Thursday, May 30, 2019

An FAQ: Why the House should move forward with the impeachment of Donald J. Trump

My mind is made up. I think that the U.S. House of Representatives should move forward with the impeachment of President Donald J. Trump. Instead of writing a long argument which no one will read, I thought I would cast my position as a long and thinly-disguised FAQ. So here goes.

Q: Isn’t impeaching Trump by the House, absent the chance of conviction on the Senate, just playing into his hands? Won’t he use a failed impeachment to mobilize his base even more in 2020?

This kind of idle speculation is brought to you by the same folks who like to get Democrats to agonize over the “electability” of their competing presidential candidates. These are the very same pundits who opined in 2015 that Jeb Bush had a lock on the Republican presidential nomination and declared that nominating Trump in 2016 would lead to the GOP’s imminent downfall as well as their embarrassing rout in the general election.

The fact of the matter is that no one knows how impeachment of Trump by the House will play out. A lot depends on how the impeachment proceedings unfold and what the related investigations reveal. To make confident predictions about this process is an act of intellectual hubris. Also, I think it’s downright silly to imagine that Trump’s base could get anymore mobilized. They are full-time, Fox-News-fueled, nut-job mobilized as it is.

In addition, few commentators appear to be considering just how mobilized the Democrats might become as a result of Trump's impeachment. Sure, they're pretty pumped up coming off a very effective mobilization that led them to victory in last year’s midterm elections, but I don’t think they are anywhere near peaking. Besides, with two dozen candidates vying for the top of the Democratic ticket in 2020, the moral clarity that could result from a thorough investigation of the high crimes and misdemeanors of Donald Trump, may just what will be needed to unite a fractured party on the run-up to the general election.

There is one other component to my political analysis that recommends pursuing impeachment. And that is it will upset DJT to no end, day in and day out, for the better part of the next year. And, lest you think that I am motivated solely by wanting to see Trump suffer as some compensense for what he has put us all through these last couple of years, I point out that a fuming Trump has turned out to be a fumbling Trump.

Yes, what has gotten us to this critical point in this sad tale of presidential misdeeds, was not the original charter of the Robert Mueller’s Russia investigation itself, it was the way that original charter resulted in Donald Trump’s becoming so unhinged that he committed serial acts of obstruction of justice. (In sports parlance, I believe that these are called “forced errors.”) If you think Robert Mueller's investigation sent Donald Trump off the deep end, imagine what a months-long, 24/7 impeachment inquiry will do. Besides, if recent experience is any guide, Trump is likely to commit new crimes that can serve as more impeachment fodder should he somehow be reelected next year.

Q: Isn’t the sole purpose of impeachment by the House the real prospect of removing the president from office as a result of conviction in the Senate? Does it make any sense to forward articles of impeachment to the Senate when it's pretty much given, at least with the information we have in hand now, that Trump will be acquitted there?

Although impeachment by the House was viewed by the framers of the constitution as the first step in a two-step process of removing a corrupt president from office, there is nothing that speaks to that being its sole purpose. The House’s job isn’t to determine whether an impeachment will succeed, its job is to act as a guardian of the American democratic system of government by uncovering and documenting crimes and misdemeanors committed by the highest office holders in the land and forwarding those determinations to the Senate for their consideration in full public view.

My last qualification, in full public view, emphasizes a central purpose of the impeachment process. The House, using investigative powers granted only to it, lays out a case that the president has committed inexcusable wrongs. Its responsibility is to make that case convincingly, not only to clarify the situation to contemporary audiences, but also to set the historical record straight. Only the House can do this.

And, although it is the case with impeachment that the House proposes and the Senate disposes, I can think of no better way of documenting the moral and political failure of a craven Republican Senate than by having them dismiss the weight of the evidence brought before them by their colleagues in the lower chamber. Another way of saying this is that House is bound to proceed with a stillborn impeachment, if only to underscore the cowardice the Senate has demonstrated the last two years.

Q: Well, even if further congressional investigations of Donald Trump are a good idea, why do they have to be conducted under the rubric of impeachment? Isn’t it sufficient to have the various House committee investigations (e.g. Intelligence Committee, Oversight Committee) move forward? Won’t they eventually have the same effect as an impeachment investigation without all the hullabaloo?

In a more perfect world - one where the executive branch was responsive to congressional requests for information and complied with congressional subpoenas - the answers to these questions would be “yes.” But we don’t live in such a world. Far from it, we live in a world whether the President of the United States has vowed to refuse to cooperate with all investigations initiated by the U.S. House of Representatives.

And how these disputes between the legislative and executive branches are worked out in the federal courts will ultimately tell the tale of this corrupt administration. Depending on whether those investigations originate in, say, the House Ways and Means Committee which is seeking Donald Trump’s tax returns from the Department of the Treasury or from a committee tasked with investigating Donald Trump’s impeachment makes all the difference.

The reason behind this difference has to do with the authority that Congress relies on in pursuing its investigations. When committees like the Ways and Means Committee undertake an investigation it has to be done in order to make laws, in other words it has to have a legislative purpose. This is the legislative authority granted to the Congress by Article I, Section I of the constitution.

Not surprisingly, objections to such committee-initiated investigations often emanate from claims that the requested information serves no legislative purpose. This is exactly what has happened with the request by Ways and Means for Trump’s tax returns. Secretary of the Treasury Mnuchin contends that the request - even though it conforms with the letter of the law - is intended only to harass the president and has no legislative value. Although the committee has responded with identifiable legislative objectives associated with its request, the case will have to work its way through an appeals process which could take months or years to resolve. The same is true of other committee subpoenas, although they may thwarted by other legal claims, notably exemption due to executive privilege.

But things change qualitatively when the House investigation is being conducted as an impeachment inquiry. According to Article I, Section 2, Clause 5 of the Constitution:

“The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.”

This power of impeachment exists outside of any legislative authority granted to the House in Article I, Section I and is so not subject to legislative-purpose scrutiny. The operative word in Clause 5 is “sole,” which indicates that the power of impeachment - and, by extension, necessary impeachment investigations - are exercised at the discretion of the House alone. Although this does not circumvent all federal court challenges raised by the executive branch to subpoenas issued as a result of an impeachment inquiry, it should expedite the consideration of any cases that arise as a result.

All said, the investigative power of a House impeachment inquiry, unlike that of legislative committee counterparts, is largely unconstrained. When you recall that the House is tasked with the impeachment of corrupt officials, the very people who would avoid investigation, this makes a lot of sense.

So here’s it is in a nutshell, my argument for the House moving forward with impeachment:

(1) Determining the political consequences of a failed impeachment of Donald Trump is a pundit's guessing game; the only thing I can say with any certainty is that the process will keep Trump rattled and making political mistakes for the foreseeable future, which I take to be a good thing.

(2) Even a stillborn impeachment will have the desired effect of launching an investigation which further documents the crimes of this president and of his administration for historical purposes; this record can be used to help lawmakers determine how to protect our democracy from such abuses in the future.

(3) Investigations by standing House committees are subject to challenges concerning the validity of their legislative purposes; a House impeachment inquiry, once constituted, will have much freer rein in subpoenaing essential information thus expediting a legal process that could otherwise take months or years.

Monday, May 20, 2019

It's all in the timing: a tale of two detonations

Athens Double-Barrelled Cannon

You might think that this double-barrelled cannon sitting next to City Hall in Athens, Georgia could be prop in some sort of misguided Civil War comedy. And, if you did, you wouldn’t be far from right. According to a plaque nearby, the cannon, the only one of its kind, was the brainchild of a Mr. John Gilleland, a private in the “Mitchell Thunderbolts,” an elite “home guard” unit of business and professional men ineligible because of age or disability for service in the Confederate army. Here I use the the words “brainchild” and “elite” quite loosely.

The double-barrel design was intended to fire simultaneously two balls connected by a chain which would “mow down the enemy somewhat as a scythe cuts wheat.” It failed for lack of a means of firing both barrels at the exact same instant. Apparently, “the lack of precise simultaneity caused uneven explosion of the propelling charges, which snapped the chain and gave each ball an erratic and unpredictable trajectory.”

My first reaction to reading this story of this unusual weapon was, “well, duh!” I ran the numbers in my head, first estimating that the velocity of a ball leaving the muzzle of a cannon was on the order of a a thousand feet per second. This meant that if the two detonations occurred even a millisecond apart, the balls would be separated by a foot when exiting the mouth of the cannon, and that separation would increase by an additional foot for each additional millisecond difference in the timing of the detonations. It’s no wonder the chain broke

It’s hard to imagine how 1860s technology, utilizing sputtering fuses and hand-packed gun power, could achieve such precise simultaneous detonations. It’s also hard for me to imagine how the “elite” men of the Mitchell Thunderbolts failed to do the simple arithmetic required to determine the feasibility of their ambitious Yankee-killer.

Oddly enough, this misadventure in weapons development brought to mind a more recent development in military technology that faced a timing challenge far more daunting than the one that faced the Mitchell Thunderbolts. Fast forward only eighty years, and a genuinely elite international team of scientists and engineers found themselves engaged in the development of the first atomic bombs as part of the American Manhattan Project.

Most popular discussion of the technological hurdles faced by J. Robert Oppenheimer and his crew based at Los Alamos centers on the difficulties in creating the necessary amounts of enriched uranium and plutonium to serve as the cores of the fission bombs they wanted to build. But there were other formidable problems, including some having to do with then as yet uninvented electronics.

In particular, design for one of the first two bombs, dubbed Fatman, employed a spherical plutonium core and required that it be compressed by an implosion that would squeeze that core to the critical density needed to initiate the sustained chain reaction that would result in the desired nuclear detonation. To accomplish this, the small plutonium core was nestled in a spherical structure whose outer layer was formed of facets of very powerful chemical explosives. For this arrangement to work, these facets — or lenses as they were called — had themselves to be detonated within a microsecond of each other.

Failure to achieve this kind of “precise simultaneity,” to borrow words from the Athens double-barreled cannon plaque, would lead to an “uneven explosion of the propelling charges.” In the case of Fatman, this would mean that the plutonium core would not be compressed uniformly to the required density and, as a result, the necessary chain reaction would be muted or, perhaps, not occur at all.

As we know from history, whether for good or ill is a matter still hotly disputed in some quarters, the Manhattan Project team succeeded in achieving the exquisite timing required for an implosion bomb.The 40,000–80,000 deaths in 1945 resulting from the detonation of such a device above the city of Nagasaki, Japan on August 9 of that year serve as lasting reminder of their tragic success.

In closing, it is interesting to note that the Athens-area Confederates failed attempt at constructing a weapon of enhanced destruction resulted in a public “object of curiosity.” More telling, as it says on the plaque, the double-barrelled cannon “performed sturdy service for many years in celebrating political victories.” Somehow the cruel madness of the Jim Crow South saw this ill-conceived cannon as something to be proud of. Go figure.

I can only hope that one day our own more successful weapons of mass destruction will be stripped on their nuclear cores and their husks distributed to city halls far and wide as objects of curiosity where they can perform sturdy service celebrating the victory of those fighting for complete nuclear disarmament.

Tuesday, May 14, 2019

Trump running out the clock on Congressional subpoenas: why the Supreme Court is of little help to resolve it anytime soon


As I have discussed elsewhere, one constructive side-effect of the Donald Trump administration and its abundance of deliberately orchestrated constitutional crises has been to get me to reflect on what that document says and how it works to resolve or, more aptly, to fail to resolve the aforementioned crises.

The latest of these challenges to the constitutional order has to do with the president's decision to not comply with several subpoenas issued by the U.S. House of Representatives. The first of note results from the House Ways and Means Committee demanding Trump's recent tax returns from Secretary of the Treasury Steven Mnuchin. The second, emerging from investigations by the House Intelligence Committee, requires Attorney General William Barr to turn over the unredacted Mueller report. There are others.

To the extent that these disputes between the executive and the legislative branches constitute constitutional crises, a question begs be asked, "why can't these be resolved quickly with a Supreme Court decision?" Instead, we are faced with months-, perhaps years-long, litigation in the federal courts before any related case arrives at the SCOTUS doorstep. How did such an inefficient approach to a much-touted system of checks and balances come to be standard operation procedure for the federal government?

The first level of explanation lies in Article III, Section 2 of the U.S. Constitution which defines the "original jurisdiction" of the Supreme Court. Original jurisdiction, meaning the kind of cases that can go directly to the court, are pretty restricted. They are mostly limited to seldom employed disputes between representatives of foreign governments (e.g. ambassadors) and the United States and between the states themselves, the latter representing the lion's share of these original cases.

But wait, you might ask scratching your heads - as I did - why aren't disputes between the court's "co-equal" branches of government, namely between Congress and the president, included in cases that could go directly to the Supreme Court? The answer has to do with a deeper reading of Article III and the thinking that went into constructing it. It also has to do with a lie we continue to tell ourselves about the visionary system of checks and balances crafted by our constitutional founding fathers.

The lie emanates from the fact that, in many respects, the judicial branch of our government wasn't construed at first as being a co-equal branch of government at all. Indeed, Alexander Hamilton spends a fair amount of ink in Federalist Paper 81 assuring opponents of the yet-to-be-ratified constitution that the Supreme Court proposed in it would possess limited in power. He asserts that its original jurisdiction would be circumscribed, as I described above. In addition, Hamilton even goes so far as to say "there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution."  This latter claim may come as a shock to modern ears, as it should.

We tend to forget that Hamilton was making his case for the Supreme Court in response to anti-federalists who didn't want to see the creation of a separate judicial branch of government at all. They felt, as many others did at the time, that the legislature was the primary branch of government since it was most representative of the will of the people. (That's why it's positioned front and center as Article I in the constitution.) They did not want its power usurped by a bench of unelected judges, and they were fearful that these judges would overturn congressional acts at their discretion. Across the pond, Britain seemed to function just fine with a high court residing in the House of Lords, part of their legislature. Hamilton's task was to assuage opponents concerns about the proposed Supreme Court.

Needless to say, a lot has changed since Hamilton penned Federalist 81. As far as the Supreme Court goes, it only took a handful of years and Chief Justice John Marshall's opinion in the bedrock case of Marbury v. Madison to establish the doctrine of judicial review and so elevate the court toward the co-equal status it enjoys today. Sadly, in the intervening years, the primacy of the legislative branch - the central feature of government as imagined by the framers - has suffered depredations by the self-aggrandizing imperial presidency that we are stuck with today.

So, even though its currency has risen over the past couple of centuries, the Supreme Court is pretty much saddled with the restrictions of its original jurisdiction. This means that enforcement of congressional subpoenas directed at the administration will have to wind their way through an appeals process that begins in the federal courts. It's possible that these cases will be expedited, but in all likelihood, thanks to the reluctance on the part of the framers to position the judiciary to resolve disputes between Congress and the president, it looks like Donald Trump will be able to run out the clock on matters of accountability that are critical to our democratic form of government. So it goes.

Tuesday, April 23, 2019

The better angels of Robert Mueller's nature

As I scoured the Mueller Report the past couple of days for yet more evidence of presidential crimes, I found myself in the position of uncovering evidence of an unexpected glimmer of human virtue. And what struck me at first as just an interesting nuance to a complicated legal discussion now appears to me to be the pivot around which the morality tale of the entire story of the Trump administration turns.

To put things in context, we have been aware since the days of Watergate that the legal question of indicting a sitting president — and by that I mean bringing formal criminal charges — is fraught. In fact, according to Justice Department guidelines, such an indictment isn’t permitted because it would undermine the capacity of the executive branch to perform its constitutionally assigned functions. Robert Mueller, a by-the-book kind of prosecutor if there ever was one, hewed to this established policy while formulating the results of his almost two-year long investigation into Russian meddling in our 2016 presidential election.

This tale of non-indictability is the beginning and end of the story in most of the news coverage of why Mueller chose not to charge President Trump with obstruction of justice for his interference with an ongoing federal investigation. But there is more to it than that.

Some coverage does go further and points out that Robert Mueller takes the opportunity in his report to refute the theory — championed by Attorney General William Barr and others — that it is indeed legally impossible for the president of the United States to obstruct justice. Good for him.

Barr’s expansive reading of executive power ignores the role that “corrupt intent” plays in determining the criminality of a presidential act. If such a twisted doctrine were upheld, it would permit, say, the president to trade get-out-of-jail pardons for cash on the barrelhead. Such a reading of the constitution, one which places any president above the law, is little more than a prescription for tyranny.

But Robert Mueller goes beyond simply adhering to Justice Department regulations concerning indictments and beyond refuting Barr’s dangerous constitutional interpretation of executive power in his treatment of the question of obstruction of justice. He could have, if had wanted to, included an opinion that the president had committed obstruction of justice even while he refrained from issuing a criminal indictment. This threading-the-needle is the path that many Trump opponents had hoped for. It was certainly at the top of my list.

So why did Mueller choose to hedge his bets and take this ambiguous path? The answer in one word is “fairness.” As the Mueller explains on page 2 of volume 2 of his report: “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”

And why would it be unfair to make claims of criminal behavior absent the ability to bring formal charges? Mueller continues,

“[t]he ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator. “

In other words, in this analysis, although the protection of the president from criminal indictment serves the constitutional purpose of allowing the executive branch to operate free from the inevitable legal entanglement that it would imply, it is, at least in Mueller’s mind, a personal disadvantage for the president in these circumstances.

Take a moment and let that sink in: Robert Mueller believes that freedom from criminal indictment can, at times, be a personal liability since it makes it impossible to defends one’s reputation against damaging charges in open court. In Mueller’s opinion, charging the president in the report, but not through due legal process, would subvert the president’s right to his clear his name of accusations leveled against him.

So, ultimately, the Special Counsel’s decision not to declare the president’s efforts at obstruction as crimes had to do with Mueller’s commitment to fairplay and to the ability of someone under legal scrutiny to defend his reputation. This was not a conclusion I expected.

There are two glaring ironies at play here. The first has to do with the fact that Robert Mueller appears to be more dedicated to Donald Trump’s ability to protect his good name than the president himself, at least in practice. It’s hard to think of any living politician more disreputable or anyone holding a position of public office who has conducted himself with such unabashed disregard to standards of moral rectitude.

The second irony in Mueller’s taking up Trump’s cause in this way is even more disturbing. While Mueller inhabits a civil world of due process in which the right of suspected criminals to defend their reputations must be preserved, Donald Trump lives in a thuggish world of brute power where adversaries are to be spared no quarter and dispatched by any means necessary, including nefarious ones.

The implication here is startling: Donald Trump has spent the better part of the last 23 months smearing the reputation of Robert Mueller with insults and baseless lies, the very Robert Mueller who, it turns out, was busy making sure that Donald Trump would not have his reputation sullied unfairly. If there is a better example of turning the other cheek in American political history, it escapes me.

All this said, I’m not exactly sure how I feel about Mueller’s decision not to present clear claims of obstruction of justice in his report even in spite of his inability to indict Trump. Such declarations could have gone a long way toward helping to clarify the ongoing public debate. In addition, a forthright statement of Trump’s criminality could have provided additional impetus to the Congressional investigations underway that could have helped propel them beyond mere impeachment of the president in the House to the possibility of his conviction in the Senate.

It may very well be that Robert Mueller’s commitment to fairplay has made it more difficult to remove Donald Trump from office before his term is up. But, in any event, it has illuminated for me the central moral question presented by the Trump administration I alluded to at the start.

We are all witnesses to an unfolding battle which pits an age-old, corrupt form of politics rooted in the exercise of raw power, as exemplified by Donald Trump, against an enlightened political system committed to justice and fairplay, as exemplified by Robert Mueller.

Although I believe that Mueller’s decision to err on the side of fairness may prove to be a short-term tactical mistake, in the long run I feel that it will be seen as a turning point for distinguishing the mobster politics of Donald Trump from the legitimate exercise of political power based in law. This may very well be what, in Lincoln’s words, the better angels of our nature demand. It appears that Robert Mueller may have heard their call.