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. :)

The Republican Party Shows Its Colors

“I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.” — Donald Trump, Jan 2016

The last two weeks have seen, once again, a major development in the Trump impeachment saga. 

Republican legislators have now flipped 180º to acknowledge the obvious: President Trump did, indeed, offer a quid pro quo to Ukrainian President Volodymyr Zelensky: US military aid and a White House visit in exchange for a Ukrainian investigation of Joe Biden. 

1. Up until last week, the Republican Party's response to the testimony implicating Trump has been to deny the quid pro quo and discredit whichever witnesses had testified.  Given the previous evidence, even before the recent testimonies, this denial was flimsy; with the recent testimony, it is now bizarre.
2. Last week United States Ambassador to Ukraine, Bill Taylor, gave detailed testimony about the careful preparations within the Administration before the July 25 phone call from Trump to Zelensky.  Without claiming to have been in the room during the call, he testified that he was told prior to the call and after it that Trump had offered the quid pro quo to Zelensky.
3. Then this past Monday, the top National Security Advisor in the White House, Lt. Col. Alexander Vindman, testified that he was on the phone call between Trump and Ukraine’s leader in which Trump asked for an investigation into the Bidens: Here was a highly respected and reliable military officer testifying to personal knowledge of the quid pro quo.
4. Finally, Gordon Sondland, the ambassador to the European Union, “updated” his testimony to the House Intelligence Committee to acknowledge the quid pro quo offered to Zelensky.

As the Washington Post reports,

A growing number of Senate Republicans are ready to acknowledge that President Trump used U.S. military aid as leverage to force Ukraine to investigate former Vice President Joe Biden and his family as the President repeatedly denies a quid pro quo.
In this shift in strategy to defend Trump, these Republicans are insisting that the president’s action was not illegal and does not rise to the level of an impeachable offense as the Democratic-led House moves forward with the open phase of its probe.

The developing Republican defense, essentially, is that, yes, there was a quid pro quo, but so what!  But the “so what” is that “quid pro quo” is just a fancy way of saying “bribery,” which is explicitly named in Article II in the Constitution as an impeachable offense. (I’ll deal more with this in the next post.)

This is not just a routine development in the impeachment inquiry.  Rather, it is strong evidence that every Republican in Congress (with the possible exception of Mitt Romney) is now willing to abdicate their constitutional responsibility to check the President’s abuse of power.  When there was at least some sliver of doubt about Trump’s culpability, one could, perhaps, excuse highly partisan Congress people their defense of President Trump.  But that is no longer possible!  No one who has been paying any attention to the impeachment inquiry can deny Trump’s offer of a quid pro quo to Zelensky.

The real significance of these three testimonies and the developing Republican defense, then, is that GOP legislators are now openly refusing their responsibilities as members of Congress to impeach and remove a President who has — over and over — committed clearly impeachable offenses.

During his campaign, the candidate boasted, "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose any voters." That may be just an exaggeration for his supporters; for the Republican members of Congress, however, it seems to be literally true.  

Jennifer Rubin writes:

if extorting an ally fighting off the Russians to pressure a foreign leader to interfere in our election is not impeachable, I am not sure what the framers had in mind. Using state power for personal ends? Check! Taking power to elect our leaders away from voters and giving it to foreign powers? Check! Illegally withholding appropriated funds as part of an election scheme? Check! This is not a defense; it is a confession without any basis to plead for mercy.

What is left of the Checks and Balances in the Constitution?  What we can now predict is when the Republicans control the Senate, it will no longer be possible to impeach a Republican president (we’ll have to see about the Democrats!).  To the degree that this is true, the constitutional defense against authoritarianism has been deeply wounded.