Court’ argument for Hillary Clinton. We are being asked to settle for an immensely diminished Republic.