Their Big Concern in the 1780s

Bob Bauer, a law professor and former counsel to President Obama, explains what the authors of the Constitution thought about having a president like this one:

The founders feared the demagogue, who figures prominently in the Federalist Papers as the politician who, possessing “perverted ambition,” pursues relentless self-aggrandizement “by the confusions of their country.” The last of the papers, Federalist No. 85, linked demagogy to its threat to the constitutional order — to the “despotism” that may be expected from the “victorious demagogue.” This “despotism” is achieved through systematic lying to the public, vilification of the opposition and, as James Fenimore Cooper wrote in an essay on demagogues, a claimed right to disregard “the Constitution and the laws” in pursuing what the demagogue judges to be the “interests of the people.”

Should the demagogue succeed in winning the presidency, impeachment in theory provides the fail-safe protection. And yet the demagogue’s political tool kit, it turns out, may be his most effective defense. It is a constitutional paradox: The very behaviors that necessitate impeachment supply the means for the demagogue to escape it.

As the self-proclaimed embodiment of the American popular will, the demagogue portrays impeachment deliberations as necessarily a threat to democracy, a facade for powerful interests arrayed against the people that only he represents. Critics and congressional opponents are traitors. Norms and standing institutional interests are fraudulent.

[The president] has made full use of the demagogic playbook. He has refused all cooperation with the House. He lies repeatedly about the facts, holds public rallies to spread these falsehoods and attacks the credibility, motives and even patriotism of witnesses. His mode of “argument” is purely assaultive. This is the crux of [his] defense, and not an argument built on facts in support of a constitutional theory of the case.

Of course, all the presidents who have faced impeachment mounted a political defense, to go with their legal and constitutional case. And it is not unusual that they — and, even more vociferously, their allies — will attack the process as a means of undoing an election.

The difference in [the president’s] case is not merely one of degree. Richard Nixon despised his opposition, convinced of their bad faith and implacable hatred for him. But it is hard to imagine [the current president] choosing (and actually meaning) these words to conclude, as Nixon did, a letter to the chair of Judiciary Committee: “[If] the committee desires further information from me … I stand ready to answer, under oath, pertinent written interrogatories, and to be interviewed under oath by you and the ranking minority member at the White House.”

[Our president] has instead described Adam Schiff, the chairman of the Intelligence Committee, as a “corrupt” politician who shares with other “human scum” the objective of running the “most unfair hearings in American history.”

These remarks are not merely one more instance of [his] failure to curb his impulses. This is his constitutional defense strategy. [His] White House counsel, informing the House of the president’s refusal to cooperate, declared that the impeachment process is unconstitutional and invalid — a “naked political strategy” — and advised that the president would not participate. It matters that the president’s lawyer, in a formal communication with the House, used rhetoric that might have been expected from the hardest-core political supporters. Once again, contrasts with past impeachments are illuminating. Bill Clinton’s White House counsel Charles Ruff testified before the House Judiciary Committee, pledging to “assist you in performing your constitutional duties.”

The demagogue may be boundlessly confident in his own skills and force of political personality, but he cannot succeed on those alone. He can thrive only in political conditions conducive to the effective practice of these dark arts, such as widespread distrust of institutions, a polarized polity and a fractured media environment in which it is possible to construct alternative pictures of social realities. Weak political parties now fall quickly into line with a demagogue who can bring intense pressure to bear on party officials and officeholders through his hold on “the base.” As we have seen…, the demagogue can bully his party into being an instrument of his will, silencing or driving out dissenters. Republican officeholders know that [he] can take to Twitter or to Fox News or to the podium at rallies — or all of the above — to excoriate them for a weak will or disloyalty.

This is how the Republican Party has become [his] party. It is also why that party will not conceive of its role in impeachment as entailing a constitutional responsibility independent of the president’s political and personal interests. It has come to see those interests as indistinguishable from its own. In this way the constitutional defense of the case against [the president] and the defense of his own interests become one and the same. As another fabled demagogue, Huey Long of Louisiana, famously announced: “I’m the Constitution around here now.”

The implications for the constitutional impeachment process are dire. Until [now], modern impeachment has ended with some generally positive assessment of its legacy. Nixon’s resignation appeared to indicate that serious charges could bring the parties together in defense of the rule of law. “The system worked” was a popular refrain, even if this was a somewhat idealized and oversimplified version of events. The Clinton impeachment suggested that the standards for an impeachable offense required a distinction between public misconduct and private morality, and Congress [allowed] an independent counsel statute [Note: which had been abused by Kenneth Starr] … to lapse.

[This] impeachment is headed toward a very different summation. A demagogue can claim that Congress has forfeited the right to recognition of its impeachment power, then proceed to unleash a barrage of falsehoods and personal attacks to confuse the public, cow legislators and intimidate witnesses. So long as the demagogue’s party controls one of the two chambers of Congress, this strategy seems a sure bet.

Unquote.

A Handy List (Although He Ran Out of Letters)

Walter Shaub was in charge of the U.S. Office of Government Ethics for 4 1/2 years. He resigned after it was clear our new president had no interest in ethics. Today he listed a few of the president’s offenses:

[By accepting the president’s behavior] Senate Republicans are setting a dangerous precedent that threatens the republic itself. I’m not naive enough to think they would hold Democratic presidents to the low standard they’ve applied to [this bastard], but all future presidents will be able to point to [him] to justify:

a. Soliciting foreign attacks on our elections;

b. Using federal appropriations or other resources to pressure foreign governments to help them win reelection;

c. Implementing an across-the-board refusal to comply with any congressional oversight at all;

d. Firing the heads of the government’s top law enforcement agencies for allowing investigations of the president;

e. Retaliating against whistleblowers and witnesses who testify before Congress;

f. Investigating investigators who investigate the president;

g. Attempting to retaliate against American companies perceived as insufficiently supportive of the president;

h. Attempting to award the president’s own company federal contracts;

i. Using personal devices, servers or applications for official communications;

j. Communicating secretly with foreign leaders, with foreign governments knowing things about White House communications that our own government doesn’t know;

k. Abandoning steadfast allies abruptly without prior warning to Congress to cede territory to Russian influence;

l. Destroying or concealing records containing politically damaging information;

m. Employing white nationalists and expressing empathy for white nationalists after an armed rally in which one of them murdered a counter protester and another shot a gun into a crowd;

n. Disseminating Russian disinformation;

o. Covering for the murder of a journalist working for an American news outlet by a foreign government that is a major customer of the president’s private business;

p. Violating human rights and international law at our border;

q. Operating a supposed charity that was forced to shut down over its unlawful activities;

r. Lying incessantly to the American people;

s. Relentlessly attacking the free press;

t. Spending 1/4 of days in office visiting his own golf courses and 1/3 of them visiting his private businesses;

u. Violating the Emoluments Clauses of the U.S. Constitution;

w. Misusing the security clearance process to benefit his children and target perceived enemies;

x. Drawing down on government efforts to combat domestic terrorism in order to appease a segment of his base;

y. Refusing to aggressively investigate and build defenses against interference in our election by Russia, after the country helped him win an election;

z. Engaging in a documented campaign of obstruction of a Special Counsel’s investigation.

aa. Lying about a hush money payoff and omitting his debt to his attorney for that payoff from his financial disclosure report (which is a crime if done knowingly and willfully).

bb. Coordinating with his attorney in connection with activities that got the attorney convicted of criminal campaign finance violations;

cc. Interfering in career personnel actions, which are required by law to be conducted free of political influence;

dd. Refusing to fire a repeat Hatch Act offender after receiving a recommendation of termination from the president’s own Senate-confirmed appointee based on dozens of violations;

ee. Calling members of Congress names and accusing them of treason for conducting oversight;

ff. Attacking states and private citizens frequently and in terms that demean the presidency (see Johnson impeachment);

gg. Using the presidency to tout his private businesses and effectively encouraging a party, candidates, businesses and others to patronize his business;

hh. Causing the federal government to spend hundreds of thousands of dollars at his businesses and costing the American taxpayers well over $100 million on boondoggle trips to visit his properties;

ii. Hosting foreign leaders at his private businesses;

jj. Calling on the Justice Department to investigate political rivals;

kk. Using the presidency to endorse private businesses and the books of various authors

ll. Engaging in nepotism based on a flawed OLC opinion;

mm. Possible misuse of appropriated funds by reallocating them in ways that may be illegal;

nn. Repeatedly criticizing American allies, supporting authoritarian leaders around the world, and undermining NATO; and

oo. etc.

… This is only what [he] did while the remote threat of Congressional oversight existed. If the Senate acquits him, he will know for certain there is nothing that could ever lead to Congress removing him from office.

Unquote.

Assuming he’s acquitted, he’ll know he can get away with even more. In other words, stay away from Fifth Avenue.

Are We Indeed Better Than That?

Two parts of today’s impeachment inquiry stood out. The first was the opening statement of Dr. Fiona Hill, the former White House expert on Russia. The second was Chairman Adam Schiff’s closing remarks. Together they add up to less than 29 minutes. They are worth watching in full. In the end, you may ask yourself if Rep. Schiff is right. Are we Americans better than that?

A High Crime or Misdemeanor If Ever There Was One

Federal law says that a public official (such as the President) who, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value (such as the announcement of a criminal investigation into a prospective political opponent) in return for being influenced in the performance of any official act (such as inviting a foreign leader to the White House or delivering military aid to that foreign leader’s country) is guilty of bribery.

The Constitution says the President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors.

Our president directly, indirectly and secretly demanded something of value to his political campaign in return for performing official actions. That’s one solid reason he should be impeached and removed from office.

It makes no difference that the foreign criminal investigation was never announced and never took place. It makes no difference that the military aid was ultimately delivered (after the president’s corruption was revealed). The president made it clear to his subordinates and his lawyer that he wanted to bribe the president of Ukraine. Attempted bribery, even if discovered in time to be interfered with, counts as bribery.

There are other reasons he should be removed from office, including the fact that a grand jury would have indicted him for obstruction of justice if the Department of Justice had chosen to prosecute, and the fact that he is knowingly receiving “emoluments” (i.e. cash) from foreign governments while in office, something the Constitution forbids. But bribery is the offense the Democrats are investigating and publicizing at the moment.

Representative Adam Schiff, chairman of the House Intelligence Committee, summarized today’s testimony by Ambassador Gordon Sondland in thirteen minutes. It’s worth watching.

Impeachment Clarified

Jennifer Rubin of The Washington Post, a conservative who hasn’t joined the cult, wrote a column called “The Party Of Lying Liars” (which sounds a lot like Al Franken’s 1996 book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right). Some thoughts from Ms. Rubin:

When listening to [our president] and fellow Republicans throw around accusations against Democrats and the media or advance defenses for [his] impeachable conduct, there is a better than even chance they are misleading, if not downright lying [I’d say the chances are closer to 95%]….

On procedure, they’ve lied about the depositions (routinely used in investigations), claiming they violate “due process” or amount to a “Soviet-style” star chamber. Rep. Elise Stefanik (R-N.Y.) lied in claiming she was prevented from asking questions. [According to the rules, it wasn’t her turn yet.] … Sen. Rand Paul (R-Ky.) falsely claimed not producing the whistleblower violates [the president’s] Sixth Amendment rights [the 6th amendment only applies to criminal defendants, and the president isn’t one of those (yet)]….

At times, Republicans deliberately ignore evidence in front of their eyes. They seem to have settled on the theory that Trump never communicated to [Ukraine president] Zelensky that aid was tied to investigations of Biden, Burisma and [the] crackpot theory that it was Ukraine, not Russia, that interfered in the 2016 election, a theory first suggested by ex-KGB officer Vladimir Putin himself]. Trump, however, raised these items in the phone call (“I would like you to do us a favor though”), as we know from the rough transcription [which he bizarrely claims exonerates him]….

Republicans’ lies are so numerous and obvious that one requires only a minimal amount of fact-checking to see that they lie because they have no truthful factual defenses nor valid constitutional argument. The facts are the facts: Trump conditioned aid to an ally in a war for its sovereignty on production of dirt to smear a political rival. He has refused to allow key witnesses to produce documents or to testify, thereby obstructing Congress. He has sought to intimidate and threaten witnesses including the whistleblower and [Ambassador] Marie Yovanovitch, sending out the message you will be targeted and smeared if you provide evidence against him.

As for the Constitution, we know that “bribery,” enumerated as one of the grounds for impeachment in the parlance of the Framers, includes asking for … personal favors in exchange for political acts [whether or not the favor is granted]. That is precisely what occurred here. Obstruction and witness intimidation are obviously “high crimes.”

House Republicans have become so invested in crackpot theories, bogus procedural complaints and constitutional illiteracy that they will never recognize the president’s wrongdoing. They are as incapable of upholding their oath, which requires impeachment for high crimes and misdemeanors or bribery…. Both [the president] and his House enablers are unfit to serve, since personal and political considerations obliterate their ability to detect the truth and thereby to uphold their public obligations. It would be refreshing if House Republicans simply admitted [the Toddler] violated his oath but they are unwilling to abide by theirs and remove him. The candor would be preferable to the non-stop lying.

It remains an open question as to whether Senate Republicans are willing to ignore and distort reality so as to avoid voting to convict a president of their own party. Unfortunately, we find it highly unlikely that more than a few (if that many) would concede that [the president] and the right-wing echo chamber that protects him have been spinning a web of lies for nearly three years.

Unquote.

Yes, it’s unlikely that enough Senate Republicans will agree to remove him from office –unless they make it a secret ballot. That would give the cowards enough cover to dump him. But it still makes perfect sense to publicize more of the president’s offenses. 

It would also make perfect sense for the House Judiciary committee to write separate articles of impeachment based on the findings of the Mueller investigation and subsequent disclosures. Mueller invited Congress to impeach the president. No president should ever get away with what this one did to obstruct an investigation. But Mueller wasn’t a great witness. If he had delivered his congressional testimony more clearly and more forcefully, the president probably would have been impeached already. There is still time to remind the voters that the Ukraine scandal isn’t the only reason he get rid of him (and allow him to become a criminal defendant).