A Commission to Investigate Presidential Crimes is a Terrible Idea
History shows Rep. Swalwell’s proposal would hinder justice rather than render it.
On August 15, Democratic Representative Eric Swalwell of California proposed, through the medium of (what else?) Twitter, that after the election a "Presidential Crimes Commission" should be created to investigate the manifold derelictions of Donald J. Trump, including "[s]abotaging the mail to win an election." He evidently regards this idea as a bold and meaningful innovation: "I don't say this lightly."
Why is this a bad idea?
Swalwell appears to be an able and articulate House member and has managed to snare at least his share of TV time on the cable news shows. A congressman since 2012, he is not a neophyte, and his membership on the intelligence and judiciary committees ought to make him knowledgeable about possible law-breaking by Trump.
But a commission? That is a half-step stronger than demanding that someone conduct a study. I don't question Swalwell's motives, but I think that somewhere along the line this sort of action would result in the usual suspects subverting the commission's intent. Based on my own experience in government, the preferred modus operandi of high-profile commissions is to contain public anger and distress rather than get at the truth.
It is not an exaggeration to say that the art form of the classic Washington commission is this: create a ballyhoo through public relations, appoint grave and unimpeachably bipartisan grey eminences as commission members, count on said members, who really don't want to upset the system, to conduct a coverup disguised as an expose, replete with stern warnings over the small details of skullduggery that divert attention from the greater misdeeds they ignore.
Maybe it doesn't have to be that way, but it generally is, as exemplified by three of the more famous commissions in the last several decades: the Warren Commission, the Tower Commission, and the 9/11 Commission.
The Warren Commission is, of course the granddaddy of all modern commissions, as well as their prototype. We now know that Lyndon Johnson, who proposed the commission, never intended it to uncover the truth, wherever it might lead, about John F. Kennedy's assassination in Dallas. He planned for it to squelch any popular belief that the Soviet Union or other powerful entities might have played a role.
The chairman, Chief Justice Earl Warren, was not particularly enthusiastic about his task. Neither was Senator Richard Russell (D-GA), who demonstrated his reluctance to the president strongly enough that Johnson gave him "the treatment" (LBJ's patented application of pleading, cajoling, and bullying) to make him say yes.
But for another member, recently fired CIA director Allen Dulles, there was no such reluctance. To say that Dulles was a fox in the hen house is an understatement: more like a ravenous Bengal tiger.
Hence the Warren Report: its conclusion, that Lee Harvey Oswald was the shooter and acted alone, was almost certainly true on the first count and very likely true on the second. But it ill-served the public with its refusal to say anything substantive about the manifest failure of the government to prevent the assassination.
If these sorry precedents are not enough, the very concept of a commission handling what should be a judicial proceeding is a fundamental indictment of equal justice on America.It glossed over the incompetence of the Secret Service, whose agents were out getting drunk the evening before the assassination rather than taking steps to secure Kennedy's route through town. And it was silent about the CIA's contacts with Oswald. Even worse, Dulles' presence ensured that the quarrel between the CIA and J. Edgar Hoover's FBI, which amounted to a vicious subterranean war, remained buried. This crippling of intelligence-sharing over bureaucratic turf may have helped lead to Kennedy's death, certainly ill-served the public, and the CIA-FBI rivalry later blew up into a subplot of the Watergate scandal.
It wasn't long before the report's incompleteness fed, rather than prevented, the same conspiracy theories that LBJ hoped to squelch; the presence of Dulles alone would guarantee that. In the ensuing decades the Kennedy assassination spawned a cottage industry of "buffs" who theorized that the assassins were Cubans, Soviets, the CIA, the Chicago mafia, Texas oil men, the Corsican mob - anybody but Oswald! Critiques of the report became the gateway drug for conspiracy-obsessed paranoiacs to this day, culminating in QAnon. (and not just symbolically: the QAnon faithful believe Kennedy's son did not die in a 1999 plane crash, but is living in Pennsylvania and is a Trump supporter).
The Tower Commission of 1986-1987, named after its chairman, former Senator John Tower (R-TX), was supposed to investigate the covert arms sales to Iran and transfer of the proceeds to the Contra rebels in Nicaragua. Bear in mind that selling armaments to Iran (including TOW antitank missiles, a state-of-the-art guided weapon at the time) was a serious breach of the Iran embargo, and the delivery of arms to the Contras was a flagrant violation of the Boland Amendment. As such, both were impeachable offenses, and Ronald Reagan's presidency was in jeopardy.
The commission opted for what has become a classic commission gambit. Rather than report on potential law-breaking, they focused their stern, admonitory language on bureaucratic process. Like processed cheese, a "process"-oriented commission means you're not getting the real thing. The members professed to be stunned that "no one was in charge," and recommended a rewired White House with a reformed National Security Council and a new presidential chief of staff.
It was designed to get Reagan off the hook for the price of a couple of staff sacrificial lambs. But even if it were true that Reagan was unaware of the arms deal, it still meant he was incapable of seeing that the laws were faithfully executed. Such negligence is in itself impeachable. But as we know, Reagan skated, and the parallel joint congressional Iran-Contra committee was as feckless as the Tower Commission. They both helped establish the precedent for institutional tolerance of a lawless presidency -- the very thing that concerns Mr. Swalwell.
Last, the 9/11 Commission. For it, the powers-that-be hauled Lee Hamilton, a retired congressman, out of mothballs to be co-chairman with ex-New Jersey governor Thomas Kean. By an uncanny coincidence, fifteen years before, he had been co-chair of the Iran-Contra committee. If that suggests something was rigged, it was confirmed by the resignation from the commission of former senator Max Cleland (D-GA), who maintained that the White House was stonewalling and the commission itself was compromised.
And so it was. As a national security staffer on Capitol Hill at the time, it was my job to minutely examine the proceedings. I remain convinced that at least two high administration officials perjured themselves blatantly enough that the commission should have referred them for possible prosecution. The commission did no such thing.
Instead, it wrote a masterful report in riveting language that had everybody looking in the wrong direction. Once again, it was a process issue: the intelligence agencies didn't talk to each other, nobody pushed the warning up high enough, and so on. So they recommended the reorganization of the intelligence community and the creation of the Department of Homeland Security.
As several former DHS employees have told me with some bitterness, the agency is a bureaucratic nightmare that was less than the sum of the predecessor agencies that went into forming it. We now waste tens of billions per year as an alibi: a flimsy excuse to disguise a failure of policy at the top as a failure of the intelligence process.
For the failure was at the top. As his administration began, George W. Bush and his cronies, like Donald Rumsfeld and Condoleezza Rice, were basically bored with terrorism, and chose to set their sights on a peer competitor like China. Thus the multiple occasions that the subject of al Qaeda was brought up to Bush and senior officials but ignored, culminating in the now-infamous August 6, 2001 president's daily intelligence brief titled "Bin Laden determined to strike in U.S." Bush would rather cut brush and go golfing than attend to his duties.
The tragedy extends beyond the lives needlessly lost in the attack, and even beyond the countless casualties, both our own and others, wrought by our idiotic revenge in the form of an attack on the wrong country. It created a veritable deluge of conspiracy stories about the attacks being an inside job by the U.S. government itself, each more lurid than the last. Given the report's conclusions, this probably was inevitable.
A lot of ordinary people thought something smelled fishy. And they were right. By failing to highlight malfeasance at the very top (which amounted to a grossly negligent failure to protect the American people, itself potentially impeachable), the 9/11 Commission not only hung the millstone of DHS around our necks but also opened the door for "alternative" explanations that seemed more psychologically satisfying than re-wiring an organizational chart. As such, 9/11 and its "official" explanation represented another milestone in America's descent into lunacy.
Hence bizarre conspiracy theories involving everything from the conjecture that the airliners people "saw" hit the Trade Center were actually a laser-projected image, to "proof" that the Boeing 757 that slammed into the Pentagon was a cruise missile. A year ago, one conspiracy buff at a political dinner got so animated explaining the melting point of the steel in the Trade Center's girders to me (an involuntary listener), that she spilled a glass of red wine on my suit.
If these sorry precedents are not enough, the very concept of a commission handling what should be a judicial proceeding is a fundamental indictment of equal justice on America.
I have argued elsewhere that there are three tiers of law in America. The majority of us, the middle class, receive the letter of the law. Thus we do not skate free, but generally, we are not railroaded, either. The downside, of course, is the exorbitant cost of the American legal racket: average salary-earners may exhaust all their financial assets obtaining counsel sufficient to find vindication. How is that functionally different from a third-world country where one must pay a hefty bribe?
The George Floyd case brought home to us that the poor and designated out-groups are frequently beneath the law. Here the Wild West prevails, with legal safeguards hardly above the level of foreign nationals in proximity to one of our overseas drone strikes. If persons driving with a broken taillight are pulled over and must consider the small but non-negligible odds that they might not survive the incident, law ceases to have meaning.
The rich? The well-connected? Occasionally one gets bagged for PR purposes (think Martha Stewart as a scapegoat for the complete impunity of Wall Street), but this is vanishingly rare. They can afford the best counsel, can always make bail, and are in any case more indulgently treated, particularly for corporate crimes. In case of conviction, there is usually monitored home detention, which sure beats Riker's Island.
And for the ultra high-ups, there is the commission, which allows them to avoid the actual legal proceedings the rest of us face, because after a mandate of months or years and the commission's bogus "verdict," the psychological steam has dissipated from any desire to prosecute. That is, if there ever was any desire: The Justice Department's guideline for not indicting a sitting president has no standing in law, but prosecutors obey it with the same reverence as a New Guinea highlander observes a taboo. Any day now, I expect the guideline to sprout a penumbra declaring that former presidents cannot be indicted, either.
Commissions cannot solve the reluctance of the establishment to bring high-level criminals to book; they are a diversion from this fact. Mr. Swalwell may have the best intentions, but we all know what the road to hell is paved with.
