Monthly Archives: February 2020

A Republic, If You Can Keep It

There was no chance that Senate Republicans were going to acquit Trump, but they definitely did their level best to come off as dictator-state-running goons in the process. The worst part about at least one of their justifications is that it isn’t a bad argument. Marco Rubio had a compelling point when he said “Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office.” That’s actually a solid point. It’s a rebuke, an admission that the conduct was not above-board, but a plausible deferral to an appeal to stability. I disagree wholeheartedly, but I appreciate the merits of the argument, because they accept the basic facts of the case and reduce it to a point of opinion.

Unfortunately, with the exception of Rubio, they went hard into the defense that If The President Does It, It’s Not Illegal. Literally – Alan Dershowitz’s core argument wasn’t that Trump was not guilty of the thing that he was charged with, but that such a thing is not thing that a President can be impeached for. He literally argued that “maladministration” was something that the framers rejected, something that they thought was in the normal course of things. The President cannot abuse his power. Not only is this argument wrong, it’s dangerous.

Once the vote is done and Trump is acquitted 53-47 (or maybe, if Mitt Romney does the right thing when it doesn’t matter, 52-48), it will be a matter of record that It’s OK To Enlist The Aid Of A Foreign Power To Help Sway An Election, Because The Senate Said So.

James Madison, speaking in favor of writing impeachment of the President into the Constitution, argued that “some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” It should be noted that Madison was debating people who were arguing against the entire concept of impeachment. It would be logical to assume that Madison won that point. Yet, 233 years later when that exact thing happened, the winning argument was “the framers absolutely meant the exact opposite of what they said and wrote.”

(Of course, in the next breath from my previous Madison quote, he said “It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust.” So maybe a bit naïve there, Jimmy, considering the Republicans hold a majority and were proud of the manner in which they betrayed their trust.)

Therein lies the crux of the issue. There was a way for all parties to conduct this in a manner that would not prove to be absolutely destructive to the Constitution yet still end with Trump acquitted, but Republicans chose the path of obliteration. This isn’t a slippery slope sort of argument, this is the reality. The argument of record about checking an out-of-control executive is that there is no Constitutional remedy. That elections are the only way to remove a President.

George Mason argued against this point when he added the words “high crimes and misdemeanors:” “Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?” Dershowitz has successfully argued that the answer here is “yes.” “Sure, if the President wins an election by engaging in corrupt manipulation, the only way to remove that President is through an election, which they would be free to corruptly manipulate.”

The framers, at least the ones who had their ideas persist into the document itself, were very clear: elections are not the only recourse to a corrupt and dangerous administration. There is a built-in ejection seat, specifically for the purpose of removing a President who is abusing his power. Article II was not intended to be a suicide pact.

Marry this argument with unlimited money in politics thanks to Citizens United, and the Supreme Court affirming partisan gerrymandering as a thing that the framers (who wrote the document devoid of references to political parties), and you have a perfect recipe for a single-party dictator state. Once one part of the Constitution has been altered to remove parts that were inconvenient, there is nothing to stop other parts from going the same way.

We have witnessed a clear violation of multiple parts of our founding document, and the response was a collective shrug. The facts are not even in dispute: Trump did the thing. He admitted to doing the thing. His legal team says he did the thing. The thing is wrong. The thing is against the rules. The referees have viewed this evidence and decided that since it’s their guy, that means it’s OK, the rules don’t apply, and therefore, the Constitution is now a meaningless piece of paper, to be discarded when it is inconvenient. Article II has effectively been rewritten L’etat, c’est moi. Which part goes next?