GateHouse: How low can we go?

Matthew T. Mangino
GateHouse Media
October  14, 2016

The outcome of the presidential election on Nov. 8 will likely have an impact on the United States Supreme Court for decades. The death of Antonin Scalia leaves the court equally divided on ideological lines. Two justices, Ruth Bader Ginsburg and Anthony Kennedy are 83 and 80, respectively.

Judicial appointments ought to have emerged as a leading campaign issue. The next president, through the nomination process, can have a huge impact on campaign financing, abortion, health care and the future of criminal justice reform. Yet the nomination of justices has generated little interest, even though voters have had a firsthand look at the potential battles on the horizon — the GOP senates refusal to move on President Obamas nomination of Merrick B. Garland to replace Scalia.

It is not that voters are only ignoring the importance and impact of the high court, this campaign has turned on its head everything we’ve come to expect in a race for the White House. Fifty years ago, Richard Nixon was maligned by the media for perspiring during his debate with John F. Kennedy. George H.W. Bush was ridiculed for looking at his watch and Al Gore was slammed for rolling his eyes when his opponent George W. Bush tried to make a point.

Flash forward to Sunday night, Donald Trump turned his back to the camera; stalked his opponent around the debate stage; and went so far as to call Hillary Clinton the devil and threatened, as president, to put her in jail.

Politics has, at times, over the centuries been rough and tumble. Lest we forget, Vice-President Aaron Burr murdered former Secretary of the Treasury Alexander Hamilton; Riots marred the 1896 election between William McKinley and William Jennings Bryan and the 1968 race between Richard Nixon and Hubert Humphrey; not to mention Andrew Johnson’s impeachment after the Civil War; Nixon’s resignation and Bill Clinton’s impeachment and senate trial.

Setting aside the fact that Trump’s threat to investigate Clinton, if elected, is the stuff of dictators and despots; can he really order his attorney general to investigate Clinton? Well if his AG is Chris Christie probably, anyone else unlikely.

As a result of Watergate, Congress passed the Ethics in Government Act (EGA) which for the first time defined procedures for the appointment of a special prosecutor. Specifically, the Act provides that upon receiving allegations relating to specifically enumerated officials, the AG is required to conduct a preliminary investigation. If the preliminary investigation suggested that further investigation is warranted, the AG is required to petition a three-judge panel established by the statute known as the “Special Division,” to appoint an independent counsel.

According to the Washington Post, the EGA came about as a result of Nixon’s “Saturday Night Massacre.” In 1973, Nixon fired Watergate Special Prosecutor Archibald Cox. Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus resigned after refusing to fire Cox. Finally, the solicitor general, and later Supreme Court nominee, Robert Bork fired Cox. Nixon abolished the office of the special prosecutor and Congress passed the EGA.

Like Nixon, Trump touts himself as the “law and order” candidate. The unprecedented threat to jail his opponent, his scurrilous boast of sexually assaulting women and his vow to take this campaign to even lower depths will do nothing to advance either law or order.

Trump, so fond of invoking the plight of the inner city when talking about crime and race, would do well to acknowledge that this campaign has done for politics in America what crack-cocaine did for the inner city.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, The Executioner’s Toll, 2010, was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

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