Shifts in the Zeitgeist: The Attempted Citizen's Arrest of Karl Rove in Iowa

The Boston Massacre occurred in 1770, five years before the shot heard 'round the world at Lexington Green, and three years before the Boston Tea Party. John Adams successfully defended the British soldiers involved in the shooting incident, but the die was effectively cast from that day forward. A revolution was coming, and the act of insurrection in Boston harbor was a violent harbinger of the conflict to follow. Great seismic shifts in public attitudes begin with such small steps, I think. Certain members of the citizenry, "crazier" than others and perhaps more sensitive to perception of tyranny, act first and they embolden the rest.

Not that I advocate the overthrow of the United States Government by force, because I don't. It would be contrary to my sworn duty as an officer of the court to uphold the law of the land, and I take that oath seriously. I write this blog partly in response to what I perceive as a mandatory duty under the legal Canons of Ethics. I think the United States Constitution and the United States Code are routinely and systematically violated by the President of the United States, by Congress and by the Supreme Court. I am far from alone in this perception, especially among the legal community. Indeed, the more you know about law and its processes, the easier it is to see just how arrantly lawless the Bush Administration is, and how completely it has corrupted the Constitutional system of the federal government. I doubt seriously we will ever restore the system fully to its former greatness. When the people and their elected representatives casually countenance official lawbreaking without remark or action, then "extralegal" ways of doing things become the new norm and a kind of arbitrary anarchy descends on the body politic. That's where we are. It is interesting to observe, but only in the sense of the ancient Chinese curse.

Recently, four troublemaking citizens in Iowa, not themselves peace officers or deputized as such, attempted to arrest Karl Rove. For their efforts, they were arrested for trespass and cited to appear. Karl Rove, after all, enjoys the privileges of status and quasi-official protection. So law enforcement sided with Rove and he went on his way. A citizen's arrest is a dangerous thing to do; a citizen taking the law into his own hands is not protected by the police officer's privilege of probable cause. If you're wrong about the guilt of the person detained, you can be held liable for kidnap or assault. Nevetheless, all fifty states have some form of citizen's arrest on their books. Here is California's statute: A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (Cal. Penal Code Sec. 837). This is slightly (but crucially) different from the police standard; for a police officer to be liable for false imprisonment or malicious criminal prosecution, it must be shown that probable cause (a reasonable belief) was lacking both for the commission of a crime and that the person arrested was the one who done it. So if you collar Karl Rove on the suspicion, for example (among many of his possible crimes), that he conspired to blow the cover of an undercover CIA operative, and a court subsequently rules that no such crime was committed, you're in deep trouble.

So it's somewhat reckless to engage in such a citizen's arrest. Why would they do it? I think the answer is simple. Such canaries in the coal mine have come to the realization that no official avenue of redress is available. No one in a position of power is going to do anything about the day-to-day crimes committed by members of the government. When Scooter Libby was tried and convicted, for example, his sentence was quickly overturned as a personal favor from George W. Bush, who barely troubled himself to offer the laughably inadequate excuse of "excessive punishment" (the sentence was briefer than federal guidelines, and Bush had the option of reducing the sentence). This sort of preferential treatment and defiance of the law registers in the psyche of the citizenry. When the federal government tortures human beings, it then passes laws exonerating itself and its agents from the War Crimes Act. If it violates the Foreign Intelligence Surveillance Act and the Fourth Amendment, it passes a law legalizing the conduct and dismissing all civil actions attempting to find out when and against whom the spying took place.

What is unfortunate is that those of a conservative persuasion, seeing this criminal activity as part of the policy of the party which they favor, argue in favor of sanctioning criminality, and accuse those who simply point out, as calmly and methodically as they can, that crimes have been committed of "disloyalty." Yet these are not "Left/Right" issues. We don't care if a smash-and-grab mugger on the street voted Democratic in the last election; he's a criminal. The bravest of the dissidents are people like Bruce Fein, who served on the legal staff of Ronald Reagan, and yet points out (in my view irrefutably) that the Bush Administration operates outside the bounds of legal conduct.

Hosea 8:7: "For they have sown the wind, and they shall reap the whirlwind: it hath no stalk; the bud shall yield no meal." Citizen's arrests are one step up the legal ladder from mob rule. I don't know whether there will ever be a "Truth & Reconciliation Commission" in the United States, or any kind of organized legal response to what has gone on during the Bush years, but I'm fairly confident of one thing: if there is not, then I think we will be well down the road toward social and legal disintegration.