Posts Tagged ‘Impeachment’

The Thinker

Looking past the midterms

Sometimes I think Trump wants to lose. Granted, Trump has made a career of losing. To the extent he has made money it is mostly from branding. Branding has some real advantages: mainly, you rake in fees (usually recurring fees) and someone else inherits the risk. This is true of many of Trump’s properties.

The shine is off the Trump brand as his presidency implodes. The owners of the Trump International Hotel & Tower in Panama City want to kick out the Trump organization and take his name off their tower. It’s proving an uphill struggle but they have plenty of reason to persevere. With only about a third of the building occupied, the owners are losing money, bigly. Few love Trump anymore and pretty much everyone realizes now that his brand is more bronze than gold.

Trump finds new ways to turn off voters every day, and there are still eight months until the midterms. There used to be a daily scandal. These days you get a half -dozen new scandals a day. Trump is in meltdown according to his own staff, most of which have left him. It’s now literally impossible for me to focus on any one particular scandal. However bad it is now, it’s likely just to worsen day by day, leading toward a cacophonous crescendo on November 6 when voters finally get to weigh in on the Trump presidency. It’s not going to be pretty for Trump and Republicans.

How bad is it? It’s so bad that finally Republicans are starting to pull away from Trump. Just in the last couple of days he decided he didn’t believe in due process (most likely because he had no idea what it is), he pissed off the NRA and he is starting a trade war he is destined to lose. If he doesn’t back off on a trade war it will continue to sink stock markets, raise prices (possibly reintroducing inflation) and dramatically increase the risk of recession. If there is anything dearer to Republicans than staying in power, it is probably the value of their stock portfolios. They are realizing that Trump is becoming a toxic asset in their portfolio.

It’s unclear when Republicans will finally decide that they are better off without him. If they don’t get the message before the election due to all the scandals, I do expect them to get it after the midterms. There’s a Democratic tsunami approaching.

To begin with, Democrats will retake the House, which likely means a replay of Speaker Nancy Pelosi. One of the first orders of business will be for Democrats to open real inquiries into the tsunami of Trump scandals, which can only lead to Trump’s impeachment in the House. I put the odds of Democrats retaking the Senate at now better than 50/50, probably 60/40 and likely to grow. It would take 67 senators to throw Trump out of office.

Regardless there will be a huge amount of Republican hand wringing after the midterms. Republicans will have to ask themselves how they can survive as a party. As for going back to the racist Tea Party rhetoric: that trick was played in 2010. It’s not enough anymore to win elections. Millennial voters are going to come out in huge numbers to prove they can’t play this trick again. They will be Democrats for the foreseeable future and they are unlikely to lose their political engagement. As for Republicans, demographics alone means they will be a dying party unless they somehow rebrand toward the middle.

It’s unclear whom Republicans can attract to their smaller government message since they’ve made such a mess with it. Which means that the party will either go down (possibly splitting into two or more parties) or like a sailing ship after a hurricane, what remains of the party will realize it’s time to throw the fallen masts into the sea and stand up a jury rig. Republican senators will have a hard time not voting to convict Trump in his Senate trial when it’s in their own interest. What’s in their interest? Not only maintaining what will be left of their federal power, but also in retaining what power they can in statehouses. The parties that control statehouses draw district-voting boundaries after the 2020 census. What’s the probability of that if Trump somehow hangs on and tries to win reelection in 2020?

There are plenty of tealeaves for easy reading. Just this week alone Democrats picked up two state seats in special elections, one in Connecticut and one in New Hampshire. Since the 2016 election, Democrats have flipped 39 seats in both state and U.S. house special elections, not to mention the Alabama senate seat. The main reason they are winning is because Democrats are coming out to vote in droves. Their enthusiasm will only continue to grow between now and November. Come November 6, the pressure will be explosive. Trump has succeeded in keeping the focus on himself, which feeds the outrage of those who hate him. So they will be out in multitudes. Most likely Republicans will be demoralized and sit it out. Trump is likely to give them plenty of reasons to stay demoralized too.

As bad as things are for Trump now, when he has effective opposition in Congress he’s going to truly feel the heat for the first time. He will probably be looking for exit strategies. It may even come before the midterms. For example, if Special Counsel Mueller has sufficient incriminating evidence against Trump, Trump’s lawyer might make a plea deal with Mueller: Trump would agree to resign if Mueller does not recommend any criminal prosecution of Trump in his report. Trump may already be getting the message. He may be looking for scapegoats for his impending resignation. He just needs the thinnest façade to sell his supporters. It will likely be some variation of “deep state”, “fake news”, “witch hunt” and “they are all out to get me.”

Curiously, the best case for Republicans in the midterms would be if Trump resigned sooner rather than later. This might move the issues in the midterm from Trump and onto other issues. Most likely though Trump’s bloated ego won’t allow it, so this denouement is much more likely after the midterms than before it. But if it happens, well, perhaps you read it first here on Occam’s Razor.

 
The Thinker

Should Bill Clinton have resigned?

Senator Kirsten Gillibrand (D-NY) said last week that because Bill Clinton had an affair with Monica Lewinski, he should have resigned.

Gillibrand appears to be applying the new emerging conduct standards some twenty years after Clinton’s tawdry oral affair with the then White House intern. Her complaint does not appear to be that there was sexual harassment involved, but that the relationship was inappropriate. By that standard though Donald Trump should have never taken the oath of office, although as best we can tell so far Trump has not overtly sexually harassed any women since assuming office. Given his track record though, I’d not be taking bets he makes it through his term unscathed in this area.

Bill Clinton was impeached by the Republican-controlled House not for having an affair but for lying about it under oath. In truth, Republicans wholly loathed Clinton as would have impeached him for pretty much anything they figured they could get away with however spurious and minor. The Senate refused to convict him. That Clinton had the affair was not in doubt and was confirmed by the infamous blue dress that Lewinski kept with his semen stains on it.

Clinton tried to use legal semantics to dodge an allegation of perjury, claiming that in his mind “sex” meant intercourse. It was a dodge worthy of the weasel that many saw him to be. Ultimately it was an unsuccessful defense. Clinton was only the second president in history to be impeached, so in some sense he will always carry that mark of shame. Apparently that would be insufficient for Gillibrand now. (In any event Clinton left office at the end of his term with record high approval ratings, so it doesn’t appear the American people saw him as an ineffective president or were particularly upset with the consensual conduct.)

It’s highly debatable whether Clinton’s affair with Lewinski constituted sexual harassment. Exactly what sexual harassment was in the mid 1990s was very murky. I should know because I was a federal employee at the time and we were still trying to puzzle it out. The standard was quite murky and subjective. Much of the murkiness had to do with how the conduct was perceived. Basically you were sexually harassed if you felt you were sexually harassed. There was a clear rule that someone who had power of you should never harass you: a boss or someone in your chain of command. Coworkers were also not supposed to harass each other, and harassment could be in three forms: physical, sexual or emotional. Penalties were not criminal but civil. Most involved discipline like letters of reprimand but in extreme cases could have resulted in being fired. What I took away from the training was that I should be professional at work and if I were to have an affair I should do it with someone outside the office.

Part of the standard (and what made it so murky) was that the conduct had to be unwelcome. I don’t think that standard ever applied in the Clinton-Lewinski affair. It’s hard to know for sure but what we do know about it appears to show that Lewinski initiated the affair, so it was not conduct that she spurned. So while Clinton may have dropped his pants from time to time for various women, it does not appear that the conduct was unwelcome when it got that far.

This can be readily contrasted with more than a dozen women who have publicly accused Trump of sexual assault. Even Trump seems to have qualified his conquests, looking for women in his social circles as opposed to within his organization. So it’s not clear based on what we know that Trump has engaged in any sexual harassment as it is legally defined. His conduct might still be illegal, because sexual assault is a different crime than sexual harassment and one with much harsher penalties. There is no evidence that Bill Clinton ever sexually assaulted anyone. There are women (like Paula Jones) who say that his advances were unwelcome but because there was not a power relationship involved it was not sexual harassment.

Clinton was in a power relationship with Lewinski, but with some caveats. Lewinski was a White House intern that received no salary. Implicit in being an intern is the ephemeral nature of the work. She could have been dismissed at any time for any reason and there was no real damage in doing so. Lewinski was there to learn about the mechanics of governing and likely to make connections to further a political career. It’s unsurprising that given the opportunity to be closer to Clinton that she would take it. Lewinski was also not a minor and was at least 23 when the affair began. The same cannot be said about many of the women accusing Roy Moore of sexual assault and pedophilia.

There is also the problem of trying to hold someone to a standard that was murky at best two decades ago. As a lawyer Clinton was well aware of what conduct was legal, murky and illegal and was careful not to engage in conduct that went beyond the murky stage. Sexual harassment at the time definitely fit into the murky category. Lewinski herself never reported sexual harassment. Her heart was broken when the affair proved ephemeral and Clinton would not move into a closer relationship, which is understandable given his marital status. It took Lewinski’s friend Linda Tripp who secretly (and illegally) recorded her conversations with Lewinski in which she disclosed the affair for it to see the light of day. So Lewinski was disappointed and probably heartbroken but never felt sexually harassed. Since much of the definition of sexual harassment depends on how it is perceived by the victim this standard simply doesn’t apply.

Obviously it was stupid conduct, both by Clinton and Lewinski, and that’s basically Gillibrand’s complaint. Stupid conduct like this in her mind is not excusable or could be remedied by a president except apparently through resignation. In short, in Gillibrand’s mind if the conduct makes you feel ashamed or should make you feel ashamed you should resign.

By that standard Trump would never resign. He is clearly unrepentant for his past sexual misconduct. This misconduct was well known to voters, who voted him into office anyhow. It does not appear to bother Republicans enough to initiate impeachment proceedings against him and in any event it occurred before he took office. It’s well within the purview of Congress to impeach and remove a president for such conduct, as impeachment is a political act. Impeachment and removal implies no illegal conduct. Such conduct may be prosecutable, which happened to Clinton, but only for incidents outside of his presidency. In his case he was sued for his conduct and settled out of court. He also lost his law license, not a matter of breaking the law but one of privilege and which had no effect on his standard of living.

Gillibrand’s look backward about what Clinton should have done is aspirational at best. Perhaps someday this sort of conduct will rise to the level of an impeachable offense. Even with this Year of the Woman though it looks like we are quite far from reaching that standard.

 
The Thinker

Trump is likely to meet the 25th amendment

Like most of America, it’s hard for me to turn my eyes away from the disastrous Donald Trump presidency. On May 19 I noted that every day of his presidency was worse and more unbelievable than the day before. Here it is June 7, and it’s still if not more the case. Tomorrow the excessively sober former FBI Director James Comey gets his turn to openly add to the huge pile of evidence that Trump obstructed justice. Comey’s initial statement is already online. My wife plans to pop some popcorn and watch it live.

Trump is everywhere and most lately has been infecting my dreams. As a classic narcissist, Trump is probably happy about this. The details of the dream are a little sketchy, but somehow I’m in a room with Donald Trump. Like Trump with Angela Merkel (who in his trip the other week told Trump eleven times he can’t negotiate a trade pact with Germany, but only the European Union) I find myself keep saying the same stuff to him and it just does not register.

How does this end? On May 29, I said it wasn’t going to end well, and that’s truer now than ever. I am more convinced than ever that he won’t see out his term, but I am less convinced that he will resign hastily and testily. While that has been his pattern, Trump seems to be going into full bunker mode. Nothing is more precious than his insatiable ego and his conviction that he can never do wrong. You can see it in fine display with his weird tweet the other night where typoed a new word: covfefe. Any other human being would follow it up with a tweet that, oops, he mistyped. Trump misspells all the time, but simply can’t admit this baffling typo so he tried to make a joke out of it. He can’t admit that he has any human frailties. Darn it, he meant to use covfefe and it’s your problem if you don’t understand it.

Trump has already passed Nixon’s “smoking gun” test. This was the evidence that ended in his resignation. Trump has admitted that he fired Comey in part because of “this Russian thing”, which clearly meant Comey investigating potential links between the Russians and his campaign. By all reasonable and lawyerly standards, Trump has obstructed justice, which independent special counsel Robert Mueller will doubtless charge Trump with in time. Trump wanted Comey to drop any investigations into his short-lived National Security Advisor Michael Flynn. He pressed others in positions of power to do the same thing.

Why did he do it? Here’s the scary part. Nixon did it because he was mendacious. Nixon knew better but assumed it would remain a little Oval Office secret. But Nixon went to law school. Trump’s education consists of a bachelor’s degree from Wharton. One hopes he had a civics class or two in school, but obviously not much of it took hold. Trump asked these inappropriate and illegal questions mostly because he didn’t know he shouldn’t. Of course this is the way you do things, was probably what amounted to his rationalization. I’m the president. I am in charge. What I say goes. The idea that the president is accountable to the law and the constitution seems to never entered his brain, even though he swore to do both when he took the oath of office. He doesn’t get this. Frankly, he doesn’t understand the job he signed up for.

Trump was qualified to be president only in the sense that he was native born, age 35 or older and got a majority of votes in the Electoral College. He is clearly not mentally qualified to hold the office though because he has shown no competence in faithfully serving the office.

Which is why I now think his most likely exit will be via the 25th amendment. Republicans will find it convenient not to impeach him as long as it is in their political interest not to do so. Considering that so many of their constituents voted for him there’s plenty of incentive to overlook his dangerous eccentricities via impeachment and conviction. Republicans are tribal in nature. More than ninety percent of them will vote for any Republican on the ticket, no matter how bad or unqualified they happen to be, which proved true in the last election despite Trump’s known problems and temperament. Nixon found out that things do change very quickly. If consensus develops that Republicans in Congress realize they (and their jobs) are better off with him gone, the will should be there. My brother is betting October 15, 2017 is that date. We’ll see.

Me, I’m now betting on the 25th amendment solution. The amendment, adopted in 1967 and amended in 1992 basically says the president can be temporarily removed from office if the vice president and at least half of the cabinet agree that he is unable to discharge his duties. There is plenty of evidence to this already. For example, he’s more than four months into his administration and his government is about 5% staffed. To my way of thinking you are certainly unable to discharge the duties of the presidency if you just don’t understand what they are. If you aren’t aware that your job is to enforce the law as it exists, you cannot faithfully discharge the duties of the presidency. If you aren’t smart enough to know that you can’t ask the FBI director to compromise his required independence from Executive Branch coercion, you can’t discharge your duties. These of course are but a few examples that show that Trump is unable to discharge the powers and duties of the presidency.

It’s also the way Republicans can get rid of his toxic presidency with the least political damage. Which is why I believe that there are already all sorts of backdoor conversations going on amongst Trump’s cabinet and Vice President Mike Pence on whether, but more likely how and when to take this unprecedented step. Trump can of course declare that no inability exists. Congress gets 21 days to decide if Trump is incapable of discharging the duties of presidency adequately. A vote of at least two thirds of both the House and the Senate would remove him from office and we’d have President Pence.

Mental health experts could certainly be called to testify. It would not be hard to make a case that Trump’s excessive narcissism is a mental illness, one probably that cannot be cured, and the illness affects his ability to discharge the duties of the presidency. They could even call Trump to testify in his own defense. Just ask him a few fundamental questions about the duties of the president. There is plenty of evidence already that makes an airtight case. Republicans could use this as the cover they need because it’s irrefutable.

For the sake of the nation we can only hope this happens sooner rather than later.

 
The Thinker

The measure of a democracy

Here in America we are trained to look down on our lawyers. We assume that lawyers are just petty ambulance chasers. We think they are eager to bend justice for their clients but only if it also obscenely increases their fortunes. We do not understand how anyone can justify billing rates of $200 or $300 an hour by doing something as dry as reading dusty old law books. Sometimes we grudgingly express appreciation for those lawyers who attempt to provide equal justice to the poor. We do so while sometimes also expressing unhappiness if their justice was purchased with our tax dollars.

On Capitol Hill, the Republican Party seems to have an animosity toward trial lawyers. This is curious since the ranks of Congress are rife with lawyers. Nonetheless, when trial lawyers are successful suing corporations for what are perceived to be excessive punitive damages, Republicans tend to get their dander up. Tort reform is usually near the top of their agenda, right after tax cuts. Greed may be good on Wall Street, but not when their actions affect stock values.

We want to believe that lawyers are simply unnecessary. We want to think that we should be able to reach agreements without having to legalize it with these complex paper instruments we call contracts. The reality is that we need lawyers. Laws and contracts may be time consuming and expensive but they also remove legal ambiguity. Imagine the potential mess of a business merger without an enforceable contact hammered out by lawyers. Imagine if you willed your estate to your family but they ended up inheriting nothing because a judge decided arbitrarily to ignore your will. It is not obvious but, yes, we really do need lawyers. They are part of the epoxy that allows society to function in a predictable way.

In William Shakespeare’s play Henry VI, Dick suggests to the rebel Jack Cade that an excellent way to start an insurrection is to kill all the lawyers first. Dick may have been on to something. Lawyers are the gears that make the law work. Without lawyers, anarchy or dictatorships become possible. Most of us do not choose careers that we hate. The same is true with lawyers. It is likely that most lawyers are drawn to the law because they respect it. That so many lawyers populate Congress is likely due to their fascination with the law. (It also does not hurt that lawyers frequently have enough disposable income and the connections to be able to run for Congress in the first place.)

Perhaps like me you were stirred by the recent events in Pakistan. I was not surprised that with his grip on power loosening, President Gen. Pervez Musharraf would find it convenient to suspend the constitution and lock up most of his political opponents. Like most of us democrats, I was upset. Yet I was also very moved to see opposition arise almost immediately. Who led the opposition? They were the Pakistan’s lawyers, who marched in the streets by the thousands. By standing up for their democracy, they literally put their lives on the line. In fact, it is likely that at least hundreds of them are now in prison for doing so. So far, it appears that most of Pakistan’s masses have yet to become engaged in the struggle for democracy. The lawyers are proving to be the phalanx for the restoration of the rule of law in Pakistan. It is also clear from footage of their marches that they are passionate believers in the law and in democracy. As they proved some months ago when they stood up to Musharraf in support of their chief justice, they have the courage of their convictions.

I wish our many lawyers in our Congress had similar courage. In their case, much less courage is required. Yet most of them appear spineless. Today, for example, with the shameful support of a handful of Democratic senators, the Senate approved the nomination of Judge Michael Mukasey as our new Attorney General. Senators approved the nomination even though Mukasey could not assure them that waterboarding was a form of torture. As egregious as this was, Mukasey also stated his belief that the President might have inherent powers that puts him beyond the reach of the law. Somewhere up there, Richard Nixon has an evil smile on his face.

Fifty-six men were signatories to the Declaration of Independence. Twenty-four of them were either lawyers or jurists. In the declaration, they pledged their lives, their fortunes and their sacred honor to establish a new democracy called the United States of America. These were not just idle words. The British Army hunted down these signatories as treasonous rebels. If captured they would have paid with their lives. Some of them paid that price. Others spent the Revolutionary War constantly on the run leaving behind ruined families and businesses. Only one of those patriots, Thomas Jefferson, would survive and rise to become President of the United States.

I wish we had patriots in our Congress like this. We have many patriots in uniform overseas and I certainly do not mean to discount their patriotism. Thousands have died for their country, tens of thousands have been wounded, most on a mission in Iraq that will probably prove in vain. Their patriotism is beyond dispute. The least we could do to honor their sacrifices is to demonstrate patriotism by respecting the rule of the law in this country.

Congress can start by not allowing the telephone companies who broke wiretapping laws at the behest of the Bush Administration to get retroactive immunity for their illegal actions. It can do much better than this. Rather than just refer Representative Dennis Kucinich’s bill to impeach Vice President Dick Cheney to committee, where it will linger until this administration leaves office, it can press forward with real impeachment hearings. It can send a signal both to this administration and to future administrations that the egregious and unlawful unilateral expansion of executive powers by the Bush Administration will never be tolerated again.

Those courageous lawyers in Pakistan know that respect and adherence to the rule the law is the difference between civilization and anarchy. This is a lesson we should relearn now more than two hundred years into our own democratic experiment. If freedom is not free, neither is the equal application of the law. Our pragmatic founding fathers at least gave the branches of government power to check excessive power grabs by the other branches. It is long past time for the Congress, on behalf of the people who it serves, to restore the rule of law in clear and unambiguous terms.

 

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