Beneath Contempt

Contempt of court is itself a crime. Contempt of democracy is a moral crime. Only time will tell if this concept ever catches up to people who are, in fact, beneath contempt.

by Rich Herschlag

One afternoon in the winter of 2006 I was driving south on Broadway in upper Manhattan when a police car pulled me over. I sat as calmly as possible in my 1993 grey Saturn and handed a burly New York City police officer my license and registration slowly, deliberately, and only after stating politely I believed they were in the glove compartment.

As I sat and waited for the verdict, I looked intermittently into the rear view mirror and considered what I possibly could have done to merit this treatment. The officer had said it was a failure to signal before a lane change, but I knew I was one of only a handful of drivers on the East Coast who still bothered with quaint customs like that one.

About six minutes into my purgatory, I saw four flak-jacketed officers emerge simultaneously like a SWAT team from their vehicle. My mind and body switched instantly to survival mode. For me this meant neither fight nor flight. This meant complete verbal and physical capitulation. No genuflecting, just cooperation. My father, a pretty tough guy by all accounts, had taught me that. And I was white.

The next ten hours were filled with short, direct answers and peak self-control as I mulled over the charge of driving with an expired license and sat on the grimy floor of an eight by nine foot concrete cell, holding in my urine and scrupulously avoiding eye contact with as many as a dozen drug addicts and street criminals spending the night sharing a putrid common breath cloud. Around 4 AM my wife and brother-in-law—an imposing constable from eastern Pennsylvania—bailed me out.

My day in court two months later was another exercise in preternatural politeness on my part. I explained to the judge that the fine for the 1994 moving violation was, as far as I knew, paid back then. But in case there was no surviving record of it, I had recently paid it again and had the proof in hand. Had my license actually been suspended back then, I explained, that would have shown up in the 1995 police report from when my car was totaled by a yellow cab running a red light. I had written proof of that, too. By the end of my day in court I had paid a $135 fine in cash and walked away with no criminal record plus two points on my license—all with no attorney and a forced smile.

That is the context in which I view Matthew Whitaker’s recent insolent testimony before the House Judiciary Committee. Yes, this is a personal context, but a very important one nonetheless. The respect for legal authority ingrained in me from a young age—whether genuine, a practical survival tool, or some combination of both—just isn’t there for Whitaker and his ilk. You could see in full relief his contempt for both the constitutionally driven process and the people charged with carrying it out when he sneeringly told Chairman Jerrold Nadler his five minutes were up. You could see it bubbling to the surface dozens of times throughout his testimony that day via smirks, scowls, eye rolls, snarky evasive responses, and general combativeness. Whitaker’s message was clear: I lack fundamental respect for you, your peers, and the system you represent. My political mission—though not publicly articulated—entirely supersedes your constitutional duties.

But the context need not be entirely personal. We have at our disposal a long history of testimony before congressional committees, and a quick look at just about any of it will put Whitaker’s shameless display in its proper overall context. When you have a few minutes, go to YouTube and check out mob boss Frank Costello being cross-examined by the Kefauver Committee on organized crime in 1951. You’ll see Costello maintaining his poise and composure through countless annoying questions on everything from arrests for petty crimes back in his teens, to when he stopped using his original family name Castiglia, to his then current involvement in the nationwide business of illegal slot machines.

It didn’t matter that Costello had the kind of hardened hulking presence necessary to rise to the top of the Luciano crime family or that he must have resented the inquisition to his Calabrese core. The recognition of legal authority and the power that went with it was a given. When asked what contribution he had made to his country, Costello replied that he paid his taxes, which drew a laugh. Even a syndicate boss knew you rendered unto Caesar what was Caesar’s. And when Frank Costello finally became so irate with the questioning he couldn’t take it anymore, rather than curse or scoff he walked out—an act for which he served 18 months in a federal penitentiary.

Later in the same decade, as part of the Senate’s investigation of labor and racketeering, when chief counsel Robert F. Kennedy grilled Chicago crime boss Sam Giancana, the nation witnessed much the same resilient front of respect. Perhaps even more so. In one legendary career-making moment, Giancana laughed, to which Kennedy responded, “I thought only little girls giggled.” Giancana was a ruthless individual who could have had Robert Kennedy killed and for all we know may eventually have. But his response on that day in 1958 on national television was simply to take it.

Compare this to the day in the fall of 2018 when Supreme Court nominee Brett Kavanaugh threw a hissy fit in front of millions by moaning and grunting that the Senate Judiciary Committee hearings were little more than a circus. Yet no matter how many views this particular rambling self-pity party piles up, the climactic moment of childish insolence comes arrives when Senator Amy Klobuchar asks Kavanaugh whether he recalls in his younger days having experienced any alcohol induced blackouts. No, he replies. Do you? And there you have it. Two hundred years of respect for congressional authority running so deep even mass murderers observed it blown to smithereens by an aging frat boy having a bad liver day.

The history of respect, including very strained grudging respect, is a vast ocean. You can see it in the Watergate hearings, where Dean, Haldeman, Ehrlichman and the gang give Sam Ervin and friends their due. You can even see it in fictionalized accounts of congressional crucibles. In The Godfather Part II, a fuming Michael Corleone points out his service to his country in World War II and his refusal to take the Fifth Amendment under questioning rather than make the committee an offer it can’t refuse.

Perhaps I’m missing something. Perhaps if I scour the YouTube archives long enough I’ll come across a committee clip as insubordinate as Whitaker or Kavanaugh. I welcome the reader to try. But it won’t be easy. Even Jimmy Hoffa, who wore his contempt for RFK on his sleeve, tried to keep a lid on it.

As new details emerge from what looks more and more like a conspiracy and cover-up, it is important to keep this notion of contempt in mind. People commit crimes for all sorts of reasons—money, power, sex, loss of self-control, and sometimes something as mundane as embarrassment. But few criminals when finally cornered maintain the rightness of their actions. This sorry crew—Trump, Stone, Giuliani, Mananfort, Trump Jr., Page, Papadopoulos  and the rest of them—will likely violate this norm as well. They have already brought disdain for the law from within its very offices to a level beneath that of known Mafiosos who were evidently raised better by their mothers. Contempt of court is itself a crime. Contempt of democracy is a moral crime. Only time will tell if this concept ever catches up to people who are, in fact, beneath contempt.

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