I’ve never liked the idea of electing judges. We didn’t do that in New Jersey when I was growing up. Now that I live in Pennsylvania, I am asked to vote for judges all the time. To my mind, a judge who needs a vote is a politician. I can’t understand why anyone would want a politician serving in the role of a judge.
People tell me that it’s important that judges are accountable. We can’t just have them ruling any old way. If they rule the “wrong” way, why should they be kept their jobs? I find that argument deranged. That’s not how elections work. We don’t often vote people out for doing the wrong thing. Most of the time, we pick a team and stick with it come hell or high water. We rarely switch teams because of how someone voted or decided a case. We’ll switch teams only when we change ourselves, usually in response to big events that shake up our worldview. A judge is more likely to be voted out of office because the governor of his party is presiding over a bad economy than due to an unpopular ruling. It’s also in the nature of justice, that many good rulings are unpopular. We get better results when judges are free to focus on the facts before them rather than having to worry about lynch mobs waiting at the ballot box.
When it comes to having a trial to determine if the president of the United States should be removed from office, the Constitution says that the jurors shall be the members of the U.S. Senate. This arrangement demonstrates my point about the problem with using politicians as judges. That’s why I wrote “The Founding Fathers Screwed Up the Impeachment Process.”
As the House Democrats try to decide whether or not to initiate impeachment proceedings against President Trump, the backdrop is a Republican-controlled Senate that is anything but impartial. It’s a like a prosecutor who has a strong case but knows the judge is unlikely to give them a fair shot because the defendant is his son-in-law. Since they’re unlikely to win in court, the prosecutor has to decide which is worse: letting someone get away with a crime or letting someone guilty be found innocent?
If it’s true, as Nancy LeTourneau suggests, that the White House is trying to goad the Democrats into impeaching the president, the reason is that they know the process is rigged in their favor. They need to arouse passion in their base because they know Trump’s opponents are already highly motivated to toss him out of office next year. An impeachment trial would serve that purpose.
Nancy Pelosi, serving as the leader of the Democrats and the Speaker of the House, seems to sense a trap. She doesn’t want to start a fight she cannot win in the straightforward sense of gaining a conviction in the Senate.
President Trump, who is refusing to cooperate with more than 20 congressional investigations, instructed current and former aides Wednesday to ignore a House committee’s request for documents in the latest act of defiance that has prompted Democrats to declare the nation is facing a constitutional crisis.
But House Speaker Nancy Pelosi (D-Calif.) told Democrats in a closed-door caucus meeting Wednesday morning to stick to their policy agenda ahead of the 2020 election rather than initiate impeachment proceedings.
Speaker Pelosi understands that this is a political fight rather than a judicial trial. The fact that she’s not likely to win the trial makes winning the politics even more important. In other words, her best shot at coming out on top is to lose really well. Any long-shot chance she has of convincing the Senate to convict Trump will depend on the president going too far so that she can convincingly portray herself as compelled to act to defend Congress as an institution.
For these reasons, she is casting herself as extremely reluctant to impeach. She wants to exhaust the legal avenues. She wants to focus on the issues. She wants to legislate.
It’s a savvy strategy, but it has one significant flaw. The White House is fighting congressional subpoenas using a legal theory that Congress must have a legislative purpose for demanding testimony and documents from the White House and its advisers. I wrote about this extensively in two recent pieces: “Congress Needs to Lock ‘Em Up” and “No, Trump Doesn’t Want to Be Impeached, But He Will Be” (available by subscription).
The first tells the history of Congress’s inherent contempt power and explains how the House Democrats can arrest or fine non-complying witnesses and put them on trial. It also explains the legal limitations of the inherent contempt power. Congress must either have a legislative purpose for seeking testimony and documents or they must be acting in one of their other constitutional roles, e.g., overseeing federal elections or conducting an impeachment proceeding.
The second expands on this to explain how having an impeachment process already underway is the best legal strategy against the White House’s “no legislative purpose” defense for their noncompliance with subpoenas. In short, the Democrats will win in court if they can argue they need to get documents and testimony because they’re trying to decide whether or not to impeach the president.
This is the exact same point Nancy LeTourneau makes when she examines the letter of White House counsel Pat Cipollone.
The letter repeatedly states that “the requests run afoul of the Constitution by encroaching upon authorities that the Constitution assigns exclusively to the Executive Branch.” Cipollone further states that “the Committee’s inquiries must be tied to a valid legislative purpose—that is, they must be tied to evaluating or formulating potential legislation on some subject within the Committee’s authority.”
…But another thing that screams out from Cipollone’s letter is that the one “valid legislative purpose” congress could constitutionally undertake would be impeachment. All of his arguments against cooperation go out the window if that is the purpose of the requests. I’m not suggesting that the White House would comply if these documents were requested for the purpose of an impeachment proceeding—just that they’d have to construct a whole new argument.
I don’t think it’s quite right to say that the administration wants to force an impeachment proceeding. It’s more accurate to argue that they aren’t going to willingly comply in the absence of an impeachment proceeding. So, I don’t agree that they’re goading the House Democrats and setting a trap. I’d put it differently. Their least bad option is to stall, delay and obstruct so that damaging information can be kept from view for as long as possible. If it eventually comes out, they can still hope to prevail at trial because they have control of the jury. And, while there are certainly downsides to getting impeached, they also know that the process would galvanize their base.
It could be that Pelosi is being too patient. But she is going to make sure that if she has to give the go-ahead for an impeachment inquiry that as many people as possible perceive the decision as made with extreme reluctance rather than eager partisanship. The biggest mistake she can make here is to fall prey to a form of reverse psychology. If she believes she cannot impeach because that’s exactly what Trump wants her to do, then she really will have fallen in a trap.
5
I agree with this reverse psychology angle and I was thinking of it the other day. It’s cheesy reverse psychology it’s the only card that Trump has to play so he’s going to play it as hard as if it were at Ace of spades. But it’s still a crappy card.
I don’t even think they’re playing that card, but it seems like Pelosi might believe it.
Do you still think Republicans would ever impeach Trump? You spent a lot of time arguing that position against a number of us.
In the few examples of impeachment we have from the past, the Senate has NOT ONCE voted to convict a president impeached by the House. The term “impeachment” applies to what the House does. It’s not hard to believe that the House would vote to impeach Trump. I believe Trump would look so bad by the time the House gets through with him that he would not be electable, might not even be able to run because the down ticket candidates would be terrified. But ultimately, it’s got to happen or democracy in this country is finished.
This is a good question.
“…knows the judge is unlikely to give them a fair shot because the defendant is a white male.”
There fixed it for you.
2.5
The Republican strategy is to deny, delay, distract, obstruct any way they can, and right now they are doing a pretty good job of it. That’s why we tend to look at the impeachment question as a static yes or no. But Trump is sitting on top of a volcano, and dynamics are going on beneath the surface. These dynamics are essentially unstoppable, and they are very bad for Trump because the high crimes and misdemeanors he committed, and continues to commit, are mind-bogglingly serious.
It may seem like Pelosi is thinking too politically. She probably was at first. Some even think she has blown the chance to get the country’s attention. But I think she and the Democrats realize that once the process gets traction it is guaranteed to get the country’s attention, just like the Nixon impeachment but more so — because the corruption and wrongdoing of Trump & his henchmen is light years beyond Nixon.
Now, the Republican strategy is to prevent the process from ever getting traction. But in the long run it’s not possible. This is not a static situation, it just seems that way on the surface. There are many ongoing investigations and court cases. Just today there are new revelations about Flynn and Trump’s former personal lawyer John Dowd that give just a taste of what is to come, and this I believe is what Pelosi realizes and most of us don’t. You heard it here first — Dowd, who is in private practice and was Trump’s lawyer before he was president — is going to be in big trouble. And what is fascinating — I don’t think there was anybody who tried to denigrate the Mueller report more than Dowd, but nobody paid any attention at the time, because Dowd who? But now we see why he badmouthed it — it caught him dead to rights intimidating a witness (Flynn). Check it out.
There is a lot more to Trump’s treachery than is even in the Mueller report, and once it starts coming out— and it wlll — at first just in the press — a momentum will start to develop. Sooner rather than later.
So as you said a couple of days ago, Trump doesn’t really want to be impeached — but he will be. Remember, instituting impeachment proceedings and voting to impeach are two different things. The proceedings themselves are an investigation, and as that investigation proceeds, shocking information will come out, that all the spin in the world can’t hold back. People will start paying attention, and as they do, the mood will shift. The press will cover it fully, because it will be one of the biggest stories in American history.
The mistake people on both sides are making, and usually do make, is that they tend to think everything that happens can be controlled, or if it can’t then it must not happen. But something this big has its own dynamic, it will happen whether anybody likes it or not. I think the people that are really aware of this are the legal professionals, such as the now upwards of 900 (and counting) prosecutors, including Republicans, that have signed onto that letter saying that Mueller found enough to prosecute Trump for obstruction if he had been anybody but the president. In other words, they disagree with Barr.
As for Mueller himself, I strongly suspect that the reason he’s not quite ready to testify is not that complicated — he has not yet left the Justice Department, and the reason he hasn’t is that there are still some loose ends. I believe he very much wants to testify, Mueller cannot be unaware he has become crucial to carrying out the very thing he aimed his own report to do — shift investigations to Congress — especially because of Barr’s actions, which (as we already know) greatly perturbed Mueller and his staff.
This post strikes me as too generous to Pelosi. It seems to me that there are other significant flaws in her strategy:
• she completely surrendered the narrative about Mueller’s report (which, even heavily redacted, was profoundly damning) even before it was released, and upon its release, was caught totally flatfooted by it;
• she has been studiously ignoring Individual-1’s brazen lawlessness (already obvious to a big majority of Democrats, and about 50% of independents), even before the redacted report was released. To pretend it’s not an urgent problem (he has already been named as an unindicted conspirator in crimes for which Cohen is doing time) and simply turn it back onto the voters (who after all gave the Democrats the House to do something about it) is a really bad look;
• after promising before the election to go after the tax returns first thing, with the statutes unequivocally in favor of doing so, she allowed or directed Neal to wait nearly three full months before initiating the process;
• even now, her stance is resolutely non-reactive.
Doesn’t the evidence point to the conclusion that Pelosi, more than merely “casting herself as extremely reluctant to impeach,” in fact genuinely wants to avoid impeachment at all costs, and is actively working to do so?
Whatever the political master’s strategy is, she’s certainly doing a great job of impersonating someone who is stuck behind the curve, totally unequipped to deal with this crisis (“iron hand” over her caucus notwithstanding), and wishes it would simply go away.
(The “almost self-impeaching” line the other day was laugh-out-loud comical. It’s as if she wants anyone else to take charge of the process but herself.)
3.5
For some reason this brings to mind the first Ali-Frazier fight. Ali was undefeated and he was bigger, longer, faster and stronger than Frazier. Frazier won by 1) being in great shape, and 2) attacking Ali with hundreds of body blows throughout the fight.
No matter what they do, Democrats don’t *know* that they can beat Trump. (There’s no way to predict the future.) So the best they can do is 1) get into their best fighting form, and 2) hit him with as many body blows from as many angles as they can. That means investigations by every relevant House committee. That means opening an impeachment inquiry with the Judiciary committee.
That means hearings. Lots of hearings. Televised day after day. With detailed questioning by committee counsel. With extended questioning (e.g., 15 minutes, not 5) by committee members. That means subpeonas, fines, contempt of Congress court suits, inherent contempt votes when Trump & company refuse to appear and/or turn over documents.
That means digging in close and not overreaching, but pounding away, keeping the focus on the main point. It doesn’t guarantee victory, but it guarantees the best *chance* of victory.
P. S. Frazier won a unanimous decision after 15 rounds. https://en.wikipedia.org/wiki/Fight_of_the_Century
No sane man will step in a ring with Frazier for 15 rounds. That’s suicidal behavior, even if you win. The first and third Ali-Frazier fights are more than boxing matches. They’re sublime. The first is the greatest victory in boxing history. The most beautiful execution of a game plan combined with total determination. The third is the answer to the first, as Ali discovered a well of will power never seen before or since in sport.
There was no other way he could win, and he nearly died as a result. Some may see boxing as barbaric, and it probably is. But those two fights have lessons we can all learn from, and much that we can emulate when we’re up against a wall.
3.5