Obama Should Stay Mum on Cambridge Arrest

One lingering question surrounding the recent arrest of Henry Louis Gates Jr. by the Cambridge (Mass.) Police and the subsequent White House “beer summit” is why President Barack Obama got involved.

On the president butting in to this unresolved dispute, where should I start? Since he and the media don’t seem to understand what a transgression it is for a president to take anyone’s side in an ongoing or potential legal case, I’ll start with the consequences of President Richard Nixon’s unwise comment on a very different legal proceeding in 1970.

In 1970, Nixon remarked during serial killer Charles Manson’s ongoing trial that Manson was “guilty, directly or indirectly of eight murders.” This resulted in multiple delays — with antics like Manson flashing a newspaper containing the Nixon story before the jury and his defense demanding the judge declare a mistrial due to a compromised jury — before Manson was convicted.

Since then, presidents have steered clear of weighing in on the guilt or fault of parties in dispute before a hearing or trial affirms a verdict. For instance, President Bill Clinton never weighed in on O.J. Simpson’s innocence even after Simpson was acquitted in the criminal trial or found liable for wrongful death in the civil trial, except to say — both times — that the public should respect the jury’s verdict. “We all agreed that the president’s statement should be as neutral as possible,” recalled former Clinton aide (and now ABC newscaster) George Stephanopoulos in a Newsweek essay.

Obama can say that Gates is a friend. He can say that racial profiling is a problem. But while he can speak about what the process should be, he has to remain neutral among the two parties while that process is playing out.

In his criticism of the Cambridge police department, Obama has ironically aided its defense team in any potential lawsuit from Gates. Police lawyers can now legitimately ask to bar strong Obama supporters from the jury because their impartiality could be compromised by his criticism of the officers’ conduct.

As leftie commentary site FireDogLake.com legal blogger Bmaz, who favors a false arrest suit against the Cambridge cops, notes: “Thanks to President Obama declaring the actions of the Cambridge Police Department ‘stupid’ and wrong, the attorney defending the police department now has a lever in his favor should the case go to a jury. You can expect said defense attorney to move the court for a jury questionnaire to survey the jury pool as to who saw or heard said comment by the President of the United States, and in that local pool, the people who saw and/or heard of it are going to be the jurors Plaintiff Gates wants in the jury box the most.”

Obama seems to understand neutrality in foreign policy (except in the case of Honduras, where he is openly siding with the Chavez and Castro-backed president who was ousted after flouting ruling of the country’s Supreme Court.). He needs to get his arms around the concept in the president’s relation to domestic disputes. The White House calendar would fill up very quickly if “beer summits” were utilized for every confrontation between citizens.

Bottom line: Racial profiling charges obscure real violations of civil liberties and property rights in Gates’ arrest and in other government policies. Your home is no longer “your castle,” in many instances.

One of the best summations of the flaws of the Gates arrest comes from an article by Sophia A. Nelson on TheRoot.com, a Web site where for which Gates happens to serve as editor-in-chief. Although the site deals mostly with racial issues, Nelson, ever so briefly, gets to the crux of the issue of abuse of government power in the Gates incident. “Is it now unlawful to talk trash in your own home/porch if you don’t like something? . . . A man’s home is his castle-or is that no longer true in America?”

Unfortunately, in many cases it is no longer true in America — for black, white, and all citizens — that individuals’ homes are their castles. The Institute for Justice’s Castle Coalition (named after the expression “your home is your castle”) points to homes being confiscated and razed to make room for shopping malls, hotels, and other private commercial enterprises that do not meet the definition of “public use” in the Fifth Amendment’s Takings Clause. But these violations of property rights were unfortunately given the “green light” in the 2005 Supreme Court case Kelo v. New London.

The government is also turning property owners’ “castles” into sand through environmental rules that reach into the most routine activities of land use for homeowners and farmers. For instance, the so-called Clean Water Restoration Act, supported by Obama and making its way through Congress, would remove the current Clean Water Act requirement of “navigable waterways” affecting lakes and rivers for government regulation of private land.

As a consequence, “the regulatory reach of the act would extend to all water — anywhere from farm ponds, to storm water retention basins, to roadside ditches, to desert washes, to streets and gutters, even to a puddle of rainwater,” according to a letter to the Senate from the American Farm Bureau Federation. And this act would broaden and retain the criminal penalties already in the Clean Water Act, for which a Wall Street Journal editorial has noted, “law-abiding citizens . . . can go to jail for moving sand on their own land.”

Although African-Americans have indeed been victims of these efforts to weaken property rights both through eminent domain and overreaching environmental restrictions (see my 2002 article from Insight magazine on black farmers whose livelihoods were threatened by a “smart growth” plan), these statist schemes threaten the liberties of all Americans with the prospect of arbitrary state power over their land and homes.

Gates told the Washington Post that his experience has inspired him to produce a documentary on race and criminal justice. He would be doing a great service to the country if he were to broaden his topic to include the erosion of property rights for all citizens.

So if we have to have a “national conversation,” let’s have that conversation be about overweening government and the effect on the constitutional liberties and property rights of everyone.