Presidential immunity and the 'Dark Age Ahead'

When author Jane Jacobs published Dark Age Ahead in 2004, she was already seeing the signs of a dark age emerging. The prerequisites for such an age are a relentless decline in accountability and transparency across society. The most troubling sign of such a decline is not that we forget how to structure and run a robust society, but that we forget that we forgot. In such a case there is no attempt to rediscover the pillars of a healthy polity because there is no memory that there ever was one.

Last week at the U.S. Supreme Court lack of accountability and forgetting that we have forgotten seemed to be on display during oral arguments regarding whether a U.S. president should be immune from criminal prosecution after the president leaves office. (U.S. Department of Justice policy already forbids prosecution of a sitting president.) At least some members of the court seemed to forget that they forgot that no president of the United States has ever before been criminally prosecuted, that is, until now. Presidential immunity is a solution looking for a problem that has simply not existed historically. There has been no rash of prosecutions of former presidents that needs to be addressed. The universe of problem presidents is one in 235 years. One justice opined that the Court in making its decision would be "writing for the ages." If only this justice and some of the others knew something about "the ages" for which they are writing.

As many commentators registered shock that the Supreme Court is entertaining the possibility that the U.S. president ought to have immunity from criminal prosecution even after leaving office, they were missing the overall context. Many presidents of the United States have successfully avoided accountability for illegal acts performed while in office and probably will in the future. President Richard Nixon's Watergate scandal comes to mind. Nixon, of course, was pardoned by his successor, Gerald Ford before Nixon was ever indicted. President Ronald Reagan's Iran-Contra Affair is another example. The independent counsel in the case concluded there was not sufficient evidence to charge Reagan.

Lincoln's Emancipation Proclamation, a war-time measure to undermine the Confederacy, violated the U.S. Constitution which recognized slavery as legal and slaves as a form of property. In essence, the Emancipation Proclamation was illegal. But today Lincoln is considered a hero. (It's worth noting that the proclamation did NOT free all the slaves, only those in states that were on that date still "in rebellion.")

More than 70 years later Franklin Roosevelt got a significant head start in sending aid to the British before the United States entered World War II and before Congress passed the Lend-Lease Act in 1941. During a press conference in which Roosevelt signed that act, a reporter asked Roosevelt if it was fair to say that equipment was already on its way. Roosevelt, who had been sending voluminous aid to the British even before he signed the act, replied, "We work fast, but there are limitations." Roosevelt was violating the law and lying about it. But, given what followed, that violation never became an issue.

All of these presidents knew that they were subject to criminal law and acted out of the conviction that what they were doing was for the greater good of the country (even if they were deluding themselves). You can agree or disagree with their assessments, but possible legal jeopardy did not prevent them from acting. It seems to me that it's a good thing that presidents should have to have strong convictions that what they are doing is absolutely necesssary before undertaking actions which could result in a criminal charge.

Which brings us back to what exactly the Supreme Court was doing last week. For those at the highest reaches of commerce, (corporatized) science, and major professions—as well as for politicians elected from hopelessly gerrymandered districts—accountability and transparency has all but disappeared. In this environment, the ethics-challenged Supreme Court is inviting presidents, past, current and future, to join a club that members of the court are already in, an elite club of leaders in American society who are almost entirely unaccountable. If the Supreme Court can be in the club, why shouldn't the president? The fact that some members of the court cannot see that this is what is happening is a testament to how accustomed those members have become to being unaccountable. These self-styled philosopher-kings believe it was ever thus ordained to be this way.

At the end of Dark Age Ahead, Jane Jacobs writes: "In cultures so deteriorated that nurturing and educating are in short supply, most of the intellectual and other advantages become reserved for an elite." Earlier in the book she points to how our educational institutions now focus on "credentialing" rather than educating. Efficiency in education and everything else is the watchword. The failure to provide multiple layers of nurturing (which is "inefficient") makes it impossible to reproduce the complex culture required for a stable accountable democratic society. The core value of such a society, Jacobs believes, is Lincoln's fervent prayer in the Gettysburg Address: "that government of the people, by the people and for the people shall not perish from the earth."

That sounds like accountability and transparency to me—and a recipe for avoiding the total eclipse of a democratic culture which took two centuries to build in the United States and elsewhere. Lamentably, that spirit is perishing right before our eyes in the very courts of justice meant to protect it.

Kurt Cobb is a freelance writer and communications consultant who writes frequently about energy and environment. His work has appeared in The Christian Science Monitor, Resilience, Common Dreams, Naked Capitalism, Le Monde Diplomatique, Oilprice.com, OilVoice, TalkMarkets, Investing.com, Business Insider and many other places. He is the author of an oil-themed novel entitled Prelude and has a widely followed blog called Resource Insights. He can be contacted at kurtcobb2001@yahoo.com.