A Crisis of Both Justice and Civic Friendship

Even though the Mueller report seemed to bring an end to the long investigation of the 2016 Trump campaign for something that is not even a federal crime—collusion—the left can’t seem to let it go. Even though they expressed full confidence in Mueller as the investigation went on, they suddenly began to question his credibility after the report seemed to exonerate the campaign and President Trump from wrongdoing. The Democrats in the House of Representatives are proceeding with new investigations; after all, it just couldn’t be that Trump and his crew weren’t guilty. Almost from the beginning of his administration, Democratic spokesmen have invoked the specter of impeachment.

This entire collusion episode has raised troubling questions concerning the state of the American political order and federal law. First, despite an exhaustive investigation of Trump and his people, for which there may not even have been probable cause to begin with, the congressional Democrats continue their effort to oust a duly elected president. While the grounds for impeachment were much debated during Watergate in the 1970s, it does not appear that criminal behavior is constitutionally required to initiate proceedings although in practice this is the prerequisite. Nevertheless, the Founding Fathers hardly viewed impeachment as a means to circumvent the results of a presidential election. While this seemed to be the left’s objective from the beginning, their persistence after the Mueller report doesn’t leave much doubt. It seems as if they are aiming for something approaching the functional equivalent of a coup d’état. At the very least, they seem to be challenging the legitimacy of Trump’s election with the justification that Hillary narrowly won the popular vote. This is irrespective of the fact that the Constitution makes the Electoral College vote and not the popular vote determinative in selecting the president. In fact, the main body of the Constitution doesn’t even mention a popular vote—and Trump won the electoral vote convincingly.

It wouldn’t be surprising that the left wants to oust Trump from office, irrespective of constitutional considerations. It has long showed itself willing to deviate from or twist constitutional principles to achieve its ideological objectives. Where, for example, does the Constitution, or the historical or common law background that undergirds it, say anything about a right to abortion or even to privacy? Apart from ideology, the left’s persistent assault on the Trump presidency suggests the even baser objective of gaining power at any cost.

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It’s not just Trump whom the left wants to illegitimately remove or exclude from federal office. Despite the thorough investigation of the claims against him during his confirmation—claims which turned out to be false—the congressional Democrats are talking about impeaching Supreme Court Justice Brett Kavanaugh. Again, the lack of evidence doesn’t matter. This means that the guiding principle of our entire legal tradition of not sanctioning anyone in the absence of evidence—“innocent until proven guilty”—can be disregarded in the cause of ideological and policy objectives. This sounds disturbingly similar to the doctrine of “socialist truth” in Marxist ideology: something is true if it helps further the cause of bringing about the Revolution. The congressional left’s readiness to discard constitutional provisions when it suits them has been further witnessed by their challenging judicial nominees like Amy Coney Barrett on the basis of their religious background despite the Constitution’s prohibition against religious tests for federal office.

What seems to have distinguished the Democratic Party in Congress in recent years is its almost reflexive—and, it seems, completely unreflective—attachment to leftist principles and positions (or at least the positions determined to be leftist by the interest groups who now form the backbone of the party). Thus, only a few congressional Democrats now can be said to be pro-life. There used to be a time when compromise was the order of the day in Congress, especially in the Senate. One now looks long and hard for compromise in an increasing number of issue areas. The Democrats seem to care little that their absolutist, ideologically grounded positions—which often go contrary to basic morality—deepen the divisions that tear at American political society. They should consider what Aristotle asserted long ago about the need to sustain a community of friendship. As important as maintaining conditions of justice are for good political order, he understood that they are not sufficient. Justice can sometimes have a hard edge, as can be witnessed in all too many Third World countries where a group that had long been in power and oppressed the other group is ousted, and then the previous out-group gets control and seeks to punish, even if legitimately, its former oppressors. They overreach and themselves violate justice and the oppression is then directed in the other direction, and so on. There is no serious effort to forge civic friendship. In the case of what we witness of the American left today, however, there is not only a lack of a concern for civic friendship and charity, but also a fractured notion of justice.

The left needn’t even look to Aristotle to see the danger. A simple check of American history is easily illustrative. In the decades before the Civil War, the slavery issue heated up and public sentiment grew increasingly rigid and uncompromising; the deepening national division finally led to war. This happened when the disagreement did not involve principles as numerous or as fundamental as those causing today’s divisions. One wonders if such developments as the Antifa attacks on peaceful demonstrators, the Charlottesville confrontation, the violence on campuses against conservative students, and the shooting of Congressman Scalise are not harbingers of spreading civil disorder and violence.

As far as justice is concerned, the whole Mueller investigation highlights the extent to which it has been compromised in American law. As has often happened with special prosecutors, they range over matters beyond what they were charged with investigating. Thus, we saw people charged with several other offenses, most notably the dubious one of lying to federal investigators. We also saw a number of people under investigation copping a plea to a lesser offense in the face of the threat that they would be hit by big charges with massive penalties if they did not. Such prosecutorial tactics arguably aim more at showing that their investigation has been successful and their expenditures justified than they are at insuring that justice has been done. Indeed, racking up indictments seems more important to some prosecutors than the pursuit of justice mandated by the ABA ethical code of conduct. Unfortunately, this has become the way things are done among prosecutors nowadays, especially federal ones, as has been amply demonstrated by such writers as Paul Craig Roberts, Lawrence Stratton, and Judge Andrew Napolitano. These abuses have been committed on the left and the right. It is worth noting how some of the biggest opponents of criminal justice reform include political conservatives. The current proposals fall far short of what is needed: a wholesale reassessment of the U.S. Criminal Code.

We are witnessing the breakdown of both justice and civic friendship in contemporary America—those twin pillars that Aristotle said were needed for a good political order. The absence of either in a pronounced way—to say nothing of both—does not portend well for our future.


  • Stephen M. Krason

    Stephen M. Krason is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists.

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