William B. Turner
It’s as predictable as clockwork. The guy who is mostly responsible at this date for the deep partisan divide in our political culture, Newt Gingrich, is on Fox News revisiting his greatest hits of irresponsibility by denouncing the FBI raid on Michael Cohen as “Stalin, gestapo in Germany.”
In case you missed it, the US attorney’s office for the Southern District of New York, after the U.S. attorney himself, a Trump appointee, recused himself, sought and secured the signature of a federal judge, also a Trump appointee, on a warrant before instructing the FBI to conduct the raids.
Were those raids extraordinary? They were. Stunning. Lawyers defend vigorously the principle of attorney-client privilege and the less well known attorney work product doctrine, which functions in essentially the same way in this context, as a rule that prohibits law enforcement officers or court officials from looking at any documents an attorney creates as part of defending a client. One of the most important concepts in U.S. law is due process. The idea is that anything government does that harms a citizen has to go through a well established, public process so we can all be sure that the decisions are as valid as they can be. The Constitution guarantees representation by counsel to criminal defendants. Part of that counsel is the right to attorney-client privilege.
This is not a small thing.
But neither is a sitting president locked into an arbitration battle — which assumes by definition that some contract existed — with a porn star over the question of his having had an affair with her, then paying hush money to keep her silent in the weeks before the election he won to become president. That is the primary issue the U.S. attorney was investigating in conducting the raid, although they may well have had evidence of other criminal activity.
No right is absolute. One can critique this principle, as an anarchist, or even possibly as a libertarian, but the simple fact is that the state is the state and ultimately its logic will out. In our Lockean republic, we want government to be not too strong, but strong enough. That is the balance the Founders were aiming for with the Constitution. We will likely argue among ourselves as long as we use this Constitution about whether any given action by the federal government is an excessive exercise of power.
But the attorneys and the FBI agents who conducted the raids on Cohen plainly complied with the plain language of the Constitution, which reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This is a fundamental element of due process.
Gingrich made his name as a thrower of partisan bombs when he was a member of the House of Representatives. He was sort of like Steve Bannon before Bannon became famous, and he made a lot more progress in pursuing his nefarious agenda than has Bannon so far. Gingrich hit the apogee of his partisan viciousness as Speaker of the House with the ridiculous impeachment of Bill Clinton. No one denies that Clinton’s behavior was impossibly tawdry and unbecoming.
Only several years later did the full hypocrisy of the Republicans become known. Gingrich would admit that he was engaged in an extramarital affair as he was pursuing the impeachment of Bill Clinton. After the 1998 elections went badly for the Republicans, Gingrich resigned from Congress and Bob Livingston became Speaker. Livingston then resigned on the day they voted to impeach Clinton because of information about extramarital affairs he had had. Dennis Hastert then became the Republican Speaker of the House.
Not until 2015 would Hastert undergo indictment and plead guilty to violating banking laws as he tried to come up with money to pay off a former student he had molested during his days as a school teacher.
Guilt is individual. Clinton, Livingston, and Hastert are each responsible for his own crimes and indiscretions. Gingrich, on his third marriage, however, can stand as the emblem for Republican hypocrisy and irresponsibility over the past twenty years at least. We can perhaps regard his recrudscence at this moment as an indicator of desperation among Republicans and “conservatives” who are in mortal fear of having their entire political and policy scheme of forty-five years blow up in their faces because it finally came perilously close to fruition.
This tale is truly an epic tragedy, in which the seeds of destruction lay always dormant in the identities of the major characters and in the pernicious quality of their nefarious ideas.
Gingrich is back to his hideously irresponsible, hyper partisan ways with his comments about the Cohen raids. One might be tempted to try to shame him, but he is obviously utterly shameless.