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.