Posts © 2011-2012 by Gerald G. Day

Saturday, September 16, 2017

September 16, 2017
Could Donald Trump be impeached? Here is the relevant Constitutional provision, Article II, Section 4:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Treason is not a likely ground, due to the definition: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." Article III, Section 3. Apparently "enemies" are only those with which we are at war. As to bribery, see below.

There are other relevant provisions pertaining to the duties of the President.
Article II, Section 1:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’
Article II, Section 3: "[H]e shall take Care that the Laws be faithfully executed . . . ." 

We have two relatively recent instances of impeachment or proposed impeachment, Clinton and Nixon, which illustrate how the Constitutional provisions are invoked. The boilerplate language of impeachment was virtually the same in each case. Here is the recital from Article I, as approved by the House Judiciary Committee, against President Nixon :
In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that: . . . .
Here is Article III of the impeachment of President Clinton, with the only variation in language italicized:
In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, and has to that end . . . .
The other articles in each case mirror that language.

Does any act or omission by Trump rise to impeachable level? The New York Review of Books has an excellent article reviewing two recent books on impeachment.[40]  It notes that "high crimes and misdemeanors" is a term of art referring to public office; the terms are not used in the criminal-law sense. "The words ‘crimes’ and ‘misdemeanors,’ . . . do not distinguish acts of different gravity, as they do in criminal law, but were intended as synonyms. More important, the adjective ‘high’ does not mean ‘very bad,’ but rather that the crimes are committed by high government officials in the course of their duties . . . ."
The House voted two articles of impeachment against President Clinton, one alleging perjury, the other obstruction of justice. Neither had any relation to a core duty of the presidency (note the evasive "while President"); both related to his tawdry affair with Monica Lewinsky and his attempt to hide that. There was an indirect connection to a civil case against him for sexual harassment dating to his days as Governor of Arkansas. Perhaps by the loose standards of that case, grounds might be found to impeach Trump. However, the Clinton impeachment was a misuse of the power. In Federalist 65, Hamilton described its purpose:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Clinton’s impeachment was political in the sense of partisan, but not in the sense intended by Hamilton: relating to government. 

Because impeachment must refer to conduct while holding, and related to, an office, Trump’s pre-inaugural acts and statements probably would not support impeachment, unless they somehow carried over, for example in obstruction of justice. The investigation into collusion with Russia during the campaign could produce such a charge. As the NYRB article puts it: "Trump’s acknowledgment that he fired James Comey because he would not drop the FBI’s investigation of the Russia scandal is as close to a presidential confession of obstruction of justice as we are likely to see."
The other obvious ground is financial corruption, using the office to promote personal enrichment. Trump’s financial conflicts of interest are numerous and clear and, even if his financial benefits do not rise to the level of bribery, there is reason to find that some of them violate this provision of the Constitution: "no Person holding any Office of Profit or Trust [of the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State." Article I, Section 9. The obvious intent of the Emoluments Clause is to ensure that a public official serves the nation, and not his pocketbook, and that his decisions on public matters will not be influenced by private dealings, obligations or prospects. No amount of tap dancing by Trump’s lawyers around the definition of emolument will cause the conflict of interest to between his financial interests and his duty as President disappear.

Impeachment, though, unavoidably is also a political act in the partisan sense. This Republican Congress does not seem to be a likely source of impeachment or conviction. However, Trump’s cushion is smaller than Nixon’s, and not only because of his personal inadequacy. In 1972 Nixon won the popular vote by 17.8 million; Trump lost by 2.86 million. Nixon carried 49 states, Trump 30; he started from a weaker position in terms of popular support. His present level of approval, according to Gallup, is only marginally higher than Nixon’s at this time in 1973, with the Watergate investigation well under way. Congressional Republicans at some point may consider Trump’s presumed support for their agenda less important than reelection. His recent flirtation with Democrats and the reaction of some of his supporters may begin that process. 


"What Are Impeachable Offenses?" Noah Feldman and Jacob Weisberg, September 28, 2017 Issue

Friday, September 8, 2017

September 7, 2017

During parts of July and August we were in the Balkans; we turned on TV only once, to BBC, and the The International New York Times was difficult to find, so Trump, while never entirely out of mind, was not a daily concern. A few random thoughts about him since returning:
Donald Trump, as President, poses a challenge to anyone attempting to understand or describe him, whether a columnist, a politician of his or the opposite party, or an ordinary voter. One could intelligntly and meaningfully criticize George W. Bush or Barack Obama because they were normal men whose strengths and weaknesses, assests and liabilities, could be assessed on a familiar scale. Various of Trump’s characteristics can be listed and criticized — he is inept, ignorant, self-centered, dishonest — but taken as a whole individual there is no meaningful standard because he doesn’t conform to any recognizable pattern, unless we assume that he is mentally incompetent, which does not appear to be true in any technical sense. Clearly he should not be President, but he was duly elected.
I’m not sure that the country will avoid major disaster until he can be voted out in 2020, but impeachment can’t be based simply on his unfitness; high crimes and misdemeanors must be found. "Ridiculously unqualified" is good reason not to vote for him (again), but impeachment will require specifics.
Trump is not so much an individual as a symptom. At any time I can remember, any politician with his characteristics never would have been elected, even by our nutty electoral-college system. The question to be asked is what has happened to the country.

Sunday, August 27, 2017

August 27, 2017
Recent election defeats have led to various suggestions for the key to future Democratic victories. A little perspective is required. Yes, Donald Trump is President, but he lost the popular election by over 2.8 million votes, a margin of 2.1%, the third largest percentage margin since such numbers have been kept, and the largest since 1876.  He lost it to a weak candidate who ran a poor campaign. Fewer than 80,000 votes, spread over three states, 0.0567% of the national total, gave Trump the win. Even the magnified effect of those few votes in the electoral college left Trump’s margin in that vote 46th out of the last 58 elections.
Democrats have lost four special elections for the House this year, but did relatively well. These were Republican districts, and the Republican’s winning margin this year, compared to 2016, dropped by 59% to 84%.
Trump’s favorability rating is depressingly high, but as noted earlier, not out of line with historic Republican support.
That is not to say that change in Democratic philosophy is not required — and focusing on the national picture ignores Democratic weakness in many state governments — but some of the suggestions are misdirected. One proposal is to respond to right-wing victories by moving rightward. On July 6, The New York Times ran a column by Mark Penn ("chief strategist" to Hillary Clinton's 2008 campaign) and Andrew Stein advocating a "return" to the center, as if the Party had not been occupying that space for some time.
According to Penn and Stein, "In the early 1990s,the Democrats relied on identity politics, promoted equality of outcomes instead of equality of opportunity and looked to find a government solution for every problem." As Richard Eskow, puts it, "Everyone who remembers that Democratic Party, raise your hands."  That imagined situation changed in the mid-90s, according to Penn and Stein, when "President Bill Clinton moved the party back to the center in 1995. . . ."
From that they conclude: "The path back to power for the Democratic Party today, as it was in the 1990s, is unquestionably to move to the center and reject the siren calls of the left, whose policies and ideas have weakened the party." The move is required because, they think, "the last few years of the Obama administration and the 2016 primary season once again created a rush to the left. Identity politics, class warfare and big government all made comebacks." Leaving aside the imaginary move to the left under Obama, any leftward tendency in 2016 was located in the Sanders candidacy; there wasn’t any radicalism in the Clinton campaign. (She recently "pled guilty" to "being kind of moderate and center.")
In any case, to the dedicated non-leftist, "big government" probably means regulation of business (they complain that "the old brick-and-mortar economy is being regulated to death,") and "class warfare" means taxing the rich. (There is concern now that "centrist" Democrats may go along with Republican tax cuts.)   We don’t need that sort of centrism. Penn and Stein have a few valid insights; one has to do with "identity politics." According to them, working-class voters "saw the party being mired too often in political correctness, transgender bathroom issues and policies offering more help to undocumented immigrants than to the heartland." Obama’s record on immigration hardly qualifies as leftist, and the rest is exaggerated, although liberals do tend to be annoyingly righteous about sometimes-marginal issues.
They mentioned in passing issues concerning rural voters. This is an area to which Democrats have given too little attention; an article by John Nichols in The Nation summed up the issue for Democrats: "The problem isn’t based in rural America, but in the negligence and ignorance of Democratic Party leaders." In other words, those voters can’t and shouldn’t be dismissed, to borrow a phrase from Mrs. Clinton, as "deplorables." As Nichols put it, "The Democratic Party ceded rural America to the Republicans quite some time ago."
Penn and Stein would have Democrats "reject socialist ideas." Sanders’ campaign helped to convince many that they needn’t fear that term or concept, that unregulated capitalism isn’t some sort of mystic formula for prosperity, that fairness and equality don’t appear from nowhere, that government activity — intervention, if you will — is necessary. The Party should build on that.

Saturday, July 8, 2017

July 8, 2017>/b>
Recently I expressed puzzlement at the continuing level of support for Trump. An article by Frank Rich in New York Magazine[33] puts the subject in context by referring to the Watergate scandal. As the news grew worse for Richard Nixon, his approval rating fell steadily until, according to Gallup, it reached the mid-twenties near the end of 1973. It then remained essentially flat until the end. As Rich puts it, "at least a quarter of the American populace had no problem telling pollsters that they were still behind a president who had lied repeatedly and engaged in unambiguously criminal conspiracies. They still saw Nixon as ‘one of us,’ as he billed himself on posters in his first House run in 1946, and as a fighter who took on ‘them’ — essentially the same elites that Trump inveighs against today." Even as he resigned, Nixon had the approval of 24%.
That doesn’t make Trump’s level of support any less mysterious, in the sense of wonder at how so many people could continue to support someone so dishonest and inept, but it does demonstrate that such a reaction is not unprecedented. Rich goes a step further: it to be expected. His core supporters "will no more abandon Trump than their parents and grandparents did Nixon. If anything, Trump’s ascent has once more confirmed that this constituency is a permanent factor in the American political equation."
Another indication that Trump’s support is nothing unusual is that its present level matches the lowest popular vote for Republican presidential candidates in this century. Alf Landon drew 36.5% against Franklin Roosevelt in 1936, Goldwater 38.5% against Johnson in 1964, and Bush the Elder 37.5% against Clinton in 1992. (Technically, 1912 was even worse, Taft drawing only 23.2% against Wilson, but Theodore Roosevelt, also a Republican but not on the ticket that year, drew 27.4%).[34]  Trump’s approval rating in the Gallup tracking poll has ranged between 36% and 42%, since June 1, an average of 37.9%.[35]
Trump resembles Nixon in being unstable, resentful of media coverage, and prone to self-destructive comments. Nixon was a smart, tough, experienced politician who understood issues and did some good, but went too far in trying to destroy enemies; his comments were intended to be private, but were revealed when his taping system was disclosed. Trump isn’t bright, is basically weak, has no political experience or knowledge about government, seems to have neither the interest nor the attention span to required to perform his duties, and makes his inane, damaging comments intentionally. Nixon was active, aggressive and driven. Trump is detached, reactive, and uninterested in anything but himself. Take away the bluster, and there is little left.
Many of the policies he has advanced, supported or permitted work against the welfare of the people who cheer for him at rallies. At some point, that will sink in, at least for some, and Trump has a small margin of safety: Nixon had an approval rating of about 60% during his first year in office;[36] Trump only can dream of that.



Sunday, July 2, 2017

July 2, 2017
The phrase "Can Nixon Survive Dean?" came to mind in the days leading up to the testimony of James Comey. (I remembered only that it had been on the cover of a magazine; it was, I discovered, on the Time cover of June 9, 1973). The testimony of James Comey had the potential for the same sort of confrontation. Would Comey be as devastating a witness against Trump as John Dean had been against Richard Nixon? My guess was no, and so it turned out, or at least it has had little effect so far.
Dean said that he has a sense that Nixon was recording conversations. That led, during the testimony of Alexander Butterfield, to the disclosure of Nixon’s taping system, which led in turn to his downfall. Here we have Trump hinting that he taped conversations with Comey and the latter saying that he hopes so. There have been demands that Trump turn over the tapes, but probably there aren’t any, although his subsequent seeming retraction left room to find some when convenient: "With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are ‘tapes’ or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings." More likely, he was just giving himself an excuse for his original threat.

His offer to testify under oath displayed the same pattern of bluster, followed by face-saving; his press secretary, Sean Spicer, claimed that Trump meant only that he might testify to Mueller under oath, not to Congress, although Trump did not so state and the context of his promise was Comey’s testimony to a Congressional committee.

The appropriate question this time around may well be: "Can Trump survive Trump?"  His constant flow of tweets reveals, among other worrisome characteristics, an insecurity so overwhelming that he is incapable of dealing with criticism. He doesn’t stop at labeling the media enemies of the people, but lashes out at specific members of that disloyal profession.
Morning Joe, on MSNBC, at times said nice things about Trump. Like many others, its hosts became more critical, and Trump retaliated in his customary style and medium, having so much to say that it spread over two tweets: "I heard poorly rated Morning Joe speaks badly of me (don't watch anymore). Then how come low I.Q. Crazy Mika, along with Psycho Joe, came . . . to Mar-a-Lago 3 nights in a row around New Year's Eve, and insisted on joining me. She was bleeding badly from a face-lift. I said no!" Apart from what it reveals about Trump’s character, that is a self-destructive response. At some point, even the faithful may realize that this man-child shouldn’t be in a position of power.
He wasn’t through; the network is evil also: "Crazy Joe Scarborough and dumb as a rock Mika are not bad people, but their low rated show is dominated by their NBC bosses. Too bad!" Some Republicans are beginning to take notice; here are reactions to the first outburst. Senator Lindsey Graham: "Mr. President, your tweet was beneath the office and represents what is wrong with American politics, not the greatness of America." Sen. Ben Sasse:"Please just stop. This isn't normal and it's beneath the dignity of your office." Sen. Lisa Murkowski: "Stop it! The Presidential platform should be used for more than bringing people down." Sen. Susan Collins: "This has to stop . . . We don't have to get along, but we must show respect and civility."[31]
The White House is circling the wagons. Associate press secretary Sarah Huckabee Sanders offered this slightly garbled defense of her boss: "The president has been attacked mercilessly on personal accounts by members on that program, and I think he's been very clear that when he gets attacked, he's going to hit back." In case anyone had missed the point, that critics had better be careful, she added: "I think the American people elected somebody who's tough, who's smart, and who's a fighter, and that's Donald Trump. And I don't think that it's a surprise to anybody that he fights fire with fire."
It takes an extreme case of loyalty to describe Trump as smart, and poor judgment to excuse his every instance of outrageous behavior. If Trump’s staff want him to survive, they should abandon sycophancy and offer a few fire-me-if you-want lessons on how grown-ups with important jobs behave. It isn’t likely to happen or to be effective if it did. That’s probably all to the good; if his staff and Fox continue to protect him and to justify his immature, vindictive behavior, even Republicans may decide that this has gone on long enough.
31. The reactions are recorded at lawmakers-react-trump-tweet-joe-scarborough-mika-brzezinski-morning-joe/index.html.

Wednesday, June 28, 2017

June 28, 2017
I must be naïve. After decades of observing American politics, it still amazes me that many of those elected by the people to do the people’s business go to such lengths to harm them. The Senate "health care" bill, following a similar effort by the House, was designed to do just that. It was, however, not bad enough for some.
One of those is Ron Johnson, whose election in 2010 and re-election last year add to the puzzlement over what has happened to Wisconsin. During the 2010 campaign, George Will, in an approving column, quoted Johnson’s philosophy: "First of all, freedom." Like many conservatives, freedom to Johnson means property and the right to keep it, especially the right to avoid having it taxed: "The most basic right is the right to keep your property." Once that was possible: "For a brief moment" (when, under Reagan, the top income tax rate was 28 percent), "we were 72 percent free."
Senator Johnson wrote a column for The New York Times on June 26 setting forth his views on the ACA (Obamacare), which levied some taxes, and the Senate’s proposal to terminate its evil effects. His argument consisted of a string of conservative clichés, along with some inconsistencies.
"Washington believes that the solution to every problem is more money." Apparently he is, after six years, not part of Washington, which consists only of irresponsible liberals. Do conservatives not throw money at the Pentagon? Never mind.
"Like Obamacare, [the Senate bill] relies too heavily on government spending, and ignores the role that the private sector can and should play." Ah, yes, the private sector, in which no waste occurs, and every action results in the public good.
"[P]ursuing continuous improvement and root-cause analysis are core ideas in private-sector problem-solving. From what I’ve seen in six years in office, these concepts are foreign to government." This is nonsense; the core concept, the principle aim, of private business is making a profit. Medicare, not burdened with shareholders, overpaid executives or lobbyists, applies a far greater percentage of its revenue to patient care than do insurance companies.
The health care system has "virtually eliminated the power of consumer-driven, free-market discipline from one-sixth of our economy." How, pray, would that discipline work out in health care? Does he think that patients will be inclined, or able, to shop for care, comparing fees (if disclosed) between providers? Would insurance companies, with their network model, even allow that? The Senator really can’t make up his mind as to the system he wants. He complains that our health care system results in "separating patients from direct payment for health care," but contemplates reliance on private insurance, which largely accomplishes that separation.
Apparently, though, I’m making this too complex: "[A] simple solution is obvious. Loosen up regulations and mandates, so that Americans can choose to purchase insurance that suits their needs and that they can afford." The Senate Republican bill, to Senator Johnson isn’t drastic enough: it "turns its back on this simple solution and goes with something far too familiar: throwing money at the problem."
These are not unique beliefs, nor are they new for Johnson. When he decided in 2010 to run for the Senate, he claimed: "The Health Care Bill is the greatest assault on our freedom in my lifetime. It will do great harm to the finest health care system in the world."[30]  Our health care system is more accurately described as an embarrassment, a term used in one review of international results. Every study in recent years has shown that we spend more for poorer results than other developed countries. The ACA has reduced the number of uninsured, but our system is far from the finest, measured before or after that law’s enactment.
Would the Senator’s solution, removing government help, make health insurance affordable for all? Hardly, and that isn’t his aim. The result would be, he says, that people "can choose to purchase insurance that suits their needs and that they can afford." For many people, what they can afford won’t be much, if anything, and therefore won’t suit their needs.
His philosophy is aptly summarized in an article in The Nation: "The [Senate] bill makes an equivalence between affording care and deserving care." In other words, according to the foes of government, everyone deserves the level of care he can afford, and no more: health care is a privilege, not a right.


30. r=0

Saturday, June 24, 2017

June 22, 2017

A number of reports have noted that Trump’s approval ratings are unusually low, especially for a point so early in a term. The mystery to me is why they are so high, considering his obvious incompetence. The Gallup tracking poll, asking how Trump is handling his job as President, has showed an approval rating of as much as 45, holding steady in the high thirties since late May. His disapproval rating has been above 50 almost from the start, but there is no evidence of impending desertion, and continuing support from more than a third.
When asked by Gallup, between June 7 and 11, about Trump’s handling of specific issues, responses were as follows:
The economy45532
Foreign affairs35623
Health care policy28675
Relations with Russia30665
The environment32635
Federal budget36576
Relations with news media34642
That produces a comparable result, an average of 36.1.[29] He dropped below one-third approval on issues which have received the most attention, which is some reason for hope.
 However, polls — even assuming that they accurately measure opinion — and votes are two very different things. Republicans have won the four special elections for the House held thus far, including the contest in Georgia which has drawn so much attention. Granted, these are Republican districts, but the results do not show abandonment of Trump. They may, however, demonstrate a movement away from him or from Republicans. All four districts were held by Republicans previously and all voted for Trump last year. Here are the GOP margins:

House, 2017House, 2016 Trump, 2016
South Carolina3.22019
In each case, there was a sharp drop off from the previous House election, and in three, a sharp drop from Trump’s margin. In Georgia, the Republican House candidate in this year’s election did better than Trump, but by a relatively small amount. Perhaps there is cause for optimism.
Whatever the message from those contests, Democrats need to do two things between now and November, 2018: decide on a message (and get it right), and work for greater turnout.
29. All poll results from