The Impeachment Question

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June 9, 2019

As I write, the elected leaders of the free world have come together to commemorate a great battle that was the pinnacle of the four-year-long struggle to free Western civilization from a threat to its very existence. What was at stake was stark and clear. Nazism, for all its goose-stepping discipline and pomp, was barbarism. It was a regime that glorified hate and violence and despised tolerance; it intended to destroy a civilization based on humanistic ideals and political liberty.

One leader in attendance at the ceremonies, however, Donald Trump, stood out as not belonging. His presence was an affront to those Americans, Canadians, and English who died on the beaches of Normandy. Trump came to Europe, this June 2019, having an openly declared intent of undermining both the North Atlantic Treaty and the European Union, the alliance designed not just to facilitate trade but to put an end to the nationalistic wars that had plagued Europe, and to create a union of nations and cultures that had a spiritual purpose of favoring universal human values over raw nationalistic ambitions.

Trump in Europe this June displayed not just bad manners. He openly goaded the nativist Brexit party into further excesses, interfered in British politics, and told the Irish that they will be happy with a border wall like the one he is building on America’s southern border. When the Irish Prime Minister explained that the Irish don’t want a wall, Trump deflected. In such moments Trump appears to be, in the words of constitutional scholar Lawrence Tribe, “a high-functioning moron.” But clearly, he is both more and less than that, more dangerous and destructive, and less in that his ignorance and selfishness is not entitled to the excuses we would permit someone with real handicaps.

Trump’s disabilities are of another sort. They are moral and even, though I am cautious about such words, spiritual. Trump has no concept of what D-Day is about, no shred of patriotism, no respect for real courage, no values that are universally worth defending. The result, for the United States, is that the sort of existential struggle that the Normandy invasion has come to symbolize is still with us. The fight is not over.   

The battleground has shifted to the United States, where the Democrats are anguishing over the question of whether or not to bring impeachment proceedings against the President. This struggle is part of a larger one that has been on-going ever since Abraham Lincoln acknowledged the spiritual divisions, the clash of differing ambitions and values, in American society. He, that greatest of America’s leaders, expressed his hope (in the 2nd Inaugural)  that “the better angels of our nature” would prevail. The Democrats in the House are trying.

What to do about Donald Trump and what he and the Republican Party are doing to the American Republic is as critical as D-Day was to the future of liberal civilization. America’s survival as a democracy, as a society ruled by laws, guided by common decency,  and characterized by humane values, is at stake. Tyranny or democracy. It is nothing less than that.

One must, in any great conflict, be both tactical and strategic. About impeachment, there are those passionately in favor of it because it is morally the right thing to do, a necessary thing if one is to protect and honor the Constitution. There are those, including Speaker Pelosi, who council against impeachment for practical political reasons. I find both positions persuasive. But one can’t do both. Where do we go from here? To answer the question we need to be clear about where we want to end up.

Alexis de Tocqueville, writing in Democracy in America, c. 1835, discussed the dilemma the Founders attempted to solve with the impeachment clause: what to do if a duly-elected president turned out to be corrupt or whose behavior after taking office became a threat to the safety of the people and the nation. De Tocqueville saw the problem, but he worried that the impeachment power would be misused for partisan purposes, to stage a coup under the cover of constitutional legitimacy. It could be used, he feared, to criminalize a president because a partisan majority disagreed with his policies or merely out of political pique.

The Clinton impeachment provides a useful window into the issue. Orthodox conservative Republicans thought Clinton was a “redistributionist,” tantamount to being a Communist, and even worse, he was popular. What he did, the root of the weed that became the impeachment, was sexual misconduct, things he did, as he said later, “because  I could.” His behavior was immature, irresponsible, and, indeed, reprehensible for someone in the office he held, but seducing an intern and betraying one’s wife are not crimes.

Special Council Ken Star managed to get Clinton to tell a falsehood (he didn’t really lie, he fudged; oral sex is not sex, etc) under oath. The creepy salaciousness of the Starr investigation recalls the Salem Witch Trials, “where did the Devil touch you?” sort of question. Starr managed to get Clinton to tell his lie under oath and that became the crime that the Republicans argued justified removing him from office; the same lie that the Republicans who led the impeachment effort, Gingrich, Hyde, and Livingston—exposed as adulterers all—would no doubt have told their spouses. The Clinton impeachment was exactly the sort that de Tocqueville worried about.

The present case, the Trump presidency, is very different, both in the nature of acts involved and in the seriousness of the acts and the consequences. Clinton presented no threat to the Constitution, to the established rules and norms of government, offered no challenge to the rule of law,  and presented no danger to national security or to the functioning of the democracy. The Trump case involves all of those issues, the President’s oath to protect the Constitution, the rule of law, and national security.

The root of the present impeachment issue is the interference in the 2016 election by an unfriendly foreign power, a long-time adversary, Russia. In 2016, Putin’s military launched a propaganda attack on the United States, an attack in both its intent and its effects as serious, in my view, as Pearl Harbor. The Russian effort sought to demoralize and mislead whole classes of American voters, to destabilize the democracy, and to favor a candidate known to be favorably inclined toward Russia, Donald Trump.

Knowledge of this activity, through investigations by all the American intelligence services, led to the appointment of a Special Council, Robert Mueller, whose mandate was first to find out what had been done, and second to determine if the Trump campaign had collaborated with the Russians. There were plenty of reasons to suspect that this might be the case. They are well known so need not be rehearsed here. Mueller, in his extreme rectitude, says he found no indictable evidence of collusion. The key word is indictable. But a conspiracy to defraud the United States by interfering with an election had occurred and named Russians were indicted. And Mueller warned of more of this to come.

But Trump wanted no investigation of a Russian role in the election. His reasons could range from wanting nothing to suggest that his presidency was illegitimate to hiding deep financial entanglement with Russians, loans or money laundering. Whatever his reason, he tried repeatedly to shut down or hamstring the investigation. Obstruction of justice is a crime, one well defined in law. Trump’s behavior fits the definition. Mueller’s report does not, in fact, clear the president of obstruction, but Mueller’s deference to Justice Department policy concerning sitting presidents kept him from saying so directly.

Mueller has passed the buck to the House of Representatives. I don’t think he could do otherwise. The first article of Impeachment would be Obstruction of Justice. The other impeachable crime, in fact, the more serious one in my view, would be Trump’s refusal to obey legal requests for documents and to honor subpoenas. Trump is claiming that he and his supporters are above the law.   That is the issue; Trump claims that neither he nor his officers are subject to the constitution and the rule of law.

Where does that leave us? Impeachment in the Democratic-controlled House is a certainty. But impeachment is only half the process. It is the political equivalent of a criminal indictment, and in the Constitutional system, the indictment/impeachment is then referred to the Senate which acts as jury. The Senate with a Republican majority that is solidly under McConnell’s control and terrified of crossing Trump is not going to convict. The purpose of impeachment is to remove a man from office who presents a danger to the country. But given the present makeup of the Senate and the values of the Republican Party,  impeachment will not get that result.

We are at a stalemate. If the choice is made to impeach we will have probably done our cause more harm than good. Trump, acquitted in the Senate, will crow that he has been exonerated, that Democrats are traitors engaged in a partisan witch hunt, and should be locked up for harassing a very great president. A joke. No, he plays that role well and his base is energized. Impeaching Trump seems urgent. But the reason is not just obstruction or refusal to obey a subpoena. There is much more.

But, alas, these are acts that may not be codified in criminal statute. His lawyers have shown themselves to be adept in deflecting his less serious corrupt practices like profiting through his properties by the expenditures of money by lobbyists and foreign businessmen or spending taxpayer money to take his adult children on junkets. His character, his bullying, and infantile tantrums, his name-calling and insults, is not subject to sanction by law. Nor is his degradation of the American social fabric, or America’s reputation in the world, or the example he sets for American children.

Some of his actions are beyond egregious: his gratuitous cruelty as in separating mothers and children and then losing the children comes first to mind. The worst of Trump’s offenses are even more serious than those and, indeed, are acts that threaten America at the deepest societal and political level. He is turning the Justice Department and the highest courts, into his judges, his Attorney General. He is deliberately degrading Americans’ trust in the FBI and the Intelligence services, the very institutions that are the bulwark against his abuses and the interference in an election by a foreign power.

He and his supporters claim that law enforcement and the Intelligence services are part of a “deep state” conspiracy against him. By refusing to obey the law, as in refusing to release his tax returns to the House of Representatives upon clear legal authority, he is degrading the idea that the law matters. Smart tough guys like him don’t pay taxes and don’t obey the law; this is the moral example he sets. Each level of Trump’s corruption is more heinous than the last and does more damage to the Republic.

Perhaps most important of all, he has set out systematically to destroy the notion that a free and independent press is an essential aspect of a free society. For “press” he would substitute a blatant propaganda megaphone like one finds in Russia or China, the news from a single source. His is already in place: Fox News. Any reporting that was negative about him or his administration would be Fake News; he is on record for wanting to make the libel laws apply to what the press writes.

The attack on the media is what I consider to be Trump’s most dangerous and destructive action. He has normalized lying to such a degree that the idea of there being truth and facts has practically disappeared. As his wingman, Kellyanne Conway, said when confronted with evidence of the relatively small crowd at Trumps’ inauguration, “we have an alternative set of facts.”

Lies and deliberate disinformation have created a noxious cocoon around Trump and around the core of his followers. This fabric of lies, spun from the mouth of Trump, Hannity, Huckabee Sanders, is usually so absurd, so self-contradictory, so obviously false, that I would have expected it to be laughed away by most Americans. That did not happen. Reality and the idea of truth have been smothered. The alternative reality, New York Times columnist Gregg Sargent wrote, “…doesn’t have to be proved as the true one; just established as the dominant one.”

We have come to the place Orwell warned us about in 1984. Sargent goes on to say that “Trump’s autocratic reshaping of reality on multiple fronts depends on the delegitimization of other institutional authority.” The institution being most directly attacked by Trump’s words and actions, is the Constitution itself, that which he swore in this oath of office to defend. This should be the first article of impeachment. But no law has been broken. He breaks, rather, the bonds that have held the Republic together for 250 years.

The United States is at risk of becoming a democracy in name only.  Putin, Orban in Hungary, Erdogan in Turkey, Mugabe in Zimbawe, Sisi in Egypt have all staged elaborate fake elections. What we become if Trump is allowed to continue will be an oligarchy, a kleptocracy, an autocracy, or some mix of those, but certainly a lost cause.

Trump must be defeated and removed from office. Impeachment will not do it. Impeachment, it is true, would be an emotionally satisfying experience for Democrats and for any who truly value what America stands for. It would be a righteous moral act, but it would also be an indulgence.

There is only one goal that matters: preventing Trump from being re-elected. This will require a strategic view. I believe this means denying Trump the satisfaction of being exonerated in the Senate, where, as we have seen over the past two years, the jury is rigged. Trump must go into the 2020 election contest with all these charges, all these issues, still to be ruled on. The people will be the judge. The higher moral objective means forgoing impeachment.    

The United States was built by men and women with wisdom and courage. The European Union was as well. Sacrifice was the mortar that has held those structures together. Donald Trump has neither wisdom or courage and knows nothing of sacrifice. He knows nothing about building anything of real worth. He must be sent back to his vanity projects, tall buildings with his name on them.

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