Trump Unchained

The last two weeks have given us a preview of President Trump’s behavior after the November election, whether he wins or loses.  The President has shown us that he is no longer just a political problem or even a symbol of our dysfunctional partisanship.  He has become a profound threat to our liberal democracy.

Since his inauguration, the President has crossed so many red lines that I hesitate to say he’s crossed another one.  The weeks since he was acquitted of impeachment charges, however, have given us extraordinary examples of letting Trump-be-Trump.  He views the Republican Senate’s verdict as complete exoneration and as a greenlight to use his power without constraint. 

As an individual, Trump can be vulgar, blasphemous, obscene, indecent, misogynistic, xenophobic, and more.  As a politician, he has exacerbated the racism in our country, encouraged violence against those who oppose him, violated national and international law and embarrassed our country in the eyes of the world.  As bad as these are on a personal and political basis, however, they are relatively innocuous compared to the menace the President has become to American democracy.

The President has now initiated a campaign of revenge against those he believes have treated him unfairly.

President Trump turned his anger into action by removing Lt Col Alexander Vindman from his National Security assignment at the White House.  The reason for his dismissal: Vindman’s legally mandated, truthful testimony before Congress.  He was abruptly terminated from the White House and escorted from the building.   

Trump also removed the Ambassador to the European Union Gordon Sondland, apparently for the same reasons.  More firings are expected. 

Worse, the President tried to interfere in the military justice system, tweeting that the military “should take a look at” Vindman’s behavior to consider further punishment.  Secretary of Defense Mark Esper responded that no charges would be pursued against Vindman; without, it should be noted, apparent consequences for standing up to the President.

Other examples of the President’s inappropriate behavior:

• He sought to intimidate federal judge Amy Berman Jackson, for her handling of Trump’s friend Roger Stone’s sentencing, badgering her on Twitter for previous rulings:

“Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!”

• Trump went on to attackformer Director of the FBI James Comey along with other FBI personnel involved in the Russia investigation:

Where’s Comey? …What’s happening to [Andrew] McCabe? What’s happening to Lisa and — to Pete Strzok and Lisa Page?

• Trump withdrew the nomination of former US attorney for DC, Jessie K Liu for a high-ranking position in the Treasury Department, apparently after he’d been lobbied by her critics for her handling of the Mueller investigation.

It is important to recognize that in this Administration, tweets and comments are more than observations and suggestions.  When the boss asks, “Where’s Comey?”  He’s not asking for information; he is asking someone to do something about Comey’s “disloyalty.”  When Trump tweets that Adam Schiff (chair of the House Judiciary Committee) “has not paid the price yet for what he has done to our Country!” and is a “vicious” and “horrible” person, the President is either threatening Schiff or, worse, inviting someone else to exact the price. 

The fear of being attacked by the President has led to the Republican Party’s near-capitulation to the President’s will, as evidenced most clearly in the nearly unanimous Senate acquittal despite guilt obvious to any neutral observer.  Reporters have indicated that Senators and Representatives who vote to sustain the President often privately disdain his actions but are afraid to step out of line for fear of a Twitter attack and/or a primary challenge from a Trump ally. 

Finally, we cannot even imagine the impact of Trump’s sneering, mocking ridicule of those with whom he disagrees.  What does it do to a person when not only does the President humiliate him or her, but also the President’s followers turn against that person?  It is not surprising that several Republican members of Congress who have even minimally stood up against the President have chosen not to run for reelection.

And there are wider ramifications.  One little-noticed impact is the extraordinary increase in bullying in the schools.  Although the vast majority of these bullying episodes are never reported publicly, many we do hear about have used the same rhetoric and/or the same targets as the President’s.  The bullying comes not only from student Trump supporters but also anti-Trump students, but the language remains the same.

This is the stuff of autocracy. Trump has risen above the partisan and has become a historically unique threat to the entire political structure and, more importantly, to the American system of liberal democracy. 

Modern autocrats do not mostly begin by suddenly taking over the government.  Rather, as Levitsky and Ziblatt show in their How Democracy Dies, the takeover begins gradually, often with comments suggesting antidemocratic behavior; these are dismissed as “just talk.”  But as people are fired from their jobs and the autocrat suggests punishing innocent people, it becomes more than “just talk.”  In those now-fully-autocratic countries, elections still occur, independent newspapers still publish but are threatened into compliant behavior; the autocrat has innocent enemies “legally” investigated and often punished.  In retrospect, there are always warning signs.  Trump has now taken us past the warning gates into tangible behavior.

Most of us think that because of the historical strength of our democracy, the President is not yet powerful enough to really threaten it.  We have, after all, been able to contain the previous demagogues (Huey Long, Father Coughlin, George Wallace and so on); it’s easy to consider ourselves invulnerable. 

But these previous demagogues have been contained because bipartisan cooperation has taken them down.  The current Republican Party’s craven acquittal and support for the President’s autocratic behavior, however, changes the dynamics. 

There is no constitutional remedy if Congress will not intervene.

According to the President’s advisers and allies,

Trump [is] simmering with rage, fixated on exacting revenge against those he feels betrayed him and insulated by a compliant Republican Party [and] is increasingly comfortable [taking revenge] to the point of feeling untouchable.

The last weeks have given us a taste of President Trump unbound. 

If he is re-elected, he will feel affirmed and authorized to continue. 

If he is defeated, he will have 2½ months without constraints to take his revenge.

Can Democracy Survive the Impeachment Debacle

In January 2016, candidate Donald Trump said, “I could stand in the middle of 5th Avenue and shoot somebody and wouldn’t lose any voters, ok?”  The President delivered on his boast last week when all but one of the fifty-three Republicans in the Senate voted against removing him from office, thus exonerating him from the attempt to bribe a foreign government into supporting his 2020 election.  Those Republicans also cleared him of obstructing Congress, even though he had refused all documents and prohibited his subordinates from testifying before the constitutionally-mandated impeachment process.

Trump lawyers had few arguments.  It was quite clear he did what he was accused of.  Furthermore, it should be obvious that a presidential attempt to coerce another government into acting against the president's enemy requires removal from office.

His “exoneration” should come as no surprise to anyone who has been following the hearings.  Both sides made it abundantly clear that the vote would be along party lines.  What might surprise us is the willingness of the Republicans in the Senate to flout the Constitution so brazenly. 

Flawed as it is, the Constitution is all we have as a founding document.  It is the basis of American law.  We change it with amendments only with the utmost care and deliberation through a time-consuming process that involves the entire country.  The Republican Party has changed it with a fifty-two-person vote, pre-determined along partisan lines.

Given the existential threat to him, Mitt Romney’s vote for removal took extraordinary courage.
 

We are left with the conclusion that if the president’s party controls either house of Congress, the president is, indeed, above the law.

The purpose of this blog has been to chronicle the damage that President Trump has inflicted upon our democracy.  But he has been abetted by the increasing willingness of the Republican Party to violate political norms … and now this violation of a constitutional law.  It’s a previously unimaginable step toward the loss of our democracy 

We’re unlikely to heal this for decades!

War Powers

The recent American killing of General Qasem Soleimani, Iran’s top military officer, is a perfect example of the danger of the decades-old, unconstitutional, presidential arrogation of Congress’s sole power to declare war.  The Constitution’s First Amendment unequivocally gives Congress sole authority to declare war.  According to the Constitution, then, the president may not attack another country militarily without that congressional declaration.

Donald Trump is, however, only the last in a long line of presidents who have ignored the Constitution and attacked another country without authority. 

The practice began after World War II, the last war officially declared by Congress.  President Truman referred to the three-year long Korean “war” as a “police action.”  In 1965, ten years after the beginning of the Vietnam War, President Johnson justified the “conflict” on the basis of a congressional resolution passed after the Gulf of Tonkin incident.**  The resolution was never intended as a long-term measure.  It, nevertheless, became the basis of the authorization for a war that lasted another ten years.  Every president since then has initiated some level of military action without a declaration war. 

Even when Congress has approved military action (eg, the first Iraq War), there has been no actual congressional declaration of war.  President George HW Bush started the first Iraq war in 1991 on the basis of the congressional Authorization for the Use of Military Force (AUMF).  In initiating the second Iraq War, President GW Bush used a similar resolution, authorizing military force against terrorists.  “The authorization granted the President the authority to use all ‘necessary and appropriate force against those whom he determined ‘planned, authorized, committed or aided’ the September 11th attacks.”  Nothing was said in the resolution about Iraq (which had nothing to do with 9/11), the prolonged war in Afghanistan, an attack on Iranian military officers or a declaration of war.

While the issue has been noticed and occasionally debated, Congress has never been willing to challenge a president’s use of military force, even when it becomes indistinguishable from a war.  This is a serious abrogation of congressional constitutional responsibility. 

To be sure, limiting the military authority of the Commander-in-Chief is no simple matter.  We are continuously involved  in “hot spots” around the world, and immediate military action is sometimes required.  The issue, however, can be politicized, delaying action further.  Nevertheless, congressional debate and the approval of a reasonable process to give Congress its constitutional voice is necessary.

Is President Trump’s ordering the killing of General Soleimani any different from the actions of every other American president since the 1950s?  Well, in theory and according to the Constitution, no.  What makes Trump’s actions more objectionable and dangerous is the potential political impact on the US presence in the Middle East.  For years, the military has had the intelligence and military capability to kill Soleimani and has considered using it.  But always a decision has been made not to engage Iran for fear of wider military confrontation in the Middle East.

Since the killing, the President and his advisers have tried continually to provide public justification for the attack, but each attempt has withered under examination.  Justification has changed every few days.  Even the President’s closest advisors have been unable to come up with evidence for any of these justifications, for example, that four embassies were in danger of imminent attack.

To repeat, the killing of Soleimani is not unconstitutional; it certainly is not an impeachable offense.  It does highlight, however, that the Constitution’s requirement for a congressional declaration of war is insufficient for the nature of modern warfare or for the political polarization of government that makes almost any controversial action impossible.  It is also not prepared for a president with Donald Trump’s disdain for the Constitution, ignorance of international politics, or for his of penchant for impulsively acting on his own.

While President Trump’s killing of Soleimani is no worse an assault on the Constitution than those of all other presidents since 1950, this President has highlighted how crucial it is for Congress to limit presidential war powers.
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**  The Gulf of Tonkin incident was the allegation that a Vietnamese vessel attacked an American ship.  This allegation, it turns out, was untrue.  The attack never happened.  But it became the reason for congressional action anyway.  

When is the Pardon a Perversion of Justice?

US presidents have an absolute and unlimited power to pardon anyone who has committed a federal crime or even to pardon someone who is awaiting trial.  Although a president cannot pardon himself, he can pardon someone who’s committed a crime on his behalf (for instance, a person who refuses to testify in an impeachment process.)

On November 15, 2019, the President intervened in several military war-crimes cases and pardoned three members of the military.

• Former Army Lieutenant Clint Lorance was serving a nineteen-year sentence for ordering his men to fire on three Afghan civilians, killing two.  Members of his own platoon had testified against him, he had falsified reports in order to cover up the crime, and his conviction had been reviewed and approved by the Court of Military Affairs.  The President, nevertheless, gave him a full pardon.
• Army Maj. Mathew Golsteyn had not yet been tried but faced murder charges.  He had confessed to the murder.  His trial was to begin soon.  Rather than wait for the military justice system to handle it, however, Trump also gave him a full pardon for his alleged offenses. 
• The case against Chief Petty Officer Edward Gallagher, a Navy SEAL was seemingly less serious.  While he was charged with indiscriminately shooting Iraqi civilians, threatening a fellow SEAL in order to cover up these incidents and posing for photographs while standing over a dead ISIS fighter, technical irregularities in the court-martial resulted in dismissal of all charges except the last.  Trump ordered the restoration of rank and service medals that had been taken.

In each case, the President overruled the Secretary of Defense, the Secretary of the Army and the unanimous opinions of other military officers, including the juries of their peers that convicted the soldiers.  Several retired military generals spoke out that the pardons “undermine decades of precedent in American military justice that has contributed to making our country’s fighting forces the envy of the world.”  Trump’s pardons for murders were also unprecedented in American history.  Karen Tumulty writes,

Several times the president described the treatment of these service members as “unfair” even though a thorough investigation … comparable to a civil grand jury trial, had been conducted to establish probable cause. Furthermore, the courts-martial members in each case were officers or peers of the accused. All were also combat veterans who fully understood the so-called “fog of war” and the need for quick decision during urgent and dangerous situations.

As above, there is no question that the President has full constitutional authority to pardon these men.  But questions remain: Why pardon these particular men?  Why pardon someone convicted of murder?  Why now?  What will be the long-term impact on the military and on our democracy?  

As far as is known, there were no mitigating factors in these cases that warranted pardon.  (Officer Gallagher seems to have benefitted from his mother’s plea on Sean Hannity’s Fox News program.)

The generals’ protests against Trump’s pardons, were primarily on the basis that they would weaken international protections against war crimes and the US Uniform Code of Military Justice (UCMJ) that is responsible for discipline within the armed services.  Without accountability there is no discipline. 

It is hard to imagine any except political reasons for these pardons, and the White House offered none at all.

 When the commander-in-chief refuses to hold accountable soldiers convicted by military courts martial, military discipline is upended.  When the President pardons for political reasons, the entire democracy suffers.

Trump Runs Out the Clock

As a wealthy real-estate developer before his successful bid for the presidency, Donald Trump frequently countered challenges to his businesses or to himself personally by manipulating the legal system.  One of his primary tactics was to use multiple appeals to stretch out the already-protracted legal process until his opponent was forced to give in.

Potential challengers quickly learned the cost of confronting Donald Trump.

As President, Trump has continued this waiting-out tactic, so far quite successfully.  He is refusing to provide any documents to Congress to or allow any of his subordinates to testify in the impeachment proceedings.  Most of this stonewalling is not constitutionally permissible, for it abrogates Congress's ultimate responsibility to provide a check on presidential power through the impeachment process. So in order to circumvent and delay, Trump has either sued Congress or allowed Congress to sue him. Trump claims Executive Privilege, but Executive Privilege covers only very limited situations, mostly concerning national security or confidential conversations between presidents and their immediate advisors.  The vast majority of presidential actions are not covered by Executive Privilege.  Presumably, therefore, the President will eventually lose most these suits in the courts, as he did in the recent ruling against his keeping former counsel Donald F McGahn II from testifying.  Not surprisingly, Trump's lawyers have already appealed the court decision so the legal process will delay McGahn's testimony until after the impeachment proceedings are concluded, when that testimony will probably be moot.  Trump loses the court decision but his tactics will win anyway. 

Not coincidentally, the Republican defense of the President has in many cases rested on dismissing what they call “hearsay evidence.”  The direct first-hand testimony to counter this defense could undoubtedly come from exactly those people whom Trump is preventing from testifying: Mulvaney, Bolton, and so on. Trump wins again.

It's important to recognize what is happening here.  As Stephen Levitsky and Daniel Ziblatt point out in How Democracies Die, democracy requires a respect for the democratic process.  This respect includes not only for the law but also for the "soft guidelines" of politics, which they identify as:

• “mutual toleration”—leaders don't treat political rivals as existential enemies, but rather as fellow loyal Americans;
• “forbearance,” or “restraint”—leaders don’t “play politics to the max”; that is, they don't use every legal power they have a right to in order to destroy their rivals.

Democracy is not possible without the soft guardrails.  President Trump has been willing to push them systematically, sometimes to breaking. 

To be successful, the impeachment process must convince the American public that the President should be removed.  So far, the proceedings have not moved the needle of Trump's favorability in the polls.  The prolonged legal proceedings will assure that the most convincing evidence against Trump will not be public until long after the Senate votes on the President's removal from office.

It is possible that the Supreme Court will take some of these cases directly, bypassing the regular appeals process.  Given the makeup of the court and the support for a strong executive, especially among Trump's appointees, however, this is unlikely.  Even if the Court did expedite the process, it would not be in time for the impeachment proceedings (although congressional investigations would continue).  Once again Trump wins.

It may be that Trump and his defenders do not consider this "cheating."  And in a legal sense, it isn't.  Once again, however, the soft guardrails upon which the democracy depends have been breached, and large segments of the public have either not noticed or not cared. But democracy's fragile supports have been weakened further.

It's About Time!

Last week Speaker of the House Nancy Pelosi interjected the word “bribery” into the impeachment process.  It’s about time!*   The holdup is a little bit puzzling, however, since President Trump's conversation with Ukrainian President Zelensky is a textbook case of bribery. The Legal Information Institute of Cornell University defines bribery as

the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty.

The Merriam-Webster Dictionary definition actually includes among the “items of value” the word “favor,” exactly the word President Trump himself used to pressure President Zelensky into investigating Joe Biden.

It cannot be much clearer.

There are good reasons for calling it bribery:

• Bribery is one of the two specific impeachable offenses (the other being treason) mentioned in the Constitution.  The third impeachable offense, “high crimes and misdemeanors,” is vague and highly subject to interpretation. There is little doubt, however, about the meaning of bribery or that what President Trump allegedly offered was a bribe.
• Up until now, the Latin term quid pro quo has been used instead of bribery.  (My last post used the term ten different times.)  “Bribery, however, substitutes a clear English word for an obscure Latin phrase unfamiliar to most people (at least before the current hearings).  The use of the phrase quid pro quo, therefore, fails to elicit either recognition or the outrage appropriate to the President’s action.

Some, such as Chief of Staff Mick Mulvaney, have tried to rationalize President Trump’s behavior, saying at a press conference that it's nothing new.  "I have news for everybody,” he said.  “Get over it. There is going to be political influence in foreign policy.” But these deals between two countries involve what each negotiator believes to be in the best interest of their country.  Such deals do not involve a government officer exchanging a government resource or action for his own personal goals. 

Some have suggested that it wasn’t really a bribe because the President didn’t, in fact, get anything in return.  The definition above, however, includes the word “offering."  Even an unsuIt's About Time!ccessful bribe is still a bribe.  Whether or not he got anything in return, the President offered a White House visit and/or the resumption of military aid in order to influence President Zelensky to investigate the Vice-President.  It's important note, too, the Republicans seemed to have given up on this defense, presumably because it wouldn't hold up under scrutiny.  The President’s actions were bribery. 

The only defenses left are to attack the integrity of the many witnesses (almost all of whom have stellar reputations of service and loyalty) or, à la Mick Mulvaney, say it doesn't matter.

President Trump’s bribery clearly violates the 2nd Article of the Constitution.  It past time somebody said it clearly.
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* I want to point out that in my November 13 post (a full week before Speaker Pelosi), I wrote that “quid pro quo” is just a fancy way of saying “bribery.”  Remember, you heard it here first. :)