Balance of Powers

It should come as no surprise to anyone who has been reading this blog (or, indeed, reading the paper or listening to the news regularly) that President Trump is trying to obstruct the House of Representatives’ investigations into his administration’s conduct.  In recent weeks, the President has refused to respond to requests from the various House investigative committees.  One specific example is his response to the House Oversight and Reform Committee chaired by Elijah Cummings.  The committee is investigating improper security clearances given to the President’s son-in-law, Jared Kushner, and others after national security experts denied them.  The Administration simply overruled the denials.  The Washington Post reported that:

Tricia Newbold, a longtime White House security adviser … and her colleagues issued “dozens” of denials for security clearance applications that were later approved despite their concerns about blackmail, foreign influence or other red flags.

The First Article of the Constitution tasks Congress with presidential oversight to maintain the balance of powers within the government.  The Executive Branch (the president) is to cooperate in this investigation. (The Clinton, Bush, and Obama Administrations all provided tens of thousands of documents during such investigations.)  President Trump has not submitted a single document to the Oversight and Reform Committee. 

The President, of course, can refuse the initial requests, but then the House committees have the prerogative to subpoena any information it needs, and it appears that Representative Cummings is about ready to do just that.  Despite Congress’s clear right (and responsibility) to subpoena the documents, the President’s lawyers have threatened to refuse and sue, stonewalling and delaying the inevitable. 

The Constitution rests on the Balance of Powers among the three branches of government, which gives each of these three formal oversight over the other two.  Without that oversight, there exists a real danger that one of three branches will come to dominate the government.  President Trump’s attempt to further hobble Congress’s constitutional responsibilities is not only his attempt to protect himself, but also a deeper threat to the Constitution and our democracy.

We are moving into a new phase of this presidency.

Impeachment … Now? - Part 2

In the last post we reviewed the solid grounds on which to base the impeachment of the President.  Yes, there are certainly enough.  But the question remains: Is this the right time?

The right time to impeach the president

Within the last few weeks Speaker of the House Nancy Pelosi has tried to defuse the question of Trump’s impeachment with her statement that they should not, “because he’s not worth it.”  On the other hand, liberal members of the House have already introduced resolutions for impeachment.  The resolution will obviously not be straightforward.

Let’s look at the reasons for beginning immediately   

Removing the president from office is not the only reason to begin impeachment proceedings.  Even if removal is unlikely, it could be appropriate to start other hearings.

Yes, impeach now!

1.     As I pointed out in the last post, impeachment proceedings are most similar to grand jury investigations.  They are the process by which Congress decides whether to impeach the president.  Unlike the Mueller investigation, congressional proceedings are mostly open, so the public sees the evidence as it evolves.  Any congressional probe has the power to subpoena witnesses and evidence in building the case.  With opportunity to cross-examine witnesses under oath, the investigative committee may uncover the further evidence to convince most people that Trump should be removed from office.  Because of Republican opposition, Trump cannot now be removed from office, but with further evidence, a “smoking gun” may be revealed that will convince even Republican voters and, therefore, their congressional representatives of their responsibilities.
  
2.     Even the now-well-accepted impeachment proceedings against President Nixon began well before there was incontrovertible evidence him against him.  The 1970s was also a partisan time. With a two-thirds vote in the Senate required to remove Nixon from office, there was essentially no chance at the beginning of the proceedings that the effort would be successful.  It was the evidence-finding powers of Congress that made it possible to develop sufficient evidence.  Furthermore, a Senate trial was not necessary.  On the basis of the public evidence, Nixon resigned on his own.

3.     As official government proceedings, impeachment hearings will be followed closely, not only by the “liberal press” but also by Fox News and the mostly conservative local news outlets.  It will, therefore, be even more difficult to dismiss them as “fake news.”  Regardless of the final outcome, the public will have more reason to unite behind the proceedings.

4.    It’s simply the right thing to do!  For too long, as Congress has followed the political winds, people have hungered for congressional integrity.  Even though impeachment may be divisive, ultimately Congress must learn how to take its responsibilities seriously, regardless of political cost.  Ultimately trust in the government is more important than short-term political gain.  Congress must do the right thing!
    
These are all powerful and convincing reasons to begin the impeachment process immediately.  When I first began writing this series, in fact, I, too, was convinced the Democrats should begin the process now!

But there are strong counter-arguments that have changed my mind.

No, this is not the right time to begin impeachment proceedings.

1.     The reality is that a process almost identical to impeachment proceedings began over two months ago on January 3, when a Democratic majority was installed in the House of Representatives.   With the majority came the power to control the agendas of the various House committees.  Six different House committees, in addition to Mueller’s probe, are currently investigating Trump’s actions and their impacts:

• the House Oversight and Reform Committee
• the House Intelligence Committee
• the House Judiciary Committeethe 
• theHouse Ways and Means Committee
• the House Financial Services Committee, and 
• the House Foreign Affairs Committee.

Each of these committees has the power to subpoena witnesses, to punish misleading testimony, to subpoena thousands of documents relating to the cases (eg. Trump’s tax returns).  These committees taken as a whole have at least as much power as an impeachment inquiry.
 
2.  Speaker of the House Nancy Pelosi has characterized this ongoing committee work as “oversight” and not “investigation.  The semantics are important: the word “investigation” has a more negative connotation than the more’s neutral word “oversight,” which will not be considered so divisive.  It has already, to some degree, been accepted as appropriate.

3.   Presidential oversight is central to the balance of powers that the Constitution has mandated.  Were the House abandon its oversight responsibility, it would be flouting a fundamental principle of our democracy; it would essentially be an unconstitutional abdication of duty.

4.     Maintaining trust in the government is, at this point in our history, an overriding necessity.  Were the Democrats to force impeachment hearings now and then not discover enough evidence to convince Republicans and, therefore, lose the vote in the Senate, Trump supporters and many in the country could well come to perceive the impeachment hearings as simple political maneuvering.  Trust in government would fall even lower (if that were still possible).  A failed impeachment would be a powerful political divisive symbol. 

5.     On the other hand, if more definitive evidence were to emerge (“a smoking gun),” impeachment hearings could begin immediately with considerably more support in the general population and, especially, in the Senate.
  
6.     Impeachment is the “last line of defense” against presidential abuse of powers.  It is not to be used lightly or for political purposes.  Most of us reading this blog believe that the impeachment of the President is warranted, but approximately one-third of our country does not.  At this point in the process, they will see the attempt to impeach the president as just one more Democratic political tool to nullify Trump’s 2016 victory.  It’s important to wait for evidence strong enough to convince enough Trump supporters that impeachment is justified.
The Founders created the impeachment process for extreme situations.  Like so much else in our Constitution, it assumed lawmakers committed to the good of the country.  If impeachment became just a political tool, Congress (or even just the House of Representatives) could willy-nilly begin impeachment proceedings against any President they opposed.  It would drive one more nail into the coffin of our democracy.
    
In the end…

I should acknowledge that when I began this series on impeachment, I believed that the proceedings should begin as soon as possible.  As I read and considered the questions and began writing, however, I came to a different opinion and, based on the reasoning above, it’s now clear to me that the reasons for waiting outweigh the reasons for beginning the proceedings immediately.

I certainly understand Congresswoman Rashida Tlaib’s anger and impatience.  Her statement (“We're gonna go in there and we're going to impeach the motherfucker.") was certainly inflammatory and certainly breached the decorum of Congress, but it can’t be compared to the President’s inflammatory and dangerous statements and actions over the last two years.

I also understand the impatience of so many on the left who want to start right away, but we have nothing to lose and much to gain by allowing the Mueller investigation and the six House committees to continue with their process. 

The risk of failure by acting too quickly is far more dangerous than waiting for definitive evidence to arise.

Impeachment ... Now? - Part I

Almost since the beginning of the Trump presidency, there has been talk of impeachment.  Since Michael Cohen’s recent testimony before the House Committee on Oversight and Reform, the drumbeat has gotten even stronger.  The leadership of the Democratic Party has been hesitant, fearful of moving too quickly and alienating independents, to say nothing of Trump’s base.  Younger members of Congress have been more aggressive.

But much of the debate has been hobbled by confusion over the meaning of the word “impeachment.”

The Atlantic magazine’s Yoni Appelbaum has written an excellent article in which he emphasizes:

Impeachment is a process, not an outcome, a rule-bound procedure for investigating a president, considering evidence, formulating charges, and deciding whether to continue on to trial. [my italics]

Impeachment is like a grand jury’s investigation that decides whether a trial is warranted.  The question facing Congress now is not whether the president should be removed from office but only whether the House of Representatives should initiate the process that will determine whether there is ample evidence to send the case to the Senate for trial.

Should the House Begin the Inquiry?

As we have been exploring in this blog, Donald Trump’s behavior since becoming president certainly warrants investigation into his fitness for office.  Cohen’s testimony only strengthens that conclusion.

Appelbaum reviews some of the data:

• Although his oath of office pledges him to put the interests of the country ahead of his own, the President has repeatedly sought to use his position to enrich himself financially,
•      not only refusing to divest himself of his business ventures,
•      but also refusing even to disclose what his business holdings are, and
•      using his position to publicize and encourage people of power and wealth to frequent his hotels and golf courses.
• President Trump has repeatedly demanded that many of the public servants he appoints pledge loyalty to him rather than to their office or to the country.  The President has sometimes dismissed them for refusing, e.g. James Comey when he was director of the FBI.  
• He has attempted to use the Justice Department to launch criminal investigations into his enemies, including those who are simply political enemies like Hillary Clinton.

As Appelbaum writes, “Trump has repeatedly trampled upon [the liberties guaranteed by the Constitution]:

• He pledged to ban entry to the United States on the basis of religion, and did his best to follow through.
• He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events.
• He has assailed black protesters.
• He has called for his critics in private industry to be fired from their jobs, for instance, when he demanded that CNN fire president Jeff Zucker.
• He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. …

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.”

What Are the Criteria for Removal?

So there are many reasons to question and investigate Trump’s fitness for office.  But at this point there has been no crime for which the President could be convicted in a court of law.  So can he the removed from office on the basis of his actions so far?

According to the Constitution, the president can be removed from office only for “treason, bribery or ‘high crimes and misdemeanors.’”  The meanings of “treason” and “bribery” are relatively straightforward.  It is the definition of “high crimes and misdemeanors” that is contested.

While most impeachment hearings have concerned alleged crimes, such as President Clinton’s lying under oath, a criminal offense is not necessary.  Impeachment is a political process not a criminal one.

Wikipedia suggests that “high crimes and misdemeanors” comprise some combination of

• perjury of oath,
• abuse of authority,
• bribery,
• intimidation,
• misuse of assets,
• failure to supervise,
• dereliction of duty,
• unbecoming conduct,
• refusal to obey a lawful order,
• chronic intoxication, and
• tax evasion.

The list is long and many of the elements are imprecise.

Impeachment has vague boundaries.

University of North Carolina law professor Michael Gerhardt conservatively sums up the academic consensus:

“The major disagreement is not over whether impeachable offenses should be strictly limited to indictable crimes, but rather over the range of non-indictable offenses on which an impeachment may be based.”

It is that range of offenses that is a political, not legal, judgment.

The Right Time?

It seems clear that there is enough evidence to justify beginning the inquiry.  The more crucial question is whether this the right time to impeach the president.  It’s not a straightforward question.  Should it be a “political judgment” or are there deeper criteria?

My next post will look at whether now is the right time to impeach the President.

How Republicans Violate the Constitution

Heretofore, in this blog I have been focusing on the threat that President Trump poses to our democracy.  Since Congress has the authority and responsibility to control the president’s anti-democratic behavior, however, it’s important to broaden our study to include the failure of Congress, and specifically the Republican Party, to fulfill its constitutional obligations.

The Constitution is not a perfect document and can easily be misused.  But with its amendments and interpretations through the courts, it is still the bedrock of our political life together to which government must ultimately defer. 

Article 1 of the Constitution explicitly obligates Congress to curtail presidential abuse of power.  Having experienced the tyranny of the English King George III who had ruled the colonies with an iron fist, the framers of the Constitution limited the president to only a few absolute powers and gave both the legislature and the courts the authority and the responsibility to check the president’s abuse of power. 

Since President Trump’s inauguration, however, Congress has abdicated this obligation.

As I have explored in the past four posts,

The Constitution explicitly assigns the president [only] the power to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors.

The president also has significant power to control the formation and communication of foreign policy although Congress ultimately has the power to limit this, too.

 
There are two procedures through which Congress can limit the abuse of presidential power.

• First, Congress can pass legislation nullifying the specific presidential action.  This happened recently when the President withdrew sanctions on Russia; Congress immediately passed legislation to reinstate the sanctions.  The president, however, can veto any such legislation, and the veto can only be overruled by a two-thirds vote of both houses.  
• Second, Congress can impeach the president and remove them from office.  Impeachment requires only a majority of the House but removal requires a two-thirds vote of the Senate.

Neither party has had a two-thirds majority in either house of Congress since 1945; therefore, any veto override or impeachment has required bipartisan cooperation.  Since the Democrats currently would vote almost unanimously to control Trump’s excesses, the Republican Party is solely responsible for Congress's failure to limit the President. 

The Republican Party is complicit in all of the President’s threats to democracy.

One Republican bears special responsibility.  Senator Mitch McConnell has used his power as Majority Leader to prevent any legislation challenging the president from even being considered or voted upon by the Senate, so he is primarily accountable for congressional inaction.

As I’ve written in a previous post, historically, this particular congressional failure is not the only or even the most important of the abdications of its constitutional role.  Certainly more important has been Congress’s ceding to presidents the power to declare war.  This has been a gradual process over the last century, however, so the responsibility must be shared by many different congresses over decades.  It’s reasonable to conclude, therefore, that the current unwillingness to prevent Trump’s attack on our democracy is the broadest and most important single failure of congressional responsibility in the history of our country.

To summarize: we now have a breakdown in the essential checks and balances between Congress and the President that has

• historic roots in Congress’s long-term failure to maintain its exclusive power to declare war, and
• current roots in Republicans’ refusal to rein in Trump’s excesses.

The politics of this breakdown, I’m afraid, make its reversal problematic.  In practical terms, it would take a two-thirds majority of Congress and a president from the opposite party to restore proper checks and balances according to our Constitution. 

That’s not going to happen anytime soon.

Even aside from the politics involved, the nature of the presidency has changed so much since the country’s founding that abiding by strict constitutional limits would wreak havoc in our government.  By “the president” the Constitution means the entire administration of government and the vast number of powers ceded to the administrative functions upon which government (and every individual) rightly depends.

And if we can’t abide by the original limits, some might say, perhaps we need an amendment to the Constitution that would address how the role of the president has changed over 200+ years.  Given the complexity of government, however, how could such an amendment to our Constitution be formulated or passed, to say nothing of being implemented? 

In the end, then, we’re stuck with a Congress that could limit any particular action by the president but won’t.

That places all hope of change from within government on the courts, which, we must acknowledge,  have so far been relatively dependable in slowing down the American movement toward autocracy; but only in slowing it down.

The precariousness of our democracy is obvious, and there no permanent fix.  At this point in American history, then, the temporary stability of our democracy depends upon our electing an emotionally and mentally stable president, who is willing to and able to place the interests of the country over their own.  We have two years to educate ourselves, choose and support strong and stable candidates at all levels, and elect a president who will, at least for the time being, give America’s fragile democracy some breathing room.

Understanding Presidential Powers

 … and countering them

UNILATERAL POWER
Last of Four

In previous posts we've examined presidential power in declaring a national emergency (here and here), which is particularly relevant after President Trump's declaration yesterday (February 16).  We've also looked briefly at presidential powers under other laws (here), including the top-secret “Presidential Emergency Action Documents” (PEADS). 

As I mentioned in my first post in this series, it’s important to remember that some degree of unilateral presidential power is essential to the functioning of government.  In the event of a true emergency, such as a natural disaster, it can be essential that the government respond immediately without having to wait for congressional debates or other delay.  In addition, many of the unilateral powers were necessary at the time they were put into effect but have remained active because the Administration has never allowed them to elapse.  (Before the National Emergencies Act of 1976, there were several hundred emergency provisions still on the books, many of them confined to a particular historical emergency.)  Even since the National Emergencies Act (intended to limit the president's use of unilateral power), there have been 58 national emergencies declared, 31 of which are still in effect.  As in Trump's present declaration in order to build the Mexican border wall, most of these national emergencies have been declared in order to authorize economic action, usually, however, sanctions against other countries.  Nevertheless, there are provisions in many of these declarations that allow much broader power, for instance, when innocent Muslim charitable organizations and individual Muslims themselves were targeted and arrested after 9/11.

Under the Constitution's Article I, only Congress has the power to declare war.  Article II, however, makes the president commander-in-chief.  Taken together these two provisions require cooperation between Congress and the president.  Unfortunately, presidents have used the commander-in-chief provisions to provide rationales for "military actions" that were euphemisms for the Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War of 2002.  These presidential actions have been of dubious constitutionality, but Congress has never challenged them.  For all practical purposes, then, presidents now have the power to declare war.

Furthermore, presidents have used "executive orders" to take a wide variety of actions that would usually (and properly) be considered prerogatives of Congress.  This is a far too complicated an area of law for my expertise, but it is an important source of presidential power.  President Obama, for instance, used executive orders to create many provisions of environmental "law." President Eisenhower sent troops into Little Rock, Arkansas, to desegregate the schools.  President Truman desegregated the military.  President Roosevelt interned people of Japanese descent during WWII, and so on.

These almost unlimited presidential powers—some never used, some infrequently, and others seemingly all the time—are always available to presidents and are, as our experience with President Trump reminds us, stark threats to our democracy. 

Almost all European democracies explicitly limit the power of the chief executive by limiting the length of time that the power is in effect, by specifying carefully what the executive order can do, by granting the legislature important power over the chief executive, and by creating other legislation.

Presidential Power Granted by the Constitution
The American Constitution deliberately limits presidential power.  Almost every presidential power is subject to congressional override, even without impeachment.  The only exceptions are the president's

• function as commander-in-chief,
• control over formation and communication of foreign policy and
• control of the diplomatic corps.

Theoretically, then, Congress could limit a president's power almost completely (although the president's control over foreign policy has recently created much havoc).  Any action the president takes under the National Emergency Act, for instance, could be reversed by a 2/3 vote of Congress.  The problem is that Congress virtually never uses this authority.  (Congress's recent vote to reestablish sanctions on Russia is a rare exception.)

The important point is that in theory there are actually few unilateral presidential powers.  Virtually all the dangerous powers we've been discussing in the last three posts could be countermanded by Congress.

Congress and Unilateral Presidential Powers

Theory, of course, is different from practice.  The current polarization of our politics means that few important decisions of any controversy can pass through Congress.  Severe partisanship isn’t new, however, and even the impeachment of President Nixon, often lauded as a prime example of bipartisanship, was nothing of the sort.  For many months preceding the discovery of the undeniable evidence of "high crimes and misdemeanors," Republicans were castigating the investigation as a "witch hunt" and accusing the Washington Post of "mudslinging."  Even after the discovery of the "smoking gun," reports the New York Times,

[Vice-President] Ford said he found nothing wrong with the president’s practices.  Republican Senator John Tower of Texas later warned Congress not to get caught up in “the hysteria of Watergate.”

President Nixon's ultimate resignation was the result of an investigation that pummeled both him and the Republican Party with evidence,

Reversing the Frightening Unilateral Powers of the Presidency

We will not easily or automatically reverse the dangerous and frightening accumulation of presidential power that threatens our democracy.  Such reversal ultimately depends completely on congressional action, and in our current political structure such action cannot happen.  It will not be done by one popular movement or one simple legislative action, either.  It will take long-term, concerted grass-roots political pressure and resolve of a kind the American populace—with the possible exception of the civil rights movement—hasn’t mustered in decades.

But if we the electorate fail to reign in unilateral, abusive presidential power, we have even now relinquished our democracy.  We have lost already. 

Those of us committed to democracy and to restoring the proper balance in American government must pledge ourselves to a determined effort over a long haul.  We must confront each presidential abuse and begin a movement through the slow process of educating the electorate.  It will not be a short or simple process.  It will take the long-term perseverance and courage that characterizes any important movement for justice.

It has happened before, however!  In 1978, the bipartisan Church Committee, led by Senator Frank Church, held hearings that eventually resulted in the Foreign Intelligence Surveillance Court (FISA), significantly limiting the power of the executive branch of government in its surveillance activities.

Using the Church Committee as example and precedent, Congress could repeal the laws that are obsolete or unnecessary.  It could revise others to include stronger protections against presidential abuse.  It could issue new criteria for emergency declarations, require a connection between the nature of the emergency and the powers invoked, and prohibit indefinite emergencies.  It could limit the powers set forth in PEADS.

That will not happen without our deep commitment to democracy.  We are not helpless!