Friday, January 31, 2020

A Teachable Moment: A Lesson in Rhetoric, Proof, & Jurisprudence Arising from the Impeachment of Trump, by an Old Lawyer

The Senate trial of Donald John Trump for two articles of impeachment brought by the House of Representatives
Let's use all of the hullabaloos for a "teachable moment." I've taken a quote from a Facebook comment that relates to the current impeachment trial. Let's dissect it and see what we can learn. Here's what the person says:
"[W]ere there a truly constitutionally established impeachable offense committed by a POTUS, the timing should be immaterial. The problem here is that this impeachment is purely politically motivated and at best based on a difference of opinion or views which should be handled in the traditional manner of an election."
I believe that this paragraph is representative of what Trump supporters have been saying for some time now, although it's a bit behind the curve, as I'll discuss later below.

1. "This impeachment is purely politically motivated." First, let's take away the modifier ["purely"] and consider whether his impeachment is "politically motivated." This statement is undoubtedly true. While the law and a Constitution consist of political questions that have been answered at least for the time being and gain the force of law. The force of law means that someone who acts contrary to this decision may be subject to penalties imposed by the state through the judicial process; that is, the scope of any issue is narrowed when we make a political decision that results in a law. But the law can be changed, and if done legitimately, it's done through the political process. This applies to the Constitution as well as zoning or traffic laws. And like ordinary statutes, the Constitution has been subject to changes by courts and the legislative branch (via the amendment process) throughout its history. And how we interpret the Constitution, as we can see around us even today, remains the subject of intense political discussion. The impeachment of Donald Trump involves the power of the presidency, along with many other issues. Some of these issues must be resolved by the courts, but the legislative branch, as an equal branch of the government under the Constitution, also has the responsibility to interpret and apply the Constitution. Under the circumstances of the current impeachment, we see Democrats directing their appeals to the text of the Constitution, legislative precedents about impeachment, and the writings of the Founders--especially Madison and Hamilton--to establish their case for impeachment. Trump supporters (apparently all Republicans) have shown much less concern with precedents and legal procedures. (So much for "conservatism.")

2. Now let's put back in the "purely." To say that the House impeachment is "purely politically motivated" is intended to mean, I assume, that it's been undertaken only to gain partisan advantage in the next election. In other words, the impeachment mimics Trump's desire to coerce Ukraine to investigate the Bidens. The impeachment has no legitimate purpose other than to gain an advantage in the next election. I will stipulate for purposes of argument to the implicit assertion that all of the information gained in the impeachment may (and should) give Democrats an advantage against Trump in the next election. But to agree that impeachment will certainly give Democrats an advantage in the next election isn't (or at least wasn't) a foregone conclusion. Remember that the Republican impeachment of Bill Clinton backfired and cost them dearly in the 1998 election, and it cost Newt Gingerich his speakership. Also, John Bolton might have come forward and offered to exonerate Trump instead of confirming Trump's intention to coerce an investigation of the Bidens. And remember that the Mueller's Report that documented a prima facie (on its face) case of obstruction of justice against Trump went nowhere, contrary to the hopes of most Democrats. So if it was "purely political," it was a hell of a gamble. It could have ended up as a big-nothing sandwich, as did the Benghazi investigations of Hillary Clinton (acknowledging, as one must, that while of no substance, it helped damage her in the eyes of the general public. If evidence, truth, and justification of no consideration, anything goes.)

3. So how do we resolve the "purely?" business? I recommend the thought experiment that I posted on Facebook on 25 January. There, I suggested the following hypothetical oath to be taken (and followed) by all senators before voting on the two articles of impeachment. The text of my hypothetical oath:
"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."
This, I maintain, is the standard by which we should judge each senator's final vote. "It's the standard that I want to be applied to all presidents, Democrat, Republican, Socialist, or Libertarian" each vote is saying. And then we the voters must judge their decision with whether it comports with our understanding of the Constitution and the rule of law.

And in some way, this is what each senator is doing because the precedent set by this decision will affect future presidents and senators. If it's okay for Trump, it's okay for the next Democrat president, too. Since Trump's defense has moved from "I didn't do that" to "Anything that I do is okay, including using my power contrary to the law [he did break the law with his action, but it's not a part of the criminal code]. It's lawful if I deem my reelection to be in the national interest--which of course it is!" (An eerie echo of Nixon's claim that "if the president did it, then it's not against the law.") So, yes, even if Trump stays in office (as we knew he likely would), the repercussions of this vote will echo for years to come. In some ways, impeachment law, especially the standard of "High Crimes and misdemeanors" may be usefully compared to the common law of negligence; the definition (of "negligence" or "High Crimes and misdemeanors") is broad and decision-makers (judges, jurors, or the Senate) must apply the concept on a case-by-case basis. Therefore, a precedent flows from each decision, although it doesn't necessarily bind the next decision-making occasion.

4. The assertion that "this impeachment is purely politically motivated," is a form of the ad hominem argument. Now your rhetoric or composition teacher may have taught you that this is a logical fallacy. It is, but then logic is a formal system, not an infallible guide to discerning human behavior. The ad hominem argument seeks to avoid the facts of the case by concentrating on the teller. In the law, we routinely make ad hominem arguments by impeaching (raising doubts about) the credibility of a witness. Indeed, every plaintiff and defendant in a case is biased and at least implicitly subject to impeachment. Each party maintains that his or her position provides a true account of the facts of the case and comports with the standard of law; therefore, judgment should be rendered in the party's favor. Other witnesses, especially expert witnesses, are impeached by asking who's paying them (most experts are paid for their "time"). The expert will claim that his or her opinions are based on sound science and nothing else. The astute cross-examiner will point out the expert testifies almost exclusively for plaintiffs (or defendants). It's then left to the judge or jury to sort out who's credible. So how should the final decision-maker (the judge or jury) sort out conflicting testimony given the often inherent bias of most witnesses who testify?

Here, as an example, is what a judge in a criminal case in Iowa tells a jury about how to address these issues:
100.7 Credibility Of Witnesses.  
Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. Try to reconcile any conflicts in the evidence; but if you cannot, accept the evidence you find more believable. 
In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. 
Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. 
There are many factors which you may consider in deciding what testimony to believe, for example: 
1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness's appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness's interest in the trial, their motive, candor, bias and prejudice.
In other words, consider all of the evidence, not just the background of the witnesses. Foolproof? Hardly, we're dealing with humans here, but this typical instruction provides a standard that you and I can use to judge the case of the impeachment of Donald John Trump (for we will ultimately judge this president and these senators when we enter the voting booth).

5. Conclusion

So to say that "this impeachment is purely politically motivated" provides us with no meaningful information and stands naked as an argument against impeachment. This simple assertion has no facts to clothe it. This failure to mount an argument upon facts and the constitutional text and precedents comports with the tactics of the Republicans in Congress, who, as we near the end of the impeachment, have left not even a fig leaf to cover Trump's shame. The defense, in the hands of the famous criminal defense lawyer, Alan Dershowitz, has disposed of any need for a fig leaf of facts that would cover-up Trump's abuse of power. According to Dershowitz, if the president wants to be re-elected, he can deem that purpose as in the national interest and thereby manipulate public funds and seek foreign involvement in our elections as he desires. Well, if standing against this conclusion and the facts (no longer seriously in dispute) that support a finding for removal is "purely political," then sign me on.

sng
31 Jan. 2020

Wednesday, January 29, 2020

Running Against the Devil: : A Plot to Save America from Trump--and Democrats from Themselves by Rick Wilson



When, as in a John LeCarre novel, an agent from the KGB comes to the West and offers all the goods, one must pause. Members of the CIA or MI6 must ask: "How can we know that we can trust this guy, that what he's the real thing and not a plant for sowing misinformation? Are we being played? Perhaps he's a mole. Why should we trust someone who's done us in so many times in the past?" Democrats should be asking these questions of Rick Wilson, a Republican operative since the 1980s who's been slaying Democrat candidates for almost three decades. "Why should we trust him, the dirty, stinkkin' Republican?" 

Wilson realizes that he needs to prove his bona fides before anyone will heed his plea, and he has done so by publishing a previous book by the title Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever (2019 update) and by spending about the first 75 pages of the current book bad-mouthing (even foul-mouthing) Trump. His public recantation of Trump establishes his Never-Trumper credentials. He's proven--at least for the 2020 election--that he wants to see the Democrats vanquish Trump and his ilk. One may suspect that he won't retain this attitude if the Republican Party returns to a vision of center-right normalcy and fidelity to constitutional and democratic norms. But for now, Wilson and those steadfast few who've remained Never-Trumpers have earned their place in the fight against this nefarious foe of constitutional government, the rule of law, and democratic norms. 

Indeed, I became impatient with his recitation of Trump's almost innumerable sins: tell me something I don't know. It's like a KGB agent spending his de-briefing explaining how bad life is inside the Soviet Union. We already know that, let's get to giving us your playbook. When Wilson gets down to giving us his tradecraft and analysis, the message he provides isn't so secret. In some sense, it's already in the open but Democrats don't want to believe it. Here's an executive summary: 

1. The president is elected by the Electoral College and only the Electoral College. To say that Hillary Clinton or Al Gore won the popular vote is like commenting upon how big, bright, and shiny your runner-up trophy is. It means nothing. All power goes to the winner of the Electoral College. 

2. A corollary of the first point: the election will be won or lost in 15 states that could go either red or blue. The Democrat nominee must kiss California and New York and all the loyal blue states good-bye at the convention and tell them "I'll be back right after the election." After the nomination up to Election Day, the nominee will need to focus--even obsess--on 15 states. 
3. For the record, I list the states Wilson identifies as controlling the outcome of the 2020 election. I list them in their order of Electoral College magnitude. I include the 2016 winner and electoral votes:

  • Florida (T-29)
  • Pennsylvania (T-20)
  • Ohio (T-18)
  • Georgia (T-16)
  • Michigan (T-16)
  • North Carolina (T-15)
  • Virginia (C-13)
  • Arizona (T-11)
  • Minnesota (C-10)
  • Wisconsin (T-10)
  • Colorado (C-9)
  • Iowa (T-6)
  • Nevada (C-6)
  • Maine (C-4)
  • NewHamphsire (C-4)

Of these 15 states, Trump carried nine of them in 2016 for a total of 141 electoral votes. Clinton received only 46 electoral votes from the in-play states. Wow. For the Democrats to beat Trump in 2020, they will need to drastically change this list and hang-on to their other states. But as Wilson notes, most Democrats will crawl over broken glass to vote against Trump, so there's little reason to believe that solid blue states will defect. 

3. Democrats must focus on winning the Electoral College. (This mantra repeats throughout the book.)

4. This upcoming election will not be like Federer-Nadal tennis final with the contestants holding a deep respect for one another and the game of tennis while playing under carefully delineated rules governed by an umpire, line-judges, and infallible re-plays. Oh, no! It will be a  knife-fight with Butch Cassidy rules--it's the only way Trump fights; it's the only method by which he can win.  If the Democrat nominee doesn't come ready for a knife fight, he or she will be gutted before realizing what happened. 

5. Like all presidential elections involving an incumbent, the election will be a referendum on the incumbent. The election will have one issue: Donald Trump. The best thing that the Democrat can do is run against Donald Trump: his corruption, his ineptitude, his ignorance, his cruelty, his lying. Details about issues may play for some in the primaries, not in the general election. No voter reads the party platform and decides how to vote based upon it. Most voters are only marginally informed and are motivated by feelings like trust and fear. Trump feeds on fear, Fox News feeds on fear. The Democrats must neutralize the fear factor by promoting a candidate who disarms fear and instills trust. Wilson sums-up his point:  

This race has absolutely nothing to do with policy. This race is about Trump and a competing candidate’s personality and presentation, not about soon-forgotten policy papers and the administrivia of running a government. . . . Policy is a luxury good in this election because this race is against a man, not a party, a platform, or an ideology. Democrats are fighting a cult and a cult leader, until they realize that the referendum against Trump is about Trump, he has the winning hand.

6. Democrats gained control of the House by winning over suburbanites, women, and disaffected Republicans. The Democrat nominee can't afford to alienate these groups. Also, there are Obama-Trump voters out there who can be won back. Farmers, businesses, and wage-earners have all taken economic hits with Trump's trade shenanigans, the stock market and overall favorable economy news notwithstanding. These folks, too, can be won back. But the Democrats need to figure out one big problem. 

7. The Culture Wars. Democrats will have to set aside long-running habits, accentuated by some of late, toward ideological purity. The great temptation is to mirror the Republicans who have exiled (as all revolutionaries do) those who might challenge the most extreme ideological purity, who might taint the revolution by questioning the leadership or confusing the masses. Instead, the Democrats will need to find a way to defuse topics like abortion, immigration, guns, and other like emotional issues. What might this entail? Wilson makes some suggestions that don't seem unreasonable. Democrats must find a way to make anti-abortion, immigration, and "2nd Amendment" voters realize that Democrats won't take radical steps on these issues but will act in ways that are reasoned and sensible. (By the way, such positions of a moderate, reasoned nature will sell well with most folks who self-identify as Democrats.) Wilson suggests that Democrats will need to change some minds and that what sells in Berkeley, Boston, and Bronx-Queens won't sell so well in the heartland areas of the swing states. Dems are going to win in Berkeley, Boston, and Bronx-Queens (AOC's district) in any event. Wilson makes his point: 

What do you think sells in western Pennsylvania? Mike Rowe, or some stern-faced, super-woke, commissar telling a white working-class guy he’s got to give up eating meat, driving a truck, and hunting? You may want him to, but how well do you think that sells? The guy who used to make $37 an hour in a union auto-parts manufacturer doesn’t give a flip flying f#@k about climate change, genderless bathroom mandates, or paper straws. He does care about getting and keeping a real job that can support his family and--stop me if you’ve heard this one before – his guns and religion. 276

I could go on at length about various other perspectives and recommendations, but this sampling should provide a sense of Wilson's offering. He writes in blunt words that are at times rough and scatological. One non-scatological example: "Trump loves digital advertising. He loves it like a fat kid loves cake." Certainly a vivid image, but perhaps not the best register of discourse in a book about a very serious topic. He describes his recommendations as "tough love," and one has to take it for what it's worth. But I certainly believe that Democrats ignore him at their peril. 

And one final topic before signing off. Wilson doesn't say much about the Democrat field of candidates. He does describe Pete Buttigieg as " a man who is demonstrably smarter than most of the field," an assessment that I agree with. Of Elizebeth Warren, he writes: 

For being a clunky and terrible candidate in a number of areas . . . Warren has gotten closer to a winning message, broaching the ideas that government doing socialist-adjacent things doesn't have to be socialist itself. It's smart politics. My conservative eyebrows are raised. As an ad guy and message strategist, I think she's closing in on something that resonated with Trump base the first time around--that the little guy without an army of lobbyists in Washington, D.C. gets f@#%ed and everyone else gets rich. I hate to admit it, but she's not even wrong. 
 
This is a message window for the Democrats if they can just skip plying "The Internationale" at the convention. 

But Wilson expends the most ink about any candidate (other than Trump) on Bernie Sanders. Because I'm planning on writing a blog to come about the Sanders phenomenon (he's not just a candidate, he's a phenomenon), I'll keep it short. Here's a part of what Wilson writes about Sanders: 


In a year when Democrats had a stark, bright-line ideological contrast before them--sane, stable-to-a fault HRC vs Donald F@#$%^&* Trump--one group stood out in switching their party preferences radically: the Bernie bros. Somewhere between 10 and 15 percent of Sanders voters switched their preferences on Election Day to Trump. These aren't principled progs; they’re arsonists. 

Bernie is Trump re-election insurance.  

If he's the nominee, I say to my Democrat friends, get ready to lose forty-five states. 

Now the first thing to say about this quote is that the only gravity that binds Wilson and Sanders is the Dark Star, Donald Trump. In normal times they are light-years apart in their thinking about political economy and travel in entirely separate orbits. Thus, one can argue for all his tell-it-like-it-is-tough-love, Wilson's judgment is warped by his ideological animus toward Sanders. But because Wilson isn't the first, nor certainly the last, to raise these points, his words to give me pause. After all, what if he's correct? Well, that's a minefield to traverse in a later blog. 

Saturday, January 25, 2020

Judging Impeachment: A Third Oath and a Criterion for Judgment--or "What of the Shoe Was on the Other Foot?"

I'm been thinking about how we could set a standard to allow Senators to return an appropriate judgment at the conclusion of the current impeachment trial. To begin, let's start with the oath that each senator takes when beginning their term of office. (See Below)
At the beginning of the current trial, each senator took this oath as well.
(See below)


Now, perhaps before returning a decision, each senator should take another oath. However, the oath would not be the same for each senator. Each senator would take the following oath before announcing the senator's judgment:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."


So New York Senators Chuck Schumer and Kristin Gillibrand should take it as well as Senator Chuck Grassley and Senator Joni Ernst. All of them. And then the voters will determine if each one upheld the oath.
Of course, this isn't going to happen, but is it a bad idea? Moreover, isn't this the criteria--regardless of any oath--by which each of the 100 senators should be making her or his decision?
I welcome suggestions or rebuttals.

Tuesday, January 21, 2020

Bob Bauer Takes Down Dershowitz Impeachment Defense (Easy Pickings)

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. He wrote this piece for the Lawfare blog (an excellent source of legal analysis). It includes this concluding paragraph:
"In the coming Senate trial, McConnell and Dershowitz are helping each other set a very different precedent of their own, one in which, as a matter of norms (McConnell) or constitutional law (Dershowitz), there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office. And, under Dershowitz’s view, a president who is a murderer, a white supremacist, or a virulent misogynist, or who takes off for a year’s vacation in Rome, would also be free to serve out his or her term, or take into a reelection campaign the “vindication” supplied by a Senate acquittal."

George Conway Takes Down the Trump Impeachment Defense

Lincoln Project supporter & lawyer George Conway.

Heather Cox Richardson on the Eve of the Senate Trial: The Non-trial Trial

From @HeatherCoxRichardson:
“For his part, Senate Majority leader Mitch McConnell (R-KY) is doing everything he can to make sure the public sees as little of the proceedings as possible. As conservative pundit David Frum put it: “No witnesses… No evidence… No time… No cameras.” As of Sunday night there had been not even “the most basic negotiation or exchange of information,” according to Senate Minority Whip Dick Durbin (D-IL), and this evening, less than 24 hours before the trial is supposed to start, McConnell revealed a four-page resolution establishing trial rules.
The rules leave open the possibility of simply ending the case immediately, which is unlikely to happen. They limit the arguments from each side to 24 hours over the course of two days each. This would mean a deluge of information too much for most of us to take in, even if significant argument didn’t happen in the middle of the night… as of course it would. The rules give the Senate the option of refusing to hear new evidence or testimony, and on the chance that the Senate does vote for testimony, the rules are arranged to prevent former National Security Advisor John Bolton—or anyone else-- to testify in public.”
HEATHERCOXRICHARDSON.SUBSTACK.COM
After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

NYT & Professor Bowman Debunk Trump's Defense Brief

No lawyer sitting in the Senate should buy this baloney argument on Trump’s behalf. But if you don’t have the facts, argue the law—even if it’s a crap argument.
From the article:
“Mr. Bowman — whose scholarship on impeachment law is cited in a footnote in the Trump legal team brief — called the arguments in that brief “a well-crafted piece of sophistry that cherry-picks sources and ignores inconvenient history and precedent.” For example, he noted, it makes no mention of how the Hastings case involved allegations of abuses of power that were not indictable crimes.”

Former Iowa Senator Tom Harkin: 100 Judges, Not 100 Jurors

Tom Harkin link.
TWITTER.COM
“Tom Harkin: Senators are not jurors. A key point from the former Iowa senator. We have 100 “judges” not “jurors.” Are they (the senator-judges)corrupt? Time will tell & then the voters will judge & then History will have the final say. https://t.co/huZoVru6DW

Bob Bauer Takes Down Mitch McConnell's Argument re Impeachment

A thoughtful lawyer's brief that deconstructs McConnell's arguments against Trump's removal from office brink-by-brick. McConnell is the epitome of hypocrisy and double-talk, but he usually doesn't have to enter into an arena that includes knowledgeable folks who understand legal process and argument. Here he encounters such a response--and he loses, bigly.
N.B. This includes a rejection of the argument of "no crime, no foul" so often claimed by Trump's defenders.
LAWFAREBLOG.COM
In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.