The Leader or the Law?

The impeachment question is coming down to this: Will Republicans honor the Constitution, or usher in a new era of authoritarian rule?

More and more each week, the Trump strategy for avoiding impeachment looks to be a pure power play. He is barely even pretending any more that he hasn’t committed (and isn’t continuing to commit) impeachable offenses. Meanwhile his lawyers are making absurd arguments in court, demanding (and sometimes getting) blind loyalty from Trump-appointed judges.

It’s coming down to this: Will Republicans uphold their oaths of office, or get in line behind the Leader and let the American experiment in democracy end? The key question isn’t “What is right?” or “Who is guilty?” any more. It’s “Whose side are you on?” If there are five pro-Trump votes on the Supreme Court and 34 pro-Trump votes in the Senate, he wins.

And that’s the only way he wins.

In court, Trump’s lawyers are arguing that he has “absolute immunity” from every conceivable kind of legal jeopardy: not just indictments, but also investigations and subpoenas, state and federal alike. Ten days ago, that argument got laughed out of federal appeals court by two judges; the third, a Trump appointee, chose the Leader over the law. [1] Trump’s only hope for victory in his attempts to obstruct congressional investigations is that the five Republican judges on the Supreme Court do the same.

I refuse to believe that Trump’s lawyers can’t come up with any more plausible arguments than this sweeping claim of executive supremacy. Rather, it seems to be their intention to put the question to judges as bluntly as possible: Regardless of the law, are you with us or against us?

It’s not complicated.

Whether subpoenas allow Congress to gather more evidence or not, the rough transcript of the Ukraine phone call is by itself compelling evidence of abuse of power: Trump is using his office to demand a partisan political favor from a foreign leader. The only question at this point is whether that abuse is sufficient to warrant impeachment. [2]

But if the phone call represents a quid pro quo — Ukraine won’t get the weapons it needs to defend itself against Russia unless it does Trump a political favor — then all doubt about impeachability is removed: It’s bribery, which the Constitution specifically calls out as an impeachable offense. So “no quid pro quo” — implausible as that is, given the transcript — has been the mantra of Trump defenders.

But Thursday, acting Chief of Staff Mike Mulvaney openly admitted the quid pro quo. (In Mulvaney’s dual role as the head of OMB, he was responsible for holding up the Ukraine aid package.)

Did [the President] also mention to me the corruption related to the DNC server? Absolutely. No question about it. But that’s it. That’s why we held up the money … I have news for everybody: Get over it. There’s going to be political influence in foreign policy.

Reporters offered several follow-up questions to make sure that Mulvaney had really said what he said — some used the phrase “quid pro quo” in their questions — and he stuck by his claim. Only hours later, after he saw the firestorm his comments evoked, did he try to walk it back, blaming the media for “misconstruing” his confession, and basically telling the world that we hadn’t seen and heard what we saw and heard (and can watch again if we have any doubts).

Meanwhile, the Trump campaign has embraced the claim Mulvaney disavowed. They’re selling a “Get Over It” t-shirt. That kind of Orwellian doublethink has become typical of Trump’s defenders: We didn’t say it, and we’re proud that we did say it.

At the same press conference, Mulvaney announced a blatant violation of the Emoluments Clause of the Constitution: Trump would host the next G-7 meeting at his privately owned resort. That decision got reversed Saturday, after another firestorm, but without any admission that the proposal was criminal. The problem, in Trump’s view, is that people objected to his attempt to enrich himself. [3] If no one objects to his next acts of corruption, he’ll go through with them.

It’s becoming clear that the House will eventually vote articles of impeachment, one of which will be about Ukraine. (Possible others concern the multiple examples of obstruction of justice outlined in the Mueller Report, obstruction of the impeachment inquiry itself, and abundant additional examples of illegal emoluments.) Then the Republicans in the Senate will face a choice: Admit the now obvious fact that Trump has committed impeachable offenses, or choose the Leader over the law.

[1] The Slate article in the link lays out the scope of Judge Rao’s opinion:

there is another, even more disturbing aspect of Rao’s dissent. She wrote, ominously, that “it is unnecessary here to determine the scope of impeachable offenses.” Unnecessary here? It isn’t just unnecessary—it’s impermissible, because the federal judiciary has no constitutional authority to determine “the scope of impeachable offenses.” The Supreme Court has ruled that the Constitution assigns the power of impeachment to the House exclusively, denying the judiciary the ability to meddle in impeachment proceedings. Rao seemed to reject that precedent, instead suggesting that courts can “determine the scope of impeachable offenses” and, by extension, quash an impeachment on the grounds that the charges are not “high crimes and misdemeanors.”

[2] I argue that it is, using standards that I laid out long before the Ukraine affair, because the Ukraine call represents Trump’s attempt to cheat in the 2020 election. When the President’s corruption starts to affect the integrity of the next election, it is extremely cynical to argue that the voters rather than the Senate should remove him.

[3] Trump’s two defenses — that his Doral Resort is the best possible place to hold the G-7, and that he will host the event “at cost” and make no profit — are both absurd.

South Florida in June is a terrible place to be, which is why the Doral has such low occupancy rates then. (I know from personal experience, having attended a conference in Fort Lauderdale one June.) Plus, the Doral bears no resemblance to the kinds of places (typically remote, peaceful, and easily secured) where these events are usually held. It beggars the imagination to think that no place in, say, Hawaii or Maine would be better. For that matter, why not go back to the historic New Hampshire hotel where the Bretton Woods Conference was held in 1944?

And Stephanie Ruhle outlines the tricks Trump could use to funnel government money into his resort without reporting a profit.

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  • greenpete58  On October 21, 2019 at 10:34 am

    “We didn’t say it, and we’re proud that we did say it.”

    Yeah, that about sums it up. At one time in this country (45 years ago?), either the lies or the arrogance and hubris would spell doom. Not anymore, sadly.

  • Barb  On October 21, 2019 at 11:24 am

    Trump’s lawyers REALLY CANNOT come up with a reasonable argument to support any of his recent actions. Seriously. If they could, they would, but they can’t because there IS NO reasonable, legally supportable with precedent, argument that justifies anything that the president has done. So please do not think that the lawyers are just choosing to take the position that the president is above the law, there is no other position.

  • painedumonde  On October 21, 2019 at 12:17 pm

    As the days pass, walking on Fifth Avenue becomes suicidal on days which the prez* is in town.

  • Frank Ackerman  On October 23, 2019 at 12:55 pm

    Are we finally beginning to wake up? There is a very real danger that American democracy is on its last legs. All of us need to focus sharply on what we can do that might rescue her. A few sporadic suggestions are made here on The Weekly Sift, but where is a comprehensive plan that really addresses the underlying causes and the current crisis of Trump’s dictatorship-in-the-making?

    • Anonymous  On October 26, 2019 at 5:27 pm

      I think that there are three parts:
      — Impeachment and removal
      — Clean house in upcoming elections
      — Address the deeper issues
      For “focus sharply on what we can do that might rescue her,” you, and anyone else concerned about this, need to figure out the best place to put your efforts.

      — Impeachment and removal
      At this point, it’s pretty clear that the House will pass Articles of Impeachment. The tricky part is removal. Republican Senators will need to vote in favor of removal, and many of them come from very red states where Trump is still popular. One place to influence the outcome is getting red state support for removal.

      — Clean house in upcoming elections
      All upcoming elections, from Federal on down. One place to influence the outcome is getting involved in a political campaign, or voter registration.

      — Address the deeper issues
      I think that one linchpin issue is fixing the way that we fund political campaigns. It gets in the way of addressing so many other issues: climate change, opioids, the justice system, healthcare, etc.

      I also think that the weird way that we fund political campaigns is part of the reason that Trump got elected. People know that big donors to political campaigns get the ear of the candidate. Things get done that help the big donors, but don’t help the rest of the people. If politicians didn’t need big donors, they could be more responsive to the rest of the people. In that kind of environment, a rich guy funding his own campaign would have been a negative, not a positive.

      Other readers, please provide other ideas for “what we can do that might rescue her.”

  • Paul  On October 30, 2019 at 2:23 pm

    What can we do to rescue democracy?
    1) First, vote for every democrat for every office in 2020, 2022, and until the republican party or some other party rebirths itself as non-fascist at the core. Until that time, fascism has to be defeated.
    1a) Help other people vote. Convince them to only vote democrats.

    2) If democrats regain power, push on them to address some of the holes in our democracy that Trump has truly exposed. If no one should be above the law, political appointees cannot be entrusted to carry out enforcement on the people who appointed them. Secure voting systems that are not connected to the internet. Regulations on lying in political advertisements. Etc.

    3) Money. Get it out of politics.


  • By Do What’s Right | The Weekly Sift on October 21, 2019 at 11:17 am

    […] This week’s featured posts are “A Liberal View of Intervention” and “The Leader or the Law?“. […]

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