Backfire: Keeping Trump off the Ballot and Impeaching Biden May Get you Something Worse

 

            Don’t wish for something, it might happen. When it comes to American politics in 2024, that might be the warning for Democrats seeking to keep Donald Trump off the ballot in Minnesota or Colorado or for Republicans trying to impeach Joe Biden.  For every political action there is an opposite reaction and for both parties what they might get is a backfire  that could do the opposite of what they want.

            Consider the state of contemporary politics.  It is a polarized winner-take-all-environment.  There are maybe five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin that are in play.  Within those states, only a handful of swing voters in a handful of swing precincts will decide the race to 270 electoral votes  to win the presidency.  The US House and Senate are closely divided, with  perhaps no more than 20 suburban House seats and six Senate seats in play that will determine partisan control. Trump and Biden are tied in the national polls. 

Nearly forty states have partisan trifectas, giving  one party complete control of the legislative process.  These trifectas show the importance of winner-take-all politics  versus split government gridlock.

Now consider the current strategies.  Democrats in Colorado and Minnesota and perhaps in other states want to use the insurrection clause of  Section Three of the  Fourteenth Amendment to keep Trump off the ballot in those states.  Using a clause designed to remedy post-Civil War concerns regarding the  1866 election to keep former Confederates from serving in office and of which many legal historians question its applicability today, the strategy is to have election officials or state courts declare Trump and insurrectionist and therefore ineligible to appear on the ballot.

Keeping Trump off the Ballot in Minnesota

            Let’s consider the possibility of this in a quadfecta  state such as Minnesota where Democrats control both houses of the legislature, the governorship, the state supreme court, and even the secretary of state as the top election official.

The attraction or lure is great.  Exclude Trump from the ballot in Minnesota and one is guaranteed ten electoral votes without much work.  The resources can then be shifted to Wisconsin or another swing state.  Never mind no Republican has won statewide office since 2006 and no Republican presidential candidate since 1972.

But there are powerful downsides to this strategy.  One, if there is not even the semblance of a competitive presidential race in  Minnesota, it may be hard to motivate Democrats to come out to vote. Trump draws out Democrats to vote.  Without a competitive presidential race, down ballot races may be impacted.

Two,  if a 6-1 Democratic Party majority on the Minnesota Supreme Court throws Trump off the ballot it will only further add fuel to  the national claim of rigged elections. Minnesota will become the rallying cry to motivate Republican voters to come out in record numbers to support their guy.

Three, even if the Minnesota Supreme Court does not remove Trump from the ballot, the damage may already be done.  Even the hint of doing this raises the  stolen election fear both in the state and nationally, thereby propelling Republicans to the ballot.

Finally, now  consider one more issue—abortion.  The US Supreme Court overturning Roe v. Wade and abortion rights was a blessing for Democrats in the 2022 midterm elections.  It is still a salient issue. But in 2023 Democrats in Minnesota  went beyond codifying Roe, enacting legislation arguably going beyond what most of the state’s public opinion supports.  Republicans already plan to use the phrase “abortion on demand” to motivate their base in 2024, including a highly motivated pro-life anti-abortion constituency.

Rumor has it that the Democrats  want to go beyond codification of abortion rights and put it in a constitutional amendment and on the ballot in 2024.  In part the reasoning is to motivate their base.

Yet Democrats need to remember 2012 when a Republican legislature thought  a voter ID and marriage amendment would  juice up their base  and win them the elections. The result backfired and Democrats took over the legislature and single-party control of the state.

 

Impeaching Biden

            Biden enjoys tepid support among Democrats going into 2024.  He has low approval ratings among the general public and he does not garner enthusiasm among Democrats.  He is vulnerable in part because Democrats may not come out for him.

            The best thing Biden has going for him so far going into the 2024 election is Trump may be his opponent and that the House of Representatives is controlled by Republicans.  He gets to run against both next year.  But that still may not be enough to save him.

            Enter impeachment.

            The Republican House will likely impeach Biden later this year or in 2024.  The validity of the impeachment grounds do not matter.  Impeach Biden is meant to handicap him while running for re-election.  It is political tit-for-tat.  Trump was impeached, impeach Biden.  Trump has legal problems, divert attention from them and his trials by impeaching Biden and forcing a Senate trial on to television and into the social media.  It levels the legal playing field between Trump and Biden, and it serves as a way to motivate Republican donors and voters.

            Except perhaps not. There is no way a Democratic Party-controlled Senate will convict Biden.  There is even no guarantee it will hold a trial.  But much in the same way the Trump’s first impeachment motivated his voters  (and had it not been for Covid and his mishandling of it  he might have won him the 2020 election) after the 2018 midterm elections, a failed impeachment of Biden might simply be the thing Democrats need to rally their voters around Biden and bring them to the polls in 2024.

            The lesson is don’t wish for something because if you get it, it may backfire on you.

What’s an Impeachable Offense? We Don’t Know and that is the Problem

 After the 57-43 Senate acquittal of Donald Trump on the impeachment charge of inciting insurrection

against the government we are constitutionally left with a question:   What is an impeachable offense so serious that it merits the conviction and possible removal of a president from office?  As a result of this last failed impeachment this tool of controlling and disciplining abuses of presidential power is effectively dead.

US constitutional framers inherited the impeachment process from England.  In the battles for supremacy between parliament and the monarchy, the former used impeachment as a check upon the crown’s ministers, using the tool to remove those who abused their powers.    Impeachment was not a tool to be used against the monarch–the only or ultimate tool was the Glorious Revolution of 1688 resulting in a vastly weakened monarchy which was compelled into signing the English Bill of Rights in 1689.

The US constitutional framers too were fearful of strong executive power. US independence from England was precipitated by perceived abuses of power by King George III. The 1776 Declaration of Independence, especially the second half, is a catalog of a bill of particulars against the King.  Reaction to strong monarchical power produced America’s first constitution with no independent president.  By 1787 this was seen as a problem, and the task of the framers was to constitutionally produce a president with neither too weak or too sufficient of powers.

While Alexander Hamilton in Federalist Papers numbers 70-74 celebrated a strong presidency, other constitutional framers such as Benjamin Franklin and James Madison worried about abuses of presidential power.  Franklin declared that because it would be difficult to get a criminal conviction let alone an indictment of a sitting president, another tool was needed to check him.  Madison and others worried that limiting checks on the president to criminal violations might miss broader abuses of power including mal-administration.  They thus settled on the British impeachment model as a tool or remedy.  They adopted the phrase “treason, bribery, and high crimes and misdemeanors” as grounds for impeachment.

Originally the impeachment process called for the House to impeach and the Supreme Court to try the charges.  But later on during the constitutional convention the trial was moved to the Senate.  But at no point did the Framers clarify critical questions such as what is a high crime and misdemeanor; what standard of proof is needed to indict or convict; could one impeach or convict after a president left office; and if and when could the Senate vote to bar the president from holding future office?  Neither the text of the Constitution nor the constitutional debates clarify these questions, and English historical precedent is equally murky. Additionally, keep in mind that at the time of convention, political parties were assumed to be bad and hoped not to exist, and the Senators were appointed by state legislators and presumed to be above politics.  As a result, House indictments and Senate trials and the concepts of checks and balances and separation of powers  would place the country before the party.

Over time so much has changed.  Parties flourished and dominated American politics, especially today, in ways the Framers feared.  Senators are elected and captured by partisan politics.  These two factors alone changed the impeachment process. American history shows that.  Moreover, presidential power has vastly expanded, raising fears of what Arthur Schlesinger, Jr.  once called the imperial presidency.

Five serious impeachment processes have been initiated against US presidents (Andrew Johnson 1867; Richard Nixon 1973; Bill Clinton 1998; Donald Trump 2019; Donald Trump 2021).  All five started as investigations by rival parties, although Nixon’s enjoyed bipartisan support in the House Judiciary Committee vote to recommend to the entire House impeachment.  Had Nixon not resigned, who knows the final result.

But in the four remaining impeachments, House indictments and Senate trial votes largely followed party lines.  The fact that Trump’s second Senate impeachment trial resulted in the most  bipartisan vote ever with seven of 50 Republicans voting to convict still is not much of a story to tell.  Moreover, there have been four trials and four acquittals.  It’s just not clear now what is a convictable offense.  

The impeachment process has been trivialized and rendered powerless.  Indictment for lying about a sexual affair (Clinton) was a mistake, bringing two impeachments against Trump when there was no chance of a guilty verdict did equally as much damage to the process.  If seeking to pressure a foreign official to investigate a US president’s political rival or inciting an attack on the US Capitol were not convictable offenses then what is?  Short term partisan politics, anger, or the false belief that a point had to be made have done longer term damage to checks on presidential power.  Talk to any smart prosecutor.  Do not bring charges against someone unless you have a reasonable belief that you are going to get a conviction.

Trump twice abused his presidential power and deserved punishment but impeachment was the wrong strategy. Trump lost the election, he faces possible post-presidency indictments, and public opinion declares what he did leading up to and including January 6, 2021 was wrong.  History would have rendered the judgement and precedent here.  This acquittal renders history less clear.  It sets the president for whether impeachment will ever be a tool to check presidents.  It leaves open the very problem Democrats wanted to address–how to check abuses of power of presidents leaving office.  This checking of presidential power was the problem US constitutional framers sought to address in 1787, and it is even less clear now what the solution is.

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.

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.

It's not just Trump: The Case for a Weaker American Presidency

                    The American presidency is too powerful.  That is what the Senate impeachment trial and the 2020 presidential election should be about.  Instead, masking this deeper constitutional problem is Donald Trump and his personal abuses of power.

            Yet these abuses of power are not simply the product of one errant person, but part of a longer and deeper pattern of congressional delegation and acquiescence of power to the president that needs to be reversed, especially by the next president of the United States.

            The American Revolution was a product a fear of abuse of executive or royal power. Americans are familiar with the first lines of the opening paragraphs of the Declaration of Independence which begin with “When in the course of human events” and “We hold these truths to be self-evident.”  But the second half of the Declaration is a bill of particulars against the excesses and abuses of power British King George III inflicted upon the colonies.  They included his refusal to “Assent to Laws,” and “obstructed the Administration of Justice.” Our independence and revolt against the king were a continuation of a centuries long battle between parliamentary supremacy and monarchical authority that begin in 1215 with the Magna Charta. 

            So great was the fear of executive authority that in America’s first constitution, the Articles of Confederation, presidential power was vastly limited by a Congress that chose him.  In adopting our present constitution in 1787, while some such as Alexander Hamilton urged for a very powerful presidency, most of the framers sought to limit this office through narrowly defined powers, impeachment, and the concepts of checks and balances and separation of powers. Constitutional framer Charles Pinkey feared giving the president too much military power would “render the Executive a monarchy.” Edmund Randolph feared similar monarchical tendencies in the president if the executive branch were treated as unitary under one person.  James Madison said it had to be clear that the president did not have either legislative or judicial powers.

            As originally designed, the presidency was not, as some wrongly contend today, to be a co-equal branch with Congress and the judiciary.  Constitutional Convention delegate Roger Sherman said that the president ought to be “nothing more than an institution for carrying the will of the Legislature into effect.”  James Madison declared in Federalist Paper 51: “In republican government, the legislative authority necessarily predominates.” The consensus of the Framers and by constitutional design, was that the presidency was envisioned to be a far weaker institution compared to Congress than it has become.  Yet even with the checks imposed on it, some, such as Patrick Henry, feared the new presidency which was given “Extreme Powers; the powers of a king.”

            Multiple factors changed the balance of power between Congress and the presidency. One, emergencies, such as wars, pushed the presidency in a more powerful direction, such as with Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson.  Two, the constitutional framers never envisioned the rise of a large administrative bureaucracy under the control of a president which would augment executive authority.  Three, Congress over time delegated or acquiesced significant rule making authority and discretion to the president and the executive branch to make rules or issue executive orders that carried the force of law.   All this produced by 1973 as Arthur Schlesinger, Jr. aptly described, an imperial presidency that needed to be constrained.

            As an immediate result of Richard Nixon’s abuses of power Congress enacted, often over presidential vetoes, several pieces of legislation.  The 1973 War Powers Act aimed to limit presidential authority to deploy military force without congressional ascent.  The 1974 Budget and Impoundment Act sought to limit the ability of the president to withhold and divert congressionally authorized funds.  The 1976 National Emergencies Act repealed all existing presidential declarations of emergencies and purportedly circumscribed future orders.  The 1978 Ethics in Government Act required disclosure of financial interests of many executive branch employees.  It also included a provision for the creation of a special prosecutor to investigate the executive branch, addressing concerns stemming from Richard Nixon firing his self-appointed prosecutor Archibald Cox in the famous 1973 Saturday Night Massacre. Other laws, several hundred by estimate, while delegating power to the executive branch, sought to constrain his discretion by giving Congress a one or two-house veto of decisions made.

            At the time these laws looked like limits on presidential authority, but they failed for many reasons.  One, as with the Ethics in Government Act, they exempted the president from many requirements.  Two, Supreme Court decisions favored executive branch power.  In Immigration and Naturalization Service v. Chadha, 462 U.S.919 (1983) the Supreme Court declared the legislative veto unconstitutional.  In N.R.D.C. v. Chevron, 467 U.S. 837 (1984), the Court said that disputes over the meaning of congressional statutes would be resolved in favor of executive branch interpretations. Three, Congress, in the case of the special prosecutor, let the law expire.

            Four, all of these laws still assumed the president would voluntarily comply with invoking the law, such as with the War Powers Resolution, or continued to grant him broad discretion to act.  For example, the National Emergencies Act never defined what a national emergency was.  Finally, collectively all of these laws assumed there would be unwritten norms or conventions that would simply constrain presidential power and that the White House would voluntarily comply with the law.

            Nearly a half-century later, these post-Watergate limits have faded with memory.  The events of 9/11, the financial crisis of 2008, and partisan polarization have all eviscerated the institutional balance of checks and balances of the Constitution.  President’s unable to get their way with Congress, govern by executive order, relying in large part on authority granted to them by Congress. No longer is easy to contend, as Madison argued, that the legislature predominates, we may have the new imperial presidency.

            What is scary is how the impeachment process and Democratic presidential candidates simultaneously attack Trump’s abuse of power but at the same time pledge that if elected would issue a host of executive orders within their first hundred days in office.  For example, Elizabeth Warren has proposed executive orders that cover 21 policy areas.  Amy Klobuchar pledged a list of 100 executive orders she would issue. What would be better to see is a promise among Democratic presidential candidates that if elected that would work to limit presidential power.

            What might some of those new limits be?

            Reauthorize the special prosecutor law to investigate the executive branch.

            Amend the National Emergencies Act to define what constitutes a national emergency and make it clear here and in a new budget act that no national emergency authorizes a president to divert money unless explicitly authorized by Congress.

            Adopt a new War Powers Act that limits presidential authority to initiate first use of nuclear weapons and which requires presidential authority to deploy troops short of congressional declarations of war.

            Amend the Ethics in Government Act to require presidential disclosure of financial interests and taxes, and impose tighter requirements on conflicts of interests, including mandatory blind trusts and absolute bans on personal use of private investments or holdings that conflict with government duties.

            Adoption of a law facilitating and simplifying Congress’s ability to prosecute executive branch officials for failure to comply with document production or appearing to testify.

            As president, direct the Office of Legal Counsel and Justice Department, to reconsider past opinions claiming sitting presidents cannot be indicted for a crime, and urge the Supreme Court to modify its Chevron decision so that disputes in legislative interpretation give priority to congressional intent and meaning.

            Overnight it will not be possible to reassert the balance between Congress and the president.  The impeachment trial in the Senate, as well as the 2020 elections, are a good opportunity to do this.  Yet to do this one needs to realize that the problem is not simply Donald Trump but a larger gravitation of authority from Congress and to the president that needs to stop.

Trump’s Impeachment: What is the Democratic Party’s Post-Acquittal Game Plan?

What are the Democrats going to do the day after the Republican Senate acquits Donald Trump on
the articles of impeachment?  This is perhaps the most important question the Democrats need to address and so far it does not look like they have an answer.
Donald Trump has done a lot of bad things as president that might rise to the level of treason, bribery, or high crimes and misdemeanors.  Leveraging US foreign policy interests for personal election advantage with Ukraine is one example.  So is obstruction of Congress, eleven counts of possible obstruction of justice documented in the Mueller report, and violations of the Emoluments clause.  Any or all of them might be impeachable offenses, yet barring the unexpected, the House will settle on abuse of power and obstruction of Congress as the two articles of impeachment it will send over to the Senate for trial.
Again, barring the unexpected, the Senate will acquit.  What then?  What have the Democrats gained or accomplished?
There are several arguments supporting impeachment.  One is that if the Democrats do not impeach it will embolden this president to continue to corrupt the 2020 elections with other impermissible acts.  Or that the failure to impeach will embolden future presidents to do what Trump has done, or even worse.  Maybe, but what is an acquittal going to say?  Does the acquittal vindicate Trump, leaving both him and future presidents justified in terms of doing what he is already do, but now with the stamp of approval in terms of acquittal?
Maybe impeachment will shift public opinion against the president in the 2020 elections?  However, Trump already lost the popular vote in 2016 but won in the electoral college and that could happen again in 2020.  Public opinion does not really matter, especially in a few swing states, and even if it does matter, there is little indication so fr that the impeachment process has moved it.
Maybe impeachment is meant to deter Trump?  But does anyone really think impeachment, especially with acquittal, is a deterrent to Trump?
Maybe impeachment is for the history books, staining Trump as only the third president in history to be impeached and tried in the Senate?
Maybe all of these are valid reasons, but the bottom line is that Trump is going to be acquitted and the Democrats need a plan for what they are going to do and say the day after this happens.
The real prize for the Democrats is getting Trump out of office and that means defeating him in the 2020 election.    Maybe impeachment fits into that plan but it is not obvious how and instead it may be a distraction to that larger prize.  Do the impeachment and acquittal put Trump’s fundraising into overdrive?  Does it energize his base to vote in larger percentages than in the previous election, especially in the critical swing states of Wisconsin, Michigan, Pennsylvania, North Carolina, and perhaps Minnesota?  Or does the impeachment strategy leverage vulnerable Republican  Senators to vote to acquit Trump and thereby enhance the Democrats’ possibility of winning control of the US Senate?
All of the above are good questions and so far there seems little discussion about what is next for the Democrats in terms of how they see the impeachment ultimately leading to the ouster of Donald Trump from the presidency in 2020.

The Case for Censuring and Not Impeaching Donald Trump

The  Trump-Ukraine Impeachment Inquiry Report issued on December 2, by House Permanent Select   It does so by amply documenting how Donald Trump sought to use the office of the presidency for personal political benefit at the expense of America’s national interests in tendering US military aid to Ukraine on the condition that its president announce it was going to investigate Joe Biden and Ukrainian involvement into the 2016 US elections.  The report also notes the unprecedented efforts by Trump to impede congressional investigations into this matter.  Both are serious matters.

Committee on Intelligence makes a damning case for impeachment.

            Yet even taking all of the facts alleged here as truthful, they alone should not be grounds for impeachment.  Additionally, if the House Judiciary now expands impeachment inquiry into additional matters that prove to be incriminating, they too should not warrant presidential impeachment even if the House concludes that they rise to the constitutional level of “treason, bribery, or high crimes and misdemeanors.”  It is not because these acts, or they many other abuses of power that the president has caused are not serious.  It is because impeachment is a losing strategy for House and Democrats.

            Speaker Pelosi was correct months ago when she said  Trump was not worth impeaching.  She correctly resisted the demand to impeach, only giving in when revelations of the phone call with the Ukrainian president were revealed.  As the Zelensky telephone saga as unfolded, there is little to suggest what the Democrats get by impeaching and instead stand to lose a lot.

            Consider first that after several weeks of hearings public opinion has mostly frozen. Polls suggest about half of Americans think he should be impeached and removed from office.  Trump’s based has rallied behind him and congressional Republicans show no sign they will defect.  It is skeptical that coming hearings too will change anyone’s mind.

            Part of the problem has been how the Democrats framed the issue–quid pro quo.  In describing the Zelensky call in terms of a narrow conception of bribery they missed the ability to paint a larger picture of Trump corruption and abuse of power.  The quid pro quo description forced  the debate into whether the president broker federal bribery law, allowing him and the Republicans  to claim denial of due process, use of hearsay evidence, or other claims that are appropriate to raise  in a criminal inquiry, but which do not fit into an impeachment process which Alexander Hamilton declared in Federalist 65 as a political inquiry.  The Democrats framing boxed them in and Republicans took advantage, allowing them to declare there was reasonable doubt about what Trump did.

            But the impeachment process is broken much in the same way that American government in general is.  The original design of the impeachment process came from constitutional framers who  did not anticipate or envision political parties and polarization to exist, and when the Senate was designed to be appointment and not elected.  Then checks and balances and separation of powers were meant to counteract presidential abuses of power.  Fast forward 230 years, there has never been a successful impeachment and conviction of a president and the powerful partisanship that now exists means that party loyalty is more powerful than checks and balances.

            No one seriously should think that were the House to impeach the president a Republican-dominated Senate will convict.  Split 53-47, 20 Republicans will not defect and join Democrats.  At best one can hope for is that Mitch McConnell will give Susan Collins and perhaps a couple of other endangered Republicans the permission to vote to remove the president, thereby ensuring their re-election and giving the party the opportunity to claim they were bipartisan.

            At worst, think of what happens to impeachment when it leaves the House and the Republican Senate controls the process.  For one, even though the Constitution implies that the Senate has to hold a trial, McConnell could refuse to do so, and no one can force them.  In Nixon v. United States, 506 U.S. 224 (1993) the Supreme Court said issues of impeachment are not reviewable by the federal courts, suggesting that if the Senate does not hold a trial, what then?

            Assume a trial is held.  Imagine first how the Republicans will put Biden on trial, perhaps calling him or his son to testify.  This is not simply an acquittal Trump can use to motivate his base.  Even if a trial is held, nothing really requires a when in terms of timing.  Maybe McConnell reprises the logic of delaying confirmation hearings in 2016 for Supreme Court nominee Merrick Garland, declaring that the trial will not occur until after the 2020 elections so that the people can decide.

            Or consider a different scenario.  Let’s say one of the Democratic Senators running for president gets the nomination.  Hold an impeachment trial in the Senate in October during the general election and you can lock down that Senator for weeks from campaigning.  Other political manipulations of the trial are also possible.  The point is that Democrats are not going to get a conviction and they stand to lose big time with impeachment.

            Here is where House censure is a viable alternative.  Continue to hold hearings, gather more evidence, make the strongest case possible for impeachment.  But then declare the conviction in the Senate is not possible because of partisanship or because they elections should resolve the issue, and then vote to censure.

            Censure may be a potent tool here.  Especially given that the president has said he will not let his staff participate in the House proceedings, the Democrats get the final word on Trump’s behavior, lacking the president’s side of the story in the proceedings.  Trump loses the ability to get the benefit of acquittal in the Senate, and swing voters in the critical swing states get the opportunity to render a final judgement via their votes in November.

           

Impeachment Questions and Answers

Question: Trump seems to be simultaneously saying he will not be impeachment by the House

because there is a lack of evidence, versus saying he expects to be acquitted in the Senate.  Is he contradicting himself?

US President Donald Trump seems to be sending mixed or multiple messages when it comes to the House impeachment hearings.  Version one is to say that the hearings are a fraud and that he does not expect the House to impeach him.  Version two is daring the House to impeach him so that he can have a trial in the Senate and acquit him.  Both versions are being circulated so that he can look like a winner no matter what happens.

If the House opts not to impeach and instead takes other action such as censure or going after his subordinates, Trump declares himself a winner because they did not impeach.  This is important for him to say so as to prevent the House from taking actions that the president will not be able to  defend himself against.  By that, if the House censures the president he cannot take any action to clear his name.  The same is if the House moves to have his subordinates charged with crimes.

Conversely, if Trump is impeached, he will bear the mark of only the fourth president in US history to have been impeached or face impeachment inquiry. Even if acquitted by the Senate, Trump’s legacy has been damaged.

Whatever the House does will have implications for the 2020 election and Trump’s legacy in his dual messages are efforts to combat both of these problems.

Question: Some defend Trump’s phone call with Ukranian president Zelensky and the request for him to do a criminal investigation of the Bidens as routine or proper.  Was it?

No, it was not routine or the usual way the US or one country seeks to help another country with  criminal investigations.

As a matter of international law, one country has no inherent legal obligation to assist another in criminal investigations.  However by treaty many countries in the world, including the US, have entered into Mutual Legal Assistance Treaties (MLATS).  MLATs cover issues such as sharing of evidence, serving summons, and tracing suspects or witnesses. One of the most visible forms of MLATS is the extradition process.

The US has extensive MLATS, with more than 70 of them with other states.  It is also a party to multinational agreements.  These MLATS outline procedures for how and when the US makes requests for other countries to assist in criminal law enforcement activities.  These procedures have clear protocols regarding whom or what agency in the US requests help from a foreign law enforcement entity and they generally do not include the US president making the request to another head of state to initiate an investigation.

The point here is that what should have come out in the impeachment hearings but has not is that treaties govern US requests for foreign criminal legal assistance and the way Trump requested it was highly irregular.  Thus, contrary to claims to the contrary, other presidents have not done what Trump did and treaty governs what should have happened.

What makes this impeachment process different from previous ones?
There are a lot of differences between this impeachment inquiry and the previous three.  One is the fact that the degree of partisanship now is so great that there appears to be little indication of any chance of bipartisan cooperation.

This partisanship is significant because it undermines the structural design of the US constitutional framers from 1787.   Remember back then the Framers presupposed the political parties would not exist (and in fact feared their divisive nature) and the Senate was not elected but appointed by state legislatures. The combination of these two factors made the entire Congress, but especially the Senate, far more independent than it is now.

The increased partisanship today, even compared to 1998 with the Clinton impeachment, questions the extent to which the concepts of separation of power and checks and balances work to the extent that Congress will perform its independent duties to assess the fitness of the president to stay in office.  It looks like party loyalty is more important.  Evidence of that is a story that came out last week indicating that the president and Senate Republican leaders are conferring on how to do the Senate trial.  It seems odd that the supposed impartial Senate would be consulting with the person on trial regarding how to conduct the trial.

Did the Democrats make a mistake in terms of framing the impeachment debate as a quid pro quo?

Yes they did.  The quid pro quo is a criminal bribery model of illegal behavior.  What the qui pro quo framing has done is to make it a question of whether the president broke a criminal law.  This is not how the impeachment inquiry should be framed. As Alexander Hamilton declared, impeachment is not a criminal inquiry, but more of political judgment issue regarding the fitness of a person to remain in office as president.   Much in the same way that debates about money in politics have wrongly been narrowed to the issue of quid pro quo while ignoring the broader issues of how money structurally corrupts the political system, the Democrats in the impeachment inquiry should have been talking about the president as engaging in actions that are abuses of power.  It is understandable while the criminal law analogy has been used, but it too much constricts how to judge what the president did, forcing it into a criminal law model. 

Have the Democrats proved their case?
It depends on what your partisan orientation is and whether you watched the hearings at all or what station you watched them on. Remember, the hearings are not over and it will soon move to the House judiciary Committee and more hearings could take place.

In terms of have the Democrats proved their case, they have clearly corroborated the whistleblower’s allegations, The issue now is a constitutional judgement issue–does what Trump is accused of right to an impeachable offense?  Unlike a criminal trial where we have a clear standard of proof–beyond a reasonable doubt–there is no clear standard here. 

What changes if and when the impeachment process moves to the Senate for a trial?
The playing field changes completely in the Senate.

Again, remember that the impeachment and trial process is not a criminal inquiry.  This means the normal rules of evidence and due process do not apply.  Right now Trump and Republicans are objecting to this, claiming the process involves hearsay evidence for example.  Once it goes to the Senate hearsay evidence and anything else can come in and one should not be surprised if the Biden conspiracy theories and claims are introduced.

How will impeachment process play out over the next few weeks?

While many think the House will vote on impeachment before the end of the year, it may not occur until January or later.  Assume a January impeachment vote, a trial in the Senate could occur just as the Iowa caucuses occur. Such timing could help or hurt Democrats, especially Senators, who can use the trial and their vote to their political advantage.

Trump, Congress, and the Supreme Court: The Day of Reckoning Looms

                There is a looming day of reckoning for Donald Trump and the Supreme Court, and it will

be a moment of truth for both.  Will the Supreme Court follow legal precedent and rule against the president, or will it show its partisan colors and side with Trump?  This is the ultimate for Chief Justice Roberts and the Court’s conservatives, a moment that no doubt the former dreads.

            The Supreme Court will perhaps have its moment that defines the fate of the presidency much in the same way it did back in 1974 and then in 1997.  In the former, President Nixon during House impeachment hearings refused to turn over to Congress and a special prosecutor taped White House conversations, claiming executive privilege.  Nixon counted on winning this battle.  After all, his Chief Justice Warren Burger headed the Court.

            Yet the Court did the right thing.  In United States v. Nixon, 418 U.S. 683 (1974) the Court ruled that while executive privilege did exist as part of the constitutional power presidents had under Article II, such a privilege could not interfere with the Article III powers of the judiciary to do its job and investigate possible criminal activity within the executive branch.  The opinion was 8-0, with Nixon’s own Burger writing the opinion.  For many, the Supreme Court’s U.S. v. Nixon was the final straw that brought down Nixon and led to his resignation.

            Second,  Paula Jones sued President Clinton for sexual harassment for event arising out of when he was governor of Arkansas.   The Supreme Court was asked to rule on whether a sitting president could be subjected to a civil lawsuit.  In rejecting claims of presidential immunity, the Supreme Court unanimously ruled in Clinton v. Jones, 520 U.S. 681 (1997) that he could be.  That decision was critical eventually to testimony that would implicate the president in committing perjury and being impeached by the House.  Both the Nixon and Clinton decisions were critical Supreme Court affirmations of limits on presidential power.

            Similar Court battles are now looming with Trump.  A New York prosecutor has demanded Trump’s tax records from his account.  Congress wants them too.  Trump refuses to let his staff testify before Congress or honor congressional subpoenas.  He or his administration has gone to court to challenge the requests.  In many case lower courts have ruled against him, and now Trump is asking the Supreme Court to intervene.  There are at least four areas or issues in which the law is settled by past precedent or where decisions by the Supreme Court  could tip the balance of power between Trump and Congress.

            Congressional Investigatory Power.  Cases such as McGrain v. Daugherty,273 U.S 135 (1927) Barenblatt v. United States, 360 U.S. 109 (1959), and U.S. v. Nixon, 418 U.S. 683 (1974) stand for the proposition that Congress has broad investigatory powers backed up subpoena power to enforce compliance.  In both Daugherty and Nixon, the investigations involved investigations into possible criminal activity in the executive branch perhaps involving the president himself.  In these cases the Court ruled for Congress.   There is also  Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C.2008) ruling that executive branch senior officials must comply with congressional subpoenas to testify.  Since these decisions few question the authority and scope of congressional investigatory authority and current precedent suggests requests that at least in cases when it involves possible criminal activity, White House officials must comply with the subpoenas.

            Prosecutorial Subpoena Power.  Prosecutors  have broad power to investigate crimes and gather evidence of it.  This is the case  in when the president is the target of investigation.  While there may be Office of Legal Counsel Memoranda contending a sitting president may not be indicted for a crime, they did not dissuade the Supreme Court in U.S. v. Nixon from ordering the president to comply with a federal prosecutor’s subpoena.  It should not matter now that the prosecutor demanding Trump’s tax records is a state one, the same principle applies.

            Congressional Impeachment Power.  In Nixon v. United States, 506 U.S. 224 (1993) Chief Justice William Rehnquist wrote the plurality opinion  for a unanimous Court ruling that matters of impeachment are political questions and not subject to review by the federal courts.  This case involved a constitutional challenge by a federal judge  over procedures  used when he was impeached by the House and convicted by the Senate.  The significance of this ruling  is that the House and Senate have broad leeway to undertake impeachment investigations and trials.  They suggest that challenges by a president that he is not getting due process, or that there are specific evidentiary or other procedural issues that must be followed (no admission of hearsay or secondary accounts), or that what counts as a high crimes and misdemeanors can be reviewed the federal courts should be  dismissed.

                Presidential Pardoning Power.  Perhaps the one area where one hopes the Supreme Court deviates from existing precedent is in regard to presidential pardoning power.  Article II, section 2 of the Constitution grants the president pardoning power.  In cases such as Ex Parte Garland,  71 U.S. 333 (1867), and Murphy v Ford, 390 F. Supp. 1372 (1975), the judiciary gave the president “unlimited” authority to  issue pardons.   These cases did not raise significant interbranch or separation of powers issues that hindered the powers of Congress or the federal courts.

            However, assume that the Trump administration continues to resist congressional subpoenas and Congress eventually holds officials in contempt, as it is allowed to do.  Can the president issue pardons to  overturn the contempt citations?  Current precedent either supports this if Garland and Murphy are read broadly, or we do not know if read more  narrowly.   If the Supreme Court were to uphold presidential pardons to thwart congressional contempt citations it would vastly undermine  the latter’s investigatory powers and tilt power significantly in the direction of the president to undermine oversight.  One would hope that while the Supreme Court would continue to give broad discretion to presidents to issue pardons, it cannot come at the expense of diminishing congressional authority.  One hopes that the Court would follow the logic of U.S. v. Nixon and rule that pardoning power must yield to the needs of Congress to do its job and to allow for investigation of possible criminality in the executive branch.

                In these four areas of law the Supreme Court will potentially decide the fate of the Trump presidency, and the scope of presidential power going forward.  Trump’s refusal to cooperate with investigations flies in the face of legal precedent and rests upon dubious executive branch Office of Legal Counsel memos that do not have the force of law and which have not been tested in court.

We know that Justice Roberts is acutely aware of the impression that the Court is increasingly seen as a political body, and he pushed back against Donald Trump who contended that there were “Obama judges.”  He has done so despite the fact that there is overwhelming evidence that the conservatives on the Roberts Court are voting ideologically, and with a current Supreme Court stacked with five Republican presidential appointees, including two by Trump.

            Were this Court to overrule or, more likely distinguish current precedent when it comes to congressional investigations, impeachment power, or prosecutorial power, or expand presidential pardoning authority in ways that favor the president it would not only tip the balance of power in favor of Trump, but also cement the image of the Court as no more than partisans wearing robes. 

Chief Justice Roberts is facing a day of reckoning, and one wonders whether he can rise to the challenge.

Whistleblowing, Anonymity, and Impeachment

Donald Trump and the Republicans want to out the anonymous whistleblower who first reported

on the president’s telephone conversation with the Ukrainian president.  Exposing him along with subpoenaing Hunter Biden in the Trump inquiry are at the heart of Trump’s impeachment defense.
The demand to call Biden is diversionary.  By that, try to argue he did something wrong as  an excuse for the president’s demand that Ukraine investigate Biden.  Besides the fact Hunter Biden  was already investigated and cleared, even if he did do something wrong it does not excuse the president’s behavior.  He called on another country to investigate a political opponent and conditioned military aid on it.  This is either abuse of power or a violation of federal campaign laws,  both possible causes of impeachment.
Two, part of the demand to expose the whistleblower is legal–asserting that constitutional  due process demands that the  president has a right to confront his accuser.  This argument fails for an obvious reason–impeachments are not criminal inquiries.  No less an authority than Alexander Hamilton in Federalist number 65 made this point.   The criminal due process protections of the Bill of Rights do not apply.  Two, even if exposed it would not matter because other sources and testimony have independently corroborated the whistleblower’s original report.
But more important, the purpose in outing the whistleblower is simple–we hate snitches.  In labeling the whistleblower as a traitor hits at a culturally deep seated belief in American society. From the time we are very young the most dreaded thing to be called is a tattletale, fink, or stool pigeon.  Remember times in school when someone threw an eraser and the teacher asked who threw it?  No one confessed and all of you detention.  You sat there thinking it was unfair but you never dared raise your hand and snitch on who did less recess would not have been pretty for you that day.
The point is that culturally we hate snitches and Trump is trying to play on the hate.  One of my professors Edward Weisband long ago pointed this out in his Resignation in Protest.  In the US we claim to care about ethics, integrity, and individualism, but then punish the principled public official as disloyal or not a team player who exposes the corruption.  The way to evade culpability for corruption is to expose  the whistleblower, argue he is disloyal, and therefore discredit him.
In attacking and exposing the whistleblower something more dangerous is being undermined–the historical importance of encouraging individuals to report fraud and abuse, often with the need to guarantee anonymity in order to prevent the very type of retaliation that Trump and the Republicans are trying to do.  Dating back to the early days of America, in 1777 Congress passed a law encouraging members of the military to report to them suspected cases of prisoner abuse.  The 1863 False Claims Act encouraged reporting of profiteering and abuse during the Civil War.    The Sarbanes-Oxley Act of 2002 created mandates in the private sector for anonymous reporting of suspected illegal behavior in the corporate world.  The 2010  Dodd-Frank law strengthened these provisions.  Finally, the Inspector General Act of 1978, the Intelligence Community Whistleblower Protection Act of 1998, and the Whistleblower Protection Enhancement Act of 2012  all were adopted to encourage the exposure of political corruption within the federal government.  In many cases, they guarantee the anonymity of the whistleblower.  They do so to prevent reprisals and attacks against them because we hate tattletales. 
American history thus shows the importance of laws to encourage whistleblowing.  Exposing  corruption and abuses of power is critical to the promotion of a free society.  The Trump-Republican  attack on the legal protections afforded to whistleblowers is powerfully shortsighted, both in terms of how exposing this specific whistleblower will not alter the case against Trump, but also in terms of the damage it does to exposing improper and perhaps illegal behavior in government.

Ten Questions on Impeachment and the 2020 US Elections

1 - One year out from the 2020 elections, what does it look like?

One year out from the 2020 elections American politics is very polarized.   The US is experiencing the greatest gap in income and wealth at least since the 1920s and studies point to a nation with rigid social mobility.  The result is a nation divided geographically, racially, and most important, politically.

The country is very divided across a range of issues including health care, the economy, foreign policy, and most important, over the performance of President Donald Trump.  Democrats and Republicans have very different views on Trump’s performance, and the coming 2020 elections to a large extent will be a referendum on him.



2 - What are the big election themes?

Really the 2020 elections are about Trump–a referendum on his performance and whether he should get a second term, or even impeached or removed from office.  But beyond Trump, the major issues seem to be health care, both cost  and access, the economy, which seems to be slowing, immigration, and perhaps foreign policy or how the US engages with the rest of the world.

3.  On Thursday the Democrats in the House formally voted to authorize an impeachment inquiry.  What was the significance of that vote?

First, this was not impeachment, merely formalizing what has been going on for several months.  The Constitution gives Congress broad investigatory and oversight powers and the line between those functions and their constitutional power of impeachment is thin.   There is amble case law on this as precedent.  Thus, for a legal perspective the vote on Thursday meant little, but politically it was significant. 

With that vote Donald Trump is only the fourth president in US history subject to a formal impeachment inquiry.  That is not a great club to be in.  But also politically, the vote is important for other reasons.  Trump and the Republicans have thus far complained that the impeachment process is not legitimate and transparent, thereby justifying the president’s refusal to cooperate.  Never ask for something because you might regret getting it. Those reasons not disappear.  Again, from a legal perspective, none of this mattered, but now politically if the president or Republicans refuse to cooperate when they have the ability to do so it looks bad for them politically.  Also, the president’s decision not to cooperate looks even more like possible  obstruction of justice.

Also, now the formalizing of the impeachment inquiry sets up a long process of educating the American public about the president’s behavior.  If the president fights the inquiry, it drags the process further into 2020, placing impeachment into the center of the primaries and perhaps the general election.  The more Trump fights, the more it drags on, the more it gets into the center of the  election.  How the impeachment and the 2020 elections intersect is a great question.  Will it mobilize Republicans or Democrats?  Or is the issue really how it impact party base mobilization and swing voters in a few swing states such as Pennsylvania, Ohio, Michigan, and Wisconsin?  This latter scenario may be the real issue.


The impeachment complicates the ability of the two parties to work together, which was already bad.  It also complicates the electoral picture because it is not clear which party the impeachment process favors.  Will it boast Democratic or Republican base voting.  How will it impact swing voters, especially in a cluster of swing states such as in Wisconsin, Michigan, Ohio, and Pennsylvania.  Finally, the timing of a possible impeachment and Senate trial is critical to how it impacts politics.


4 - Three months are left before the primaries begin and four months before Super Tuesday, which this year will have California and Texas.  Where are the Democrats?

Right now the Democratic field for president is wide and deep, but there are really only a handful of serious candidates.  Generally, Iowa and then New Hampshire are the two states that have the biggest influence on the presidential nomination process in the US.  The Iowa caucuses are February 3, 2020.  Yet this coming year California and Texas have moved their primaries to March 30, with early voting in the former coming the day of the Iowa caucuses.   These two primaries may make Iowa less important, or change the strategy of the primary process.  California and Texas will require a lot of money and momentum, and it is not clear that doing well in Iowa will provide either.  In addition, candidates may need to decide whether to commit resources to Iowa–with few delegates–or work to do well in California and Texas, which have more delegates. The change in primary schedules complicates the strategy for 2020.

Moreover, while the Democrats are united again Trump, they lack a defining narrative of what they want to do and what they stand for.  They are missing the elusive narrative.  Right now they are a party divided facing a president who has a unified Republican party behind him.  Despite the slowing  of the economy, a dreary manufacturing sector, and how health care and the trade wars are hurting  his base economically, there is no sign that these factors are eroding his support.

5 - Who are the favorites among Democrats?
At this point it is Joe Biden, Elizabeth, Bernie Sanders, and Peter Buttigieg who are the top tier candidates in terms of money raised and standing in the polls,    Biden is the leader among the more centrists of the party while Warren and Sanders are fighting for the left.  The questions will be who emerges as the candidate of the left and then how will they square off against Biden and then which side–the moderate or the left–prevails within the Democratic party.

What has been surprising is the endurance of Biden.  Despite his weak debate performance, he still is at or near the top in national and many state polls.

6 - What about Trump’s  wall?  Is it still an issue.

The wall was always a metaphor about other things that Trump was forced to own and take literally  as a promise.

The wall will continue to be an issue for Trump and his base, but the impeachment and court challenges to the wall are complicating this as an issue.  Trump will raise it at rallies but he has somewhat moved on to running against his impeachment and Democrats as his core issues along with going after immigrants.

The other issue of possible concern for Trump is the slowing of the US economy, but so far it does not look like it is affecting his support among his political base.

7- How will the China theme impact as elections?

China is a surrogate for immigration, isolationism, and protectionism.  These themes resonate with the Republican base and so far there is no indication that the economic consequences are weakening support among Trump’s base.

8 - Is it possible to apply for an independent (Bloomberg) or a competitive third party to enter the race?
People always talk of an third party candidate or party but the entry barriers, such as costs and legal challenges to get on the ballot, make it unlikely that a third party will emerge.  Bloomberg also dislikes Trump enough that he will not enter as a spoiler.

9 - What about the congressional elections?

It seems unlikely the House will flip, especially with the number of Republicans who are retiring.  The issue is whether the Republican can hold the Senate. Currently that have a 53-47 effective majority.  In 2020 there will be 35 Senators up for election, of which 23 are Republicans.  The impeachment process and possible Senate trial will test their loyalty–support the president or act to protect their own Senate seat.

One should also not forget that many state legislative seats are up for election in 2020. This is the election will determine control of the state houses going into the 2021 census and redistricting.

10–Any last thoughts?
Forget all the national polls.  Remember that the presidential election is about the electoral college and the race to 270 electoral votes. The next president is the only who moves a handful of swing voters in a few swing counties in a few swing states. That is the real presidential election.