Sunday, September 24, 2017

Toward a Constitutional Crisis?

The framers of the Constitution divided governmental powers among three branches: the executive (the President), the legislative (the Congress) and the judicial (the courts), each of which has authority in its own areas.  This separation of powers has been a bedrock of American government.  Afraid of giving one branch of the government too much power, however, the framers wrote into the Constitution a system of checks and balances in which each branch can—under certain circumstances—limit the other.  For instance, the President can veto a law passed by Congress; Congress can override the veto.  The courts can declare a law or a presidential order unconstitutional.  The President appoints members of the courts, and Senators approve them.  Congress can impeach both the President and a judge.  And so on.

These checks on power are crucial to the maintenance of democratic government.

In August President Trump pardoned Arizona Sheriff Joe Arpaio.  The sheriff and his department had been unconstitutionally detaining and searching people based on their ethnicity.  A federal judge ordered him to stop.  He ignored that court order and was found guilty of civil contempt of court.  A month later another federal judge found him guilty of criminal contempt of court, for which there could be jail time.  Before Arpaio could be sentenced, however, President Trump pardoned him.  Further hearings are scheduled for October 4.

Presidents (it's generally believed**) are free to pardon essentially anyone.  Ordinarily, however, pardons are granted well after conviction and sentencing.  The pardon is usually on the basis of mercy or an injustice.  For instance, President Obama pardoned non-violent offenders sentenced to long terms for possession of marijuana.

The Arpaio pardon differs from usual presidential pardons in several important ways.
  • This pardon came before the justice system had run its course through sentencing and probably appeals to higher courts.  In fact, Arpaio’s lawyer is already arguing that—since an appeals court could have conceivably overturned the conviction—the sheriff has not yet had the full opportunity to prove his innocence.  Therefore, the lawyer argues, even the conviction must be set aside and the case expunged from the record.  In that case, the President would have usurped the judicial branch’s power to judge a crime, breaching the constitutional separation of powers.  
  • What is the basis for Trump’s pardon?  Legally, he doesn’t have to give a reason, but, since he does not know how severe the sentence would have been, the pardon cannot have been—as is usual—on the basis of mercy.  In fact, we know that Trump had planned to pardon Arpaio even before he was convicted.  Trump then bypassed the traditional review process.  Since Arpaio had been Trump’s long-time friend and supporter, it seems to be a case of rewarding a supporter.
  • Through this pardon Trump is signaling to other officials around the country that they won’t necessarily face consequences for violating the rights of immigrants.  He has their backs.
  • Trump said that Arpaio was “doing his job.”  As Greg Sargent points out, this is an implicit endorsement of Arpaio’s refusing a judge’s order that he stop violating the constitutional rights of Latino immigrants.  Trump’s pardon is, in essence, a suspension of the Fourth Article of the Bill of Rights that prohibits unreasonable search and seizure.      
  • In the context of the current investigation into Russia’s attempt to sway the presidential election, perhaps the most important practical impact is to signal to subordinates that he is willing to meddle in the judicial process to protect them.  (He and his lawyers have already discussed whether he can pardon friends, family, aides … and even himself.)  One of the most powerful tools a prosecutor or investigative committee has for prosecuting the person most responsible for the crime is to offer subordinates reduced sentences (or even immunity from prosecution) in exchange for testimony against the boss.  Trump is defanging that tool by signaling that if his subordinates protect him, he’ll protect them.  In any other context that would be obstruction of justice.
It’s bad enough that the Arpaio pardon encourages further violation of immigrant rights by officials across the country.  It’s bad enough that certain aides might refuse to testify against their boss.  But the worst part of the pardon—and the most far-reaching in terms of democratic principles—is its threat to the Constitution and the separation of Powers.

No power granted by the Constitution is absolute**; it must always be understood in the context of other constitutional powers.  The President is challenging the power of the judiciary.

Is he moving us toward a constitutional crisis?

It’s hard to know at this time in Trump’s presidency which are the most important threats to democracy, but this pardon seems to be among them.

** Constitutional lawyer Lawrence Tribe in one article and Neil Buchanan in another argue that the presidential power to pardon is not absolute.  If the pardon continues to be an issue, I will return to their thinking.

Monday, September 18, 2017

Rigged Election?

Since the retirement of George Washington in 1797, the American democracy has always had a peaceful transition of power.  Even in the Gore-Bush election of 2000 that was decided by a controversial 5 to 4 Supreme Court decision, Gore graciously conceded defeat: “I say to president-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country.”  Crucial to a peaceful transition is that candidates—whether they win or lose­—accept the results of the election.

Throughout the campaign, Donald Trump repeatedly charged that the election was being rigged against him.  In a presidential debate just before the election, he was asked whether he would concede if he lost the election.  "We're going to have to see,” he said.  “I will keep you in suspense.”  Later he clarified, saying he would accept the results, “… if I win.”

These are, in themselves, shocking and irresponsible statements.  Trump is saying that the election results are legitimate only if he approves them, which is another way of saying that he does not trust the process.  He is not just declaring that the process might be untrustworthy.  He is telling his supporters only he deserves their trust, not the election process itself.

Throughout the election Trump made various claims, all without evidence, that the election was being rigged against him.  A fearful political establishment, he said, was planning massive voter fraud.  Trump encouraged his supporters to turn out at polling places to “monitor” the voting.

A “rigged election” is one in which there is a top-down and intentional attempt to manipulate the results of the election.  This is different from “electoral fraud” (which I’ll explore in a future post) in which some number of votes may have been falsified but the scam has not been perpetrated by people at the head of the campaign.

Experts say that in all of American history, there has not been a single instance of a truly rigged presidential election.  Laura Belmonte, history professor at Oklahoma State University, said that although there have been disputed elections and claims of illegal voting in the past, no other presidential candidate has ever systematically questioned the results in advance of the vote.

Worse, even after the election and continuing to the present, Trump has been declaring that he also won the popular vote, which he, in fact, lost by nearly 3 million votes.  As far as I can see, the only reason he might have for insisting he won the popular vote is sheer vanity, which is strong evidence that he does not even understand the deep threat to democracy of his words alone.

Trump has convinced his supporters.  Before the election only half of Republicans said they would accept Clinton as their president and nearly 70 percent said a Clinton victory would be because of illegal voting or other mischief.  And there were multiple threats of violence if Clinton won.  As late as last month half of Republicans believed that Trump had won the popular election.

Refusal to believe election results questions the very legitimacy of government.  This represents a far worse problem than the mistrust in the US government that is already widespread.  Such refusal undercuts the essence of American democracy: elections matter, that my vote counts, that my representatives attempt to represent me.  Bernie Sanders has written that Trump’s message is that “the only person in America who stands for the American people, the only person in America who is telling the truth, the only person in America who gets it right is the president of the United States, Donald Trump.”  That message takes us a long way down the road toward authoritarianism (dictionary: “strict obedience to authority at the expense of personal freedom”).  Once we no longer believe that our elections are free and fair, once we lose trust in our democracy, we are far more vulnerable to the demagogue (dictionary: a leader who makes use of popular prejudices and false claims and promises in order to gain power).

What might happen as more and more people disbelieve election results?  (I’ll have to explore that later, too.)

This President either does not understand or does not care how deeply his words impact the legitimacy of our democracy; or he (or his advisors) understand quite well and are happy to subvert the democratic process.

Note: In writing about such complex and far-reaching issues, the blog format makes it impossible to follow all the threads in any one post. There will be many unanswered questions in each post.  As we go along, however, I will try to get back to each thread eventually and link to the original post.

Saturday, September 9, 2017

Trust in Government

Once upon a time, long, long ago, most Americans trusted the government to take care of things.  (Well, more accurately, most white Americans felt that trust; it was certainly different for African Americans.)  But then came some major breaches of that trust: Vietnam, Nixon and Watergate, a serious recession and out-of-control inflation.  By 1980 Ronald Reagan’s could campaign successfully on the slogan Government is the problem.  Since that time, perhaps the most important accomplishment of the political right wing has been to trash our basic trust in government.  Without trust, a democracy cannot function.  When people don’t trust the government to hear them, they don’t vote. And even when they do vote, their mistrust too often results in a negative “throw the bums out” rather a considered vote for policies they approve of.  Voters are not outraged by outrageous presidential or congressional actions because they don’t expect anything better.

President Trump has profoundly intensified that process.  Over the next several posts I want to look at his attack on our trust.  Here are a few of the areas to explore.
  • Since the beginning of his campaign, the President has been claiming, without evidence, that the electoral system is “rigged.”  A Hillary victory, he reiterated, would prove it.  Even after he won the election through the Electoral College, Trump has continued to insist that he won the popular vote, too.  Or that he would have won if three-to-five million people hadn’t voted illegally.  If elections are rigged, how can you trust government?
  • Similarly, even after he won, he has continued to assert that Clinton should be criminally prosecuted, again without providing evidence. This is unprecedented in modern American history; after a presidential campaign— no matter how vitriolic—the winner and challenger have always congratulated one another and moved on, sustaining basic trust in the election.  If a “criminal” can almost win a presidential election, how can we trust government?
  • The President lies repeatedly and usually persists even when there is documented evidence he’s lying.  The content of the lie may be very important in itself, for instance, if there are millions of people voting illegally then we need to tighten the voter rolls … excluding whole categories of people.  But when wholesale lying, regardless of content, becomes politically acceptable, the possibility for trust is shattered.  The public belief—inaccurate in my opinion—that you can’t trust anything any politician says becomes obvious.
  • The President constantly attacks the mainstream press as “fake news,” even when the reports are demonstrably true. If the media are not a reliable source of truth, we can rely only on propaganda, Internet websites, rumors, and so on.  Perhaps most importantly, truth becomes relative.
  • Trumps’ recent pardoning of Sheriff Arpaio is an unprecedented assault on the Constitution’s basic principle of the separation of powers through “checks and balances.”  Presidents legally do have complete freedom to pardon almost anyone, but that power has always been used sparingly, after the judicial process has completed, and usually as a way to right an obvious wrong.  Arpaio, on the other hand, had been convicted of criminal contempt of court for ignoring a court order to stop arresting immigrants without reasonable suspicion they had committed a crime.  Arpaio’s guilt was obvious; pardon came even before sentencing.  The clear message is that the President determines guilt or innocence.  The President must usurp judicial power because we cannot trust the judiciary to provide truth.
Rather than concentrating on each of these events as “one more outrage,” it seems to me important to view them as a pattern of assaults on our democracy and to explore their impact.  Although no single one of these actions by a President is completely new in American politics, their breadth and depth, especially, from the President of the United States is certainly unprecedented.  Trust in government is at an all-time low, threatening our democracy.  We must at least understand it before a new normal is created.

Monday, September 4, 2017

Making Sense of the Crisis

I have been struggling to make sense of the Trump presidency and place it in the context of the political and economic crisis that has been developing over the last forty years.  It now seems clear to me: We are in the midst of a long-term, conscious assault on democracy that is well on its way to an oligarchy of the very wealthy.  Trump, for all his outrageous behavior, is only the latest iteration within a decades-long process.

I'm neither a political scientist nor a pundit. I’m not a politician nor do I have an axe to grind. I’m simply a citizen overwhelmed by the deep assault on American democracy that Trump’s presidency represents. But I must say that I am not surprised.  Over the last thirty-five years I have watched our political deterioration, and it is now greater, I believe, than at any time during the last century and perhaps before.  Until now, I have not known how to respond. But ... I am a writer and can offer this blog as at least some partial response to the current craziness.

I believe we need a deeper understanding of Donald Trump’s impact on our democracy than that which dominates our media.  It is not only his confused and reactionary policies, not only his coarsening of the debate, and not only his narcissism and paranoia.  They are also critical to deal with.  But what I am concerned about more is the fundamental impact upon the very democracy of our country, our trust in government (without which a democracy cannot function), and also the dangerous trashing of the norms that have served our democracy since its founding.

For the time being, at least, I am not creating a comments section.  My online conversation with readers of my previous Alzheimer’s blog was for me a great source of satisfaction and inspiration.  What I wrote there, however, was not controversial.  My writing here, I’m sure, will be.  I would be eager for a conversation here, too, but I’m afraid I don’t have the stomach for the usual vitriol that fills the comments sections of the columns I read.  I have a pretty thin skin.  

For those of you who don’t have the time or inclination to read as obsessively as I do, much of what I write will be observations and ideas from other writers.  But I hope also to interpret and synthesize these ideas, to put them next to one another and to use them as jumping-off places for further exploration.