The Nationally Televised Train Wreck

The first impeachment of Donald Trump has now sputtered to a most predictable end. On New Year’s Day, we knew that the votes to convict in the Senate were not there, and they were not. We knew that the Democrats in the House were bound and determined to go forward anyway, and they were. We knew that the Republican Senators are afraid of Trump, and — with the notable exception of Mitt Romney — they are.

Given past behavior, we reasonably expected Democrats would pull their standard persuasion methodology. “It’s obvious to me, so it should be obvious to anyone who doesn’t walk on all fours or sleep upside down.” They did not disappoint.

The capstone of the whole trial was the performance on 31 January. Lamar Alexander had already made his statement the day before:

I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.

Here is a decision maker providing advance notice of his decision criteria. He accepts the correctness of the charges, so there is no point in bringing in evidence or witnesses to further convince him of what he already believes. The only shot at changing his vote is to persuade him that the behavior does rise to the level of an impeachable offense.

In response to this, the House managers spend the day calling for witnesses and evidence. I lost my wallet in Central Park, but I am going to look for it in Times Square where the light is better.

You can object to Alexander’s conclusion, but the fact remains: he has a Senate seat. He gets to vote on the outcome. I don’t. House managers don’t. There are 53 Republican Senators. You need at least 20 of them to vote your way in order to get a conviction. If your case is not to be dead on arrival, don’t you have to meet them on their terms and speak to them in a language that they understand? That’s not how Democrats go about politics, which is Exhibit A explaining Why So Many People Are Afraid of Democrats in Power. We can run roughshod over you, because we’re right and you’re wrong. How’s that working for you?

Republicans, meanwhile, hardly covered themselves in glory. Susan Collins, who agreed with Alexander that the House had not demonstrated the severity of the charges merit impeachment, hoped that Trump would learn a lesson from the experience. He did, and proceeded to demonstrate it in force. The day after being acquitted, he used the occasion of the National Prayer Breakfast to let us all know what a wrathful god he really is. The speech will be remembered as the #pettysburgaddress.

Trump followed that up with retribution against Lt. Col. Alexander Vindman and Gordon Sondland. Yes, Trump doesn’t have to have someone on the National Security Council who opposes his policies, but the manner in which Vindman was walked out was unmistakable retribution.

Vindman’s brother Yevgeny was also dismissed. After all, what self-respecting dictator does not go after family members of disloyal persons?

Collins admitted that her previous comments were “aspirational.” Yeah, as in wishful thinking. It didn’t last a week. In 1994, the Republicans had the Contract with America; now they have submission to a king.

When you strike at a king, you must kill him.
— Ralph Waldo Emerson

I blame the House Democrats for what happened to the Vindmans. They called these men in for testimony. They had a responsibility to use that effectively, and they did not. Now the impeachment managers return to their safe seats in Congress, and the Vindmans, along with Marie Yovanovich and others, are stuck with the consequences. What in Trump’s previous behavior would lead you to expect anything other than retribution?

As for Sondland, it is clear that he was way over his depth.

A mistake in the initial deployment cannot be rectified over the course of a campaign.
— Attributed to Field Marshal Helmuth von Moltke the Elder (1800-1891)

This impeachment effort was behind the eight-ball the day it passed the House. Nancy Pelosi knew this, and tried gamely to salvage it, but did not really have any leverage. The Democrats in the House went in on a narrow front, hanging everything on this shakedown of Ukraine to get the Bidens.

Oh, I’ve got you, got you, got you.
— Eleanor (Katherine Hepburn), The Lion in Winter

The Democrats rushed impeachment through the House; they should have left the steaming turd on the table for months, where their allies in the media could be still running stories about how Donald Trump is about to be impeached, why he is about to be impeached, the latest development in the impeachment proceedings, and did we mention Trump is about to be impeached? Once they passed the articles on impeachment, they lost control of the process and the Republicans could see it off in less than a month. Worst of all, the Democrats did nothing to make their case to the part of America that does not already believe.

In order for impeachment to succeed, the Democrats had to bring over enough Americans, particularly in red states, that the Republicans in the Senate would figure they had more to lose from backing Trump than from opposing him. This is, admittedly, a tall order. It is made more difficult because so many Americans are afraid of the Democrats’ agenda and see Trump as the only person with the will to fight the Democrats in any way. We’re tired of being bullied, so we are going to sic our bully on your bullies. It’s hard to argue with that point of view after everything I have seen since 1980. Anyone with the temerity to push back on the Progressive agenda is a racist, misogynist, etc., etc., ad nauseam.

Some have been ostracized by close family members criticizing them for their vote, others confess they have been “called racist, a xenophobe, homophobe, whatever phobe they could come up with.” One woman’s son was bullied after his 1st grade class held a mock election: “my son hears us and he says, ‘I’m going to vote for Trump,’ and two of the kids in his class started yelling. Like, ‘You’re going to vote Trump? Are you crazy?’ And just started yelling at him.” This is personal.
— Stanley Greenberg and Nancy Zdunkewicz, “Macomb County in the Age of Trump” [https://www.greenbergresearch.com/macomb/2017/3/9/macomb-county-in-the-age-of-trump]

This week, Trump delivered another State of the Union address where he went out of his way to shove his points up the Democrats’ asses every chance he got. He’s a proven performer here. The capstone, from a sheer orneriness point of view, was his award of the Medal of Freedom to Rush Limbaugh. Meagan Vazquez at CNN was predictably bent out of shape, observing of previous recipients:

The elite group includes Rosa Parks, a civil rights pioneer, Elie Wiesel, a Nobel laureate and Holocaust survivor, and Mother Teresa, a literal saint.

And also Marian Wright Edelman, given hers by Bill Clinton in 2000, and Ellen DeGeneres, who was so honored by Barack Obama in 2016. If I really wanted to put the cat among the pigeons, I could bring up Carl Vinson (LBJ, 1964) or Strom Thurmond (Bush I, 1993). Deserving appears to be in the eye of the beholder here.

But no matter. Mazie Hirono has the whole thing under control. On Thursday, she corrected Wolf Blitzer, saying that Trump was not acquitted because his trial in the Senate was not conducted according to her standards. Alan Dershowitz could learn a thing or two from Hirono: if you don’t get the outcome you want, unilaterally declare a mistrial and do it over.

See, Red State America? Why are you so afraid of Democrats?

This goat rodeo would be a lot funnier if it were happening in someone else’s country.

Maladministration Or Abuse of Power?

Even before the presentations at the Senate week, Alan Dershowitz had been making the rounds, drawing a straight line between maladministration and abuse of power. It is important to understand the distinction.

Madison was right to object to maladministration, saying, “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Democrats thought that G. W. Bush was practicing maladministration; after the 2006 elections, in which Democrats gained both houses of Congress, they could have impeached Bush for maladministration. Republicans took control of the House in 2010 and the Senate in 2014; they similarly could have impeached Obama for maladministration. If maladministration were grounds for impeachment, we would devolve into a parliamentary system, as Dershowitz correctly observes. Any President who lost the confidence of Congress would be out on her or his ear.

So we have to make a distinction between abuse of power and mere maladministration. The English Civil War established that abuse of power was not tolerable in our political life. It further separated us from politics on the European continent, where people often shrug and accept despotism. We were willing to do what many of the Europeans were not: fight for our rights.

If it were only my own particular case, I would have satisfied myself with the protestation I made the last time I was here, against the legality of the Court, and that a King cannot be tried by any superior jurisdiction on earth: but it is not my case alone, it is the freedom and the liberty of the people of England; and do you pretend what you will, I stand more for their liberties. For if power without law, may make laws, may alter the fundamental laws of the Kingdom, I do not know what subject he is in England that can be sure of his life, or any thing that he calls his own.
— Charles I at his trial for treason, January, 1649

Charles I always maintained that he was above the law, and only God could call a king to account. Parliament said otherwise, and he was beheaded on 30 Jan 1649.

There is a contract and a bargain made between the King and his people, and your oath is taken: and certainly, Sir, the bond is reciprocal; for as you are the liege lord, so they liege subjects … This we know, the one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty! … These things may not be denied, Sir … Whether you have been, as by your office you ought to be, a protector of England, or the destroyer of England, let all England judge, or all the world, that hath look’d upon it.
— Judge John Bradshaw, replying to Charles in his trial.

The story of Charles I was part of the English Constitution that preceded the American Revolution and formed the legitimate foundation for the rebellion. You can read Bradshaw’s rejoinder, substituting America for England and directing it at Parliament rather than the King. In the 1765 debate in the Virginia legislature over the Stamp Act, Patrick Henry referenced the experience of Charles I, which he expected all legislators would know and understand. While there was no verbatim record, his remarks have come down through history as:

Caesar had his Brutus, Charles his Cromwell and George the Third my profit by their examples. Sir, if this be treason, make the most of it.

It is manifestly clear that all of the Founders understood the meaning of the English Civil War and rejected the concept of a regal President who could declare “the law is in my mouth” and make it stick.

Amendment IX: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We the People have strayed far from the ideals of the Constitution. We allowed the development of an imperial Presidency. We allowed the Ninth and Tenth Amendments to wither from disuse. We allowed Congress to delegate its powers to the Executive, or to independent agencies with no practical political accountability to anyone. We allowed a President and his court to intimidate the Supreme Court into going along with this back in the 1930s. This has been going on for decades, longer than most of us have been alive. We sold our birthright cheap to a strong person who promised to lead us out of one national emergency or another.

Now the chickens are coming home to roost. The façade only stood up as long as presidents were content to respect the norms of political conduct as they had evolved over the past century. Now we have one that manifestly does not; he told us so during the 2016 campaign.

The idea that abuse of power is not grounds for impeachment is ridiculous on its face. It does not deserve a serious refutation. Nevertheless, the distinction that Dershowitz raises, while he tries not to, is important. Abuse of power cannot be simply political conduct with which Congress disagrees. There has to be a meaningful standard that raises it from the politically controversial to the constitutionally mendacious. Where is that line to be drawn?

 

 

 

 

Indicting the President

Senator Elizabeth Warren has called for the ability to indict a sitting President for criminal activity, and promised, if elected, to appoint officials to the Justice Department who would reverse existing policy, which holds that a sitting president cannot be indicted.

Allow me to explain why these are bad ideas.

The primary problem is that they open the door to the criminalization of politics. Alan Dershowitz explained the pattern two years ago.

It is deliberately hard to impeach a president. The Constitution grants to the Senate the power to try all impeachments, and requires a two-thirds majority to convict. Only two presidents have been impeached and brought to trial, and neither was convicted. Three articles of impeachment were recommended by the House Judiciary Committee against Richard Nixon, but he resigned before the House could vote on them.

Impeachment is a political process, but is only for extraordinary political use. Merely having a policy difference with the president is not a reason to pursue impeachment.

In nations with sham democracies, such as Venezuela, criminalization of politics is a well-tried and proven tactic for governing strongmen to use on their opponents. In April of this year, allies of President Nicolas Maduro proposed government action to strip opposition leader Juan Guaidó of his parliamentary immunity.

In the Ukraine, after Viktor Yanukovych took power in 2010 elections, his government systematically pursued his predecessor, Yulia Tymoshenko, claiming a wide array of charges. The Yanukovych government also went after Tymoshenko allies, including her attorney. Tymoshenko was found guilty of abusing her office and sent to prison in 2011. The Yanukovych government hired Paul Manafort to run the international public relations offensive against Tymoshenko. After Yanukovych was forced out of power in 2014, Tymoshenko was released and the case against her was voided by the Ukrainian Supreme Court.

We don’t want those sorts of shenanigans going on here. The remedy for criminal behavior by a President, as provided in the Constitution, is impeachment. The Constitution is clear that “high crimes” are grounds for impeachment.

The country is sharply divided, and that division will be made worse by people who ignore process in pursuit of the outcome they want. I have already discussed the problems with centering the case against Donald Trump on obstruction of justice.

In two important cases from the 1980s, the Supreme Court has struck down provisions by which Congress can implement a legislative veto of Presidential actions. Maybe now Congress would like to be more clear about the powers it delegates in its laws. The Supreme Court has closed off the avenue of granting wide powers and then armchair quarterbacking how the President uses them.

Whether legislators believe that Trump has committed high crimes or simply demonstrated misfeasance, they have a potential remedy available to them. Yes, they had better be sure that they take the public along with them. Opening up the possibilities for criminalization of politics is not only unnecessary, but dangerous.