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.

           

What Minnesota Can Teach America About Avoiding Future Government Shutdowns: Don’t do What we did, Adopt an Automatic Continuing Resolution Law

The US government shutdown is over and now the obviously and entirely predictable boring ping pong match begins.  By that, the entire focus will be on one side gloating that Democrats and Nancy Pelosi won and Donald Trump lost.  Over-quoted and deserved to be ignored conservatives like Ann Coulter on cue bemoan how Trump lost and the Rachel Maddows of the world  respond to her equally on cue, all as part of a click-bait politainment process to hype ratings.  This column will not use the phrase “cave in” more than once, but as of Saturday morning (January 26, 2019) that phrase had 15,300,000 results on a Google search.
The real focus now should be on the causes and consequences of the shutdown and how to prevent a future one.  Technically the government shuts down when there is no legal authorization to spend money. There is a simple way to prevent shutdowns whether in three weeks or the future and it is the same solution I have argued for in Minnesota for the past 15 years–pass a law enabling an automatic continuing resolution to continue funding the government in the event that no budget agreement or normal continuing resolution are adopted.
Minnesotans know a lot about government shutdowns.  We have had three since 2001–more than any government in the US, if not the world.   What we have learned about what causes and ends them might tell Americans something about why the current US shutdown occurred and what it will take to end it and perhaps prevent future ones.
Minnesota is a microcosm of the US.  It once enjoyed a  pristine image political image.  Touted in the 1970s with then governor Wendell Anderson on the cover of Time Magazine as the state that works, the reality is that Minnesota has become a partisanly divided state that has impacted the performance of its state government.  Minnesota is the only state with split partisan control of the legislature. Similar to the federal government which has a budget process and deadlines, Minnesota has one too. 
Yet since the beginning of the twenty-first century, the state has more often than not missed statutory deadlines, resulting in government closures and court fights.  In 2001 with Democrats in control of the Senate, Republicans in the House, and Independence Party Governor Jesse Ventura, the state started its new fiscal year without a budget but was saved from a shutdown with a last minute deal.  With a similar partisan legislative split in 2005 and Republican Tim Pawlenty as governor, there was a partial shutdown of nine days, and in 2011 with Republicans controlling both houses of the legislature and Democrat Mark Dayton as governor, there was a 20-day partial shutdown. In each case, state courts intervened to order essential governmental functions to be funded, and the shutdowns ended when public pressure and political self-interest drove leaders to compromise.  It also did not hurt that the inability to issue beer licenses added to the public pressure.
In addition to these shutdowns, in 2009 Tim Pawlenty sought to use special powers referred to unallotment to end a budget impasse (perhaps similar to President Trump’s threat to use the National Emergencies Act to build the wall), only to see the state supreme court reject it.  In 2017 Governor Dayton used his line-item veto to eliminate funding for the state legislature’s operations in retaliation for the latter’s refusal to follow his budget wishes.  In 2018 he vetoed an omnibus spending bill the Republicans had adopted, containing 80% of all the substantive legislation they had adopted that year.
The causes of Minnesota’s budget woes are multiple. The state has an antiquated budget process, built for a horse and buggy era seeking to operate in a twenty-first century environment.  The budget process is highly decentralized, imposes unrealistic deadlines, and has built into it simply bad policies such as a requirement counting inflation for the sake of revenue but ignoring it when it comes to obligations.  The defective formal process is compounded by partisan divides and polarization not anticipated when the budget process was first designed, as well as by inflated egos, partisan ambitions, and lack of leadership.  When a flawed process is accompanied by petty politics, the result is political dysfunction.  The way the shutdowns ended was a combination of court interventions, public pressures, and fear of electoral reprisal.
Much of what we see in Minnesota is exactly what we see at the federal level.  The formal budget process as articulated in the 1974 Congressional Budget and Impoundment Act simply is broken and needs to be remade. It was legislation adopted post Watergate when there still existed a high degree of consensus on spending priorities and when federal spending was significantly less than it is today. Over time, the process has only four times produced a budget on time (the last in 1997), with most of the time the federal government operating on a series of continuing  resolutions. Fast forward more than 40 years, the budget process is too weak to combat the partisan divide and lack of leadership in Washington, demonstrating that now it is completely broken.
Process and procedure are important, but the history of Minnesota’s and the federal budgeting demonstrate that formal procedures can only go so far.  A bad process makes it hard to do good budgeting.  But processes are only as good as the people who use them.  Budget disputes and government shutdowns are the product of significant political dissensus and failures of leadership.  So much of the US government, from the days of the constitutional framers to the present, was premised upon a basic underlying consensus and commitment to the public good that has evaporated.  Unfortunately, what is needed are new institutional rules to address this reality.
For the last 15 years in Minnesota I have argued for adoption of an automatic continuing resolution that would keep it funded no matter what.  The same should be adopted at the federal level.  The federal government should also consider biennial as opposed to annual budgets, and consider changing committee structures and time lines to streamline the process.  But even with these fixes, they will not solve the core problem driving government shutdowns–polarization, political pettiness, and a crisis of leadership.  After each of its shutdowns Minnesota failed to learn from it mistakes, making no changes in the budget process or adopting the automatic continuing resolution idea.  Instead, the focus was on who was the winner and loser.  The same is now occurring after this federal shutdown.  We will learn little from it and set the country up perhaps for another shutdown in three weeks or in the future.

Nancy Pelosi is Wrong–Congress is not co-equal to the president, the framers intended it to be superior.

House Speaker Nancy Pelosi got it wrong in recently declaring Congress as co-equal to the
president.  The reality is that the Constitution and its framers endorsed the concept of legislative  supremacy where Congress is supposed to be the dominate branch of government.   This supremacy  is the key to checking abuses of presidential power.
When Speaker Pelosi initially invited President Trump to deliver the State of the Union speech to Congress on January 29, she wrote: "The Constitution established the legislative, executive and judicial branches as co-equal branches of government, to be a check and balance on each other."
As the framers wrote the Constitution, they did so with the belief in legislative supremacy and the idea that Congress would be the most powerful branch of the government.  Separation of powers and checks and balances were critical features to the new constitution, but  branch co-equality was not.
Consider first the intellectual and historical circumstances surrounding the writing of the Constitution.  The American revolutionary war, as described in the Declaration of Independence, was largely about fear of the British monarchical executive power of King George III.  Much of the Declaration reads as a bill of particulars against the abuses of the king.  In arguing against monarchical powers, the framers were part of a long intellectual and historical tradition going back to seventeenth century England, if not to the Magna Charta,  arguing against the absolute power of kings and queens and in favor of a parliament. 
The British civil wars and the Glorious Revolution were about that.  The American founders were heavily influenced by British political philosopher John Locke who argued precisely in favor of parliamentary supremacy, against monarchical absolutism, and in favor of separation of powers.  Similarly, French political philosopher Baron de Montesquieu, who also  influenced the framers of the Constitution, too argued for separation of powers, but never asserted that the three branches of government would be co-equal.  Instead, he saw legislative authority as supreme and needing checks on it.
At the 1787 constitutional convention several of the framers argued the case that the legislature (Congress) needed to be checked because it was so powerful and, almost quoting Montesquieu verbatim,  could threaten the executive branch.  In part, the fear of Congress’ power was in part the basis of bicameralism (dividing the legislature in two to check its power) and giving the president a veto.
Further proof of legislative supremacy can be found in the text of the Constitution.  Article I which vests legislative power in Congress contains far more enumerated and implied powers than does Article II which vests executive powers in the president.  If a simple listing of the number of powers assigned to each branch means anything in terms of how to assess the relative powers of the two branches, by far Congress was more powerful.
But turn also to the Federalist Papers, considered by many including numerous Supreme Court Justices the definitive statement by Alexander Hamilton, James Madison, and John Jay regarding what the Constitution was supposed to mean.  In Federalist 39 Madison states:
But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature.

Additionally, in Federalist 48 Madison declares:
The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.

History and framers’ intent do not support the idea of co-equality.  Historian Arthur Schlesinger, Jr.  in his 1973 The Imperial Presidency made the same point, as did political scientist David Siemer in his 2018 The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions.   
What has happened over time is that both as a result of executive branch usurpation and congressional  acquiescence, the president has become too powerful.  Post-Watergate, there were efforts to correct this balance, but they lapsed. And as we have seen in the last few administrations, presidents continue to exercise too much power through executive orders and other actions,  and they need to be checked.  Congress reasserting itself as the dominant branch of the national government is one way to do that.

Democrats vs. Trump: Why Status Quo Ante and Obamaism are Not Enough

Today's blog originally appeared in Counterpunch.


Beginning January 3, the Democrats have a choice:  Do they act simply as anti-Trumps, seeking to reverse his policies and revert to status quo ante Obama- politics, or do they move toward something more transformational?  If they are politically smart, they do the latter and build policies and a coalition more permanent.  If they do the former they set themselves for failure and position themselves for setting up the conditions that led to their demise over the last generation.  The challenge for Democrats is navigating this choice, and it is not clear they can successfully do it given the distinct interests within their party.

Democrats, especially in the US House, face complex challenges governing.  In part, their agenda is determined by the lessons of 2016 and 2018 elections.  Theory one is that Clinton and the Democrats lost in 2016 because they failed to take Trump seriously.  Clinton was a weak candidate with a poor message and campaign strategy who ran on the politics of the status quo in an election whose geography came down to a handful of swing states.   She and her party lost because  critical voters, such as women, people of color, and those under the age of 30 stay home because Democrats assumed they would show up to vote, and they did not, while at the same time angry white men did.

Democrats  won in 2018 because Trump was despised, especially by female voters in more affluent and better educated suburbs where Democrats ran candidates who worked hard to get out the vote and mobilize voters who stayed home in 2016.  If this is the theory of what happened, then the Democratic agenda is set: Reverse Trumpism, bring back Obama-era policies, and take on the president with aggressive investigations and checks that could include impeachment.  Do this and many of those lost white, working class voters will return to the party.

Theory two is that the lesson of 2016 and 2018 is tht the Democrats lost because of 40 years of complicity in neoliberal politics, transcending the Bill Clinton and Barack Obama administrations, and which Hillary Clinton personified.  It was a set of policies where Democrats, having embraced  big money from Wall Street, did little to address the rising gap between the rich and poor, where trade, industrial, and tax policies disproportionally hit those lacking a college education, and where the primacy of identity politics ignored the plight of white working class America–still the largest voting block in the country.  When the Great Recession of 2009 hit, Democrats bailed out the banks but not the people, ignored  unions who wanted labor laws updated, and adopted a tepid Republican-inspired health care bill.  If this is the theory of what happened, simply going back to Obama-era policies is not enough.  Democrats need a more transformative agenda, linking policy change to constituencies, including  major voting rights and elections reform, health care, education funding, and addressing the gap between the rich and poor.

The reality is that the lessons of 2016 and 2018 may be a little bit both theories.  For many  simple reversal and opposition of Trumpism is enough, and this might appeal to the suburban voters and establishment Democrats.  Tinkering with Obama-era policies may be the limit of what these voters want.  But for others, especially many of the Millennial and Gen Z voters located in the urban cores, they want a more transformational agenda because the legacy of the Democratic Party’s Neo-liberalism have left them broke, holding significant college loans, or in the case of people of color, policies that failed to address all the disparities between them and White America.

The Democrats challenge is knitting together a set of policies that make sense of both theories about why they won and lost and hold together a coalition that may have very different perceptions of what it means to be anti-Trumpism.  While short-term expediency may require Democrats to moderate their policies to hold suburban voters in their fold, longer term this strategy  clashes with the more progressive agenda needed to hold the other wing of the coalition together.  However, thinking that simply returning to Obamaism is enough will fail to hold either of these constituencies.  Even the more moderate and suburban voters want more than the return of Obamacare.  Democrats need to delivery on reality of  making health care and education more affordable.  They want safer schools with fewer guns, they want a clearer environment, and they want an economy where they feel they are treated fairly.  Simple Obamaism was not enough to do that, and it will do nothing to bring back white working class voters to the Democrats, although it is not clear really anything will move the core base of Trump to switch their vote.

The 2016, 2018, and 2020 elections are potentially producing what political scientists call a critical realignment in American politics that redefines party coalitions, agendas, and policies.  The Democrats lost because they failed to adopt and adapt politics to an emerging new coalition in America while also ignoring or taking for granted their base.  There is no question that Democrats have lost some voters and will never recapture them, but if it has any hope at  building a new permanent coalition it cannot simply be the Obama antithesis party to Trump.

Sheryl Sandberg, Nancy Pelosi, and the Suburbanization of the Democratic Party

By now as all the post-2018 midterm elections have made clear, the Democratic Party’s blue wave was driven in larger part by female voters in middle class to affluent suburbs.  The question now to be answered is what will be the policy consequences of this?    Of course starting in January one will find out, with the question being will women do politics differently than men or will they conform to the rules of power that confront them?  The answer may be a little bit of both, but it is important to understand the perspective that the female suburbanization of the Democratic Party offers, and perhaps how the experiences of Sheryl Sandberg and Nancy Pelosi tell us something about what difference women do or do not make in the world of work and politics.
The question of whether women offer a unique perspective started with Carol Gilligan’s 1982 In a Different Voice.  It argued that men and women morally perceive the world in different ways, with the former depicting it in a hierarchical, right/wrong, black/white way versus a more nuanced  relational way.  Gilligan’s work was a landmark in psychology, paralleled by Mary Field Belenky’s, et al, 1986 Women’s Ways of Knowing and  Deborah Tannen’s 1990 You Just Don’t Understand,  which described the unique ways women come to learn, know, and communicate.  The core arguments for all three, and subsequent feminist writers, was that the unique experiences of women compared to men provide a female perspective in critical activities in life.  Men and women performing similar functions do things differently, might be one way to capture this idea.
Politically the argument would be that female legislatures would do politics differently, both in terms of style and policy agenda.  Margaret Conway’s 1995 Women and Public Policy noted important differences along these fronts, and since then other scholars have found contrasting ways men and women politically engage or act as public officials.  However, as other scholars, such as Robin West, have noted, lumping all women together in one group is stereotyping–there are important differences in perspectives among women based on race and class, for example. This is the concept of intersectionality recognizing the interplay of gender along with race, class, and sexual orientation,  for example. Much, but certainly not all of the  political research has focused on middle class white women, ignoring important perspective and policy differences that may divide women across a range of variables that also divide men.  Enter Sandberg and Pelosi.
Sandberg is a feminist icon to some for her book Lean In and claims that women should take charge.  Yet as many critics point out, she spoke with the voice of white affluent privilege, largely  ignoring the circumstances that women of color and less modest means face.  Her book was a claim that women would do business differently, but as the recent NY Times expose on Facebook and she revealed, it is hard to see how Sandberg brought a different way of doing business to the corporate world.  She adopted the same techniques and perhaps dirty tricks that men used when Facebook was challenged.
Nancy Pelosi ranks among the richest members of Congress, with net wealth estimated at nearly $30 million.  She is the former Speaker of the House, skilled legislatively, as a fundraiser, and as a leader.  It is hard to argue that her career has demonstrated a real difference compared to men in terms of the work she has done.  However both she and Sandberg are accomplished and represent one important perspective of women, but it is far from clear that they represent transformative figures that embody a unique female perspective.  They changed their worlds and conformed at the same time.
Why is all this significant?  The suburban blue wave that occurred on election day was one driven by affluent white women.  When it comes to partisan politics and policy,  the Democratic Party is largely being remade in the image of this powerful group of women.  If these women are the drivers of the Democratic Party now, their views should inevitably come to dominate as they take ownership of the party. Almost anyone, except former governor Chris Christie, gets this.  Sunday on ABC’s This Week when asked if it was a problem that women were not joining the Republican Party, he said they were welcome so long as they “believe in Republican philosophies and Republican approaches to government.”  Christie apparently thinks he and his other white male friends own the Republican  Party, define its orthodoxy, and that its principles are immutable.  Such an attitude is a recipe for political extinction.
The new Democratic Party will evolve;  it  is a party of women who share affinities with Sandberg and Pelosi.  It will be a perspective representing one set of middle to upper income values, but it is not clear that the interests served will necessarily be as progressive or as representative of the interests of the poor and people of color as some might think.  The challenge for the new Democratic Party will be how to hold together a constituency that contains suburban white women, people of color, urban liberals, and perhaps the poor.  These three sets of values are not necessarily compatible, and the challenge facing this new suburbanization of the Democratic Party is to ask whose preferences are not only included by excluded, and whether the female vote will really be transformative.