Making America a banana republic

Americans like to boast that the U.S. is a nation of laws, but, to some extent, that has always been a myth. The past three years, that notion has been dying rapidly because of the actions of Trump and his Republican enablers to undermine the judicial system and the U.S. Constitution. In recent days, Attorney General William Barr has given it the coup de grace. 

Right wing strategist Frank Luntz was once asked to create a special dictionary “to help Republicans channel the anger on the ground into a lexicon to help them pass tough law enforcement legislation without provoking a Latino backlash.” He explained how he advised Republican legislators  to address the issue of illegal immigration during debates in 2007: “Respect for the rule of law is a core fundamental American principle. A nation that either cannot or will not enforce its laws–including immigration law–is inviting abuse of ALL its laws.” 

So Republicans pay lip service to the notion, but when it comes to actually respecting the rule of law through their actions, they revel in cynicism. The same can be said for their preachings on “national security” and respect for the Constitution, as proven by their indifference toward the findings of the intelligence agencies about Russian interference and their sham trial of the president.

Last week we witnessed the figurative castration of a whole class of lawyers charged with enforcing the law throughout the United States. Barr decided to intervene in the Roger Stone case and change the government’s recommendation of 7 to 9 years in prison to “far less” than that, without specifying a time period and leaving it up to the judge. That’s not a joke, it’s what the government asked for in a four-page deplorable submission that replaced a 26-page carefully crafted memorandum of law substantiating the government’s original request, which followed the federal sentencing guidelines. Of course a sentence in federal court is always up to the judge. Such a request was only a not so subtle way of attempting to hinder the administration of justice. 

Keep in mind that Stone was convicted by a jury of seven felonies for obstructing Congress’s investigation into Russian interference in the 2016, election, lying under oath, and witness tampering. And when his crimes were revealed by the indictment in his case, he displayed contempt for the Court and the rule of law. He also violated gag orders–twice–and even invited violence against the judge by posting to his Instagram account a photo showing the crosshairs of a gun sight near her head.

As a consequence of the unprecedented U-turn by the Department of Justice, four prosecutors suddenly withdrew from the case of President Trump’s close friend after senior Justice Department lawyers substituted the original sentencing recommendation for the crimes Stone committed to protect the president. One of the prosecutors resigned from the department altogether. These lawyers took principled stands and run a serious risk of retaliation from Trump, who is often driven by a desire for revenge.

When Barr decided to cross this line, the nation reached a tipping point. The judicial system is not just “threatened”; it is damaged – maybe irreparably. The American people have not yet absorbed the enormity of what transpired. We are no longer a nation of laws instead of people.

In the meantime, Trump continues his assaults and insane accusations against judges at all levels, including in the Roger Stone case, and the government’s investigative agencies, such as the FBI and CIA. 

Both forms of behavior are typical of authoritarian regimes. We in the U.S. are not in a slippery slope; we have lost our footing completely. Take it from judge Reggie Walton, who compared White House involvement in an investigation of former FBI Deputy Director Andrew McCabe to the actions of a “banana republic,” and accused people “at the top” of undermining the integrity of the judicial process. McCabe had been left in limbo for two years waiting for a decision by the Justice Department on whether to prosecute him for allegedly lying to investigators about a media leak. 

McCabe took over as acting FBI director after Trump fired James Comey, and the FBI was investigating the Trump campaign’s ties to Russia. McCabe quickly became a target of attacks by Trump, as well Fox News, and was fired from his post in early 2018 by then-attorney general Jeff Sessions, just hours before the 21-year FBI veteran was set to retire and become eligible for a full pension.

McCabe was informed Friday of the DOJ’s decision that criminal charges would not be filed. McCabe called the decision a tremendous “relief” in an interview on CNN, but slammed the DOJ for taking two years to reach an “obvious conclusion.” He opined that the announcement may have been intended to calm the controversy over Barr’s recent meddling in other cases.

Among other instances of recent meddling in sensitive national security and public corruption cases is that of Michael Flynn. Barr has ordered a review of the case against Trump’s former national security adviser, who initially pleaded guilty to lying to investigators about his communication with Russian Ambassador Sergey Kislyak before Trump was sworn into office. Flynn withdrew his guilty plea last month as he also awaited sentencing, perhaps anticipating outside help.

It has also come to light that James Comey is under investigation for potential charges concerning alleged leaks, and Trump could not resist commenting on his case. When the New York Times published a story about it, Trump retweeted approvingly. Later, Trump said Comey “lied to Congress and did so many other bad things.”

There is also the case of Tony Podesta, the chairman of the Podesta Group and the brother of John Podesta, who was Hillary Clinton’s presidential campaign chairman. Two lobbying firms connected to Podesta were being investigated for possibly failing to file Foreign Agents Registration Act reports for their work on behalf of Ukraine. As the Justice Department scrutinized his overseas activities, Trump repeatedly claimed he was guilty. “Why hasn’t the Podesta brother been charged and arrested, like others, after being forced to close down his very large and successful firm?” he asked in a tweet. In September 2019, his case was closed with no charges just like McCabe’s, demonstrating that Trump is not always successful in sabotaging the wheels of justice when the accusations are totally baseless.

Meanwhile, after Trump beseeched the Justice Department to probe the origins of the Russia investigation, Barr appointed U.S. Attorney John Durham to do so even though former attorney general Jeff Sessions had brushed aside the underlying conspiracy theories. According to the New York Times, Durham appears to be “hunting for a basis to accuse Obama-era intelligence officials of hiding evidence or manipulating analysis.” He also appears to have gone on a multi-national mission to look for dirt on the Bidens, continuing the discredited work of Rudy Giuliani on behalf of Trump. 

Trump has also interfered in the Paul Manafort case repeatedly, denouncing the supposedly bad treatment of his former campaign chairman. “It’s very sad what’s happened to Paul, the way he’s bring treated,” Trump once said. “I’ve never seen anybody treated so poorly.” Trump also alleged falsely that his former personal attorney Michael Cohen made up stories about him to get a more lenient prison sentence. All of that happened while those cases were ongoing.

There are many more examples of Trump and Barr working in tandem to persecute the president’s perceived enemies and protect his friends who have run afoul of the law, and also to issue pardons or commute sentences for individuals convicted of crimes that he likes. Most recently, he commuted the sentence of Rob Blagojevich, whose crime – trying to sell Barack Obama’s vacated senate seat – epitomizes the corruption that Trump had said he wanted to tackle as president; Bernard Kerik, the former New York City police commissioner who was convicted of tax fraud and lying to the government; and Michael Milken, the investment banker convicted  of securities fraud.

In a recent opinion piece, Washington Post columnist Max Boot quotes Montesquieu: “The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy.” Boot fears we are seeing Montesquieu’s warning come true. “President Trump is increasingly acting as a tyrannical (and erratic) prince. And yet much of the public is so inured to his misconduct that his latest assaults on the rule of law are met with a collective shrug. Public passivity is Trump’s secret weapon as he pursues his authoritarian agenda.” Trump says he has the right to do whatever he wants, and there hasn’t been much pushback.

Until now, only a handful of lawyers and public officials had resigned or spoken out against these abuses. A group of federal judges is taking the initiative and called an emergency meeting on Tuesday to address growing concerns about interference by the Justice Department and Trump in politically sensitive cases. Philadelphia U.S. District Judge Cynthia Rufe, who heads the Federal Judges Association, said the group “could not wait” until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and William Barr. “There are plenty of issues that we are concerned about,” Rufe told USA Today. “We’ll talk all of this through.”

In addition, more than 2,000 former Justice Department officials who served in Republican as well as Democratic administrations have signed a statement as of Wednesday calling on Barr to resign. “Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words. Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign. But because we have little expectation he will do so, it falls to the Department’s career officials to take appropriate action to uphold their oaths of office and defend nonpartisan, apolitical justice,” the officials wrote in a statement first published Sunday.

“And the public?” Max Boot asks. “I don’t see massive marches in the streets. I don’t see people flooding their members of Congress with calls and emails. I don’t see the outrage that is warranted — and necessary. I see passivity, resignation and acquiescence from a distracted electorate that has come to accept Trump’s aberrant behavior as the norm.”

What else do we need to qualify as a banana republic?

Amaury Cruz is a writer, lawyer, and political activist from Miami Beach. He has a bachelor’s degree in Political Science and a Juris Doctor.