Thursday, June 19, 1997 — Nothing He Can Do

Today, an extended business conversation in Patrick’s office. We’re planning the opening of a new business office in Newport, DE, and we’re very much in need of a sign out front to alert passersby of its existence and hours. Our associate in the venture explains that the township has harsh regulations concerning signs. The owner of the building we’re leasing was fined for putting a ‘For Rent’ sign on his own property. Permits are required, no sign can be within 40 feet of the street – although our building front is less than 20 feet from the street – without an exception that involves an architectural study and other rigmarole. All this in what looks like a lower-middle class neighborhood. Townships in Pennsylvania, it turns out, are just as difficult. A new Italian restaurant on Rte 202 – one probably containing every dollar of its owner’s savings – had to replace the attractive awning displaying the name across the front of the building because the owner had already exceeded the maximum signage allowed in the zoning code. I protested that all this was restraint of trade. Patrick smiled and brandished his well-worn copy of the Constitution.

‘It’s also in violation of the first amendment,’ he pointed out.

‘Yeah, it’s nuts,’ our associate said. ‘You’ve heard about the underground oil tank thing?’
We told him no. He explained that the Pennsylvania EPA had issued a regulation making it illegal to sell a house with an underground fuel oil tank. Acquaintances of his had been trying to sell a house for $180,000. They had a buyer and were ready to close when a real estate agent who didn’t like the commission split informed the EPA that the sellers had an underground oil tank, put in maybe 40 years ago, long before they bought the house. To date, they’re out more than $12,000 for four different ground studies at $3,000 apiece, with no end in sight. They still can’t sell the house, the buyer’s gone, and their equity has basically been consumed by the EPA requirements. Patrick read the part from the Constitution about no seizure of private property without just compensation.

‘If they are destroying the property value of a place on behalf of the public good,’ he said, ‘then they have an obligation to compensate the owners for it.’

‘Owners!’ our friend exclaimed. ‘If they can take away a half million-dollar house for nonpayment of $4,000 in property taxes, then there isn’t any ownership. You’re just renting it from the state.’

I thought of the unpaid $4,800 annual tax bill on my own house in New Jersey, which had languished on the market last year at a giveaway price of $135,000 with no takers. Taxes.

Our friend was getting heated. ‘Did I tell you about my friend John Gridley?’ he asked. This was a guy, he told us, who had a nice small business of his own, paid his taxes, broke no laws. Then he hired an employee who proceeded to embezzle $150,000. He trusted her to deposit the company’s receipts, and so she took her power of attorney to the bank and proceeded, over the course of a year’s time, to cash every large check that came in. The bank never asked any questions, had no legal liability. When Gridley belatedly discovered her crime, he still couldn’t believe she had done it.

‘This was the most innocent-looking girl in the world, apparently, ‘ our friend said, ‘and come to find out, she’d done this at least a couple of times before.’

While Gridley was struggling to recover from the loss, the IRS arrived to hand him a tax bill for the embezzled money. He explained what had happened, but they didn’t want to hear it, and they padlocked the business.

‘Now,’ our associate concluded, ‘every cent he earns from his new job goes into an account controlled by the IRS. There’s nothing he can do about it.’

Nothing he can do. Is he one of the ones who insistently repeats the two-part national mantra? America is still the greatest nation in the world. At least it’s still a free country…

Patrick was responding to the Gridley story. ‘The IRS has been exporting its methods to other parts of the government, too. Did you know that in this country, the feds can seize all your assets if you are suspected of engaging in drug trafficking? And it’s illegal to use money you are suspected of having earned from drug trafficking to pay for your legal defense against drug charges. Where’s the ‘due process’ in that?’

‘Or the presumption of innocence,’ I put in.

And then, of course, we wound up talking about the police. I hadn’t heard that thanks to Clinton’s new law enforcement bill, there were no longer any meaningful boundaries between townships. The cops could set a speed trap and pursue suspects as far as they wanted.

‘A cop is a cop?’ Patrick inquired.

‘A cop is a cop.’

And America is America. Whatever that means anymore.

Saturday, June 6 – They’re Going to Burn McVeigh

Today, after finishing up at the Pet Palace, I met with my friend and partner Patrick Raymond. As it often does, our conversation moved rapidly beyond business and personal matters to current events. The penalty phase of the McVeigh trial is underway, and we talked about it seriously for the first time. Patrick and I tend to be catalysts for one another’s thinking. Jokes and smart remarks serve as trial balloons. Is this an interesting topic? Does it mean anything? Should we do some digging here? Frequently the answer is ‘no,’ or ‘not today.’ But if the topic recurs, sooner or later it will be discussed. The McVeigh story had been in the joke column for months. We had both been aware of the trial without following it deliberately or formulating any strong opinions. This afternoon, though, it suddenly blossomed into fascination. Maybe the date had something to do with it. ‘D-Day’ is an evocative term. For McVeigh, obviously, it suggests all manner of connotations.

I was the one who brought it up. ‘They’re going to burn McVeigh,’ I said.
‘That’s decided, is it?’ Patrick asked.

‘No,’ I told him, ‘but yes.’ I explained what I knew of the way the defense attorneys were going about the job of trying to save their client’s life – an apparent about-face on the subject of guilt accompanied by a tepid argument that the convicted man was not altogether a monster. Waco had been introduced as an excuse, a presumably mitigating factor whose precise intended impact on the jury remained unclear.

Meanwhile, the prosecution was pulling out all the stops on the emotional pipe organ of the Oklahoma City bombing. I recounted a radio report that at one point in the prosecution testimony, tissues had been handed out in the courtroom.
“Wow,” said Patrick. We shared an image of several hundred people snuffling and dabbing at tears while the defendant sat stony-faced among them. ‘Not a good sign for Mr. McVeigh.’


‘You say they’re acknowledging guilt?’ His brow was furrowed.

‘Yes. So it seems.’ We looked at one another, aware that there was something about the whole affair that needed to be addressed.

‘I haven’t been paying much attention to it,’ Patrick said. ‘I don’t know why. I guess I just regarded the trial as a foregone conclusion.’

I reviewed my own passive experience of the story. ‘I’ve heard some of the coverage on NPR. Mostly they seem to be presenting it as some kind of antidote to the Simpson trial. Like it’s a vindication of the American judicial system. A model trial. But it doesn’t altogether add up that way. Not to me.’

‘What about it?’

We got into it. There were several sore points as far as I was concerned. I articulated them as best I could for Patrick. I didn’t understand the defense strategy. I didn’t understand the posture of McVeigh. I was troubled by the emotional pyrotechnics in the courtroom.

For quite a long time before the trial, the impression I had gained from the media was that McVeigh and Nichols were definitely involved in the bombing. That they were exacting revenge for Waco seemed to be everywhere accepted as the reason for their actions. How could this much be known – or speculated about to this degree – -if there remained any serious doubt about whether or not the accused were guilty? Yet the defense attorneys had pleaded not guilty, then proceeded to swallow without protest the debatable assumption that this was an ordinary criminal trial in which each bit of evidence would have to be challenged, countered, explained away. According to the journalists, the attempt to mount such an ordinary defense had been swept away by a relentlessly traditional criminal prosecution, leading to the expected unanimous verdict of guilty. Yet the defense attorneys had also drawn praise during the trial, as if they were doing all that could be done. Was this, in fact, true?

I remembered the Chicago Seven trial a quarter century before. Abby Hoffman and company had been just as obviously guilty of incitement to riot as McVeigh was of the Oklahoma City bombing. But defense attorney William Kunstler had not made much attempt to argue the evidence. He had positioned the case as a political trial, cast the judge and the prosecution as mouthpieces of a tyrannical state apparatus, and in general did everything possible to make a farce of the proceedings. In so doing, he accumulated a record number of fines for contempt, but he also commanded headlines day after day in the nation’s press. Whether it deserved to be or not, the Chicago Seven trial had been transformed into a political event, and Kunstler had actually succeeded in putting the judge and the American judicial system on trial to almost the same extent that his clients were.

The McVeigh trial seemed tailor-made for just such a strategy. The Oklahoma City bombing had been a political – as opposed to a personal – act, and its target had been the federal government itself. A defense that was doing ‘everything possible’ for its client might therefore have made the argument that the judge and prosecutor of a federal court were not disinterested representatives of ‘the people,’ but members of the very institution that had been injured by the defendant’s actions. Indeed, it was not much of a stretch to claim that the U.S. government was, in this case, akin to a plaintiff in a civil trial. For if McVeigh was indeed motivated by a conviction that federal law enforcement agencies were operating in violation of the American Constitution, his actions could be construed as an act of war against an enemy of the American people. The legal implication would be that the federal government not only had no right to try him, but also had no right to be regarded – in this context – as anything more than a gravely suspect witness. From a McVeigh perspective, the government had demonstrated itself capable of malice in the Richard Jewel case, of reckless disregard for the rights of U.S. citizens in the Ruby Ridge showdown, of falsification of evidence (i.e., perjury) in the FBI lab scandal, and of outright murder in the Waco affair. And if the same performance standards could be expected from the federal investigation and trial of McVeigh, how could a jury be assured that it was participating in an honest process? Every witness for the prosecution might have been pressured into perjury, every particle of physical evidence might have been manufactured or altered by federal technicians, and every ruling by the judge might have been pre-ordained by the hidden agenda of a malicious federal power structure. In short, a Kunstler-type attorney would have had more than adequate pretext for putting the federal government on trial alongside his client.

There was yet another potential benefit to the defendant from such a strategy. As a criminal act, the bombing had to be viewed as mass murder of record proportions. But as a political act, it was akin to warfare and therefore occupied a different context altogether, one in which the loss of lives had to be seen as an unfortunate by-product of the need to overthrow an enemy oppressor. Otherwise, there could be no excuse for a president of the United States shaking hands with Yassir Arafat – or even Menachim Begin.

The flip side of the latter issue was evident in the strategy employed by the prosecution, so much so that one could almost see it as a tacit awareness of vulnerability. Considering that McVeigh was being tried in federal court, strictly for the murder of 16 federal employees, it is hard to resist the notion that there was something disingenuous about the prosecutor’s insistence on the identity of the victims as ‘people’ – which is to say, by implication, ‘people like you and me.’ If this were true, their assailant would not be subject to a separate trial. The entire rationale for a federal case lay in the fact that federal employees are not ‘people like you and me,’ but rather part of an organizational structure that is deemed even more sacrosanct than ordinary citizens. The exact nature of the difference between federal employees and the rest of us may be debated at length but whatever that difference consists of, simple humanity is not one of its components.

A federal employee may have lovely children, a touching homelife, an inspiring biography, and hundreds of devoted friends and acquaintances, but none of these are relevant to the part of his identity that occasions a federal trial when he is injured or killed. What is relevant here is a set of abstractions, principally the notion that as a servant of the people of the United States, the federal employee is entitled to the kind of special protection we are supposed to extend to other American ideas and principles, most notably to the Constitution itself.

A trial framed around this conceptual identity would, if it proceeded out of integrity, most likely have an antiseptic flavor, deliberately eschewing appeals to sentimentalism of any kind. The observed record of the trial in Denver is so opposite to this that it is as if the conceptual identity were being systematically concealed – as would be the case if the federal government had indeed become hypersensitive to the suggestion that it is more overlord than servant of the citizenry at large.

And with all this on the table, what of Timothy McVeigh? If he conceived of his bomb as a political act, then how could he be content to be tried as a common criminal, defended as a common criminal, and pleaded for in the shadow of the gallows as a common criminal with the usual extenuating human circumstances? Worse, how could he not understand that to forego the bold strategy of politicizing his trial would be more fatal to his hopes of avoiding the death penalty than any courtroom outrage he could perpetrate to underscore his defiance and contempt for federal authority? Surely, he must have known from the outset that capture was possible, if not probable, and that the drama of a trial would provide a better forum for the fomenting of revolution than any bomb could ever do. And so, given the fact of capture, here was a golden opportunity. The alternatives were clear: plead silently not guilty and receive a sentence of death for sure; or fight like hell to command the stage and use every possible means to render the government too embarrassed to execute him.

In its totality, then, the situation that Patrick and I were looking at made no sense. All the participants other than the federal government might have been sleepwalking through a charade, including the mass media legal experts who were so misty-eyed over the ostensible grace and dignity of the proceedings.

After chewing over these matters at some length, we looked up the transcript of the summations on the Internet. As we suspected, the performance of the defense on behalf of their client was pitiful, a few weak protests about the Fortiers and the handling of an insignificant piece of physical evidence. The demeanor of the lead counsel for the defense was propitiatory, as if his prime objective was personal absolution for having been put in the position of defending such a miserable specimen as McVeigh. The summation of the prosecution, however, was a surprise. The amount of evidence amassed against the defendant was overwhelming. It seemed inconceivable to us that anyone of sound mind could have considered pleading not guilty in the face of such evidence in a merely criminal trial.

What was going on here? We tabled the subject for the day. But I know we will keep thinking about it because the roots of this kind of absurdity are not confined to the Oklahoma City affair. We have stumbled over them before, and will again, in many other areas, personal and otherwise. Which causes me to think, yet again, that the time has come for an effort to document the ongoing process of our encounters with the America that is coming to be. The subject is so big, though, that it can’t be tackled at a purely symbolic level (as in fiction), or in the misleading isolation of individual essays. Perhaps the only fit form is a kind of diary, one not unlike the journal compiled by William L. Shirer during his pre-war stint in Berlin. For Patrick and I both share the conviction that what we are experiencing in the land of our birth is a transformation of accelerating speed and ominous consequence – even if most of the populace is engaged in a desperate effort to avoid seeing it.