Monday, June 4, 2018

Make Impeachment Normal

That's a remarkably open way of putting it: "I have a lawyer says it's unconstitutional what you're doing, but I'm a nice guy, I let you get away with it." With the implied corollary: "So why wouldn't you do the same for me? Fair is fair!" Nice!

It follows directly on Giuliani's remarks on the Sunday shows, to the effect that Trump's pardoning power is absolute and can't be questioned even if he pardons himself, and that he can't be indicted for anything, even murder, or even subpoenaed:

“In no case can he be subpoenaed or indicted,” Giuliani said, according to the HuffPost. “I don’t know how you can indict while he’s in office. No matter what it is.... If he shot James Comey, he’d be impeached the next day. “Impeach him, and then you can do whatever you want to do to him.”
I'm not sure he'd be impeached the next day. I think you'd have the GOP legislators on TV cautioning everybody that the evidence isn't in yet. Ryan: "I'm focusing on taking care of the American people." McConnell: "I've always felt this is a matter for the states." If he did the crime in DC, there wouldn't be a state AG who could indict him, either (Update: I'm wrong about that per commenter jimbo316). But I'm sure indictment by anybody including Judge Judy would be a safer bet than Speaker Ryan. I'm just not sure the indictment would make it through the Gorsuch court. (They'd probably rule the 14th Amendment protects the president from indictment because if he could be both indicted and impeached that would make him a second-class citizen. Equal protection under the laws!)

My view remains that Giuliani is basically going on the air to speak words of comfort to an #AudienceOfOne, an increasingly freaked-out Emperor, in the continuing effort to stabilize him, and we know his views on executive power are pretty expansive anyway (I got the full measure in September 2001 when he proposed to make himself emergency dictator of New York City by postponing the coming elections). But the fact is getting harder and harder to dispute: unless there's a majority opposing him in the House, the power of the president to do whatever the hell he feels like, if it doesn't take a congressional appropriation and often even if it does, seems to be limited only by the president's willingness to follow traditional custom, of which Trump doesn't have any.

He may let his lawyers and employees come up with some hack rationalization for his decision to ignore the law, as with the Old Post Office lease or the hiring of his daughter and son-in-law, or he may not even bother, as in his and Kushner's continuing flirtation with foreign governments over exchanging profits for the Trump and Kushner companies for White House policy concessions, but he has every reason to think there's nothing he can't in the end get away with.

With that melancholy thought corroborated by BooMan, I found myself strangely cheered by this passage for the Wikipedia article on High Crimes and Misdemeanors:
The constitutional convention adopted “high crimes and misdemeanors” with little discussion. Most of the framers knew the phrase well.[citation needed] Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery.[5] Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.[citation needed]
As can be found in[6] historical references of the period, the phrase in its original meaning is interpreted as "for whatever reason whatsoever". This phrase covers all or any crime that abuses office. Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious," and the Constitution should provide for the "regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused." James Madison said, "...impeachment... was indispensable" to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate." With a single executive, Madison argued, unlike a legislature whose collective nature provided security, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."[7]
Especially the bit from Dr. Franklin, who of course did not write any of the Federalist papers. You could impeach a president for "rendering himself obnoxious", and Franklin seems to have thought of it as something that could be done all the time, like assigning a grade.

Which made me think, why don't we impeach them all? Not convict unless there's a really good reason, just impeach? Or, more temperately, why doesn't Congress keep itself in a state of readiness to impeach, judges and presidents? I'd like to see a permanent nonpartisan professional agency like the CBO, call it the Congressional Separation of Powers Office, tasked with deciding whether a particular executive or judicial action was impeachable or not. They could respond to inquiries from members. And impeachment cases could be mounted all the time, though few of them might ever get out of committee. Then when popular sentiment was ripe, the case would be there, ready to hear.

They could even issue regular reports to the president, mixing admonition and praise: "You're not by any chance collecting telephone metadata from the entire population, are you? Drop us a line," and "Thanks for not invading Syria without asking us!" instead of abusing him with garbage about red lines.

Impeachment is regarded as an awesome and terrifying prospect, the place you'll never go, though it didn't stop Republicans from going there in the 1990s, with no real case at all (they'd never have gotten a pass from the CSPO), because nothing stops them. Why don't we make it more familiar, even cozy? Why don't we make that bastard feel threatened?

Here's to a Blue Wave and a move like that.

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