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?

 

 

 

 

How to Screw up an Impeachment

The Democrats are making a mess out of the effort to impeach Donald Trump. This has fewer and fewer prospects of ending well for the country.

I am not saying that there is no merit to the argument that Trump should be impeached — I will discuss the merits later in this essay. Neither am I saying that there is no path to successful impeachment and conviction. I am saying that the Democrats are not on that path, for these principal reasons:

• Preference toward preaching to the already converted;
• Inability to tell a story that is meaningful to people outside the Acela Corridor;
• Attempting to impose a judicial template on a political process;
• Distrust by a large number of voters.

I have addressed the issues of voter distrust of the Democrats and issues some voters have had with journalists prior to 2015. I will summarize these by saying that many voters do not trust the motives of people calling for impeachment.

Progressives excel at preaching to the choir. They can make a very convincing case to people who already start by accepting Progressive principles. For those that do not already buy into the Progressive agenda, not so much.

To be fair, Donald Trump’s shtick only works for people who are also already predisposed to believe it. However, the Democrats are the people who must win hearts and minds if the impeachment effort is to succeed. They have to figure out how to advance the ball. Otherwise, any impeachment dies in the Senate.

For years, Tom Steyer has been campaigning to raise popular support to impeach Trump. On his website explaining the campaign, he accused Trump of Engaging in Reckless (foreign policy) Conduct and Violating Immigrants’ Right to Due Process. These two charges are highly illustrative of the nature of the Democrats’ overall approach.

Many of Trump’s supporters would argue that Barack Obama was the person who really engaged in reckless foreign policy conduct. They wanted someone who would go about the business differently, and they sure found their guy in Trump. Is his way better than the methods used by Obama or George W. Bush? We can discuss that, and it would be a good discussion to have, but it’s still a distraction from the matter at hand. Trump is the guy in the White House now. We don’t forfeit the right to call him to account because of what his predecessors did or did not do.

You could argue that Trump really has no discernable foreign policy. But what makes his conduct so far out of bounds that it merits an impeachment charge? How is it different in scale from, say, FDR’s attempts to support Britain and his imposition of an oil embargo on Japan in 1941? Many American isolationists were angry about that at the time. How do we tell what are normal policy differences, as compared to an impeachable dereliction of duty?

This is going to shock some people, but there are Americans who believe that immigrants don’t have the right to due process. You find that objectionable? Work on convincing them why granting immigrants due process rights is better for the country, in terms your audience will understand. This does not mean simplifying your language to the fourth-grade level; it means building a logical argument up from premises they accept, not premises you accept. Steyer simply takes as read that “cruel and unusual imprisonment of children and their families” is unacceptable and interprets the administration’s actions in that light. Steyer even shows that he understands that, “This policy was meant to deter families from attempting to cross the border.” You want to argue that the policy is not going to work, because these people are running from conditions far worse than we could ever cook up? Fair enough, argue it. Support your argument with evidence. Don’t plan on just reiterating it, because other people are not buying it yet.

It would be one thing if the Democrats showed that Steyer’s approach is not representative of their mindset, but quite the opposite is true. Anyone who does not already accept Progressive principles is just some knuckle-dragging rube emerging from the forest. The general Progressive pattern for discussing politics with people who don’t share your values is:

1. Get on your high horse and act like anyone who doesn’t accept your premises is a sociopath.
2. Impute repugnant beliefs to your opponent to force her/him on the defensive (e.g., “you just hate poor people”).
3. Call your opponent extremist names (e.g., racist, misogynist, homophobe).
4. Engage in intellectual bullying (e.g., “everyone knows John Rawls established that inequalities should benefit the least advantaged”).
5. Discount anyone who still does not bend to your will; they are stupid and irredeemable.

This is not, by design, a methodology for reaching people where they are and building consensus.

The Mechanics of Impeachment

We can see that there are an abundance of Congressional representatives who used to be prosecutors, because their mental model for impeachment is a grand jury and they swear up and down that their motives are not political. This is ridiculous; impeachment is a political act. The Democrats are trying to take the politics out of politics.

I don’t want ordinary citizens tried on a political basis (or a social basis; we have too much of that already). The prosecutor shows his case to a grand jury, who does or does not issue an indictment. If the defendant is indicted, he goes to court and has the protections enumerated in the Bill of Rights. There is no place for a prosecutor to demonstrate leadership by inventing charges against everyday citizens who had broken no law, as Mike Nifong did in the Duke Lacrosse case. Nifong was ultimately disbarred for his handling of the case.

A public official is different, because public officials can commit misfeasance, which is the wrongful exercise of lawful authority. It is not a crime, and does not involve criminal activity. In the classic misfeasance case, the offender scrupulously avoids criminal acts, but still acts in breach of his duty of care to the office he occupies. The accusation of misfeasance requires political leadership on the part of the accuser, who must show that the accused willfully put his own interests above those of the people he serves. This, in turn, requires that the accuser must persuade others that he has correctly identified the interests of the people he serves, and must demonstrate how the actions of the accused were deliberate and harmful.

The Democrats occasionally make forays toward this objective, but their hearts are clearly not in it. For example, Hakeem Jeffries was on Chris Wallace’s show last Sunday. He started to tell the right story:

Madison indicated that the House should serve as a rival to the executive branch because the Founders didn’t want a king, they didn’t want a dictator, they didn’t want a monarch. They wanted a democracy.

OK, most of them didn’t want a democracy, either, but they did want a republic with representative government, consent of the governed and an accountable executive. But then Jeffries lapsed back into the specifics of this one incident, involving aid to Ukraine:

We’re here at this moment right now because the president decided to pressure a foreign government to target an American citizen for political gain, and at the same time withhold $391 million in military aid from a very vulnerable Ukraine, which is an ally to the United States and is still at war with Russian-backed separatists in Crimea.

The defenders of the president will argue, among other things, that this specific incident does not merit impeachment. Round and round we will go.

This is why the Mueller investigation was such a fizzle. The investigation was not the “nothing-burger” Trump partisans claimed it to be. Mueller was smart enough, however, to present his investigative findings and stop there (he didn’t want to be Ken Starr when he grew up). He correctly determined that it was above his pay grade to reach a conclusion as to whether the facts he presented in his report merit impeachment. That is the job of Congress, and the Democrats in the House don’t seem to want to do it.

Instead, they are going all over hell and half of Georgia, looking for a criminal act to hang around Trump’s neck. If they keep baiting him like this, they may eventually get one, but they don’t need one to justify impeachment.

Proper Grounds for Impeachment

Abuse of power is not a crime.
— Former Acting Attorney General Matthew Whitaker

This is at once completely true and utterly irrelevant. As described above, abuse of power need not involve any criminal act at all. Nevertheless, are we going to tolerate abuse of power? It is certainly legitimate grounds for impeachment. It had better be, or we’re up the creek.

This president is impersonating a divine-right monarch. The Anglo-American political tradition does not turn the government loose with no restrictions. Our political ancestors fought and died to uphold this doctrine. Whether your biological ancestors came from England, Ireland, Nigeria or Colombia, this is a valuable political tradition that we must uphold.

No learned lawyer will affirm that an impeachment can lie against the King … one of their maxims is, that the King can do no wrong.
— Charles I at his trial for treason, 1649.

The Founders were well aware of Charles’ attempts to be a despot. They would have laughed anyone out of the room who had advocated the position that the president can do no wrong. The absence of language proscribing abuse of power in Article II, Section 4 of the Constitution is because it never occurred to them that any American would argue in favor of presidential abuse of power.

Trump has demonstrated a pattern of expansive abuse of presidential power. Supporting evidence comes not only from the current incident where he sought to shake down the Ukrainian government, but his expansive use of emergency powers to defy the will of Congress and build his wall. His everyday language demonstrates that he cannot separate his office from his person: “Where’s my Roy Cohn?”

Objections

I know that readers are going to have objections. Let me get out in front of some.

Trump is trying to overcome the Deep State and restore America to the people. Impeachment is the final, desperate act of the swamp that Trump is fighting to drain.

Trump is only interested in draining the swamp long enough to throw the current residents out and install his coterie in their place. Maybe you are tired of seeing David Gergen stand up in front of his Kennedy School of Government wallpaper and express his exasperation with the Trump Administration. Is Jared Kushner an improvement on Gergen? I think not.

Elizabeth Warren is also having problems with the Establishment. Democratic donors are afraid she will lose the general; more importantly, they are terrified that she will win and enact the policies she is talking about. They are not going to sit there and wait for the hammer to fall on them. They are going to take countermeasures. The bigger they are, the harder they hit.

I have never seen a political success model built upon multiplying your enemies. Sure, Trump has enemies because his stated goals threaten their power and perquisites. He adds more enemies because his shtick depends on him being surrounded by enemies. He adds still more because he gets his jollies from humiliating people. That adds up to a lot of enemies. He has an astonishing ability to defy political gravity, but his day of reckoning is coming.

Trump is the only thing standing between us and a Democratic takeover, where they will destroy the economy, recreate the nanny state and redistribute wealth from the deserving to the undeserving, slicing off a healthy piece for themselves.

That’s one hell of a champion you have selected. He has at most five more years, if he does not go down in flames before then. When he goes, to whom will you turn? You will be discredited because of your support for this abusive con man. The persuadable middle of the electorate will not listen to you, because they will remember how you made excuses for Trump. They will throw the keys to the country to the Democrats in reaction, and it will be even worse than you imagine.

This is all happening because Trump is not an experienced politician, and the Washington establishment is jumping on him because he does not know all the political moves.

I am continually amazed by the ability of the Trump following to make excuses for him. If you want to play in national politics, it is your responsibility to learn the political moves. If you can’t be bothered to do that, you deserve what is coming to you.

The impeachment is unfair because the Republicans are not being allowed to call their own witnesses.

I have seen this movie before. It will also be unfair because Mark Meadows and Jim Jordan don’t get to smack Hunter Biden around the committee room on national television, and because Nancy Pelosi hasn’t stood on her head in front of the Lincoln Memorial and whistled “Dixie”.

I know this game. Trump will make up objection after objection as to why the impeachment is invalid, and his defenders will breathlessly try to keep up as the story changes from day to day. Trump was telling the truth, for once: he is the team. Other people will go out on a limb for him today, and he will saw it off behind them tomorrow.

Speaking of the truth, I know you are tired of hearing it, but Trump couldn’t care less about it. He is post-truth. He uses words to paint verbal pictures and influence people for whatever purpose he has right now. If you’ve ever read Atlas Shrugged, you may remember the phrase the expediency of the moment. The expediency of the moment is what Trump is all about. Kiss accountability goodbye. How can you hold a politician accountable when you can’t believe anything he says?

We may want to rewrite the presidential oath of office to include some language about recognizing that truth corresponds to reality. Meanwhile, we have this situation to deal with now.

 

 

King Log and King Stork

Let’s consider the viewpoint of the people who are not enthusiastic about Donald Trump, but do not want him impeached. Contrary to what you may have heard, they are not mentally deficient, and it is possible to arrive at a reasoned understanding of them.

The Democrats are eager to impeach Trump. If they could bag Mike Pence along with him, they would jump at the chance. Say hello to President Nancy Pelosi.

This in itself is not a slam on the Democrats. Impeachment is a political process with political consequences. If the Democrats do impeach him and get a conviction, they get to reap the fruits of their actions. When the Republicans impeached Bill Clinton in 1998, they were after the same benefits, and on much less solid ground. The public rightly saw the impeachment of Clinton as a poorly-disguised attempt to overturn an election.

There are many Americans who don’t want to support the Democrats in this effort. Yes, some really think of Trump as a some sort of modern tribune of the plebs, who will lay about him and kick the asses of the Washington establishment, knocking them down a peg and restoring the Republic to the people.

But even among those who don’t think like that, there is still reluctance to sign on to the impeachment program. Many of us don’t trust the Democrats with power. Are we worse off with this guy, or the people who would replace him?

Conflicts of this sort have a long history, so long that there is an Aesop’s fable about it:

The frogs petitioned to Jupiter for a king. Jupiter heard them and threw a log into the pond. At first, the frogs were in awe of it, but it just sat there, floating in the water. Within days, the frogs were treating it with contempt.

The frogs called out to Jupiter again. “Give us a real king. This king does nothing.”

Jupiter heard the frogs and sent a stork to the pond. The stork promptly began to eat the frogs. As they fled for their lives, one frog said to another, “We should have been content with a king who does nothing.”

Trump is all over the place, and inconsistent in both his pronouncements and his actions. He has, however, avoided implementing a regulatory regime that would put further burden on small businesses. Many small business owners prioritize this much higher than any decision regarding Syria or Mexican immigrants.

Whatever happens to the economy over the next year, the Trump campaign can assert that it would have been worse if the Democrats had been running the country. This is not provably true or false, since there is no alternative United States run by Democrats, equal in all other respects, to which to compare. It is a credible claim nonetheless.

Trump’s behavior gets in his way. He makes enemies because he threatens their interests. He makes more enemies because he depends on being able to show that he is surrounded by enemies. He makes more enemies because he really likes to assert his dominance over people in public. After three years of doing that, yeah, he accumulates a lot of enemies.

These enemies actually limit the damage he can do. The Washington Post keeps a running tally of the number of Trump statements that are false or misleading. An anonymous person claiming to be within the Trump administration writes a highly critical op-ed in the New York Times. Civil servants become whistleblowers. Public resistance encourages further resistance.

So let’s do a thought experiment. Imagine a Democratic administration that uses climate change as a pretext to put the country in a perpetual state of emergency and amass power. Their first action is to tax up carbon-based energy to make it five times more expensive, seeking to reduce consumption. It works splendidly, at the cost of making ordinary Americans’ lives poorer and more difficult. If that seems like an over-the-top exaggeration of the consequences, you haven’t been listening. What kind of pushback could this administration expect? What kind of outcry would their actions receive in the mainstream media? From whence would come the whistleblowers?

The Democrats gave us a friendly reminder of their nature last September, when they issued a call to impeach Justice Brett Kavanaugh. One year before, the Democrats proved that they wanted the result they wanted, and would engage in any behaviors to obtain that result, including anonymous denunciations, character assassination and application of an ex post facto standard of behavior. Do we really want to throw these people the keys to the country?

If it were possible to leave the office of the President vacant until the next election, there might be more readiness to consider impeachment, but that is not on the table. Somebody has to lead the Executive branch of the government. Which alternative is worse? This is not an easy question to answer. Many people approach such situations with a simple rule: Stick with the devil you know.

 

Memo to Progressives re: Impeachment

Many Progressives are eager to start impeachment proceedings against President Trump. It consumed a large share of the Sunday shows this week.

There is some speculation as to whether Trump actually wants to be impeached, believing that the impeachment will fail to carry the Senate. Given his record of wanting to show he is surrounded by enemies, I tend to believe that this is true.

Nevertheless, I have a slightly different take on the matter. I believe that an impeachment could lead to successful conviction. However, this could leave the country better or worse off, depending upon how it is conducted.

Progressives have demonstrated indifference to process. You want your result, and don’t much care how you get it. You reinforced your reputation with your conduct during the Kavanaugh confirmation hearings. However, we are at a crossroads, and I am not prepared to sit by and say nothing while the country spirals out of anyone’s control. So here goes.

The Real Jury

If the House passes articles of impeachment, the real jury consists of the 40-45% of the American people who consistently support Trump. You have to convince at least half of these people that you have a case with genuine merit. Otherwise, even if you did swing Republican Senators to vote a conviction, two out of five people in the country would see the action as a coup d’état. This would only accelerate the divisions in the country, possibly to a critical level.

If the Trump supporters believe that you are impeaching to nullify an election, they will repay you in kind. Anybody remember the campaign to prevent Robert Bork becoming a Supreme Court justice, and the consequences of that?

Furthermore, Trump only keeps Republicans in the Senate in line because they fear the electoral consequences of defying him. Remember Mark Sanford? Remember Mia Love? Republicans would be shorn of any fear if Trump’s base of support visibly cracked.

Stop Preaching to the Choir

Please stop carrying on about the 2016 election, supposed collusion in said election and whatever else you keep saying to make yourselves feel better about losing the election. These stories are completely unpersuasive to people who voted for Trump. Retelling them just defeats your efforts. It is completely counterproductive behavior.

While you’re at it, put a muzzle on people like Tom Steyer. Not only is failing to lead a Progressive agenda not an impeachable offence, but some of us actually approve of decisions such as withdrawing from the Paris Climate Accord. Some of us actually don’t believe we were ever in the Paris Climate Accord, because it was a treaty that was never ratified by the Senate. This points to a larger question about the relationship between Congress and the President, which I shall get to later.

Similarly, there are a whole lot of people who don’t like immigration from Mexico. I understand you believe that these people are racially biased against Hispanics, and when I read American history, I have to conclude there is a long and sorry record that supports your claims. Nevertheless, you are not going to build a coalition by telling people you want to win over how ignorant and evil they are. Issues around treatment of immigrants, legal or illegal, are a non-starter for this purpose.

Please do not wrap yourselves in the mantle of the Public Interest. When people start talking about the Public Interest, we start counting the silverware. Who is qualified to be the High Priest who can interpret the Public Interest? This line is an immediate disqualifier. Click — we’re not listening anymore.

So What Is the Focus?

The real problem with Donald Trump is that he thinks he’s a king. He does not distinguish between his person and his office. He thinks the Attorney General is there to protect him personally. He demands loyalty to his person, not to Constitutional processes. He sees no reason why he should not enrich himself from the opportunities available to him as President. He threatens to take Anglo-American political development back four hundred years.

However, this is not the first time a president has been accused of setting himself up as a monarch.

Political cartoon critical of President Andrew Jackson, c. 1833.

Andrew Jackson appalled the Boston Brahmins and First Families of Virginia, who considered him a hick from the sticks, totally unsuitable for high office. Before he was President, he was a planter and a land speculator. He had killed a man in a duel. He had led an expedition into Florida and caused an international incident when he captured and executed two British agents.

As President, Jackson used his powers to promote the spoils system, where the elected officials can replace civil servants with office seekers from their own party. He aggressively promoted Indian removal from the southern states; estimates of Cherokee dead on the Trail of Tears run as high as 4,000, out of 18,000 persons starting the journey.

You may believe that comparison with Andrew Jackson sets a low bar. Nevertheless, it provides some framework for discussion. How does Trump’s behavior compare with Jackson’s? How much of your dissatisfaction can be attributed to:

• The fact that you don’t like him?
• The fact that he his taking actions that you politically oppose?
• Specific behaviors that are so far outside the norms of proper Presidential conduct that they are manifestly unacceptable?

The first two categories are not grounds for impeachment. To the extent that there are items in the last category, how do you make the case to his supporters?

Power to the President

For about a century, Congress has been giving away its powers with both hands to the President and to independent agencies. The last time the Supreme Court dared to nullify a law for unconstitutional delegation of congressional prerogatives was 1935. Now, all of a sudden, we have this new interest in congressional oversight. What changed?

You could make the case justifying this. You could even argue that you regret how far out of balance the separation of powers has become. Congress is not just a co-equal branch of government; it is the first among equals. Half of the original Constitution is about Congress. The President is there to execute the will of Congress.

However, you are going to get a lot of objections, basically arguing that you are only acting because now you have a President taking aggressive political actions you don’t like. That cannot be grounds for impeachment, because it can be turned right around and used on your guy next time.

You thought it was great when President Obama wrote executive orders to enact laws he couldn’t get through Congress. So now their guy writes executive orders to undo the executive orders your guy wrote. Today is a great day to rediscover process.

Persuasion

You are going to have to rediscover persuasion, which is becoming a lost art in America. Calling the Trump supporters names and shouting that everybody knows what Trump is doing is wrong are well-worn tactics, but they won’t do the job.

Effective persuasion requires you to get into the operating reality of the other person. You have to look at the world the way he does, not the way he ought to look at the world if he were the intelligent, caring person you are.

Rashida Tlaib was on Meet the Press this morning. One of the charges she made was:

I mean he has not complied with the United States Constitution when he took the oath of office by divesting in his businesses. So we have an upgraded version of pay-to-play. So, when I’m on the ground right now in my district fighting against the T-Mobile and Sprint merger, T-Mobile is turning around, spending $195,000 at the Trump Hotel in D.C. as again, an upgraded version of pay-to-play to get access to the most powerful corridor to power in our country, the president’s office.

This is sufficiently succinct to work as a talking point on the Sunday shows, where you don’t have enough time to educate people. But, when you take this show on the road, you must plan to educate people. You will meet people who don’t understand pay-to-play, or even who don’t believe there is anything wrong with pay-to-play. Either you are going to convince them that it is a problem, or you are going to toss them into the basket of deplorables.

Also remember that Joseph P. Kennedy had sufficient foresight to make his money as a rumrunner and stock manipulator ahead of time, so that when his sons wanted to run for public office, they would already have family money. Not every family has a paterfamilias with that kind of foresight. Some of the people you talk to are going to take the approach that, since it takes money to obtain public office, if you don’t come from a family that already has money, you have to be able to get it yourself. You will want to have thought about your response to that.

Read Hillbilly Elegy if you have to. Even better, read The Great Revolt by Salena Zito and Brad Todd. Listen to Stanley Greenberg; he’s a Progressive, and he wants to help you.

We are at a crossroads. The next several years will determine whether American political life gets better or gets worse. Not only does it matter whether you get Trump impeached; the method matters even more.

 

Obstruction of Justice

Since the Mueller Report came out, there has been renewed interest in the charge of obstruction of justice against President Trump. For this essay, I am going to primarily source an article from LawFare, published in cooperation with the Brookings Institute. In this article, Quinta Jurecic worked up a heat map assessing, for each subject area of the investigation, the degree to which she believes the Presidents actions are demonstrated to meet three tests:

• Was there an obstructive act?
• Was there a nexus between the act and some official proceeding?
• Can corrupt intent be established?

Note that Jurecic agrees with Mueller’s assessment that “a president may still obstruct justice even if the act in question is taken entirely under his Article II authority.” Alan Dershowitz disagrees.

Given the foregoing, there are four items that are hot across all three tests:

• Efforts to fire Mueller (section E);
• Efforts to curtail Mueller’s investigation (section F);
• Order to McGahn to deny the attempt to fire Mueller (Section I);
• Conduct re: cooperation with Manafort.

Remember that impeachment is a political proceeding, not a legal proceeding. If the impeachment appears to be an attempt to nullify an election, the supporters of the impeached President are going to call it a coup. To avoid this, it is necessary to have evidence of an act so unacceptable that substantial numbers of the supporters defect.

This happened to President Nixon in July 1974, after the Supreme Court ruled, 8-0, that Nixon could not withhold a set of tapes of 64 presidential conversations from special prosecutor Leon Jaworski. One of these recorded a conversation with several staff members six days after the Watergate break-in, in which Nixon proposed an organized effort to halt the FBI investigation. This was the so-called “smoking gun” tape. After it was released, support for Nixon among congressional Republicans collapsed.

I see no evidence that an obstruction of justice charge will have a similar effect on political support for Trump, particularly if there is no evidence of misconduct that Trump would have been obstructing justice to cover up. Consider, for example, the items regarding the Mueller investigation itself. Supporters of Trump consider the investigation unfounded to begin with. They don’t think Trump should have just rolled over and given the special prosecutor anything he wanted. They give him credit for fighting back. Yes, Trump had intent to remove Mueller or limit his scope due to the fact that Mueller was investigating him. Absent a finding of some criminal activity or misfeasance, they question what justice there was for Trump to obstruct.

Any attempt at impeachment is going to have to do better than this. An impeachment centered on obstruction of justice without evidence of the misconduct whose discovery was being obstructed will tear the country apart even further than it already is.

 

 

Donald Trump Impeachment Watch

The word impeachment is being increasingly used. What grounds could there be for impeachment? How good are they? Let’s start a watch list.

I will be evaluating the arguments from many sides. The Progressives are already convinced that Trump is the embodiment of evil. The arguments for impeachment need to make sense to those who are not already convinced, or they will simply interpret this as (further) evidence that Progressives think it’s OK to obtain their political ends by any means at their disposal, fair or foul, so everyone else had better do the same. If the latter, impeachment will push us further toward anarchy.

Conduct Unbecoming

We have a President who does not uphold the norms and standards we are used to. He said he wouldn’t when he was still campaigning. He expressed his contempt for those norms and standards. He was as good as his word on this subject.

Many of Trump’s actions are simply repellent to people who believe in American governmental institutions. But those who distrust those institutions applaud Trump’s actions for the same reasons. When David Gergen goes on television, stands in front of his Kennedy School of Government wallpaper, and talks about how outrageous the latest Trump communication is, these people smile inside. It’s validation to them that Trump is on the right track. Republican and Democratic Presidents come and go, and David Gergen goes from one position of influence to another. The Trump supporters hate that. They want people in government who do not share the Kennedy School orthodoxy.

The Founders never put a clause in Article II stating, “The President shall not let his little head do the thinking for his big head.” I doubt they even thought of it. They likely would have believed it would be a sad day for the Republic if we needed such guidance. But here we are.

There are several problems with impeachment on grounds of conduct unbecoming to a President:

• There is no standard. Like obscenity, you’ll know it when you see it.
• It is an ex post facto standard. It was not discussed prior to the election. Well, except by Hillary Clinton. Which brings us to:
• It is a standard for institutionalizing a specific set of political beliefs. Anyone with a contrary political agenda who attempts to act on that agenda will, by definition, display conduct unbecoming to public office.

For these reasons, I am not considering impeachment grounds that my analysis reduces to conduct unbecoming.

Trump retains his core support because he is willing to color outside the lines. They don’t see our system of government having been working for them. If you get someone who does what other Presidents do, you will get what other Presidents got.

Congress and the President

I am taking the position that Congress has the right to direct the President to do some things and refrain from doing others. Congress is the premier branch of government. The executive branch exists to execute the will of Congress.

Congress has largely abdicated this responsibility, and the last time the Supreme Court invalidated a law because it was an excessive delegation of responsibility was in 1935. So, within the living memory of most Americans, Congress has failed to impose its will. Since nature abhors a vacuum, successive Presidents have moved further and further into the void. However, this does not mean that Congress cannot direct the President, just that it doesn’t.

Therefore, I maintain that Congress could direct the President through joint resolutions which would not be open to veto. If the President were to act in defiance of these resolutions, this in itself would be an impeachable offense.

The Tom Steyer List of Offenses

Tom Steyer, who is a hedge fund manager, philanthropist, environmentalist and Progressive activist and fundraiser, has been paying out of his own pocket for a national television campaign calling for impeachment of Donald Trump for almost a year now. I have not signed on and do not think I could, most importantly because I don’t trust Steyer and his agenda. Nevertheless, he spells out some charges on his website, and I am including them in the discussion because he has at least supported them with some arguments.

Obstructing Justice

This is centered around Trump’s handling of James Comey and Michael Flynn, including Trump’s statements after the fact, in which he has taken multiple, mutually inconsistent positions.

However, Alan Dershowitz has maintained that, because Comey was an employee of the executive, Trump was within his Constitutional authority to direct Comey’s investigative efforts and to fire Comey when Trump chose to do so.

The charge of obstructing justice is rather murky. I expect that, if the House impeaches Trump, it will lay on one or more items of obstruction of justice. But this is not a good centerpiece, because of both Constitutional and practical issues.

Violating the Emoluments Clause of the US Constitution

Steyer argues that Trump violated the Emoluments Clause by continuing to actively operate his businesses while serving as President. There is some merit to this charge, and I expect it will show up even more importantly soon.

This charge will not be the centerpiece, but it will figure. The keys are what those businesses were doing and who had undue influence through those businesses. But we don’t have the full story yet.

Steyer also states:

And every time he goes to golf at a Trump property, he funnels taxpayer money into his family business—violating the Domestic Emoluments Clause.

I can see the Trumpkins pushing back hard on this one. They see Trump as a successful entrepreneur. They won’t see this as a hanging offense. Why shouldn’t he be able to go play golf on his own property when he wants to? Whose property did Obama play golf on? What connections did that owner have with Obama or the Democrats? What benefit did the owner derive?

Maybe the government should make a nine-hole course in Lafayette Park.

Conspiring with Others to Commit Crimes Against the United States, and Attempting to Conceal Those Violations

This is about the meeting with Natalia Veselnitskaya and the offer of dirt on Hillary Clinton. Too many people don’t buy the idea that this was wrong. It has been out there, rehashed over and over.

We suspect that this is an attempt to support a claim that Donald Trump stole the election from Hillary Clinton. In fact, Clinton made too many mistakes. She failed to mobilize the Democratic core constituencies in Philadelphia, Detroit and Milwaukee. Calling Trump voters “deplorables” wasn’t too bright, either. The contest should never have been that close.

This is a non-starter for impeachment purposes.

Advocating Violence and Undermining Equal Protection Under the Law

Steyer’s net charge is:

Trump has demonstrated a pattern of behavior amounting to advocating violence, undercutting equal protection, and, as a result, failing basic Constitutional duties.

Steyer was careful to stick to the most egregious examples of Trump’s behavior in this pattern, such as his behavior after Charlottesville. Nevertheless, we know that many people who support Trump feel that they would not be the beneficiaries of equal protection under a regime Steyer would support.

Writing in 1979, Theodore Lowi wrote that the trend in government was “To apply the Fourteenth Amendment of the 1787 Constitution as a natural-law defense of all substantive and procedural rights.” This trend has continued, although many of us want the Fourteenth Amendment balanced by the Tenth.

Furthermore, the real issue in Steyer’s description is with Trump’s communications, not his actions. This is conduct unbecoming.

Abusing the Pardon Power

Steyer’s argument is about Trump’s pardon of former Maricopa County Sheriff Joe Arpaio for his contempt of court conviction.

Here is the relevant paragraph of the Constitution, Article II, Section 2, Paragragh 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Arpaio was not impeached. Nowhere does it say that Trump does not have the authority to pardon Arpaio. So Trump did not exceed his Constitutional Authority.

Steyer doesn’t like that Trump pardoned Arpaio. OK, I don’t like that Trump pardoned Arpaio, either. But that is a political issue, not misconduct. At most, it is conduct unbecoming.

Engaging in Conduct that Grossly Endangers the Peace and Security of the United States

There are two main ideas here. I will cite examples of each.

High-ranking administration officials involved in foreign affairs have signaled that Trump does not have the capacity to make informed decisions in the event of a military crisis.

This boils down to conduct unbecoming. I have already discussed this in the example of John Brennan.

Even worse, his actions could spark a needless confrontation stemming from misunderstanding or miscalculation.

Steyer clearly doesn’t like Trump’s foreign policy direction. Given what we know about Steyer, I would not expect otherwise. Steyer is seeking to nullify an election. This is a non-starter.

Directing Law Enforcement to Investigate and Prosecute Political Adversaries for Improper and Unjustifiable Purposes

After we discuss the IRS Targeting Scandal under President Obama, we can consider this. But we won’t discuss it. The brave seekers of truth in journalism are already working to shove it down the memory hole. However, the IRS did issue an apology.

Undermining the Freedom of the Press

We know that Jefferson, among others had a reputation for upholding freedom of the press:

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers & be capable of reading them.

But Jefferson wrote that before he became President. When he was on the receiving end of the journalists’ attentions, he said, “Nothing can now be believed which is seen in a newspaper.”

Trump is exploiting, not creating, distrust in the press. The mainstream media was hostile to the Tea Party long before Trump became a candidate. Trevor Butterworth documented how journalists looked down their nose at the Tea Party. Journalists denied the legitimacy of the Tea Party members as citizens. A professor interviewed in The New York Times claimed they were “frightening.” Matt Taibbi described them as an “assortment of nativist freaks, village idiots and Internet Hitlers,” boiling with “incoherent resentment.” And let us not forget Anderson Cooper with his “teabaggers” quips.

Many journalists have run down their credit with voters who supported the Tea Party. Now, they need to be heard by those voters. Why should those voters trust them now?

Yes, Trump exploits these conditions for his own enlargement. No, it is not helpful to the country. How about a joint resolution from Congress demanding that he desist?

Cruelly and Unconstitutionally Imprisoning Children and their Families

This is all about the separation of families detained for illegally immigrating to this country from or through Mexico.

I know people who support his implementation of these policies. They don’t like people coming here from Latin America in large numbers. Their attitude is, “If you don’t to be separated from your children, don’t come here illegally.”

We can have an extended discussion as to the merits of this approach and whether or not it will succeed as designed. Personally, I find too much nativism in this thinking, but that is not the point. The point is that this issue is a legitimate policy dispute.

Steyer offers no support for his claim of unconstitutionality. So, in the end, it is another issue on which he and others disagree with Trump and hope to nullify an election.

Summary

If I were a Republican member of the House, there is nothing here that I would want to hang my political career on. There is no call to conscience, nothing for me to take back to angry constituents and offer a compelling explanation.

Steyer has offered nothing to call those of us who do not share his political agenda to action. His arguments are only meaningful to those who are drinking the Progressive Kool-Aid. For the rest of us, they are insufficient.