Saturday, April 4, 2020

April 4, 2020
Trump unbound

Off script, President Trump has numerous salient characteristics.  He focuses on himself and what makes him look good.  He attacks anyone who criticizes him, or is perceived to have done so.  He blurts out whatever comes to mind, sometimes unintentionally telling an inconvenient truth.  Finally, he isn’t bright, so doesn’t always realize the effect of what he says.

Mitch McConnell, ever eager to protect Trump, offered this excuse for his Leader’s inaction on the coronavirus outbreak: That issue "came up while we were, you know, tied down in the impeachment trial. And I think it diverted the attention of the government, because everything, every day, was all about impeachment,"25  Trump, displaying the first, third and fourth traits, destroyed McConnell’s excuse:
“Did it divert my attention? I think I’m getting A pluses for the way I handled myself during a phony impeachment. . . . I don’t think I would have done any better had I not been impeached, okay? And I think that’s a great tribute to something, maybe it’s a tribute to me, but I don’t think I would have acted any differently, or I don’t think I would have acted any faster. 26
I think that we can agree with that.

The third and fourth traits produced an accidental admission of GOP election strategy.  Democrats proposed giving $4 billion to states to boost mail-in ballots, requiring states to send absentee ballots to every registered voter, requiring online and same-day voter registration, and expanding early voting by 15 days. Trump’s response: “The things they had in there were crazy. They had things, levels of voting that if you ever agreed to, you would never have a Republican elected in this country again.”27  Yes, making voting difficult is a core Republican strategy; thanks for making that clear.

The first and second were on display in one of his rants about Governors who don’t praise him.  “I don’t have to call” them, he said; “I get Mike Pence to call. I get the head of FEMA to call. I get the admiral to call.”  Why doesn’t he talk to Governors?  “Because when they disrespect me, they’re disrespecting our government.”28  It’s tempting to add L’├ętat c’est moi.  A more original and more apt comment on his boast is a cartoon by Ann Telnaes in The Washington Post showing Trump as Mussolini with the caption “Il Donald.” A populist buffoon is a better subject for comparison than the Sun King.


25. trump- impeachment-trial-prevented-action

26. mcconnell



Tuesday, March 31, 2020

March 30, 2020
Our Leader at the podium
   Those who advocate “federalism,” i.e., devolving power to the states, lessening the reach of the national government, should be pleased with the current situation: in the coronavirus crisis, state governments have taken the lead while the national administration has done little and done that late.  However, devolution is occurring only at the level of action and responsibility.  When it comes to showmanship, the focus still is on the White House. 
   Our apprentice President, whose concept of his office is defined by his drive for self-aggrandizement, is annoyed that he can’t hold re-election rallies, so has discovered the press conference.  However, it is not his natural form.  He fumbles the reading of something he doesn’t understand, gives bad advice and attacks Governors and reporters for not being nice to him.  One attack on a Governor, this time by tweet, demonstrates in a few words his pettiness, boasting and projection: "I love Michigan, one of the reasons we are doing such a GREAT job for them during this horrible Pandemic. Yet your Governor, Gretchen "Half" Whitmer is way in over her ahead, she doesn't have a clue. Likes blaming everyone for her own ineptitude! #MAGA.”
   At the Sunday, March 29 conference, he announced that the White House will keep its guidelines for social distancing in place through the end of April, an abrupt reversal of position from his proposal a few days earlier that the country could be “opened up” by Easter, April 12.  He explained away the reversal by saying that the reopening goal was merely “aspirational;” the phoniness of the explanation was underscored by the use of a term hardly part of his vocabulary.
   Trump’s egocentrism reached for a new record March 29 when he bragged, again by tweet, about the viewer ratings for his news conferences.  His insecurity and neediness would be comic if our well-being didn’t depend on him.  People are dying, he hasn’t a clue, but ratings are up: all is well.
   Showtime, however inept, has helped his standing among voters as well as his viewership.  According to a summary of polls, approval of his handling of the crisis is 50.5% positive, 45.4% negative, a major change since mid-March.24  No doubt some of the positive response is a result of rallying around the supposed leader, but reflexive patriotism can be dangerous if it causes people to follow one who doesn’t know the way. Clearly, Trump doesn’t.


24. coronavirus-7088.html

Sunday, March 22, 2020

March 21, 2020
Trump and the GOP in a time of crisis
     As the response to pandemic unfolds, it will be interesting to see whether three political phenomena undergo change. 
     The first question is whether President Trump will show leadership, something notably lacking in his record to date.  His early downplaying of the problem and his failure to mobilize federal support, despite more recently dubbing himself a war president, suggest a negative answer.  His misstatements and demeanor have led to  demands that his news conferences not be carried live.
     The second is whether support for Trump will fade, which relates in part to November, but is important now: if he remains popular, he may continue to mislead.   Support may not fade, due to the fanatic loyalty of his base, and may be increased by the tendency of all people to rally around in times of trouble, despite his dismal performance.  The reaction of the base thus far is suggested by an NPR/PBS poll conducted March 13-14 showing that 85% of registered Republican voters approve of “how President Donald Trump is handling the coronavirus pandemic."  Among all respondents, 44% said yes, 49% no.22 
     Anyone tempted to take seriously any of his pronouncements about the crisis — or to support him for re-election —  should read A Very Stable Genius,23 a history of the Trump presidency.  Its general outline is a familiar story: Trump is an ignorant egotist whose presidency is a danger to the country and to the world. The book’s principal contribution is to bring together in one place the many times he has demonstrated his unfitness.  Having it all in one narrative has an impact that hearing about the same incidents, one at a time, does not.  Also, by way of quotes and insider stories, it underscores just how disfunctional the White House is and how little has been done to educate or control Trump.
     The third question is whether Republicans in Congress can move beyond their fetishes and help enact bold enough legislation to rescue the economy and provide support to those most impacted.  Opposition to big government is one such fetish.  The signs there are encouraging; the two rescue bills enacted to date passed the Republican-controlled Senate 90 to 8 and 96 to 1.  Whether the pending, larger, bill will pass and whether Republicans will insist on business-friendly terms remains to be seen.
     There is a segment of the economy that is doing well: gun sales are up.  One disease supports another. 



Philip Rucker and Carol Leonnig (2020)

Tuesday, March 10, 2020

March 9, 2020

Constitutional Cynicism

There seems to be much confusion and little consensus on any political issue at present, so I suppose that it shouldn’t be surprising that the Constitution has become controversial, at least in some circles.  The cover of an issue of Harper’s a few months back asked, “Do We Need the Constitution?”   The article’s title put the question this way: “Constitution In Crisis: Has America’s founding document become the nation’s undoing?”  I have thought that our problems regarding the Constitution are that Trump is ignoring it and the Roberts Court is misinterpreting it. 
More sophisticated minds see deeper issues.  The magazine assembled a panel to “consider the constitutional crisis of the twenty-first century,” and published its discussion.  Because most of the panel’s comments are surprisingly negative, and because the panelists presumably are knowledgeable about the Constitution, I have quoted them at length.
The editorial introduction described agitation that I somehow have missed:
America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern political life.
That led to consideration of remedies:
Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-first century? Should we abolish it entirely?
Some of the issues listed are not Constitutional in nature;  the reference to executive abuse and the suggestion that the Constitution be abolished are contradictory; what is unique about the current century?   That lack of clear focus carried over into the discussion.1

The moderator, Rosa Brooks, struck a provocative note:
Let me tell a story about what I do in my constitutional law classes at Georgetown. In the very first session, I say to my students, “The United States has the oldest continually operative written constitution in the world. How do you feel about that?” . . . After everybody has a chance to talk about how great it is that the United States has this very, very old written constitution, I ask them how they would feel if their neurosurgeon used the world’s oldest neurosurgery guide, or if NASA used the world’s oldest astronomical chart to plan space-shuttle flights, and they all get quiet.
(The students apparently are too polite to point out how meaningless the comparison is). She continued, offering a variation on the theme which at least avoided dubious analogies:
How did it happen that the United States, which was born in a moment of bloody revolution out of a conviction that every generation had the right to change its form of government, developed a culture that so many years later is weirdly hidebound when it comes to its form of government, reveres this piece of paper as if it had been handed by God out of a burning bush, and treats the Constitution as more or less sacred? Is it really such a good thing to have a document written almost 250 years ago still be viewed as binding us in some way?

In what way are we “weirdly hidebound” as to our form of government? What form does she advocate?
To my knowledge, an every-generation theory was not espoused by the Founders, apart from Jefferson, who did not participate in writing the Constitution.  Never mind; he’s the authority, according to David Law: “Thomas Jefferson would be rolling over in his grave. He thought that every generation should rewrite the Constitution. It should be revised every nineteen years.” Then another misplaced analogy: “here we are, bragging about the fact that we’re running Windows 1.0.”  Our ancient operating system is in such bad shape that “we have these nine superannuated people — Supreme Court justices — appointed for life to keep patching it.”  I’ll applaud nearly any criticism of the current Court, but “patching” doesn’t describe its work. 

Analogies are useful to illustrate or liven up a discussion, but overuse suggests that the argument is weak, and here came another: “This is a little like the inhabitants of a really old apartment building pledging their undying loyalty and allegiance to a blueprint that must never be changed, and so when you want to renovate your bathroom people dig out the blueprint and ask themselves whether the bathroom renovation is in accordance with the spirit of the blueprint.”

According to Louis Michael Seidman, the Constitution is illegitimate.  The delegates to the Philadelphia convention had been sent there to amend the Articles of Confederation.  Instead, they drafted a new document.  “So, from the beginning, the Constitution was in some sense illegal. It’s a neat trick to get from that to a time when people feel bound to respect the document.”  The neat trick was ratification.

To Mary Ann Franks, the Founders committed fraud.
We have not, as a country, fully confronted the fraudulent nature of the Constitution and the founding itself. The revolutionary spirit was always, from the very beginning, a limited one. It was a revolution for some people, and this idea that we threw off the yoke of tyranny was immediately constrained by the idea that you didn’t want to throw it off too much. The founders didn’t want to throw it off for slaves, and they didn’t want to throw it off for women. They wanted to have this very contained revolution.
The Constitution indeed did not empower women or free slaves.  Do we throw the document out?  That seems to be the implication:
The mythology is that there is this grand moment of revolution, when we decide that we stand for equality and justice and all the rest of it. But we also know that the mythology includes all these asterisks, because the people who made all those decisions were the most privileged members of society, and even though they sought, for themselves, not to be oppressed and not to be exploited, they immediately denied that right to everybody else. . . . [W]e have lived with this mythology for so long, and we don’t quite experience the cognitive dissonance that it ought to generate within us, because every word of the Constitution — starting from this premise of “we the people” — is a lie.
That conclusion is nonsense, and as to the argument that the founding documents are fraudulent, or hypocritical, consider the very different, and much more useful, attitude of Martin Luther King, Jr.: “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.”2  Progress is possible.  Progress can be guided by principles not fully honored when laid down, but nonetheless valid.  

However, there is yet another problem; Lawrence Lessig thinks that the Constitution has been captured by  “experts,” who somehow keep it out of the reach of ordinary folk. “There is a huge gap between the kind of democracy people want and the kind the Constitution and our political culture currently allow for.”  He added later:
When there have been constitutional, grassroots movements, movements that have tried to say, “We should be involved in making our Constitution reflect us,” there have been organized efforts, on the left especially, to say, “Shut up. Get out. This is not for you; it’s for the experts. It would be disastrous if the people got close to touching their own Constitution! It would be chaos.”
I can’t say that his history is familiar to me, but here’s the conclusion he draws from it: “Do you expect people to rally around a document that has no connection to the democracy of today, or yesterday, or even forty years ago?”  Are people that estranged from the Constitution, or is that a projection of the cynical views of the panel?

Never mind; the Constitution, in addition to its other shortcomings, is irrelevant.  Ms. Brooks, faced with a ploy by Trump, would respond:
Why would that [whether or not it’s constitutional] change anything for anyone? If we think something is evil and a bad idea, then it’s evil and a bad idea without regard to whether or not it is constitutional. Why should that have any relevance to a set of policy questions and moral questions that the United States is facing now?
Just say it’s evil and a bad idea and the problem will go away; no authority need be cited. 

Here’s a more sensible view, by Donna Edwards:I think part of the reason that today feels like a crisis is because the legislative branch is not functioning.  . . . And maybe it’s because I come out of the legislative branch, but it pains me to see Congress in such inertia that it gets in the way of us trying to at least preserve the elements and spirit of a Constitution that I think does bind people to a set of shared ideals, whether or not they know the details. 

Ms. Franks later took a more measured approach than in her opening statement, having discovered a part of the constitution that, apparently, is not a lie:[T]here’s a constant tension between whether you can try to dismantle a bad practice from the inside or if you have to blow up the whole thing and start over. . . . The position that I’ve taken as a preliminary step is to think, “Well, is there anything in the Constitution that is meaningful here, in a larger sense?” And for me I think the Fourteenth Amendment’s equal protection clause is where a lot of our efforts might be focused and energies spent.

However, having said earlier that the entire Constitution is a lie, and now having focused on one provision, she proceeded to offer this:
The way politicians and legislators interpret and use the Constitution today is like taking a scripture and using all the parts that validate the way they want to see the world and ignoring everything else. Because if we took the Constitution seriously as a whole, then we could have a lot of interesting discussions.
Perhaps Mr. Seidman was as baffled by all that as I am, for he then suggested a way to preserve the Constitution, but not be required to analyze it:

Maybe the right way to think about the Constitution is not as a legal document at all, not as a lease or a will or something like that. Instead, think of it as poetry. As a poem, or symphony. And if you think about it that way, it can be a symbol that unites the country. . . . Now, nobody would say that you have an obligation to obey a poem or a symphony; you can be inspired by it. . . . It causes us to have certain emotions, but you don’t obey a poem. And poetry doesn’t settle arguments. We can all be inspired by the same poem and reach different conclusions about what we ought to do.

We could set it to music.

Lessig noted a flaw in that theory: “But the problem is that we have a president who treats it like a poem, or a dirty limerick—he treats it like something he doesn’t have to respect or follow, and I don’t think that’s a good idea.”   That should have put the discussion onto a more constructive track, but Seidman was undeterred:
The very last way we want to confront Trump is with the Constitution as a legal text. That is a way of turning this argument over to lawyers, to people with technical expertise, who are elites, who are arguing about things like, “Gee whiz, what is the exact meaning of the word ‘emolument’ in the eighteenth century, and how does it relate to foreign powers?” and a lot of stuff that is beside the point when it comes to Trump.
Trump’s violation of the Constitution hardly is beside the point, and blaming “elites” is another sign of  a weak argument. 

Mr. Lessig properly dismissed it: “There is no ‘the problem’ with Trump. There are many problems with Trump. And one of the problems is that he is violating the core anti-corruption principle inside our Constitution as it’s supposed to constrain him.”  However, he returned immediately to his argument that the Constitution doesn’t belong to the people.  “I am happy to have one hundred lawyers go and try to take that on, but that doesn’t address the larger problem, which is, ‘How do we bring the Constitution to a place where people feel like it’s theirs again?’ And the only way we get there is to imagine a process for changing it.” 

Ms. Edwards provided an example of the supposedly absent popular connection to the Constitution.  Her reference was the Supreme Court’s decision in Citizens UnitedShe had proposed a Constitutional amendment to reverse it.
It took several years from almost no one signing on to every single Democrat being in favor of an amendment to deal with the problem of money in politics. And I don’t think that was a sea change brought about by legislators. It was a sea change that was brought about by people in communities who were tired of the system. There is a willingness on the part of the people to change the Constitution for the better, to bring it more in line with democratic principles.
The trashing of the Constitution continued.  Mr. Law saw “Americans trapped within a box, unable to transcend the constitutionalist way of thinking. Countries actually don’t need written constitutions. The United Kingdom doesn’t really have a constitution.”  However, that’s not so.  The UK Supreme Court recently declared the prorogue of Parliament engineered by Boris Johnson to be invalid.  It described the situation as follows:
Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles  of  our  constitution  and  making  them  effective.3
That is a “constitutionalist way of thinking.”  As one commentator put it, “In essence, what the Supreme Court decided . . . is that the UK does, after all, have a real constitution that its prime minister has a legal obligation to obey.”4

Law went a step further:
To be honest, I think America might be better off as a monarchy. In Canada, you have a symbolic king or queen—a nonpartisan head of state onto whom people can attach their loyalties—alongside elected leaders, who actually do the hard work, and then you can criticize the government and the constitution without appearing to be disloyal or a bad citizen. And we don’t have that. In America, people declare their loyalty to this ancient document instead.
That doesn’t make sense, even superficially. 

He conceded this much: “If you’re in a revolutionary moment and you need to decide on a new set of arrangements, which is where we were in the late eighteenth century, then okay. A constitution is helpful.”  Seidman disagreed:
I don’t think we need the Constitution even in times of change. We need to forget about constitutionalism entirely. Or at least forget about the constitutionalism of rules and detail—of arguing over what exactly the framers meant in this or that passage. . . .  What keeps the country together, in the end, isn’t the Constitution. It is a bunch of sub-constitutional or extra-constitutional norms about behavior, things like “you don’t default on the national debt,” or “you don’t say we’re just going to block any Supreme Court justice who is nominated.”
If that’s the principle, we’re in trouble. Neither of the supposed rules is honored by Republicans.  

Lessig responded: “It’s one thing to say we can fix it by just imagining our norms to be in the right place, but I think a lot of people have been imagining norms and not getting very far.”  He again expressed his concern that the “Constitution is not producing a democracy that’s responsive to the people. And that is a gap that we have to find a way to fix.”  Later he gave some general substance to his remarks by referring to a “corrupted process for selecting our representatives and our president,” but he provided no details, perhaps because he despaired of amending the Constitution.  He advocated calling a constitutional convention under Article V, which sounds democratic, but would be a circus and faces super-majority problems, just as amendment does.

In arguing against that. Seidman improved on his theory of extra-constitutional norms: “What keeps the country together—to the extent it is still together—is a much looser sense that we’re all in this together, that we sink or swim together, and some very loose ideas about tolerance and equality. If you try to put that into a legal text, things are going to come apart at the seams.”  I see no basis for the last comment, but it’s true that a sense of being in it together is not primarily a legal issue; ultimately it is one of leadership.

Although there were a few sensible comments, most of the discussion was aimless and negative.  Even constrained by the label applied in the editorial introduction, “the constitutional crisis of the twenty-first century,” the discussion could have been useful if it had focused on the assault on constitutional government by the Trump administration, abetted by Republicans in Congress.  The course the panel followed was not helpful.  With an authoritarian in the White House, undermining respect for the Constitution is the last thing we need now.


1.Some of the panel’s comments quoted below are not in the order presented in the article.

2. I Have a Dream speech, Washington D.C.,August 28, 1963

3. html

4. brexit-pub-79919

Saturday, February 15, 2020

February 15, 2020

Urban decline, and guns
I’ve just read Bill Bryson’s latest book, The Road to Little Dribbling, in which he wanders around Britain, commenting on what he sees.  The themes are first, how beautiful and varied are the landscape and many towns, neighborhoods or places — those which look as they did years ago — and second, the negative effect of “progress,” on other places or facilities, and finally, the ineptitude and stinginess of government in maintaining them.  It would not be difficult to apply that theme to this country.  We aren’t as well supplied with quaint towns, but many of our cities are in decline and, as to the landscape, consider what Trump and other barbarians want to do to public lands.

While I’m applying my leisure activity to politics, I’ll offer two quotes from a movie I watched a few nights ago, The American President.  The fictional executive was having difficulty finding votes for a crime-prevention bill.  His rueful comments: “You cannot address crime prevention without getting rid of assault weapons and handguns,” but “For reasons passing understanding, people do not relate guns to gun-related crime.”  Have matters improved since the film was made in 1995? 

Well, no. On January 15, the Transportation Safety Administration reported that 4,432 firearms were discovered in carry-on bags or on passengers last year, an average of more than 12 per day.  That was an increase of approximately 4.5% from 2018, and a record high.  Eighty-seven per cent were loaded.  An email from Senator Schumer on December 17 noted that “in the seven years since Sandy Hook, there have been at least 2,322 mass shootings,” but that “President Trump, Sen. McConnell, and Senate Republicans have failed to act on the issue of gun violence, bowing repeatedly to the NRA and the hard right by choosing inaction or half measures over real, meaningful legislation.” 

Here’s an illustration of the consequences of the glut of guns: A mass shooting usually is defined as one in which at least four are shot, not including the perpetrator.  Seattle experienced such an event on January 22; one woman was killed, seven others were shot, including a nine year old boy. “At the shooting scene, police recovered 11 .380-caliber casings;” one of the shooters, now under arrest, “had used cash to purchase an extended magazine clip for a .380-caliber handgun 4½ hours before the Jan. 22 shootings.”16

The site of the mass shooting was described thus by The Seattle Times: “The area around Third Avenue and Pine Street has long been one of the grittiest in downtown Seattle.”  By “gritty,” the author meant this: “The corridor is no stranger to violence,  . . and open-air drug dealing is common there. Wednesday’s shooting happened near another shooting on Nov. 9, 2016, when five people were wounded outside a 7-Eleven on Third between Pike and Pine.”  Also, “On Tuesday, a 55-year-old man was found dying from a gunshot wound in a stairwell at Westlake Center, less than a block away from Wednesday’s mayhem.”17 That history was almost as shocking to me as the report of the latest shooting.  

I have lived in the suburbs for many years and now rarely am in downtown Seattle, but  I grew up in Seattle and had an office there for many years.  Third and Pine is in the commercial district; Macy’s is located at that intersection; when I knew it, it was not part of a zone of danger or dissolution.  It is true that Seattle’s core, like many others, is in decline — Macy’s will close soon — but the shootings are a mark not merely of decline but of collapse.


16. with- rendering-criminal-assistance-is-now-wanted-on-a-250k-warrant/

17. pine- street-reports-of-multiple-victims/

Saturday, February 8, 2020

February 8, 2020
Trump’s impeachment defense

In a posting about eighteen months ago, I wondered how low the Trump administration could go.  The answer I suggested was its cruel practice at the border, separating children, including infants, from parents.  That still would stand as a benchmark for reprehensible policy. Now, in the arguments of his advocates at the impeachment hearing in the Senate and the behavior of his supposed judges, Trump’s minions have set the standard for political irresponsibility.

That the Senate hearing would be a farce was made clear by Mitch McConnell’s statement, unbelievable in any prior era: "Exactly how we go forward, I'm going to coordinate with the president's lawyers."  To ensure that we got the point, he added, "The case is so darn weak coming over from the House. We all know how it's going to end. There is no chance the president is going to be removed from office. My hope is that there won't be a Republican who votes for either of these articles of impeachment."1

Senator Lindsey Graham demonstrated his objectiveness as a juror thus: “The best thing for the American people is to end this crap as quickly as possible;” he hoped that "nobody will be called as a witness" and warned Republican Senators against “believing that Democrats want to get to the bottom of Trump's decision to delay Ukraine aid.”2 

The presentation by Trump’s lawyers was an exercise in obfuscation.  Ken Starr, when the Clinton Independent Counsel, displayed no qualms about impeachment though he was pursuing a matter unrelated to presidential policy or competence.  Now, in defense of Trump he pronounced — with no sense of irony — that "the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the age of impeachment."3  
He added: "How did we get here, with presidential impeachment invoked frequently in its inherently destabilizing as well as acrimonious way?"  Might he have contributed to the supposed trend, by making an impeachment referral against Clinton, in 1998?  No; the immediate cause of the supposed cascade of impeachments is “the Independent Counsel provisions of the Ethics in Government Act of 1978," under which he was appointed.

However, the core problem, he argued, is the Constitution; it shouldn’t contain an impeachment provision because nasty Democrats will abuse it.   Impeachment, he told us, is dead in Britain.  “Yet here at home, in the world’s longest standing Constitutional Republic, instead of a once in a century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one’s political opponent.”  As to his once-in-a-century rule, is he forgetting the Clinton episode, or is the Nixon case ignored because he resigned, or can’t Starr count? Is there a quota? 

Alan Dershowitz brought much more impressive credentials, along with an appearance of impartiality arising from his vote for Hillary Clinton.  However, the Trump miasma settled over him.  He joined the chorus of defenders claiming that only a criminal offense can be grounds for impeachment and removal: “Purely noncriminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses,” he declared.4  Starr had advised the Senators that “the commission of a crime is by no means sufficient to warrant the removal of our duly elected president.”  Therefore a crime is necessary, but not sufficient.  How convenient.  

Dershowitz acknowledged that his present position is new: “During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered.”  That view would, of course, undermine Trump’s defense.  Happily for his client, he has “gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.”  So there.
His new study, judging by the source he cited repeatedly, consisted less in examining the Founders’ views than in those of an attorney who represented Andrew Johnson in his impeachment trial, not an objective source. 

Dershowitz conceded that “the academic consensus” is that no crime is necessary.  We also might consider the Nixon impeachment inquiry.  Here is a comment by Elizabeth Holtzman, a member of the House Judiciary Committee which drafted the articles:
President Trump’s defense lawyer Alan Dershowitz — my professor at Harvard Law School — is flat-out wrong in his assertion that abuse of power is not a basis for impeachment. . . . [H]is assertion flies in the face of the articles of impeachment voted against President Richard M. Nixon by the House Judiciary Committee — of which I was a member — in 1974. . . . Not one of the three articles adopted by the Judiciary Committee mentioned a criminal statute, charged Nixon with violating any criminal statute or described how his conduct met the standards set forth in any criminal statute.5
(Here is another rebuttal to Dershowitz’ argument, not authoritative but, like so much of this farce, ironic: “Doesn’t even have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.”  That was Lindsey Graham, as House prosecutor against President Clinton).6

Dershowitz quoted the description of impeachment in Federalist 65, by Hamilton:
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 society itself.
That describes the charges against Trump, but Dershowitz attempted to explain them away: “Those are Hamilton’s words. They’re often misunderstood as suggesting that the criteria authorizing impeachment include the misconduct of public men or the abuse or violation of some public trust. That is a misreading.”  What Hamilton said is a “misreading.”  To justify that claim, he again inserted into the Constitution a requirement of a crime.  Adding that requirement is a logical problem in that, at the time of the drafting of the Constitution, there were no federal statutory crimes. Dershowitz acknowledged that, but attempted, unconvincingly, to explain it away.

As to the referral by the House, he drew a distinction between articles of impeachment and the details (“specifications”) within them.  He asserted that the “specifications are themselves vague, open-ended, and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office.”  Why are those not grounds for removal?  Apparently we’re back to the crime issue. 
In any event, there is a fallback position: “it’s the actual articles on which you must all vote, not on the more specific list of means included in the text of the articles.” That, he said dooms the House position because “the actual articles . . . charge abuse of power and obstruction of justice, neither of which are in the Constitution.”  Only offenses listed in the Constitution may be grounds, he argued, and all of those listed are crimes.  He is mistaken, as demonstrated by the “academic consensus.” 

The Constitution provides, in Article II Section 4, that the President “shall be removed from Office on Impeachment for and  Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  All of his argument that a crime is necessary to impeachment is based on a misreading of the phrase “high crimes and misdemeanors” which, in historical context, refers to the offenses against the state referred to by Hamilton in Federalist 65, not to crimes in the law-enforcement sense.

In arguing that abuse of power cannot be a ground of impeachment, Dershowitz claimed that the Founders, by “expressly rejecting maladministration [as a ground] . .  implicitly rejected abuse.“ That is simply illogical; the two are different concepts. 

What would add up to impeachable conduct in his view?  Well, probably nothing related to re-election; for that Dershowitz offered this stunning argument, plucked out of the air: “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”  If a president believes, however ludicrously, that his election will be in the public interest, he may make any corrupt bargain which appeals to him.  Could we name a president whose ego and lack of ethics would lead to such behavior?

Dershowitz addressed the factual basis of the charges only in one passage, which evaded the issue.  He began with this statement: “Here I come to a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, . . . obviously a highly disputed matter in this case[,] that would not by itself constitute an abuse of power.”  That is a meaningless comment, as it omits the personal, political gain which was the quid pro quo in the Ukraine matter.
He then posed, irrelevantly, a hypothetical which involved no such personal gain, and added, with equal absence of meaning, “Quid pro quo alone is not a basis for abusive [sic, abuse of] power.”  He added a little later, “you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit.”  Of course, that is not what the House did.  It charged Trump with subordinating the national interest to his desire for assistance in re-election, of withholding monetary aid authorized by Congress to pressure a foreign country into providing that assistance.

Dershowitz, then offered yet another defense; it’s all subjective: “The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, abusive [sic, abuse of] power, as a constitutionally permissible criterion for the removal of a president.”  Apparently that is intended to state that the motives must be ignored, that there can be no proof of them, only opinions .  Nonsense; in the criminal law of which he is so fond, intent often is an issue.

Several Republican Senators said foolish and irresponsible things, but Senator Lamar Alexander took the prize for the most eloquent summary of the cynicism and illogic of their position:
There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a 'mountain of overwhelming evidence.'
It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation.
Right; the case has been proved, and Trump should be removed.  Oh, no:
The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday. . . . Our founding documents provide for duly elected presidents who serve with “the consent of the governed,” not at the pleasure of the United States Congress. Let the people decide.7
His statement acknowledges proof of the offense then rewrites the Constitution, expunging the bothersome impeachment provisions.  His call to let the people decide is, in addition to being a mechanism of avoidance, yet another irony, given that the Republican Party is diligent in denying fair elections.

     Senator Romney took his responsibility more seriously.  He disposed of the claims that a crime must be proved and that all grounds for impeachment must be listed:
The historic meaning of the words “high crimes and misdemeanors,” the writings of the founders and my own reasoned judgment convince me that a president can indeed commit acts against the public trust that are so egregious that while they’re not statutory crimes, they would demand removal from office. To maintain that the lack of a codified and comprehensive list of all the outrageous acts that a president might conceivably commit renders Congress powerless to remove such a president defies reason.
     He summarized the case against Trump in the first count, abuse of power:
The president asked a foreign government to investigate his political rival. The president withheld vital military funds from that government to press it to do so. The president delayed funds for an American ally at war with Russian invaders. The president’s purpose was personal and political. Accordingly, the president is guilty of an appalling abuse of public trust . . .Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine.8
     Sadly but unsurprisingly, Senator Romney stood alone in his Party in voting for conviction on that count. Lacking principles, backbones or both, his Republican colleagues avoided responsibility and gave Trump a pass, thereby approving the misuse of office for personal gain.  All the Republicans voted against count two, obstruction of Congress, continuing their pattern of subordination to the executive branch.  Together, the votes empower a rogue administration and pave the way for a future authoritative regime which may be headed by someone less foolish and ignorant, and therefore more dangerous, than the present incumbent.


1. impeachment-trial/story?id=67707430

2. end- this-crap-as-quickly-as-possible

3. Starr quotes are taken from: lawyer-defense-argument-transcripts-monday-january-27-ken-starr-purpura-raskin

4. Dershowitz quotes are taken from defense-argument-transcript-trump-impeachment-trial-january-27

5. precedent- of-nixons-articles-of-impeachment/2020/01/29/73c8e6a6-42cb-11ea-aa6a-083d01b3ed18_story.html

6. plays-clinton-trial-video-lindsey-graham/4555925002/



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