Thursday, May 16, 2019

The case for impeachment - and the constitutional costs of failure

I use the term “failure” in two senses. There is a fear among Democrats that an impeachment would be a costly failure if the Senate then refused to convict. But that would put the Republicans on record as ignoring the already public evidence of high crimes and misdemeanors like obstruction of justice if not also bribery and treason. Another form of failure would be inaction by the House Democrats - for them to develop a sound evidentiary basis and then not acting on it. That would lend implicit support to Trump heaping dishonor and corruption on our nation and would leave our Constitution and our democratic institutions irreparably damaged. In the remainder of this post, four authors examine these issues.

Greg Sargent (Washington Post/Plum Line) reports that Democrats are badly blowing it against Trump. A brutal new TV ad shows how.

House Speaker Nancy Pelosi (D-Calif.) has succeeded in stifling impeachment talk. The Post reports that the speaker privately told Democrats to stick to policy and forget about an impeachment inquiry, and not a single Democrat uttered a word in protest.

This is meant to illustrate the iron grip that Pelosi often successfully maintains on her caucus. But, whether you support an impeachment inquiry right now, there’s no way to describe the broader strategy that Democrats have adopted on the impeachment question as a success. It’s been a muddled mess.

A new ad that impeachment proponent Tom Steyer is set to launch illustrates this well. Notably, rather than merely making the case for an inquiry, the ad trains its fire at Democrats for failing to initiate one.

We have to be respectful of a distinction between impeachment and investigation. The Democratic strategy appears to be avoidance of the “I” word while at the same time running multiple investigations, the outcomes of which could be used in impeachment proceedings. Sargent continues.

In some ways, this is defensible. One can envision Democrats using multiple committee hearings to develop a fuller picture of Mueller’s findings (along with other aspects of Trump’s corruption and misconduct), before launching an inquiry.

But if this posture is underpinned by a secret intention to never pull that trigger, that creates yet another problem. …

What’s more, as Brian Beutler and Quinta Jurecic argue [see below], refraining inescapably validates Trump’s corruption as a kind of new normal. With Trump urging his attorney general to investigate the investigators, it incentivizes the president to expand his lawlessness, since he can do so with impunity.

The better arguments against acting are that the Senate won’t convict, so full accountability is impossible anyway, or that impeachment is a political decision, so Congress isn’t obliged to do it. Or maybe it really would help Trump get reelected (though that idea is baseless).

But none of those arguments reckons seriously with the downside of not acting, which are considerable. And none takes seriously what it would mean if Democratic oversight is neutered and it’s too late to act. Or, even worse, what it would mean if Trump won reelection after all that happened.

If Democrats do believe an impeachment inquiry is merited, it’s not clear there’s any magic key to credibly arguing their way out of not launching one. Perhaps there is a way, but they certainly haven’t hit on it yet.

Why Congress should act to impeach. Or is Trump “just not worth it”?

In brief, whatever the political downsides of impeachment, the constitutional downsides are worse.

Brian Beutler tags The Democrats’ Great Impeachment Abdication.

If Democrats sincerely considered Donald Trump to be unfit for office, and believed he had committed impeachable offenses, and that they should at least begin the process of removing him from office, they most likely wouldn’t be doing anything much differently than they are right now.

They don’t call it an impeachment inquiry per se, but the chairs of several House committees have launched expansive investigations of Trump’s corruption, crimes, and abuses of power. Because Trump revels publicly in corruption, crime, and abuses of power, these investigations are likely to turn up extensive evidence of high crimes and misdemeanors, if not bribery and treason, and could thus compile the factual basis of articles of impeachment.

But because of what they have said—the terms they have committed themselves to—Democratic leaders have all but doomed themselves to the worst-possible approach: One in which they unearth damning evidence and then make the conscious decision not to act on it; one in which they tacitly bless all of Trump’s wrongdoing and pray both that voters do all the hard work for them, and that nothing tragic happens as a consequence of their inaction.

Pelosi, Schiff, and Nadler are seasoned politicians who don’t say much that’s unrehearsed. Their position that passing articles of impeachment—a process that requires a simple majority in the House—must be bipartisan sends a clear message to House Minority Leader Kevin McCarthy and other GOP leaders: that the key to Trump’s continued impunity is for Republicans to simply continue doing what they’ve been doing all along—ignore or celebrate his misconduct, attack the investigators, lie as much as it takes to keep Trump’s base of support from falling through the floor.

When Republicans inevitably take this path, the Pelosi standard will commit Democrats to the course of consciously, publicly choosing to proceed no further, to say Congress will take no position on Trump’s obstruction of justice, his violation of the emoluments clause, and his criminal schemes. That might or might not be the safest political course of action for the party, but it will establish a new precedent in our country that presidents can make themselves untouchable, to the law and to Congress, if only they’re willing to be as selfish and malevolent as Trump. And it will do so at a moment when one of the country’s two political parties has fully embraced an ethos of corruption, greed, and will to power.

… If this [Watergate] history points to anything it’s that a good-faith impeachment process would make public opinion conform to public opinion about Trump himself—which is to say, most people would support impeachment, but a solid minority would oppose it, and Republicans would stand with the minority.

It’s hard to see what the Democrats would lose from such an outcome, but what they would gain is something that impeachment opponents routinely gloss over: a trial. … The pro-impeachment proposition is that Democrats should build the case, hold the trial, and let Republicans in Congress decide whether they want to shred our shared standards of accountability—to let their votes be counted—instead of doing it for them as they quietly sidestep the question.

In either case, the voters will render the final verdict, but in an impeachment scenario, the question would be laid before them clearly, and will place the entire Republican Party on the hook directly for the crimes they’ve been passively abetting for over two years now. It would also preserve important norms about what kinds of behavior should be impeachable.

With respect to Congressional inaction on impeachment per se, [Quinta Jurecic, Contributing writer at The Atlantic and managing editor of Lawfare, predicts that If Congress Won’t Act, Trump Will. Encouraged by lawmakers’ passivity, the president is taking the same approach to 2020 that he took to 2016. Here’s some of what she has to say.

The Democratic leadership in the House of Representatives remains resistant to impeachment, reportedly out of concern that it could buoy the president’s poll numbers going into an election year. Likewise, it argues, any impeachment would almost certainly run aground in the Republican Senate. But there is more to impeachment than a bare political calculation. It’s also a way of marking a breach, declaring that the presidency should not be what a particular president has tried to shape it into. In the case of Watergate, that statement of protest was more or less successful for decades, at least until it ran headlong into Donald Trump.

… for all Trump’s public embrace of corruption, he has not yet shot anyone on Fifth Avenue. But the point is that, when an injustice is done, we all shoulder some kind of mutual obligation to set right the imbalance in the world or otherwise become complicit in it. For Congress today to look at the conduct described in the Mueller report and decide that it does not merit impeachment is for it to acquiesce to Trump’s effort to establish his own corruption not only as the new norm, but also as the way things have always been. To put it another way, given Congress’s inaction, can you really blame Rudy Giuliani for trying his luck in Ukraine?

In thinking about impeachment these past two years, I’ve returned again and again to the work of the legal scholar Charles Black, who understood an impeachable offense to be an act “against the nation or its governmental and political processes, obviously wrong … to any person of honor.” The definition is cryptic, yet simple. It is almost innocent, this idea that there exists a community of people who could agree on what it means to be a person of honor, in the face of a president who acts as if it doesn’t mean anything at all.

Donald Trump is acting with malice toward all and justice for one - himself. He is a clear and present danger to our constitution. So can we afford not to impeach him as the Constitution empowers us to do?

Robert Reich explores the cases for and against impeachment - and cuts right to the central issues. Reich says The House now has a constitutional duty to impeach in his opinion piece in the Fan Francisco Chronicle (also printed in the AZ Daily Star). Snippets follow, emphases added.

Donald Trump is causing a constitutional crisis with his blanket refusal to respond to any subpoenas.

So what happens now? An impeachment inquiry in the House won’t send him packing before election day 2020 because Senate Republicans won’t convict him.

So the practical political question is whether a House impeachment inquiry helps send him packing after election day. That seems unlikely.

Another question needs to be considered — not just the practical political effect on the 2020 election, but something more important over the long run.

It is whether an action designed to enforce our Constitution is important for its own sake — even if it goes nowhere, even if it’s unpopular with many voters, even if it’s politically risky.

Every child in America is supposed to learn about the Constitution’s basic principles of separation of powers, and checks and balances.

But these days, every child and every adult in America is learning from Donald Trump that these principles are bunk.

By issuing a blanket refusal to respond to any congressional subpoena, Trump is saying Congress has no constitutional authority to oversee the executive branch. He’s telling America that Congress is a subordinate branch of government rather than a co-equal branch. Forget separation of powers.

By spending money on his “wall” that Congress explicitly refused to authorize, Trump is saying that Congress no longer has any constitutional authority over spending. Goodbye, checks and balances.

By unilaterally shuttering the government in order to get his way, Trump is saying he has the constitutional right not to execute the laws whenever it suits him. Farewell, Congress.

By directing the attorney general, the Justice Department, the FBI and the secretary of the Treasury to act in his own personal interest rather than in the interests of the American people, Trump is saying that a president can run the government on his own. Adios, Constitution.

By unilaterally threatening to cut off trade with the second-largest economy in the world, Trump is saying he has sole authority to endanger the entire American economy. (Make no mistake: If he goes through with his threat, the U.S. economy will go into a tailspin.

By doing whatever he could to stop an investigation into Russian interference in the 2016 election, including firing the head of the FBI, Trump has told America it’s OK for a president to obstruct justice. Goodbye, law.

The core purpose of the U.S. Constitution is to prevent tyranny. That’s why the framers of the Constitution distributed power among the president, Congress and the judiciary. That’s why each of the three branches was designed to limit the powers of the other two.

In other words, the framers anticipated the possibility of a Donald Trump.

The framers also put in mechanisms to enforce the Constitution against a president who tries to usurp the powers of the other branches of government. Article I, Section 2 gives the House of Representatives the “sole power of impeachment.” Article I, Section 3 gives the Senate the “sole power to try all impeachments.”

Trump surely appears to be usurping the powers of the other branches. Under these circumstances, the Constitution mandates that the House undertake an impeachment inquiry and present evidence to the Senate.

This may not be the practical political thing to do. But it is the right thing to do.

No comments:

Post a Comment