Monday, November 18, 2019

Better Know the Impeachment Process 11.18.19



The committee to which this task is confided [by the House of Representatives] must hear evidence—great masses of it in a complicated case. At this stage it seems certain that no technical “rules of evidence” apply. (Indeed, I shall argue later that they do not apply even in the Senate trial.) Evidence may come from investigations by committee staff, from grand jury matter made available to the committee, or from any other source. Testimony before the committee, and the production of documents or other objects, may be compelled by subpoena—which is an order for appearance, or production, under the threat of criminal penalty. In addition to evidentiary matters, the committee must also consider whether the acts shown probably to have been committed are “impeachable” within the meaning of the constitutional text (of which much more will be said in Chapter 3). What part is to be played at this stage by lawyers of the person under investigation would seem to rest in the sound discretion of the committee. Where the committee concludes, on the facts and on the law, that one or more impeachable offenses are shown with sufficient clarity to justify trial, the committee reports, to the full House of Representatives, its recommendation that one or more “Articles of Impeachment” be adopted.

Black, Charles L., Jr. & Bobbitt, Phillip, Impeachment: A Handbook, New Edition (2018) (pp. 8-9). Yale University Press. Kindle Edition. 

Despots or Tyrants, Thought & Action; Laziness or Sanity

Contains my subject essay


Perhaps it’s a sign of advancing age, or perhaps it’s merely the continuation of a nearly life-long infatuation, but certain persons and events of the 1930s fascinate me. 

As a Baby Boomer, I became aware of the Second World War, and to a lesser extent the First World War, while in early grade school. Perhaps this exposure along with an innate desire to make sense of events and persons--at least their chronology--that I imagine first spurred my fascination with history in general. But as I grew older and more sophisticated in my historical understanding (even to a modest degree), the war as war--as a military struggle--held less interest for me than the events that led up to the war, the political decisions, cultural trends, and ideas that led to the great conflagrations of the twentieth century, the First and Second World Wars. How could (presumably) rational people get into such horrific situations? What accounts for all of this folly? Who can make sense of it? 

In addition to a fascination with the players and events leading up to the Second World War, I also find myself drawn to thinkers who wrote between the wars. A few of them have resonated deeply with me. Max Weber’s “Politics as a Vocation,” was written in 1919, at the close of the First World War (the installment of the Long War that ran hot and cold between 1914 and 1989). This essay became one touchstone of my thinking about politics. Among other topics, Weber wrote about the “ethic of moral conviction” and the “ethic of responsibility,” a fundamental and sometimes tragic contrast between two ways of approaching political decisions. One of Reinhold Niebuhr’s works from the 1930s, Moral Man and Immoral Society (1932) sets forth an Augustinian (Christian) political realism for the twentieth century by looking at the trends afoot in the world around him in the early 1930s. Niebuhr was at once a Christian and a hard-headed realist. Another compelling source from this era, although she didn’t publish her major works until after the war, is Hannah Arendt. Her earliest published book is The Origins of Totalitarianism (1950) and was written and published after the war. But its inception is grounded in the time leading up to the war. And my most recent “discovery,” R.G. Collingwood, the Oxford philosopher, published significant reflections on political and cultural developments in the waning years of his life (d. 1943). He increasingly turned his attention to political developments in the 1930s while continuing his formidable (non-political) philosophical writing. I've already posted extensively about another Collingwood essay from this period, "Man Goes Mad" (1936). (Part 1-13 of quotes with commentary).

It is to Collingwood again to whom I want to turn, to share his brief but suggestive essay about politics that he wrote sometime around 1941. Returning to my opening theme, Collingwood’s words are rooted in this pre-war and early war era, although, as he often does, he draws heavily upon Plato and the Greek tradition. But the most salient points of the quotes below drew my attention because these words strike me as eerily prescient as I write this in 2019. My nation and much of the world have rekindled a romance with the worst sort of leaders and politics. I believe we can all learn from reflecting on Collingwood’s essay. 

The essay I’m referring to is entitled “The Three Laws of Politics,” and it’s included in Essays in Political Philosophy by R.G. Collingwood, Edited with an Introduction by David Boucher (Clarendon Press, Oxford 2004), 207-223. Collingwood drafted the essay as his Hobhouse Lecture to the London School of Economics. Collingwood, because of his declining health, was unable to deliver the lecture in person. In addition, he adopted the lecture from the larger project he was working upon at the time, The New Leviathan (1943), the final book that he completed before his death in January 1943. (Chapter 25 of the New Leviathan is entitled “The Three Laws of Politics,” but it isn’t as comprehensive or persuasively written as the Essay.) Below is an extended set of quotations from near the end of the essay that struck me. After the quotes, I offer my reflections on Collingwood’s argument. 

Collingwood’s Words

Sec. 4 The Third Law of Politics
Whatever qualities are thus exhibited [by the ruler] in the course of ruling are exhibited as models for imitation. The ruler as pathfinder is the ruler as setter of examples.. . . . I think that nobody will deny that the position occupied by a ruler is such that the characteristics displayed by him in the course of his activity of ruling will in fact tend to be imitated by those over whom he rules; that the tendency will be stronger in proportion as the bond between ruler and subject is closer; and that the fact of this imitation, which in any case will to some extent occur even unconsciously, will be replaced in proportion as the ruler becomes master of his trade by his deliberately offering examples intended to be worth following. 
 

Sec. 7. The Third Law, continued. . . . 
What I suggest is that, whether or no this is recognized by the accepted or Greek theory of human intelligence, there are two kinds of unintelligence in the world, and these have different functions. There is what may be called negative unintelligence, which is the thing of which Plato says that its proper object is nothing at all; a person in this frame of mind, trying to grab something, grabs nothing; he comes away from all mental effort empty-handed. The other kind of unintelligence is a creative unintelligence, creative of chimeras and nightmares; unintelligence of this kind creates these things more profusely according to its own fecundity; this fecundity being a positive power in so far as it creates, but a mere absence of power in so far as what it creates is nothing at all. The world is in no sense the richer for all its creative efforts. And in this sense it is all one whether you talk about this positive unintelligence or that other negative unintelligence which I mentioned first; in either case there is nothing. 
The question with which we are dealing is this: how can a man, without being intelligent, acquire that mastery over men which the Greek theory of life ascribes to intelligence?
. . . . 
The answer is that there are two ways of being a fool: you may be foolish to stupidity, so that your mental hands grasp nothing of what they try to grasp; or you may be foolish to craziness, so that your mind creates illusions or hallucinations about the things of which you are trying to think. These two kinds of foolishness occur in practice much confused together. The stupid fool, in politics as elsewhere, creates nothing;  the crazy fool creates much although this much, being crazy, comes to nothing. 

But in the meantime, not having been weighed, the crazy fool presents us with the aspect of being a formidable producer. This is in general terms the explanation of things like Nero, of which Tacitus and the whole of Roman history had not a word to give by way of explanation. Small blame to Tacitus; even the greatest brain of Greece had not gone deeply enough into the theory of error to offer him the blueprint of a solution. Plato had an inkling of the truth; but not more than an inkling; Aristotle had not even that. 

The crazy type of fool can pretend to be wise the fertility of his diseased mind gives him an initiative, futile it is true, over his fellow men. He has just as much initiative as a man who is really intelligent; in one sense even more, for he has less to fear. The intelligent man offers himself to an equal wrestling bout of minds; he stands up to all comers, and faces criticism; he does not know from what side criticism is going to come, or that will not prove him to have made a mistake. The crazy type of fool with his psychological hold over his audience will easily convict him of being a fraud which, strange though it may appear, is rather a feather in his cap than a thing to be ashamed of. [Collingwood’s note: “A thing I noticed in Italy in 1939.]. . . . 
 
Sec. 8 The Platonic Tyrant
Plato, in the ninth book of the Republic, has given his readers and memorable description of what he calls a tyrant. By a  tyrant he does not mean what we call a despot, or ruler who rules for personal motives and with considerable display of cruelty, arrogance, and other qualities valuable to him chiefly in their enhancement of his personality. The despot, with all this emphasis on his personality, may have something to emphasize; the laws which he administers with cruelty may be wise and justly administered. There may be a barbaric swagger about him, but it may serve to lend eclat [French: glow] to a genuine political performance.  

The tyrant, on the other hand, puts up no political performance. He is merely so much jetsam, floating on the surface of the waves he pretends to control. His qualities, according to Plato’s scale of values, are not the qualities of a free man, let alone those which would enable him to be the ruler of free men, but the qualities of a slave. He is not the sort of man who can triumph over his own weaknesses; more like the sort of man who would yield to them on every occasion; his progress through the world is a rake's progress supported by burglary, pocket-picking, and other low forms of predatory activity, preparing the way, says Plato, for higher forms of thieving such as robbing temples; or, as we should say, confiscating deposits in banks. His rise to the position of tyrant is consequent on a class movement; it is concurrent with the rise of the lowest social class in the city to the position of gangsters patronized by himself; it is not his own strength or energy that lifts him to a position of tyrant but, so to speak, his low specific gravity. It is in his capacity as so much jetsam that he rides effortless over the waves of politics.

. . . .Sec. 9 The Reversed Action of the Third Law of Politics
The disease works by what I call a reversed action of the Third Law of Politics. Like every other political law, this one does not enforce itself automatically; men must take trouble to obey it. Its direct action begins with a body politic composed of what we call sane men; the result is that they accept the leadership of sane. Where, you may ask, does all this labour go to, all this running to keep in the same place? The answer is: it is the work done by the community in keeping itself sane. It is much easier for any kind of man known to me to doze off into daydreams which are the first and most seemingly innocent stage of craziness. If labour-saving  is what do you want, give up all this trouble about thinking: go mad and have done with it. That is what the tyrant has to offer mankind--an end to the intolerable weariness of sanity. 

The reversed action of the Third Law of Politics is precisely this cessation, on the part of the body politic, of the effort after sanity. The engine has slipped into reverse; and the whole thing, with delicious absence of exertion, is sliding downhill. It is much easier to speak and act and write crazily than to do it intelligently; you just let yourself go, and there you are. This is the first phase of the reverse action. The next phase is the resulting ‘democracy’ (as Plato and Hitler, strangely united for once, agree in calling it) creates leaders for itself, leaders from its own members, leaders of fashion in the temporary freaks of craziness, under whose tyranny the whole body politics lets itself go completely more than ever; for to shout with the mob (that is to obey the tyrant of the moment) is the easiest thing anybody can do. . . . . 
Our relation to the future is not that the future, while it is still future, is to be foreknown by us; the future can be known only when it has become the present; but that it has to be made by us, by the strength of our hands and the stoutness of our hearts. (223) 

Commentary


About whom may Collingwood have been writing? As one can discern from this essay and his other writings, Collingwood was a true classicist and a student of modern history as well (and, as he is best known, one of the foremost voices in the philosophy of history). But Collingwood addresses the political crisis at the time that he writes, so it’s no surprise that Hitler and “Italy” (Mussolini) received specific mention. But as I want to address the political crisis of my time. I could identify a growing number of figures on the current world stage that might fit Plato’s definition of a “tyrant” or that of a despot. But there is one figure who fills my mind because he’s the president of my nation, and he embodies the characteristics of a despot and a tyrant as described by Collingwood. In fact, the first order of consideration is whether we best describe Trump as a “despot” or a "tyrant". 

Collingwood distinguishes Plato’s “tyrant” from “what we call a despot.” Let me repeat Collingwood’s description of a “despot” as one who

rules for personal motives and with considerable display of cruelty, arrogance, and other qualities valuable to him chiefly in their enhancement of his personality. The despot, with all this emphasis on his personality, may have something to emphasize; the laws which he administers with cruelty may be wise and justly administered. There may be a barbaric swagger about him, but it may serve to lend eclat [French: glow] to a genuine political performance.

The application of this description doesn’t demand a subtle analysis. Trump entered the fray with little hope of winning the nomination, let alone the presidency. Given his history of attempting to buy and curry favor with candidates and officials from both parties, and his lack of any policy analysis or sophistication, to contend that his candidacy and presidency are foremost a vanity project is more than justified. To the extent he has carved out a policy legacy, it’s been in the area of immigration, judicial appointments, and tax cuts for the wealthy. As to immigration and migrants, Trump has promoted gratuitous cruelty within a context of what might otherwise be lawful (even if controversial) processes. But everything that is done within his administration that he can control is done with an overweening emphasis on his “personality.” And to contend that there is a “barbaric swagger” that Trump practices also seems beyond the need for proof here. To suggest that this adds a “glow” to his “political performance” provides an interesting turn of phrase to describe his sense of showmanship cultivated by his apprenticeship in the world of professional wrestling, beauty pageants, and “reality'' TV. But a glow--or radioactivity--he does have. Trump has certainly cultivated a cult of personality, which, combined with a well-earned reputation for intimidating, threatening, or smearing any critic or potential rival, makes him a unique figure in the history of the American presidency. So I’m inclined to say that he’s a “despot,” albeit one checked--at least to some degree so far--by the institutions and norms established by the Founders to check such figures and heretofore honored in the American republic. 

But doesn’t Trump fit Plato’s definition of a “tyrant” as Collingwood describes it? Let’s review Collingwood’s description before we move on: 

The tyrant . . . puts up no political performance. He is merely so much jetsam, floating on the surface of the waves he pretends to control.

I question Collingwood’s contention that a tyrant “puts on no political performance.” Is this possible? Even the most absolute and compelling tyrants of the twentieth century, Hitler, Stalin, and Mussolini didn’t forego elaborate shows of public pageantry (although I’m less sure of Stalin’s displays). But perhaps this makes them only despots. Perhaps a tyrant can act behind the scenes as a sort of wizard of Oz. I suppose that this may fit dictators in less-developed nations, where military officers and political insiders can climb to the top of the heap and then rule without much in the way of public acknowledgment. And, as Collingwood goes on to suggest, the tyrant doesn’t seriously attempt to manipulate political tides, although this contention, like the one about no political performance, seems counter-intuitive, at least if judged on an absolute scale. Even the most powerful dictator depends on some fellow elites, even if only a Praetorian Guard, to maintain office and life itself.  

But once we move beyond this element in the making of a tyrant, we see something that certainly rings true of Trump. 

His qualities, according to Plato’s scale of values, are not the qualities of a free man, let alone those which would enable him to be the ruler of free men, but the qualities of a slave. He is not the sort of man who can triumph over his own weaknesses; more like the sort of man who would yield to them on every occasion[.]

In this part of the description, the person who is a slave to one’s desires isn’t a “free man,” but is truly a slave. Given the outsized appetites that Trump exhibits, for sexual conquest, publicity, security, fealty, and food, he fits perfectly for this part of the description of a tyrant. Trump is a poster boy for uncontrolled desires, an embodied antithesis of the classical model. All humans suffer weaknesses, but most of us try to minimize or hide these weaknesses. Trump bares himself to the public, perhaps ingratiating himself to those who believe themselves overcome with such otherwise shameful failures. His very slavishness becomes a part of his public spectacle. 

The complement of the tyrant’s slavishness is the tyrant’s grasp for easy money. Collingwood describes the trait:

[H]is progress through the world is a rake's progress supported by burglary, pocket-picking, and other low forms of predatory activity, preparing the way, says Plato, for higher forms of thieving such as robbing temples; or, as we should say, confiscating deposits in banks.

Trump’s money-making ventures have been marked by bankruptcy, fraud, stiffing contractors, tax fraud, and most recently, stealing money from a charity that he controlled. The degree of continuing and unabated unscrupulousness of this man beggars belief. No one comparable had become a contender--and certainly not president--before his arrival on the political stage in 2015. Of course, Trump would not take money directly from the U.S. treasury because that would alienate the plutocratic elite upon which Trump (in part) depends, all of his faux-populism notwithstanding.  

Now Collingwood turns briefly to the political support that brings the tyrant to power: 

His rise to the position of tyrant is consequent on a class movement; it is concurrent with the rise of the lowest social class in the city to the position of gangsters patronized by himself; it is not his own strength or energy that lifts him to a position of tyrant but, so to speak, his low specific gravity. It is in his capacity as so much jetsam that he rides effortless over the waves of politics.

Trump certainly rose to power on a “class movement,” although Americans don’t like to think of “class.” And most Americans hold a suspicion of “movements” although popular movements play a huge role in American history (abolitionism, prohibition, women’s suffrage, union organizing, civil rights, gay rights--to name only a few). And while today America we have some of the most significant disparities of income and wealth in our history, the identity of the “class” that brought Trump to power cannot be delineated solely based on income, wealth, or job status. Geography (rural-small town vs. urban-suburban) and educational attainment (scaled from high school or less on up to the doctoral level) must be added to more traditional identities such as age, race, and traditional party loyalties when attempting to understand the current wide rift among American voters. These factors, in addition to the mix of motives and reasons held by each individual voter, provide most of the explanation for the success of Trump. His win (in the Electoral College) doesn't stem from his talents as a politician. (Scott Adams’s “master persuader” argument notwithstanding). In short, as Collingwood and Plato suggest, a tyrant is more a symptom than the disease, and so it is with Trump. Demagogues, would-be tyrants and despots, only flourish in a receptive climate, one where otherwise cautious voters with an innate tolerance for the status quo become willing to take exceptional risks in choosing leaders and office-holders. When conditions become bad enough on a relative scale, that is, a scale based on perceptions of social, political, or economic inequities (and not absolute deprivations), social upheaval becomes a reality wave that can carry someone like Trump into office (with help from a non-democratic electoral college). 

As you read near the beginning of his essay, Collingwood addressed what I will label the twin evils of “unintelligence” delineated as “negative unintelligence” (inability to grasp an idea; some measure of dumb) and “creative unintelligence,” which is the ability to spin-out ideas that have no foundation in reality. It is this latter description (creative unintelligence) that I want to explore more fully, for it seems the defining species of “unintelligence” in our time. To paraphrase the Gospels of Mark and Mathew, the mentally poor will be with us always; to wit, those who don’t have the time or capacity to think deeply about public affairs. Democracies will always need to contend with this shortcoming and seek to alleviate it as best they can. But those who spin fantasies, or who purvey what Princeton philosopher Harry Frankfurt has labeled “bullshit,” are those today who pose the greatest risk to democracy and sound policy. “Fake news” is a concept bandied about today as a weapon, but it’s just a successor to “disinformation campaign,” “dirty tricks,” and propaganda from days of yore. Yet, there is one problem with this “creative unintelligence”  designation that I don’t think that Collingwood addresses; that is, what if it’s an intentional form of thought and action. In other words, some may be misguided, but others are the (intentionally) misleading. 

My thoughts, I must admit, are prompted by watching members of Congress attempting to defend President Trump in regard to his actions concerning Ukraine and the resulting impeachment investigation. I venture into these thoughts (and this entire essay of mine)  with the knowledge that I’m biased against Trump, and for a long time. I see almost everything about him and his administration as confirmation of my earliest perceptions of his as a potential president. (Here, and yes, Plato gets in on it at the beginning.) So I’m at high risk for a bad case of confirmation bias. And with over four decades in the law, I know that sometimes you have to defend a position that doesn’t provide any attractive explanations and that tests the limits of creativity and reasonableness in attempting to defend a client. However, notwithstanding popular perceptions, most lawyers--myself included--follow the rules and don’t suborn perjury or make arguments that we cannot make in good faith. Everybody (should) have limits when arguing on behalf of a client. (Some don’t, and they are rightly prosecuted; e.g., Michael Cohen.) But with these warnings stated, I’m prepared to move forward.

Are Republicans deluding themselves that they have reasonable, colorable (under the law) arguments? As to the ultimate issue, as to whether impeachment is warranted, even if all the facts are as they seem to be that Trump attempted to shake down the Ukrainian government for an unjustified investigation to implicate his chief political rival (at present), I suppose one can make the argument (demur) that this does not merit impeachment. But as to a true subject of Trump’s requested “investigation” of the Bidens or Ukrainian involvement in the theft of Clinton or DNC emails, I can find no substantive basis. I can find no substantive grounds for the bullshit* defenses offered to date by Republican members of the House. The degree of bad faith, of intentional wrongdoing in the sense of promoting frivolous and misleading argument would, in most courts of law would draw a firm reprimand (or worse) from an impartial judge. In short, “crazy foolishness,” as Collingwood describes it, maybe crazy like a fox. The henhouse and not the truth is the object of the venture. And we should note that while none of this “unintelligence” (intentional or no) is either new or unique, it is no less reprehensible. 

Before we close, we should turn one last time to Collingwood’s discussion of the role of the body politic in promoting and tolerating a tyrant or despot. Collingwood attributes a break-down in political judgment to laziness. “Sanity” is an effort, “daydreams” are a breeze. If we don’t want to make the effort, we can take up the tyrant’s offer: “an end to the intolerable weariness of sanity.” Collingwood anticipates the post-war work of Hannah Arendt when he calls upon us to act to shape our future by thought and speech. 

In the throws of the early days of the war against Nazi Germany and after the fall of France, Collingwood offers his readers, his nation, and those who share the values that he promotes, a different path. Collingwood, the great philosopher of history, calls upon us to eschew Hegalian and Marxist fantasies of “scientific laws” that foretell our future. Instead, he calls upon us to be the actors and not mere props in the play of our future: 

Our relation to the future is not that the future, while it is still future, is to be foreknown by us; the future can be known only when it has become the present; but that it has to be made by us, by the strength of our hands and the stoutness of our hearts.