Impeaching Trump Will not End the Pandemic

 No question that Trump’s January 6, speech as well as other lies instigated  the storming of theCapitol.  No question this was wrong.  No question that were he still in office he would have deserved to be impeached and convicted.   No question that trying after he has left office is constitutional. Nonetheless, the Democrats should not have impeached him.

Had a private person done what Donald Trump did on January 6, he would be criminally liable for inciting a riot or advocating destruction of government property.  This was not protected free speech.  Under the Supreme Court’s Brandenburg v. Ohio test for what is protected speech, language which advocates imminent lawlessness is not guaranteed by the First Amendment.  But even if it were protected free speech, Donald Trump at the time was no ordinary citizen–he was the president of the United States, and a higher code of conduct governs his behavior.  His duties under Article II of the Constitution to “take care that the laws be faithfully executed,” or his oath of office  charging him to “preserve, protect, and defend the Constitution” make what he did wrong.

Impeachment would be the remedy were he still in office.  One can be impeached for “treason, bribery, or high crimes and misdemeanors.”  Treason is defined as waging war against the United States.  Declaring elections to be stolen when they were not and advocating the use of violence to overturn them certainly sounds like treason.  But if not, they certainly constitute a high crime and misdemeanor, which the constitutional framers understood to mean non or malfeasance or simply the inability to perform one’s expected duties.  All that fits Donald Trump.

Were he still if office impeachment and conviction would be warranted.  Constitutional framers such as Benjamin Franklin talked at the constitutional convention of the need of impeachment  to check presidents while in office since it would be unlikely or hard to   criminally indict them.  The remedy here would be removal from office.  But what to do with an ex-president–can he still be impeached and convicted?  Constitutional text does not explicitly preclude it, historical precedent from 1876 when the Senate tried a cabinet official after he resigned, and Supreme Court  decisions saying that matters of impeachment and trial are the sole prerogative of Congress all suggest it is allowed, or at least it will not be prevented if challenged in court.  Thus, Rand Paul’s resolution declaring the trial unconstitutional is practically meaningless given Democratic control of the Senate.

But while all the above is true, political reality makes this coming trial a farce.  The Democrats will not get a conviction.  In their defense, Democrats will argue what the president did was bad and that he needs to be punished.  That even if not convicted he goes down as the only president twice impeached.    Perhaps also implicitly Democrats are doing this to put pressure on Republicans, to split the party, to appease their angry base that hate Trump, or perhaps to gain 2022 political advantage.  Yet none of this justifies impeachment and trial.

Trump has disappeared from the horizon since January 20.  A trial gives him a forum again.  An acquittal gives him vindication.   A trial splits moderate Republicans from the rest of the party, doing little to moderate in control of the Trump faction.  Democrats get no more satisfaction out of this than the person in anger who kicks and breaks something and for a second feels good until realizing the more lasting damage done.

Democrats would have been better censuring the president.  This is not a better option because perhaps some Republicans might have joined in.  But because it would have denied Trump a chance to respond or vindicate himself.  This censure, his election loss, and the events of January 6, as well as his entire presidency would have served a greater lesson in history to and for him and others than a failed conviction will yield.

But also, the problem here is that the trial is a sideshow or distraction.  It will give Democrats a justification for their failure to enact meaningful policy.  We need to address a health care crisis.  There are enormous racial problems in America.  The gap between the rich and poor is at record levels.  Climate change is an existential threat.  Mainstream Democrats have no viable path to address these issues (not that the Republicans do either).  But impeachment and a failed trial says getting Trump is more important than these issues.  It provides cover for Democrats when they say they wanted to do something but the Republicans blocked it.  It allows them to say that  the neo-liberal policies they have pushed since Bill Clinton and which will be what they are advocating now are the best they can do given the Republican opposition in Congress and nationally.

A failed Senate trial does not save any lives from hunger, prevent another George Floyd, or distribute vaccines to save lives. The best way to get even with Trump would be with good and effective public policy not only to reverse his legacy but carve a new path for the Democrats that would achieve meaningful change.  The coming Senate trial simply is a diversion–bread and circuses for the masses–and not a substitute for meaningful legislative and policy change.

Stop the Zoom Testing! A Plea to the New Luddites

Nearly a year into the pandemic we are all exhausted by the new routines of isolation and distance

working, shopping, and education.  For me the most trying part of the new world of distance everything is the inherent fear of Zoom or other similar technologies and the obsessive need of people, even now, to do repeated testing before a presentation for fear that it will fail.

Many individuals are Luddites at heart.  Luddites were a nineteenth century English radical group which destroyed machinery just at a time when the industrial revolution was beginning.  They feared, and not irrationally, that new machines and technology would render them redundant as workers.   Today’s Ludditism is partly about this,   But it is also inspired by a fear of new technologies and that they could break down, not work, or simply fail at the most critical time when we need and depend on them.  At work or school the fear is that if something does not work it will reflect badly on us, especially when it comes to a talk or presentation, both of which already generate high anxieties. 

But Ludditism does not have to be about high or advanced technology. Years ago a friend worked for someone who then did not trust overhead projectors.  The fear was that at a critical point they would not work when needed because perhaps the bulb in it would burn out.  As a result, the person would come early to a meeting, turn the projector on and off several times, thereby enhancing the chances the bulb would burnout and it generally did.  He then brought extra bulbs to his presentations, but his persistent testing before talks, resulting in bulb failures, only reinforced his lack of faith in overhead projectors, his need to test, ad infinitum.

In the last year between teaching, interviews, and talks, I have used Zoom, WebX, Microsoft Teams, or something similar  well more than 1,000 times.  I'm comfortable with it but not all are.  For so many talks I am asked to schedule a pre-presentation test to make sure that the lighting, sound, display, and  connectivity are perfect.  They request to make sure that where I am sitting is good, that I know how to use chat, display slides, or to plan for a host of other issues.  In reality, almost all the tests are a waste of time.

Testing my connectivity on a Tuesday will not guarantee that I have connectivity on Wednesday.  The light and contrast for a test at 9:00 AM for a presentation at 3:00 PM will be very different.  Where I am sitting at 10 AM to ensure proper headroom or balancing does not mean it will be the same two days later unless I am told neither to move nor breathe in the interim. Pets and children not around during a test might magically appear in the real presentation, and unless I am using the same computer and software as everyone else, Powerpoints might look or operate differently to different people.  Finally, as much we may insist on it in tests, in the live performance someone will forget to mute or unmute, turn on or off the video, or drift off and not pay attention or simply forget how to do something that you did not account for.  

I am simply exhausted by these tests!  A simple talk or presentation doubles in time as everyone seeks to micromanage or anticipate everything that can go wrong.   I have had people fearful for no reason that I would not show up, send me numerous reminders, or freak out if I am not on-line and ready for the talk and one more pretest 30 minutes or an hour before the real performance.  Yes, being prepared and practicing is good, but all this is overkill.  It’s time to stop.

I think I speak for many who are burnt out by all this.  This new Ludditism feeds upon other fears and anxieties and it does nothing more than reinforce them every time something goes awry not experienced during the test.  It’s time after 11 months to accept the fact that stuff happens, that we cannot control everything, and that it most cases now all this testing is simply a waste of everyone’s time.

The Use and Abuse of Polls as Predictive Tools

The 2020 presidential election is finally over. Among the enduring stories of the election

cycle was that the pollsters again got it wrong.  Specifically, in the closing week or so of the election Real Clear Politics documented polls from the Economist, Quinnipiac, NBC/Wall Street Journal, Survey USA, CNN, and Fox which predicted the national popular vote to have Joe Biden winning over Donald Trump by 10, 11, 10, 8, 12 and 8 points respectively.  In reality, Biden’s final national popular vote lead over Trump was 4.4%.  These errors are on top of claims that in 2016 pollsters and prediction machines such as FiveThirtyEight were wrong in not seeing that Trump would win.  Up to Election Day, FiveThirtyEight gave  Clinton a 72% chance of winning.

There may be a crisis in polling, but much of it has to do with a failure to understand survey research,  the  employment of bad polls, and the misuse and interpretation of them.

Remember first that polls or surveys are not meant to be predictive tools.  They are snapshots in time regarding what a statistical sample of people think about an issue.  This is one of the most fundamental errors that analysts, the media, and the predictive machines make.  When a survey is done it is predicated upon the answers individuals give  at the time they are surveyed.    They do not tell us what they are going to think in two weeks, they do not tell us what  people who are undecided are going to believe, and they do not tell us how many  individuals are actually included in the entire population of those who hold similar opinions or may actually vote.  All of these matters are predictive issues which polls cannot do.

Many in the media also simply do not understand statistics.  When a poll says that it  has a confidence level of .05 or 95% that does not mean it is 95% certain that this poll is an accurate prediction of what the final results will be on election day.  Many seem to think that.  The  confidence level refers to the fact that a pollster believes that a poll has a 95% chance of being an accurate random sample of the population being surveyed at that time.  Again, this is not a prediction for the future, but a statement about the current poll, and it also recognizes that there is a 5% or one-in-twenty chance the poll does not accurately represent the population it wants to survey.  This suggests that even a good pollster can get it.  Thus, some polls are not valid when done, and many are consistently not reliable over time and should simply be discounted or ignored.

Polls also vary in terms of what is called their margin of error.  The margin of error reflects  the size and composition of the sample done.  Surveys might report margins of error of plus or minus two, three, four, or more points.  The smaller the margin of error generally the better.  A poll saying Biden is leading Trump by seven percentage points, plus or minus a margin or error of three points, means the lead could be four or 10 points.  In tight elections, especially at the state level where presidents are selected due to the electoral college, leads of one or two point points with margins of error of three points are still technically correct even if the predicted winner loses.

Traditionally surveys used confidence intervals to assess these margins or error but increasingly some are using what are called Bayesian Credibility Levels.   They are not the same thing. 

Credibility Levels are used in  non-random samples  and  assess the probability that a sample reflects a  pollster’s predetermined  sample composition.  The use of non-random samples and Bayesian Credibility Levels opens up new sources of bias and inaccuracy in polls.  This might include mis-estimating some voters, such as non-college-educated males whose turnout was greater than these surveys assumed in the last two presidential election cycles. Phrased another way, confidence levels assess the probability that a sample is representative of  the real population. Credibility level assesses the probability the survey sample matches a  pollster’s predetermined belief of what it should look like. The American Association for Public Opinion Research has cautioned against this increasingly popular survey methodology, perhaps for good reasons.

Remember also that national polls for presidential elections are effectively meaningless.  We do not elect presidents with a national popular vote but with the electoral college that  makes it 50 separate state contests.  In the critical swing states of 2020 such as Georgia, Michigan, Pennsylvania, and Wisconsin, polls there predicted close races and once all the votes came in—not just those on election day and reported that night—polls in those states were accurate and the final results came within the accepted  margin of error.   Everyone seems to have forgotten this.

There are also other problems with polls that predict voting.  One needs to think about the questions asked, assumptions about who will show  up to vote, how many are undecided and when and if they will make up their mind.  Finally, yes in a world where no one picks up their  phone anymore it is hard to do samples, but if one is willing to spend the time and money and increase sample sizes, one can still get accurate polls.   The issue is willingness to commit the effort to doing it right.

Given the above and recognizing that polls are not predictive tools, we can see the fundamental flaws with tools such as FiveThirtyEight.  They take a collection of all polls—good and bad—average them, and then makes a statistical prediction of what is likely to happen in an election.  Phrased otherwise, they take instruments not meant for prediction and which already have statistical assumptions in them which might not be accurate, and then use them to make statistical predictions for a future event.  All this is highly questionable.  Then analysts still ignore the fact that a prediction machine that says it is 70% likely something will happen means, even by its own estimate, a 30% chance of being wrong.  Error compounds error, statistical assumptions multiple upon themselves, and a failure to understand statistics yields the belief that the polls simply have it wrong.

Polling is an exercise based on probability and chance.  It is not a perfect predictive tool that can foresee the future in a clairvoyant way. If  viewed in this light we find the crisis in polling and predictive machines is less about traditional polling and more about their misuse and abuse.

Punishing Donald Trump: What Happens Next

  The constitutional framers were right to be concerned about checking presidential power and devised several mechanisms to do that.  Donald Trump needs to  pay a price for inciting an insurrection at the US Capitol.  But what and how?  Vice-President Mike Pence has declared that he will not invoke the Twenty-Fifth Amendment to remove the president. As a result, on January 13, 2021–merely seven days before his term expires–the US House of Representatives has impeached Donald Trump for the second time, with a trial likely after he leaves office. 

Former Judge Michael Luttig and Yale Law Professor Bruce Ackerman make mistakes in contending that a Senate trial on impeachment charges cannot occur after the president leaves office and  that Section 3 of the Fourteenth Amendment allows for presidential disbarment from future office by a majority vote.  They also fail in declaring the obvious–a criminal indictment and  conviction after Trump leaves office could still occur.

Both Luttig and Ackerman contend that impeachment can only occur while the president is in office because the language of Article II, Section Four of the Constitution refers to conviction and removal from office.  Nothing in the plain language of the text declares impeachment and a trial must take place while a person is in office; the language merely states that removal from office comes with conviction.  Moreover, even if we think the Constitution ought to be interpreted in light of the intent of the framers, nothing in the Convention debates, as reported by James Madison or Max Farrand’s notes on it, suggests the Framers intended impeachment to be limited to while a person was still in office.

Yes, the Framers, including Benjamin Franklin,  said the impeachment process was tied to removal from office as was the British tradition, yet there is no clear indication that their intent precluded impeachment and conviction after leaving office.  Moreover,  given that the Framers were concerned with checking the excesses of executive power as a result of their experiences with King George when America was a British colony, construing the impeachment process to allow for its use currently contemplated in Congress is a reasonable way to adapt it to a threat perhaps not seen in 1787.

History is against Ackerman and Luttig.  In 1877 the Senate held an impeachment trial for Secretary of War William Belknap after he resigned from office.  The Senate ruled it had the authority to do this.  Supreme Court decisions on impeachment have said it generally will not second-guess Congress on its impeachment power and it is unlikely to do so if the Senate holds a trial after Trump leaves office. 

Ackerman also contends that the language of the Fourteenth Amendment permits Congress by a majority vote to declare that the president has participated in an insurrection and bar him from future office.  First, neither in the plaintext of the Amendment nor history support this argument.  The Amendment refers to how Congress can vote to undo the ban, not how to impose it.  Supreme Court Chief Justice Salmon Chase riding in circuit ruled in
Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869) this clause is not self-executing, again questioning Ackerman’s assertions.  Historians have also argued Section Three is an artifact of the Civil War and Reconstruction, and not applicable beyond the unique issues of those times.

Accepting Ackerman’s argument would set up a scenario where a Congress, disliking a first-term president, could declare an incumbent president ineligible for a second term with a mere majority vote.  This procedure would effectively  allow Congress to negate the impeachment process and the two-thirds vote necessary to remove a president from office. It is unlikely the Framers of the Fourteenth Amendment intended this.

Finally, while there is debate over whether a sitting president can be charged with a crime, there is no question he can be charged after leaving office and a felony conviction with a determination of guilt is an obvious way to punish and hold presidents accountable for their behavior.

George Floyd and the Fourth Racial Turning Point in American Politics

 George Floyd’s death presented the United States with its fourth racial turning point. Whether or not America is ready to learn from his death and make real change is the question of day.

The United States is a nation born of racism. It is nearly impossible to separate out the origins of America from race. The slave trade and the conquest of native inhabitants were integral to colonial settlement, both when it was part of England, and then after independence. But during its history, there have been three racial turning points that defined America.

Turning Points in American History

Turning Point One was in 1787 with the writing of the US Constitution. The Constitutional Convention was a point when the United States could have shed itself of race and slavery. It was a chance to live up to the egalitarian promises in the Declaration of Independence, that “All men are created equal.”

However, the delegates were divided by fear. Small and big states feared that the wrong constitutional compromise would shift the balance of power away from one to another. But the biggest fear was the tension between the northern free states and the southern slave states. Each feared respectively that America could become all slave or all free.

The delegates instead enshrined slavery in the Constitution. It did so by an agreement that only counted slaves as three-fifths persons for the purpose of representation, while also remaining silent on the topic of voting rights. These provisions gave slave states additional representation in Congress while denying individuals of African descent the right to vote and be free.

A second turning point occurred after the end of the Civil War in 1865. Abraham Lincoln freed the slaves. Republicans in Congress passed the 13th, 14th, and 15th Amendments and a host of civil rights laws to guarantee liberty and equality for former slaves. For a brief period of ten years, Reconstruction led to the enfranchisement and election of Black men across the South. Yet this turning point soon closed.

The disputed 1876 presidential election between Democratic Sam Tilden and Republican Rutherford Hayes resulted in the Democrats conceding the election if Republicans agreed to withdraw federal troops from the South – the states where slavery and the Confederacy existed. Without a northern military presence, there was nothing to stop southern states from ushering in the Jim Crow area. Blacks were segregated from Whites, and the latter effectively lost most of their voting and individual rights.

Turning Point Three began in 1954 when the US Supreme Court declared segregation unconstitutional in Brown v. Board of Education. It grew when Rosa Parks refused to go to the back of the bus in 1955 in Montgomery, Alabama, beginning the civil rights movement that culminated in the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act. All aimed, much like after Reconstruction, to bring equality to African Americans and other people of color. But this movement too came to an end quickly.

Across America in the summers of 1966 and 1967, riots occurred in urban areas. President Johnson created the Kerner Commission to report on the causes of these riots and offer recommendations. In 1968, the Kerner Commission released its report, declaring American had become “two nations, separate and unequal.” The causes of these riots were rooted in race and poverty, segregation, and in the lack of opportunity for people of color. The report called for addressing these underlying problems. Yet this racial turning point was soon abandoned.

President Johnson, instead of taking up the call to address the underlying racial and economic causes of these riots, chose instead to treat this as a law-and-order problem. He opted to press for a 1968 crime bill that militarized the police and gave more authority to local police and the FBI to act. Richard Nixon in his 1968 presidential election ran as a law-and-order candidate and prosecuted a war on drugs. Subsequent presidents pressed policies that sent disproportionate numbers of people of color to prison, and the US Supreme Court issued a series of decisions making it difficult to hold police accountable for excessive uses of force.

Now, America is at a fourth turning point.

George Floyd’s death in Minneapolis was never an if but a when, an inevitable consequence of sixty years of “law and order.” Minneapolis, like the rest of America, was a city of enormous racial disparities in terms of education, wealth, income, health, police and criminal justice stops, arrests, incarceration, and use of force. Racism was everywhere, but ignored.

This blog originally appeared in the Impakter.

George Floyd’s death reminded America of the racial divide. He presented America with an opportunity to pick up the message of the Kerner Commission that had been ignored.

There were calls to reform the police and for other changes in Minneapolis, but it appears that opportunity for change has already begun to end. The demand to defund the police, a surge in violent crime in America, and riots in Minneapolis struck fear into suburban voters. This in turn blunted Democratic Party gains across the country in the 2020 elections. The narrow focus on police reform in Minneapolis and across America steered the country away from the institutional, economic, and social conditions that fed racism leading up to Floyd’s death.

More than seven months after Floyd’s death, racial reform is stalled. The fourth turning point may already be lost.

Policy change in America occurs when there is a convergence of a perception of a problem, a policy solution, and a transformative movement. Floyd’s death created this convergence, although perhaps only briefly. Perhaps it is premature to declare America already in a post-George Floyd moment, but if history is any guide, it is not clear that this fourth racial turning point will result in the change that needs to occur.

Trump, Trumpism, and the Future of American Politics

 

               By the end of this week  Donald Trump will have had the worst seven days of his presidency.

  The only week that will be worse is when Joe Biden is sworn in as president, he issues several executive orders overturning those of  Trump, and when lacking presidential  immunities, he faces possible federal and state prosecution for many of his actions as president and from before.

Personally, Trump will be repudiated numerous times legally and politically by this Friday, yet despite his defeats, it is not obvious that Trumpism is dead and that it has been exorcised from the Republican Party.

            Part of Donald Trump’s attraction to so many was his antiestablishmentism.  In 2016  he ran against the Republican Party and Washington and won.   This antiestablishmentism, along with  white identity resentment politics, US  hyper-nationalism, and  anti-immigration, are the core of Trumpism. Yet this Trumpism, while politically enduring to many, was his undoing from a public policy  and legal perspective.  He passed little legislation in Congress and suffered one of the worst records in court regarding his efforts to change administrative rules regarding the environment, immigration, and other areas of regulation.  Now as his presidency is closing, the establishment he railed against is abandoning him.

            Consider first the two major legislative defeats he suffered in the closing days of  2020.  One, after demanding that the pandemic stimulus bill increase relief checks from $600 to $2,000 and threatening to veto it, he signed it and got nothing.  Two, Congress for the first time with Trump overrode his veto of the defense bill.  Both were victories for process and institutionalism.

            Second,  as the Washington Post first reported, Donald Trump unsuccessfully  sought to convince Georgia election officials to commit voter fraud in order to flip the electoral votes in that state.  His failure is a victory for electoral integrity, the law, and claims about voter fraud that have left him with a 1-59 record since election day.  Again, a victory for the law, the competence of civil servants, and the establishment.

            Three, polls suggest that Democrats have a better than even chance of winning the two US  Senate seats in Georgia on January 5.  If that happens it will flip that chamber to the Democrats.  Were that to happen it will be because of  the repudiation of Trump in that state and a failed effort to sway the elections there.

            Four, on January 6, a joint-session of Congress will meet, presided over by Vice-President Pence, to count the electoral votes.  Pence has effectively abandoned Trump.  He already challenged a lawsuit that sought to give him the authority to reject electoral votes.  He will eventually declare Joe Biden the winner of the 2020 presidential election, despite the fact that many members of his party will challenge the electoral vote count and lose.  A victory for process and the law.

            Donald Trump the person will continue to diminish as a political figure.  After January  20, he will face possible New York State lawsuits for tax and bank fraud.  There will be pressure to change him with other violations of the law, both at the federal and state level.

            Trump was always his own worst enemy.   He thought he could do whatever he wanted and while enabled by many, he proved unable to make the profound  changes his supporters hoped and his distractors feared.  His losses were a vindication, for good or bad, of the strength of the American political system.  Many claim that his current  rants about voter fraud and efforts to threaten a state election official are bad for democracy.  They are, but America will survive.  He will no longer be president and the country will move on.

            Yet despite the repudiation of Trump as a person, Trumpism lives on.  His persona’s grip on the Republican Party remains strong.  Yet the Party is divided between those who wish to claim the mantle of Trumpism such as Ted Cruz as he thinks about a 2024 presidential run, and those such as Mitch McConnell and Mitt Romney who see a different direction for it.  The issue is about reform and moving on beyond Trump.

            In 2012 after Mitt Romney lost the presidency to Barack Obama the Republican Party did a study, concluding that it needed to evolve if it wished to have a future.  It  needed to attract women and people of color.  Trump’s takeover of the party forestalled that change.  The Republicans are now back to where they were in 2012.  The question now is whether the Party, like America, can move beyond not just Donald Trump but Trumpism.