Noah Feldman makes many points worth considering, but he’s wrong in the overall point he’s trying to make. Most glaringly, the headline of his piece is incorrect, as Trump’s accusations that President Obama illegally spied on him don’t, in any direct way, make it even an iota more likely that he will be impeached. More concerning, though, is the substance of his argument which ironically has the side effect of trivializing the constitutional crisis we’re experiencing in this country at the moment.
The most concise way of summarizing Feldman’s argument is that he believes that the president of the United States has an extraordinary responsibility to watch what he says because of the unique power of his words. So, there’s a special standard that applies to the president, perhaps less so to other elected officials and political officers, and not at all to ordinary citizens.
He puts it best when he says the following, although (as I’ve already noted) there is a sense in which his argument depends on treating the president’s statements asymmetrically:
Given how great the executive’s power is, accusations by the president can’t be treated asymmetrically. If the alleged action would be impeachable if true, so must be the allegation if false. Anything else would give the president the power to distort democracy by calling his opponents criminals without ever having to prove it.
Let me just put it this way. There are very compelling reasons why Donald Trump should be removed from power as soon as it is humanly possible to do so, but it’s not because he went on an incoherent Tweet-rant last weekend. At most, his latest tantrum is just one small piece of additional evidence that the president isn’t minimally competent mentally to fulfill the duties of his office. But the evidence isn’t based on the fact that his allegations are almost certainly false or that they amount to libel or that they constitute some abuse of office. It’s based on the fact that he simply doesn’t have the kind of brain function that we can entrust with taking care of our country’s interests and security.
Sure, it’s true that a sitting president shouldn’t accuse a former president of a crime that they did not commit. But what’s far more concerning for the well-being of our people and the world is that the president doesn’t understand that he can pick up the phone and discover whether he was actually put under surveillance. He can discover quite quickly whether he or his offices or his associates were investigated as part of a criminal or counterintelligence investigation, and whether those investigations are ongoing. He can discover whether warrants were issued by the FISA court or any other court to tap his phones or read his emails. Yet, it didn’t occur to Trump to avail himself of these powers because he doesn’t understand his powers or the system he is supposed to be running.
Similarly, he doesn’t understand why his actions constitute a rolling violation of the Emoluments Clause of the Constitution. He sees many of his nominees dropping out because they can’t disentangle their business interests sufficiently to meet the legal and ethical requirements of the office they were supposed to hold, but he doesn’t see how he’s failing to meet those same legal and ethical standards.
You can go down a long list of things he doesn’t understand that amount to threats to our rights and our well-being. He couldn’t anticipate that his travel ban would run afoul of First Amendment protections against preferencing one religion over another. He doesn’t know that stealing Iraq’s oil would be a war crime, as would be ordering the assassination of people for no crime greater than being related to an alleged terrorist.
There was a period of time when it was at least in doubt whether Trump was a genuine Birther or just a cynical one using the slander as a shrewd ploy to win political support from the far right. That debate should be settled now that we see him in office embracing theories concocted in the fever swamps of Breitbart and the Alex Jones InfoWars radio show. He isn’t sophisticated enough to understand the difference between mercenary partisan propaganda and actual news reporting. This is why he repeats things like the story that New Jersey muslims were celebrating the collapse of the Twin Towers and that millions of non-citizens (all) voting for Clinton cost him the popular vote.
He doesn’t just repeat these stories that are intended to deceive the audience and enrich the author, but he asks that the government actively investigate them.
And this is the stuff that actually does move Trump closer to being removed from office. Because, you can be sure that many, many Republicans are more than perturbed that they have to constantly apologize for or try to rationalize the president’s insupportable statements and theories. They know he’s a dangerous loose cannon. They know he can’t be trusted or even reasoned with. And they want to live to see their grandchildren.
There seems to be push back when anyone accuses the president of having a mental disorder or disability, as if to say so is to suggest that people with mental problems can’t be trusted to take positions of responsibility. People say it’s wrong to try to diagnose a person without having the proper credentials or the opportunity to closely interact with them as a patient.
This is taking things too far when it comes to the president of the United States who commands enough radioactivity to end sentient life on Earth. You don’t want me to say that the president has narcissistic personality disorder and is clearly insane?
Fine, how about this? It’s a bad idea to hand your three year old a loaded handgun. Saying so is not to disrespect three year olds or to dismiss all the wonderful things they’re capable of doing. If you hand your three year old a handgun and he pulls the trigger and kills someone, that’s entirely your fault. And if your see a three year old walking around with a loaded handgun, your responsibility is to immediately disarm them.
That’s the best analogy for our current situation. And it would be true even if the president were not ethically compromised beyond belief. It would be true even if he were not undermining the European Union, demoralizing NATO, and seemingly more interested in furthering Vladimir Putin’s foreign policy goals than the strength and unity of the West.
I don’t know if Trump can make it four years in office. Maybe we’re all insane, too, and we’ll give him a second term in office. I’m not even sure that impeachment is the appropriate remedy. I think it would be more suitable to use the Section 4 of the 25th Amendment:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
There’s a process provided for appeal of that decision, and Trump could avail himself of it:
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
I think this is a more appropriate thing to debate than whether any particular set of outrages and moral quagmires that Trump presents amounts (or doesn’t amount) to a “high crime” or “misdemeanor.”
First of all, in the impeachment process, an impeachable offense is whatever the House of Representatives says it is. We can expect that they won’t abuse this process, but I don’t feel great about how it was used against either Andrew Johnson or Bill Clinton. I think there were better cases to be made against both Ronald Reagan (Iran-Contra) and George W. Bush (a long list). I’d rather not try to decide which of Trump’s sins amount to sin equal to or greater than covering up adultery with an intern.
Far better to get to the heart of the matter, which isn’t that he’s said this or that outrageous and irresponsible thing. The heart of that matter is that he’s got an awfully powerful loaded weapon and his toddling around with it pointed at all our heads.
