Monday, January 6, 2020

An Utterly Biased Guide To Impeachment--On 3Q

By Michael Liss

I have an awful confession to make. I haven’t made up my mind about whether President Trump should be convicted and removed from office.

I know that sounds deranged. I am “troubled” by what Trump apparently did. “Disturbed” by the scorched-earth defense strategy put together by the Trump team. “Deeply concerned” about the continuous violations of norms and the virtual certainty they will continue.

All of these things are true, and I’m not even a moderate Republican trying to show my independence to the folks back home before voting to acquit. I’m a Democrat, and every day of the Trump Regime is an excruciating day. Nothing would make me happier than a landslide repudiation of Trump by a thoroughly repulsed electorate. I want him out, and I believe that, applying a probable cause standard, the House voted appropriately to Impeach and send it to the Senate. Nonetheless, I’m not sure that, if I were a Senator, I would vote to convict.

I need evidence. Old fashioned, I admit, but I need it anyway. I need a credible process with witnesses being called and a case being presented in a formal way. I need a sense that the system actually works, as opposed to just being a two-party rumble where few seem to care about facts, and fewer about process.

Three simple questions: What did the President do? Did he have the authority to do it? And, if so, did he abuse that authority beyond the breaking point?

First, be careful how you answer “what did Trump do?” Eliminate the tweeting, the coarseness, the insults, the self-enrichment, the sheer “noise” of any of the other antisocial pathologies that Trump exercises in real time and in public view. They don’t matter, and the only way to clean those particular stables is on Election Day. The Constitution does not require a President to be Presidential. Only the voters can decide whether character counts.

Of course, a President is not a deity. In December, I argued that, when the Framers were dragging people (some kicking and screaming) away from the Articles of Confederation and toward a new form of government, they had with them (literally) an exemplary model of ability and decorum for a Chief Executive: George Washington. They also had a well-considered fear that whoever sat in the chair after Washington very likely wasn’t going to be his equal. That knowledge shaped their drafting approach in deciding the breadth of the Constitutional grant of power they gave to the office itself. It also impelled them to create a deliberative, evidence-based mechanism for a President’s removal for High Crimes and Misdemeanors.

So, what did Trump do beyond “Noise” that might have been High Crimes and Misdemeanors? For better or worse, the House-passed Articles of Impeachment have been narrowed to cover just two things—the Ukraine matter, and blocking the House from investigating the Ukraine matter. There is much we don’t know about Ukraine, as the White House has done everything in its power to keep us from knowing it. There are things, though, that we do know, and they are not flattering. We know he sent Rudy Giuliani over to see if he could dig up dirt on potential political opponents, and we know Rudy has been hanging around with some questionable pals who happen to have large wallets. That’s pretty gross. We also know there was clearly some quid-pro-quo discussions going on in which Trump and his emissaries were threatening to withhold aid until dirt on Joe was delivered and a public announcement of a Biden investigation was made by Ukrainian authorities. We know the President was using taxpayer dollars as leverage (and compromising recognized American security interests) to obtain personal political gain. We know he was withholding those dollars despite a Congressional mandate, was told by his national security team it was illegal to do so, and then kept demanding a different answer until he found an ambitious lawyer at OMB to give it to him. And, finally, we know those dollars were eventually released, although the pressure continued on Ukraine.

None of this is good, but is enough to remove a President from office? Well, it’s a harder question than it seems, because first you have to define the scope of Presidential Power. If he’s acting within his authority, even if it’s a bit of dirty pool, it is harder to convict than if he exceeded it.
To answer the question of whether he has the power, we should review the thoughts of his most tenacious and effective defender, Attorney General William Barr. In The General and the Attorney General I talked  about parts of Barr’s November 15th, 2019 speech before the Federalist Society, but I want to look at it again in the context of President Trump’s impeachment. Barr, it’s fair to say, is a bit of a situational Monarchist and even a Fabulist when it comes to Executive Power, and in this speech, he lays out his theories. Read it carefully; imagine him advising the President; and you can understand why Trump may think he’s entitled to do whatever he wants.

Here is the Attorney General selectively editing history:

"[T]he Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness. They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary…."

Opportunistic supporters of the Unitary Executive theory love the Jefferson quote, but it’s a peculiar one. Remember that Jefferson did not participate in the Constitutional Convention, so he cannot speak with first-hand knowledge. Look, also, at the context—an exchange of letters between John Adams and Thomas Jefferson in 1796 (nearly a decade after the Constitutional Convention, so hardly binding), planning for the next Presidential election—and, more importantly, clearly reflecting Jefferson’s experiences in Paris during the French Revolution. He is not reaching for an Imperial Presidency. More likely, he’s referring to the superiority of having a single-person Executive to carry out Executive functions, rather than the hydra-headed, yet dictatorial, approach of both The Committee of Public Safety and its successor, The Directorate.

Be that as it may, I’m not going to argue with the concept of an energetic, consistent, and decisive Executive, so long as he’s acting within the scope of the authority granted to him. The problem is Barr wants a lot more. He’s also in favor of an Executive who can operate on his own, in secret, and without meaningful oversight, and insists that was the intent of the Framers.
How does he get there? By using a kernel of an actual, enumerated power, building on that, and creating much of the rest by inference.

He begins with a reference to “essential sovereign functions” such as war and foreign relations “which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.” This is quite clever. Barr is taking specific Executive powers referenced in Article II and expanding that authority by adding a manner in which they be carried out.

Then he adds “exigent circumstances” in which the Executive feels he has to act quickly. Barr cites a plague or national disaster, but could just as easily be referring to any perceived “emergency” (a Wall comes to mind). Where is this Strict Constructionist’s scholarly support for exigent circumstances giving enhanced authority to a Chief Executive? Not in the text of the Constitution, and in fact, Congress has had to pass a number of legislative acts granting additional “Emergency” authority. Bear in mind that the “Necessary and Proper Clause” applies to Congress, and not the Chief Executive. So, Barr has to reach back a century before the Constitution to draw from the writings of the English philosopher John Locke. Locke is a giant, but he also wasn’t in Philadelphia.

We aren’t done yet. Barr extends his grasp further, to something made entirely out of whole cloth—his so-called “Executive’s powers of internal management.” These include “…the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.”
There it is. Not only do we have an uber-powerful Unitary Executive who can do pretty much what he wants, but can also use his powers to resist any oversight by Congress or the Courts.

What about all those checks and balances we read about? Barr doesn’t much care for them, except as they may constrain the other two branches of government. He fumes over Congressional “harassment” (hmmm). He goes on at some length to deplore the Judiciary’s review of Presidential motives (he refers to the Travel Ban, but you do wonder if Chicken Kiev was on the menu). He blames “mushy thinking” everywhere, particularly as it may lead to involvement of the federal courts to referee disputes between Congress and the Executive Branch.

"The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. As Madison explained in Federalist 51, ‘the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.’ By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation."

How the Madison quote fits into the litany of Barr grievances, and exactly which tools Congress retains to “force compromise and political accommodation,” Barr doesn’t say. What he did was more important–he sent DOJ lawyers in House Judiciary Committee v. McGahn to argue for “absolute testimonial immunity,” i.e., the President alone can determine who can be compelled by Congress to testify.

Think about that one for a second. And then consider what U.S. District Judge Jackson said in her decision rejecting those claims—citing the same language from Madison in Federalist 51, and going on to write, “In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together.”
So, where are we? We have a President who did what he wanted, supported by attorneys and advisors who reassured him that he had unlimited power in the foreign policy area, including to feather his own nest politically, as his motives were irrelevant. All in the context of hearing from the nation’s top lawyer that he had every right to essentially shut down any investigation.

The fish really stinks, but is it an impeachable fish?

I still don’t know, but here’s what is going to happen: Nancy Pelosi will relent and send the Articles of Impeachment to the Senate. Mitch McConnell will bury them. We will never get any important testimony, as the White House clearly fears a perjury trap. If McConnell is particularly deft, he will find a way to keep every GOP Senator in line, while giving them plausible deniability. In sum, we will learn nothing, except that a President can do what Trump did, then stonewall an investigation. Barr’s strategy of maximum resistance will have succeeded, as will have his plan to exalt Presidential power well beyond anything the Founders could have envisioned. Those who think Trump, or some successor President, won’t try this again are kidding themselves.

And this frustrates me. It doesn’t have to be this way. There was no possibility the Senate would have ever convicted Trump, but at least the process could have been vindicated and the public informed. A Senate committed to a proper allocation of power among the three branches of government would have defended its turf. It would have pushed back on testimonial immunity. It would have, at the very least, reminded everyone that what the Framers painstakingly assembled 243 years ago has value beyond ritualistic bows coupled with aggressively disingenuous reinterpretations.

In Federalist 65, Hamilton asked “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”

I’d like to mull that one over while considering what Chief Justice John Roberts said in his just-issued annual report. “We have come to take Democracy for granted.”

Roberts is right. And maybe it’s time we stopped. That’s my utterly biased opinion.

An Utterly Biased Guide to Impeachment was first published January 6th, 2020.

Thursday, December 26, 2019

Fifty Ways To Leave Your POTUS

The Annual Ditty (Groaners Guaranteed)
Fifty Ways to Leave Your POTUS
"The problem is all inside his head," she said to me
"The answer is easy if you don’t watch Fox TV
I'd like to join you in the struggle to be free
There must be fifty ways to leave your POTUS"

She said, "I’ll bet those Founders surely had a rule
Let's remember what they taught us one happy day in school. 
But I’ll repeat myself before you jump into that pool
There must be fifty ways to leave your POTUS
Fifty ways to leave your POTUS”
You make a quick switch, Mitch
Tell him he’s through, Hugh
Don’t want to get Vlad mad
Just get yourself free
No need to be dense, Pence
You’re gonna be Prez, yes!
Let’s wipe it clean, Jeanine
And get yourself free
Ooh, make a quick switch, Mitch
Tell him he’s through, Hugh
Don’t want to get Vlad mad
You just listen to me
No need to be dense, Pence
You’re gonna be Prez, yes!
Let’s wipe it clean, Jeanine
And get yourself free
She said, "it isn’t fair to be in so much pain
I wish there was something we could do to make us smile again"
I said, "I agree with that, and would you please explain
About the fifty ways"
She said, "why don't we both tweet on it tonight?
And I believe in the morning we’ll know better how to fight"
And then he dissed me and I realized she certainly was right
There must be fifty ways to leave your POTUS
Fifty ways to leave your POTUS
Just show us some grit, Mitt
Take a new stand, Rand
Don’t need to be cross, Ross
Just get yourself free
Say that you’re sick, Mick
He’s not the Czar, Barr
We’re lookin’ at you, Sue!
And get yourself free
Just show us some grit, Mitt
Take a new stand, Rand
Don’t need to be cross, Ross
You just listen to me
Say that you’re sick, Mick
He’s not the Czar, Barr
We’re lookin’ at you, Sue!
And get yourself free

Wishing you all a Happy and Merry and a joyous 2020

Michael Liss

Monday, December 9, 2019

The General and the Attorney General--On 3QD

by Michael Liss

How do you feel about an Imperial Presidency?  

Attorney General William Barr has been on a bit of a bender recently. He’s suggested that communities that are critical of law enforcement will lose police protection, disagreed with the Inspector General’s report about the FBI and the Russia investigation, and warmed the hearts of the faithful at Notre Dame in decrying a “war on religion.”

While Mr. Barr rarely fails to make news, his most consequential opinions came in a speech he gave to the Federalist Society on November 15, 2019, in which he went on, at some length, as to why he supports the broadest possible interpretation of Presidential powers. 

If you have read reports about Mr. Barr’s remarks, you probably already know they have been criticized for their ferocious partisanship. There is unquestionably a considerable amount of energy devoted to critiquing those who get in President Trump’s way (Congress, the federal courts, Progressives, and private citizens who exercise their right of free speech). But Mr. Barr is not only a man of intensity, he is also one of words (over 6000 here), and, when moved to talk about substance, he has a lot to say. You can find the text on the Department of Justice website.

It’s pointless to argue with Barr about his personal political views, regardless of the tone in which they are delivered. And it’s shouting into gale-force winds to note that his zeal for an uber-powerful Presidency seems to wax and wane depending on the party identification of the person occupying the Oval Office. What is interesting, and important, is reviewing the customized version of history that leads him to take his present view of both Presidential power and the nature of the relationships among the three branches of government. 

His first dive into the past is a fascinating one: 

The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak. This is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.

I went to grammar school, and I think this is a very clever argument, albeit completely misleading. He’s conflated two separate thoughts—a debatable one that the colonists were not rejecting a strong executive, with an unsupported one that “patriots well understood that their prime antagonist was an overweening Parliament.” And he’s forgotten that Parliament was not some malevolent jellyfish made up of a thousand stinging MPs and Lords. They, too, had Executive leadership—a Cabinet and a Prime Minister (Lord North, during most of the Revolutionary War whom, ironically, 19th Century historians judged too subservient to the King).

What most of the colonists opposed, and what caused them to revolt, was authoritarianism, regardless of the package in which it came. They did not reject the authority of Parliament in order to embrace King George III, and, by extension, did not see an all-powerful Executive as a desirable alternative to an all-powerful legislature. As Jefferson put it in the Declaration of Independence, “[a] Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.” The men who signed the Declaration were asserting their aspiration to be free of government by fiat, free of government without representation. That’s what British rule meant to them.

Jefferson’s words are the poetry of that aspiration, but we don’t necessarily need to look deeply into his writings or those of the other Founders to deduce this—we also can judge it from conduct. The newly independent states did not leap into a complex and binding contract including a powerful Chief Executive. Instead, they opted for the Articles of Confederation, which had no Chief Executive at all. Given a first choice of governing schemes, men of property and influence (the only folks who counted) chose the loosest form of alliance. The reasons for this were many—but the most prominent had to be the unwillingness to cede local control to a larger entity in which they would risk losing influence. The once-colonists saw themselves more as citizens of the individual States, and not the United States. Barr asserts that:
American thinkers who considered inaugurating a republican form of government tended to think of the Executive component as essentially an errand boy of a Supreme legislative branch. Often the Executive (sometimes constituted as a multi-member council) was conceived as a creature of the Legislature, dependent on and subservient to that body, whose sole function was carrying out the Legislative will.
Again, this is only partially true. American aristocracy surely preferred to rule, rather than to be ruled, and Benjamin Franklin, for example, had a miserable time as the largely figurehead Governor of Pennsylvania. But New York’s Governor George Clinton, on the other hand, had a tight fist on power, and Virginia’s Governor from 1784-86 was the formidable Patrick Henry (who was later to lead the opposition to the ratification of the new Constitution).

Barr’s conclusion is that the failures of the Articles of Confederation were simply a result of a lack of Executive authority:  “They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.”  Again, he’s conflating two things. The management of the War was a bumbling enterprise, but it was a bumbling enterprise because of both a lack of a strong Executive and an overall lack of a strong federal government. It’s telling that Barr doesn’t acknowledge the contradiction in his own position: The most powerful nation in the world at that time was England—the very same country he previously derided as being in the hands of a Parliament with a figurehead King as Chief Executive.  

The Articles failed for any number of prosaic reasons. No one took the new nation seriously, and there was little reason to do so. Thirteen states loosely tied together, each exercising a considerable amount of autonomy, and, in effect, possessing veto power over national policy, were inadequate to the challenges of building a new nation surrounded by hostile powers. The British, despite having signed the Treaty of Paris four years earlier to end the War of Independence, never quite reconciled themselves to the idea of leaving, and there were forts where the disembarkation process seemed particularly slow. States were fighting over boundaries; no one was collecting taxes; the new nation’s currency was a largely worthless script; and trade was a tangle of often inward-directed tariffs and preferences.    

Many (not all) of the leaders of the Revolution knew there had to be change, but Barr is careless in implying that the choice was obvious, was acknowledged by a broad consensus, and was primarily tied to the lack of a strong Chief Executive. 
In fact, there was nothing even approaching unanimity that the Articles should be abandoned. An effort to tinker with them crashed and burned at Annapolis when only five states (and just 12 men) showed up. Things were sufficiently delicate that even the phrase “Constitutional Convention” was too much for many, so the folks with the figurative wrecking ball (Madison, Adams, Hamilton, Franklin, John Jay, and, quietly, George Washington), had to tip-toe up to it by insisting, in effect, that they were just replacing the shutters and doing a fresh paint-job. It is only after they all assembled in Philadelphia, and Virginia sprung its complex and far-reaching  “Virginia Plan,” that many of the delegates realized the true purpose of the meeting. Not all were happy about it.

I don’t want to fall into the trap of misstating history just to show Barr does the same. There was substantial support from many of the attendees for change, and that change included a Chief Executive with a job description that went beyond sinecure. Where he and I differ is the Framers’ understanding of the scope of Presidential authority.

From my perspective, you have to give great weight to the centrality of George Washington to the entire debate. This is not because of anything he wrote (not a word of the Constitution was penned by him), nor because of anything he said during the Convention (he was a literally silent Chair).  Rather, it was because he was the Indispensable Man. In 1787, before political parties, and before Washington actually had a governing record as President to gripe about, people judged him on his service to the fledgling nation, which was considered unsurpassed. They saw him as incorruptible, above politics, and honor-bound to duty. His motives were never in question.

We can be certain that the mostly high-born and influential attendees might have had a slightly more skeptical view, but it was irrelevant. Every single one of them knew the public believed in Washington’s near demi-god status, and that Washington’s blessing was needed for a new form of government. He had taken the first step by supporting a Constitutional Convention and becoming its Chair. Would he take the second by throwing his weight in favor of the finished product?

This created a fascinating dynamic in the drafting and debate when the conversation turned to a Chief Executive. Washington wasn’t going to agree to any role that lacked substance. This wasn’t just a matter of pride.  Washington prized his life at Mount Vernon and felt he had to fulfill his pledge to emulate the Roman General Cincinnatus and retire (permanently) to private life. He also had an acute sense of his own mortality. The Washington men didn’t survive past their 50s, and, by the time of the Convention, he was already 55. Only a call to a higher duty could lure him. 

In short, the job had to be a big one. And, to complicate things further, the debate and the negotiations literally had to take place in front of his eyes. Things could get tense. If the new form of government was to have an Executive, and that job were to have the legitimacy in the public’s eyes that Barr insisted that Governors lacked, it had to be affirmed by Washington. Washington’s acceptance of the Presidency gave it the prestige it needed, and by extension, lent that prestige to the entire new governing scheme.  

All that being said, the attendees weren’t there just to satisfy Washington, and the adoption of a vibrant Chief Executive wasn’t a universal panacea. A new government meant a complex rearrangement of power among the States, among regions, and between the government and its citizens. There were at least four points of view represented at the Convention and in the 13 States. Some believed the Articles were perfectly fine: They liked the autonomy it afforded their States (and the power it gave to the aristocracy in those States) and were loath to give it up. The importance of this group became even more apparent during the ratification stage. Others accepted the idea that a new government was needed, with an Executive office, but not a new strong Executive—whatever powers the nominal head of state might have would be substantially circumscribed by a Legislature that would dominate, and it was the makeup of that Legislature (one house or two, proportional representation or not) that concerned them more. The third group conceived of an Executive closer to the type of Presidency we have today. The fourth’s views might be found both in Madison’s original construct, which included a Presidential veto of State laws, and in the extraordinary speech at the Convention given by Hamilton, who literally proposed a President for Life.

Obviously, Washington would never have gone for either a continuation of the Articles or a largely ceremonial Presidency. But, if the debate were to advance to a newer form of government with a stronger Chief Executive another problem would have to be addressed: Washington himself could be trusted with authority, but his successor was an unknown. Making the job big enough for Washington to accept would, at minimum, potentially endow it with more power than the Convention would have been comfortable giving to a lesser man. So, if we are to divine the Framers’ intent as to the extent of Presidential power, we should accept that the text of the Constitution is the boundary. That is the most that the Framers were willing to grant (and the States willing to ratify) to even Washington—and that, only after a Bill of Rights was attached. If Barr is floating, as the Framers’ idea, an all-powerful-yet-benevolent-tribune-of-the-people President, then he’s spinning it out of whole cloth. That construct is not supported by the text of the Constitution (or The Federalist Papers), or by contemporaneous behavior. What the Framers agreed to and wrote, and what the States subsequently ratified, is what they meant, not less, but not more. Any broader assertion of Presidential power than exceeds that original grant of authority to Washington (and his successors) has to be defended on other grounds.  

You may not be surprised that William Barr has a plan for that. That’s a different battle, and I”ll take it up on another day

The General and the Attorney General was first published on December 9, 2019 on 

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