Considerations regarding Obstruction of Justice - President Richard Nixon and Democratic Candidate Hillary Clinton

During the famous Watergate Scandal, it became known, at one Point, that the White House had installed an elaborate System for recording numerous Conversations with President Nixon.  This Fact became known, almost offhandedly, when a certain Aide to the President, Alexander Butterfield, disclosed the Existence of the Contraption during a Congressional Hearing.

Obviously, a furious Battle thereupon ensued, to have the Recordings released and President Nixon, predictably, tried to do everything possible in order to avoid doing so.  The Issue was ultimately decided by the Supreme Court and the Ruling went against the President.

Interestingly, at some Point or another, or perhaps at more than one Point, President Nixon, who was also a Lawyer, considered „erasing” or „destroying” the Recordings.  Several of his Advisers, including James St. Clair, who was his Criminal Defense Lawyer, strongly advised him against doing so, because that would likely result in the President being accused and indicted on Obstruction of Justice Charges.  Nixon ended up not erasing the Tapes (except for the Mystery of an 18 Minute Gap which was supposedly and inadvertently erased by President Nixon's Secretary, Rosemary Woods).

We think it is possible to put these Events into Juxtaposition with both hypothetical and current Events.  Imagine yourself, imagine any of us, being in Posession of Evidence which we are asked to turn over to the Government, the FBI, any Federal (or lower) investigative Authority and refusing to do so.  Worse yet, imagine that we would have erased or destroyed such Evidence, either before or after we were asked to turn such Evidence over.  Any of doing such a Thing would find himself or herself in Front of a Federal Judge answering Charges of Obstruction of Justice so fast, it would make your Head spin.

But, and that is the interesting Thing, not Mrs. Clinton.  Mrs. Clinton erased (deleted, whatever) Records which arguably were Recordings of Federal Government Correspondence, some possibly classified, some not (certainly Mr. Nixon's famous „Expletive(s) Deleted” were not classified, although deleted)...and now, she maintains among other Things, that she is „sorry” but there is an Explanation for everyting...that she is not going to issue an Apology...that she is concerned about other „Things and Issues” as she pursues her Candidacy for the Democratic Nomination for President of the United States.

There has been one Incident after another, concerning both Mr. and Mrs. Clinton, we do not want to mention the salacious ones here...there have been those and there have been others which, at the very least, involved bad Judgment and, possibly or likely, worse.

And, technically, using the Rationale of „Reductio ad Absurdum” we can even assume for a Moment that they, in this Case, Mrs. Clinton has (have) done nothing wrong.  We can even assume that if Mrs. Clinton were to be dragged before a Federal Judge or Jury by the FBI and the Justice Department on Obstruction of Justice Charges, she would be found not guilty by a Jury of her Peers (or, perhaps, People of lower Stature than her).

http://www.msn.com/en-us/news/politics/clinton-says-sorry-for-email-confusion-denies-wrongdoing/ar-AAdXja0?li=AA54ur&srcref=rss&ocid=iehrs

http://www.msn.com/en-us/news/politics/clinton-says-no-email-apology-what-i-did-was-allowed/ar-AAe3cjH?li=AA54ur&srcref=rss&ocid=iehrs


We think such an Argument misses the Point.

Because, even in such a Case, the Question nonetheless remains, if this Country, at this critical Juncture in its History, confronted by a large Series of Problems which require not only good Judgment, Vision and Creativity...but also a Reputation and Integrity beyond Reproach...if this Country needs or wants a President who, Mrs. Clinton would argue, succesfully or not, is just on this Side of the Line of having done nothing illegal.

This is the Question which, ultimately, the Democratic Party would have to decide, irrespective of what Mr. Sanders is able to do in his Campaign and irrespective of whether Vice President Biden, who arguably may not have the intestinal Fortitude to endure an arduous Campaign, after the personal Tragedy which has beset him and, who, after all, is not young.

And if the Democratic Party decides that all this does not matter, then, even more importantly, this Decision, which is, it would seem, is not one to be taken lightly, would fall on the American People, whether to entrust the Destiny of coming Generations, the Destiny of America...into the Hands of Mrs. Hillary Clinton.

As Television Commentator Edward R. Murrow would have said (and most of us, admittedly, probably do not remember or do not even know who he was)...

„Good Night and Good Luck.”

Shifting from the Snowden Affair to the Real Debate

To briefly recapitulate the Events concerning the Snowden Affair:  After Days and Weeks of Salami Tactic News Developments, Edward Snowden left Hong Kong for Moscow on Sunday, 23 June 2013, his Final Destination still unclear.  Hong Kong jumped on a Technicality to rid itself of Snowden and thusly, together with and likely in Consultation with Mainland China (Hong Kong is under the ultimate Jurisdiction of The Mainland) passed on the hot Potato (or kicked the Can, one might say) into the Hands of Russia and President Putin.  President Putin and consequently Russia have been ambivalent on the Issue; they have refused to hand Snowden over to the United States, yet, at the same Time, they have not been particularly eager, if indeed, eager at all, to offer Asylum to Snowden.  Indeed, President Putin has come down, to a Degree, on the Side of the United States, stating that as a Condition for Snowden to be offered Asylum in Russia, Snowden would have to agree not to further „damage” the United States.  As recently as today, however, President Putin indicated that Snowden should ultimately leave Russia.  Russia's Motives are unclear and perhaps intentionally murky but it is difficult to imagine that it has not had at least partial Access to the Information which Snowden has; nobody knows what Kind of Information this is, perhaps not even The (Manchester) Guardian, which broke the Story and has been continuing to develop it but all Indications are that it is considerable.

Snowden had originally wanted to go to Iceland but he appears to have changed his Mind and now wants to go to South America.  He seems to have been influenced in this Decision by Julian Assange, of Wiki Leaks.  Julian Assange himself has received Asylum in Ecuador but cannot get there; he is confined to the Ecuadorian Embassy in London.  Venezuela, Bolivia and Nicaragua (the Latter in Central America), seem to have offered him Asylum of one Sort or another but it is not easy for him to get there because any Commercial Flight might either have to fly through United States Air Space or be within reach of United States Jets which may force the Aircraft to land on United States Territory, thus effectively foiling Snowden's Escape.  There has been much made of the Fact that Snowden cannot fly because his U. S. Passport has been revoked; this Point is of questionable Validity because any Country which offers Asylum to Snowden can also issue a Laissez Passer (a simple Travel Document, literally meaning, let this Person pass).  People have and still do travel without a Passport (willingly and sometimes unwillingly) when extraordinary Conditions exist.

However, ultimately, we believe, the Fate of Mr. Snowden is not central to the Crux of this Issue.

So, moving on to the Second Aspect, it has been revealed that considerable Eavesdropping has taken place against Friends and Foe alike; Russia, Western European and South American Countries.  Many of these Countries are furious over the Revelations and demanding Explanations, which may be slow in coming.  This Issue, we believe, is not central to the Crux of the Issue, either.  Espionage has taken place since Time immemorial, both against Friend and Foe alike.  It is often a messy Business but everyone does it and everyone uses any and all Means at its Disposal to do it as best as possible.  Nearly all Countries, if indeed, not all Countries, conduct Espionage at some Level or another and, whoever is best at it comes up with the best Scoops.  Greeks did it, Persians did it, Romans did it, the French did it, moving along to more recent History, the Germans did it, the Allies did it and most certainly, the Chinese have done it all the Time and keep on doing it in the grandest of Styles.  So, while it may sound like a dirty Business and it is, everybody does it and, thusly, nobody should be surprised by it.  In the old Days, when caught, Spies were hanged or, as Things became more modern, shot; these Days, they are usually sent to Jail or traded for other Spies.  At Times, Spy Trade become a flourishing Business, actually (Take, for Example, the Case of former Russian Spy Anna Chapman-yes, she is Russian, who supposedly even offered to marry Snowden).

 

Former Russian Spy Anna Chapman who was „traded”

To the Question, what is the central Crux of this Issue, we believe, the Answer is simple:  based on Snowden's Revelations and other Information, one Needs to ask, what are the Powers and, indeed, the Boundaries of a Country (in this Case, the United States) to gather indiscriminate Information on most if not all of its Citizens.

http://nbcpolitics.nbcnews.com/_news/2013/06/09/18863448-lawmakers-americans-dont-know-how-carefully-the-government-is-watching?lite

It is also interesting to note the evolving Role not only of the NSA but also of at least one Private Corporation, Booz Allen Hamilton, which was (perhaps it still is) a noted Accounting Firm (in plain English, Bookkeepers, Beancounters), which has gotten into a Business which does not have much (if anything at all) to do with Accounting.  Sorta like Lawyers getting into Brain Surgery, one might say.

http://usnews.nbcnews.com/_news/2013/06/15/18940842-growth-of-intel-outsourcing-no-secret-but-now-congress-taking-notice?lite

http://usnews.nbcnews.com/_news/2013/06/11/18901089-leaked-secrets-pose-a-risk-for-booz-allen-where-secrecy-means-billions?lite

President Obama correctly pointed out that one has to strike a Balance between Security and Privacy; the Question is, if this vast amount of Information which is being collected from the American Public markedly increases the Security of ordinary Americans and if so, by how much.

Recent Experiences, those in Communist Countries and other Dictatorships indicate that ultimately, total (or nearly total) gathering of Information from the Populace can be a suffocating Experience.  According to the Explanations offered by James Clapper, the Information Gathering Activites of the NSA are not only legal but have been authorized by Congress.

Many disagree.  A Reading of Section 702 of the Foreign Intelligence Act,

http://uscode.house.gov/download/pls/50C36.txt

does not, we don't think, lead all of us to reach the same Conclusion which Mr. Clapper (and others), seem to have reached.  Many Congressmen were not familiar, if familiar at all, with everything that the NSA has been doing, even though Mr. Clapper assures us that every Member of Congress was debriefed on the Activites of the National Security Agency.

http://usnews.nbcnews.com/_news/2013/06/07/18827047-who-is-behind-the-snooping-and-how-long-has-it-been-going-on?lite

Of Concern are also the Activities of the FISA Court, the secret Federal Court to which the NSA goes for Approval, although, we assume that they did not even have to go to the FISA Court for the broad intercepting Activities which appear to involve a huge Amount (if not most) of all Telephone Conversations and eMails.

http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?nl=todaysheadlines&emc=edit_th_20130707

Constitutional Concerns have been raised on the Issue of the FISA Court (which most People did not even know existed, until recently), having non adversarial Proceedings and what Appeals, if any, can be made.

Of further Concern is the broad trawling of Data (which the Government calls Meta Data) which, as the Word Trawling suggest, is essentially nothing more than a Fishing Expedition.  The Concern has been expressed that if one can use the Constitution to justify that Type of Activity (the Process has not been subject to Constitutional Review), then a Lot of other Things could conceivably be justified which otherwise, one might have been reluctant to justify.

It should further be noted, in this Context, that, according to recent Polls, most American People oppose this Kind of Wholesale Data Gathering, Meta Data, Trawling, Fishing Expedition, whatever one ultimately calls it.

The Constitution of the United States is a wonderful Document; it was written more than 200 Years ago by some brilliant People who could not have possibly imagined what the Country they were founding will some Day look like.

Many have argued that the Constitution should be treated as a dynamic Document, which is to say, a Document which should be interpreted in accordance with the changing and evolving Conditions which prevail today.  That may be true; it may also be appropriate in many Instances; however, at the End of the Day, we are still left with that relatively simple Document; the Constitution of the United States and one should be careful, we believe, not to equate Dynamism with Evisceration.

The Defense of Marriage Act - Arguments before the Supreme Court

The Second Day of Arguments before the Supreme Court of the United States concerned the Defense of Marriage Act, which is a Federal Law.  This Case has nothing to do with the Right of Homosexuals (or Lesbians, or Transgendereds) to marry, rather, it was an Appeal from a Case called United States v. Windsor, a Case of a Lesbian Couple married in Canada but who lived in the United States.  Edith Windsor's Lesbian Spouse died and Windsor was faced with an Inheritance Tax on which the Internal Revenue Service refused to apply the Marital Exemption.  Windsor had married someone named Thea Clara Speyer in 2007.  Unfortunately for Windsor, Speyer was not poor and she also died Two Years after the Canadian „Marriage” thus exposing Windsor to a $ 360,000 Inheritance Tax Bill.

Windsor's Lawsuit and Appeals were based centrally, if not solely on this Ground:  $ 360,000.  Windsor got, obviously, a substantial Inheritance from Speyer, even after paying the Federal Inheritance Tax which, it must be noted, has been in Effect, until very recently, at Rates much, much lower than previously.

However, that appears to have been of little Consolation to Edith Windsor who wanted it all, meaning, the $ 360,000 which would have fallen under the Federal Inheritance Marital Exemption as well.

The Arguments by Donald Verilli, Solicitor General, arguing against himself (and the United States) and former Solicitor General Paul Clement, arguing, „on Paper” on Behalf of Congress, were varied.  The Supreme Court even appointed another Lawyer, Vicki Jackson, a Harvard Law Professor, to argue whether the Court even had Jurisdiction on the Case.  Ms. Windsor's own Lawyer argued for the Money.

So, the Bottom Line on the Case, for Ms. Windsor, anyways, distills down to the $ 360,000 and Sum which she may have easily spent on Lawyers so far and which may not recover (plus, likely, the $ 360,000 Inheritance Tax), unless she prevails, which she well may.

There is an Issue of Public Policy, however, which was not argued before the Court and which could not be argued, that being, in this Era of Crises where Loopholes in various Federal Tax Laws are being questioned, paramount amongst them, the Federal Inheritance Tax Loopholes, whether the overall Process of the Interest of the Nation is being pushed forward through the Inclusion of more People into the Loophole.

It seems the Case regarding the Defense of Marriage Act, United States v. Windsor, is basically about Money, in an Æra when the Federal Government should be (as it was) looking for every possible Source of Revenue, where consideration should be given to contracting rather than enlarging, Federal Revenue Gaps and Loopholes.

The Supreme Court - Oral Arguments on Homosexual Marriage - Addendum

Addendum:  One of our Readers brought up an interesting Point on our just prior Discussion regarding the Oral Arguments before the Supreme Court, the Questioning by Mme. Justice Sotomayor, Chief Justice Roberts and the Arguments of Attorney Theodore Olsen:

(This Line of Argument was not raised in the Exchanges between the Justices and Attorney Olsen but it would have been, we think, an interesting one)

OK, OK, Moslems...let's keep them out of the Discussion for the Moment but how about the Mormons?

Do States have a Right to restrict Mormons from their „Freedom of Religion” and prohibit Marriages to multiple Spouses?

Then, see Mr. Olsen's Reply to Justice Sotomayor and Justice Roberts' Questioning which begs the Question, why Mormons would be denied their „Constitutional Right” to „Freedom of Religion” by getting married to 3, 6, 12, 16 or Goodness knows to how many Spouses...

Notes:  Mormons are one of the largest, the fastest growing and the richest Religious Denomination in the United States.  Mormon Churches have $ 60 Billion in Cash Assets in the Bank.  Nowhere near enough to eliminate the Federal Deficit, but still...

All States have Legislation which outlaws Multiple Spouses.  None of these Laws has been found to be unconstitutional.

The Supreme Court - Oral Arguments on Homosexual Marriages

On Tuesday the Supreme Court of the United States heard Oral Arguments on one of the two Cases on the Issue which the Court agreed to review; today's Arguments were on the California Initiative (Proposition 8) prohibiting Homosexual Marriages which was ruled invalid by lower Federal Courts.  The Pressure on the Court in recent Weeks to issue a Finding that any Prohibition on Homosexual (i. e., Gay) Marriages is unconstitutional has been enormous. 

The Arguments and Questioning by the Justices were often amusing; there was Laughter in the Court on more than one Occasion.  We would like to focus on one such Instances which, despite being amusing, raise relevant Issues.

The Issue that caught this Column's Attention is Polygamy.

Essentially, if the Argument against a Prohibition against Homosexual Marriages is to be equated to similar Arguments against miscegenation, for Example (which were ruled unconstitutional by the Court), then, well, then, here is an Exchange between Mme. Justice Sotomayor and Attorney Theodore Olson:

Mme. Justice Sonia Sotomayor

Sotomayor: If you say that marriage is a fundamental right, what state restrictions could ever exist?

Olson: "Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status."

 

Attorney Theodore Olsen

which then allowed Chief Justice Roberts to raise the Issue of the Definition of Marriage, the „Label:”

Roberts: “So it's just about — it's just about the label in this case.”

Olson: “The label is — ”

Roberts: “Same-sex couples have every other right, it's just about the label.”

Olson: “The label ‘marriage’ means something. Even our opponents — ”

Roberts: “Sure. If you tell — if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that's it seems to me what the — what supporters of Proposition 8 are saying here. You're — all you're interested in is the label and you insist on changing the definition of the label.”
Olson: “It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical.”

 

Chief Justice Roberts

The above Exchanges expose, rather than resolve, the Difficulties of the Issue of Homosexual Marriages.

What would be the Consequences of the Ruling by the Supreme Court, no Matter in which Direction it goes (some are suggesting that the Supreme Court is tending towards as „narrow” Ruling) to, say, Muslims in the United States, which is soon becoming a „Multi-Culty” Society, for wanting to exercise their Religious Right to Polygamy?  Would a Denial of the Right of Muslims to engage in Polygamy be a Denial of their Right to freely exercise their Religion?

The Issue is complex, difficult and will hang as a Damocles' Sword over Generations yet unborn; certainly this is going into uncharted Waters, as many Things seem to be doing these Days; the Challenges that the Supreme Court is facing in coming down with a Decision on this Case are immense and burdensome; burdensome on future Generations; Things are not as simple as Mr. Olson, who has switched Positions and Affiliations with ease in his Career, would have us believe they are.