“The Articles of Impeachment … are a dangerous attack on the right of the American people to freely choose their President.” A “brazen and unlawful attempt to overturn … the 2016 election” and a “highly partisan and reckless obsession,” the “Articles … are constitutionally invalid on their face.”
They fail to allege any crime or violation of the law whatsoever, let alone “high Crimes and Misdemeanors,” as required by the Constitution. They are the result of a lawless process that violated basic due process and fundamental fairness. Nothing in these articles could permit even beginning to consider removing a duly elected President or warrant nullifying an election and subverting the will of the American people.
So Jay Alan Sekulow and Pat A. Cipollone attest (“Answer of President Donald J. Trump“; all quotations from page 1 of the six-page brief). While I realize that this is political pamphleteering, not strictly the practice of law, it is a breathtaking response to the weighty, well-documented case – virtually uncontested in this defense by Trump’s personal attorney and counsel to the Office of the President – that the House presents for the President’s removal.
The brief insists that a president cannot be impeached for abuse of power if he has violated no federal statute. While Alan Dershowitz, another of the President’s lawyers, did not sign the brief, he has made this case in a book on impeachment:
Assume Putin decides to “retake” Alaska, the way he “retook” Crimea. Assume further than a president allows him to do it, because he believed that Russia has a legitimate claim to “its” original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.
Adam Schiff replies:
The logic of that absurdist position that’s being now adopted by the president is he could give away the state of Alaska, he could withhold execution of sanctions on Russia for interfering in the last election, to induce or coerce Russia to interfere in the next one.
That would have appalled — the mere idea of this would have appalled the founders, who were worried about exactly that kind of solicitation of foreign interference in an election for a personal benefit, the danger it poses to national security. That goes to the very heart of what the framers intended to be impeachable.
The narrowest reading of “high Crimes and Misdemeanors,” which Trump’s lawyers rely on, has been refuted again and again. It is hard to see how we can reconcile the view of Sekulow, Cipollone, Dershowitz, et al. with the concerns of Hamilton (and the men who drafted our constitution) with “the abuse or violation of some public trust,” as distinct from prosaic violations of the law.
What if Putin decided to retake Alaska with Trump’s acquiescence? Would Republicans accept that? Perhaps Lisa Murkowski, if not Susan Collins, would find grounds to object. Mitch McConnell would certainly strive to deflect the issue if he believed control of the Senate were at stake.
There’s a serious point embedded in that counter-factual. Trump has welcomed the intervention of foreign powers in our elections (past and future). Is that in any sense less significant, if we are concerned with democracy and constitutional governance, than ceding one of 50 states to a foreign adversary? The facts, when push comes to shove, don’t matter to Trump’s Republican defenders. The bottom line is: what will the base accept (looking no further into the future than the 2020 election)?
There is scant evidence of a deeper principle at stake for Trump’s Republican defenders in the House or the Senate.
But when the NBA makes the wrong geopolitical call, watch out.
“The idea of China interfering in the sanctity of the NBA is somehow incredibly offensive to them, whereas the same standard for American elections results in the sound of crickets.” — Jake Tapper in an interview with Politico
Original post:
“This president doesn’t appear to know or care much about the Constitution, especially the limits it puts on his power.
. . .
Trump took an oath to defend the Constitution. Instead, he’s attacking it — by inflating and abusing his powers, ignoring laws he swore to protect and demanding unconstitutional reprisals against anyone who opposes him.” — Doyle McManus, in Sunday morning’s Los Angeles Times
The headline and sub head in Sunday’s print edition conveys the gist of the column — “A constitutional blind eye: Trump neither knows nor respects how our basic law limits his power” — which contrasts the President’s view of his power under Article II with the view of the founders.
As Trump approaches 1,000 days in office (on October 17, 10 days from now), a recurring question has been, When will Congress step up and check the President? An Iowan put the question to Senator Joni Ernst last weekend:
Charlie Cook (who also used the expression, shelter in place) had an answer in July:
“Those who can’t understand why elected Republicans and party officials don’t stand up to Trump seem to miss a point. The survival instinct in humans is a powerful one. In anticipating human behavior, it should always be kept in mind. The track record of what happened to those who did is pretty clear. They lost primaries or chose retirement. Instead, for many pre-tea-party Republicans, the strategy has been to shelter in place. The thinking goes that there is nothing that can be done to stop Hurricane Donald. The key is to survive the storm and be in a position to put the pieces back together and rebuild the party after it has passed. They know that the final edition of Profiles in Courage has already gone to the printer.
Cook references pre-tea-party Republicans, those who (mostly in silence) still embrace conservative principles (who hope to put the pieces back together and rebuild the party post-Trump). That’s not everyone in the Senate, of course:
“Everyone is getting a little shaky at this point,” said Brendan Buck, who was counselor to former House speaker Paul D. Ryan (R-Wis.). “Members have gotten out on a limb with this president many times only to have it be cut off by the president. They know he’s erratic, and this is a completely unsteady and developing situation.”
The few who might harbor thoughts of opposing Trump are even less likely to speak out. As former Senator Jeff Flake put it, “There is a concern that he’ll get through it and he’ll exact revenge on those who didn’t stand with him.”
The founders didn’t expect Profiles in Courage. They anticipated men acting badly, but believed that institutional checks would hold. Personal ambition and rival interests, both good motives and bad, were all part of the equation:
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.“
They expected personal ambition, “opposite and rival interests,” and perhaps even institutional pride (or, in less positive terms, institutional jealousy) to be incentive enough to check an errant president.
But when Trump holds sway over Republican primary voters, and is ready to exact revenge for disloyalty, personal ambition requires sheltering in place.
Marco Rubio was ambitious. (“And two weeks from tonight, right here in Florida, we are going to send a message loud and clear. We are going to send a message that the party of Lincoln and Reagan and the presidency of the United States will never be held by a con artist.” Trump beat Rubio by 18 points in the Florida primary.
Given this environment, could Republicans break from Trump?
“Nobody wants to be the zebra that strays from the pack and gets gobbled up by the lion,” a former senior administration official said in assessing the current consensus among Senate Republicans. “They have to hold hands and jump simultaneously … Then Trump is immediately no longer president and the power he can exert over them and the punishment he can inflict is, in the snap of a finger, almost completely erased.”
Expecting Republican Senators to “hold hands and jump simultaneously,” between now and November 3, 2020, even as we learn more about Trump’s extortion of Ukraine, is far fetched.
If the story metastasizes far beyond where we are now, might 3 or 4 Republican Senators vote for impeachment? I would regard that as a victory.
Meanwhile, Republican Senators can be expected to fall into 3 camps. From the first camp, we’ll see an avalanche of lies, diversions, attacks on Democrats and the media, and a bottomless narrative of grievance.
From the second camp, we’ll hear tut-tutting and murmurs of disapproval, but the conduct will not rise to the level of impeachment.
And, a third possibility, 1 or 2 or 3 (or …?) Republican Senators will acknowledge that Trump’s misconduct is undeniable and renders him unfit to serve. At least we can hope that this category is not a null set by the time the Senate votes on impeachment.
In a week when Bob Woodward’s “Fear” paints in chilling detail a portrait of a White House engulfed in conflict, chaos, and covert insubordination, and an anonymous op-ed in the New York Times attests to the derisive views of President Trump by those closest to him and persistent workarounds to keep him from getting his way, what have we learned?
Conflict in presidential administrations is commonplace. Appointees often represent wings of a political party with different priorities than the president. Directives are often ignored by cabinet members. Aides try to protect the president from his worse impulses. This is all normal.
Donald Trump is impulsive, indulges in reckless rants and incoherence, has a short attention span, is easily distracted, lacks intellectual curiosity, is ignorant of history and policy, and reveals an irrepressible narcissism. We already know all this (which touches only on Trump’s mental capacity, not on his prejudice, avarice, or lack of principle) from watching the public Donald Trump and, for anyone who reveres democratic government, this is frightening. In Bernstein’s words:
What’s really scary is that Trump’s ineptitude at his job means that the normal constraints that keep presidents from doing terrible things may simply not apply. Normal presidents care about their professional reputation among those they work with, and about their popularity among the nation at large, and so they attempt to do the sorts of things that would enhance their reputations and make voters like them. Because he’s unable to even try to do those things — because he has apparently has no sense at all of how the job works — Trump doesn’t see the clear warning signs and then back off things that damage himself and the nation.
Or, as my Bloomberg Opinion colleague Timothy L. O’Brien puts it, “he generally doesn’t care about the long-term damage he might inflict on himself or those around him as long as he’s the center of attention.” That’s truly scary because the entire political system, as those who have read Federalist 51 will recognize, depends on politicians who care deeply about avoiding damage to themselves.
Federalist 51, generally attributed to James Madison, describes the features of the Constitution intended to “furnish the proper checks and balances between different departments” of government, such as constraints on personal ambition and buffers against encroachment of one branch on another. As remarkable as Donald Trump’s incapacity is, equally remarkable is the implacable abdication of the Republican majority in Congress to provide oversight over the executive branch.
Two of the President’s ‘critics’ in the majority party – both of whom have chosen not to seek reelection, which would require them to face the GOP voter base (still in lockstep with Trump) – find no grounds for disputing the devastating portrait of their leader.
Neither Senator proposed any activity by Congress to remedy the situation our nation finds itself in. Congressional investigations of the executive branch are commonplace, even when the same party controls both Congress and the White House. Yet taking a closer look at what is going on is not in the cards for this Congress.
There is ample evidence, dating back to Newt Gingrich’s first days as Speaker of the House, of Republicans paring back the capacity of Congress to do its job. The inability to repeal the Affordable Healthcare Act (aka Obamacare) is the most glaring example of this failure in the current Congress (in part because no one on the Republican side of the aisle had developed the policy expertise to understand the ACA or to craft a plausible alternative, and no one in the leadership or among committee chairmen cared enough to do so).
Nonetheless, Speaker Paul Ryan and his team, which encouraged investigation after investigation of Benghazi (while boasting that it would harm Hillary Clinton’s 2016 election prospects) hasn’t simply forgotten Congress’s investigative role. Republicans have actually catalogued scandals and controversies that Congress could be investigating, if it had the will to do so (which is anticipated if Democrats regain the majority in the House this fall). A partial list from Axios, which obtained a copy of a document prepared by House Republicans:
President Trump’s tax returns
Trump family businesses — and whether they comply with the Constitution’s emoluments clause, including the Chinese trademark grant to the Trump Organization
Trump’s dealings with Russia, including the president’s preparation for his meeting with Vladimir Putin
The payment to Stephanie Clifford — a.k.a. Stormy Daniels
James Comey’s firing
Trump’s firing of U.S. attorneys
Trump’s proposed transgender ban for the military
Treasury Secretary Steven Mnuchin’s business dealings
White House staff’s personal email use
Cabinet secretary travel, office expenses, and other misused perks
Discussion of classified information at Mar-a-Lago
Jared Kushner’s ethics law compliance
Dismissal of members of the EPA board of scientific counselors
The travel ban
Family separation policy
Hurricane response in Puerto Rico
Election security and hacking attempts
White House security clearances
Things aren’t normal in either the executive or legislative branches of government. (I’ll set aside for the moment consideration of the judicial branch, which will be transformed for at least a generation as Brett Kavanaugh takes a seat on the Supreme Court and the U.S. Senate continues to approve ideologues to district and appellate courts nationwide.)
Things aren’t normal because the Republican Party has become an outlier, trashing traditional governing norms whenever it has glimpsed a partisan advantage, while ignoring – and diverting attention from – the resulting harm to the country.
September 9, 2018 update: Barack Obama reentered the political fray on Friday, decrying the course our nation is on, the absence of checks and balances, and the urgency of changing direction.
Jamie Dupree, a reporter whose career began during the Reagan administration, reports hearing that question frequently.
His response: “My answer is always – no, this is not the most divided that our country has been, even in my lifetime.”
He points to events of 45 to 50 years ago (1968-1973).
I was a freshman in college in 1968, a year the nation experienced two political assassinations – of Martin Luther King, Jr. and Robert F. Kennedy; the My Lai massacre; and brutal clashes between protesters and the police at the National Democratic Convention in Chicago, which paved the way for the election of Richard Nixon.
The nation was engulfed in the Vietnam War abroad and protests in the streets at home. In 1970, National Guardsmen fired on protesting students at Kent State University, killing four of them. (Dupree’s post features a soundtrack of Crosby, Stills, Nash, and Young’s “Ohio,” with a photo montage from that year to illustrate the social chaos the country was experiencing.)
We don’t have half a million troops fighting a war in Southeast Asia today with high casualties and a military draft. We don’t have the level of violence in the streets that we had 50 years ago. So Dupree’s conclusion that we are less divided today than we were then is not unreasonable.
Nonetheless, this conclusion leaves something out. Since the late ’60s and early ’70s, our politics has become much more tribal. We are more separate than before in many ways. And in 2016, we elected the first president in my lifetime who, in Jonathan Bernstein’s words, “doesn’t even attempt to be president of the whole nation.” Even Nixon, who kept an enemies list – but kept it private, often spoke to the country as a whole and sought to appeal to – and to represent – both independents and Democrats, not just the Republican base.
Donald Trump began his political ascent as the chief proponent of the birther theory – intending to delegitimize his predecessor in the White House. His political rallies in 2016, and the Republican National Convention that nominated him, featured frenzied chants of “Lock her up!” directed at his Democratic opponent. So (although for many months following his election, pundits predicted, and often professed to see, a pivot – the turning point where Trump adopted the norms and mores of recent – and distant – presidents) his approach to governing has been of a piece with his campaign. It’s either all-in with Trump; or excluded and excoriated.
The 45th president has, in effect, championed factional government. (Josh Marshall makes this point.) He has done so very deliberately and for all to see.
The phrase, “factional government,” is something we are accustomed to hearing applied to unstable regimes, or where opponents control separate regions – in the Middle East, for instance. When sectarian divisions exist, and there is no shared conception of the national interest, then insular, zero-sum tactics predominate. When one faction gains the upper hand, however precariously, disfavored groups – and a common, overarching public good – suffer.
The concept of factions has a special place in American political thought. James Madison – who feared that democratic society could be ripped apart by factionalism – wrote, in Federalist 10: “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The stubborn refusal of our president to embrace America whole – all of our citizens; our country’s abiding national interest; what we share in common, not what divides us – sets this era apart from the divisive years that Dupree recalls.
(Post revised July 13, 2018 to introduce Josh Marshall’s reference to factional government.)
