The Electoral College Map Right Now Says Trump Wins in 2020

The 2020 presidential race is effectively over in 44 states plus the District of Columbia.  Who will be the next president is down to a handful of voters in six swing states.

            As Americans have now learned twice since 2000 the presidential popular matters little.  It is the electoral vote and the number of electoral votes it takes to win the presidency is 270.   Because of laws in 48 of the 50 states (Maine and Nebraska the exceptions), whichever presidential candidate wins a plurality of its popular vote wins all of its electoral votes.  Across the country because some states are more Republican or Democratic  leaning, they are safely in the camp of one party or another regardless of  the candidate.

            Based on recent elections, voting patterns, and polling, a Democratic Party candidate for president is nearly certain to win California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, (overall state) Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York,   Oregon, Rhode Island, Vermont, Virginia, and Washington.  This is a total of 19 states plus the District of Columbia.  In the case of Maine, Democrats probably will overall win the state and three of its four electoral votes.  The other electoral vote, which is for the Second Congressional district, goes to the Republican.  Democrats start with 222 electoral votes.

            A Republican Party candidate will win 30 states plus part of Maine.  These states are  Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, (Second Congressional District), Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.  Republicans start with 216 electoral votes.  

            The likely voting patterns of 44 states calls into question how important the stand on issues is compared to partisanship.  In these states it does not matter if a Democrat is advocating for Medicare of all or something less, issue stance will have marginal impact on the election.

Yet there are six remaining states–Florida, Michigan, Minnesota, North Carolina, Pennsylvania,  and Wisconsin–totaling 100 electoral  votes, which are too close to call and they are the swing states that will decide the presidency.

            These states, exception Minnesota, have swung back and forth between Republican and Democratic Party presidential candidates over the last four elections.  Head-to-head surveys of Trump versus Biden, Sanders, Buttigieg, and Warren find these states to be competitive.  However, even among these six, we can make some guesses about what they might do.  Minnesota is a state Trump almost won in 2016 and is targeting it in 2020.   Yet Trump is losing by double-digit numbers to any likely Democratic candidate.   In Michigan, Biden, Warren, and Sanders are leading Trump, but only Biden appears to have a statistically significant lead.  Move these 26 electoral votes to a Democrat and now it is 248. 

            On the Republican side, while recent polls indicate that Florida and North Carolina give Biden a slight lead in both (Warren and Sanders are effectively tied with Trump), these states are hard for Democrats to win.  They have large white working class populations who are motivated Trump supporters.  Move the 44 electoral votes over to Trump, and he now has 260.

            This leaves Pennsylvania’s 20 electoral votes and  Wisconsin’s 10 which will determine the 2020 election.  As of now, the only Democratic candidate who has a statistically significant lead over Donald Trump in Pennsylvania is Scranton’s own Joe Biden.  Assume he is the nominee; Democrats win the state  but still are short two electoral votes.

            This leaves it up to Wisconsin.  Biden is  the only Democrat with a lead over  Trump in the Badger state, but it is effectively a statistical tie.  Given the high percentage of white working class voters in Wisconsin, their likely motivation especially post-impeachment, and  devotion of some Democratic resources to winning or holding other Midwest states such as Minnesota or Michigan, move the ten electoral votes to Trump.  With that Trump wins an electoral college re-election with a bare minimum 270-268 victory.
         Now, assume Democrats hold Maine -2, this then makes the electoral vote 269-269, no majority. This then means according to the Constitution that the House elected in 2020 will pick the net president, with each state getting one vote. Right now with the current House Republicans hold a 26-24 edge, with Michigan and Pennsylvania tied. Republicans control a majority of the states despite the fact that Democrats have majority control. Assume Republicans continue to hold a majority of states in the new Congress and Democrats have majority control, Trump wins in the House. The battle for partisan control of state congressional delegations is also important.

            A lot can change between now and November 2020.  How impeachment and the economy play out are two  issues. As we also saw in 2016, campaign strategy  matters, and Hillary Clinton lost in part because she failed to develop an effective electoral vote plan.  Similarly, this preliminary study shows that perhaps only in a few states and among a handful of voters does the actual candidate  stance on issues matter.  But what might matter is whom the candidate is and in what state and based on polling nearly a year out the Democrats best chance of winning the presidency might be with Joe Biden because he appears best positioned to win several swing states, including a decisive Pennsylvania and  Wisconsin.

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.

The Democratic Party’s Missing Electoral College Game Plan

Rule number one of politics:  The first step in exercising political power is to get elected.  Somewhere along the line the Democratic Party has forgotten this.  Why this is important is that right now it looks that Democrats are on the road to another 2020 presidential popular vote victory and a loss in the electoral college.  Simply put, the Democrats have no electoral college victory plan.

            The reality is that  the only number that matters in US presidential politics is 270.  That is the number of electoral votes you need to  win.  US presidential elections are not really national popular votes; they are 50 separate state elections plus the  District of Columbia where in 49 instances the winner of the state’s popular vote nets the candidate the entire trove of its electoral votes.  The combination of  the electoral college and this winner-take-all structure means that effectively in 40 states the 2020 presidential election is over.  How New York, California, Massachusetts, Alabama, Mississippi, and Oklahoma will vote is not in doubt.  The presidential candidates know this too.  The race for the White House comes down to a handful of swing states, prominent among them are Pennsylvania, Michigan, and Wisconsin.  As Trump demonstrated in his 2016 Midwest strategy, winning them was key to his victory and had less than 90,000 votes flipped in them, Hillary Clinton would have won the electoral college victory and not simply the popular vote.

            Political coalitions, like fences, are only as strong as the weakest link.  Democrats need a strategy to hold all the states they won in 2016 and then how to pick up Pennsylvania, Michigan, Wisconsin.  Yes, they could try to flip Arizona, Georgia, or Texas as some pipedreams hope for, but the reality is winning them is distant and difficult.  They key is flipping critical swing states.

            What is interesting about these swing states is that their electorates are generally to the left of recent Republican Party presidential candidates and to the right of Democratic Party candidates.  In many ways they are states more centrist than the non-swing states, and certainly more in the middle compared to the overall Democratic Party base.

            There are two way to flip these  swing states.  One option is to move swing voters back to the Democrats.  But here what we know is that who is a swing voter is less and less likely to be someone who moves back and forth between voting Democratic or Republican and more so whether they swing into or out of voting.  Democrats did badly in 2016 because swing voters, especially suburban  females, stayed home or did not vote for them.  In 2018, those suburban females came out for Democrats.  Winning in 2020 is getting these women to vote.  What we know about these voters is that they are socially moderate to liberal but are not left of center.  This is a more centrist strategy.

            Option two is moving voters who do not normally vote to show up.  Presumably these voters are more liberal as they constitute younger people, perhaps people of color.  These are the people who perhaps resonate with issues such mandatory Medicare for all.  These individuals are hard to motivate to vote and they may be a smaller percentage of the potential electorate in swing as opposed to non-swing states.

            The point here is that a viable strategy for the Democrats to win the 2020 election relies upon them winning critical swing states, whether it is running more to the center or to the left.

Unfortunately, the debates so far, the 2020 primary and caucus schedule, and the candidate messages are setting the Democrats  up to fail.  Consider first recent polling data.  In critical states such as Michigan ,  Pennsylvania, and Wisconsin  mandatory Medicare for all is unpopular (or is divisive at best) despite the fact that nationally a majority of Democrats support it.  Nationally, only 41% support eliminating private insurance for a mandatory Medicare plan for all.   A pledge by Warren or Sanders to push for this as an issue may not play well in the swing states.

Two, the current so-called debate structure does not favor or emphasize winnability of Democrats in critical swing states.  Instead, its combination of popularity in national opinion polls and national fundraising keeps potential popular vote candidates alive but does little to winnow candidates to those who are viable in swing states.

Three, consider the primary and caucus schedule.  While arguably Iowa (February 3, caucus) and New Hampshire (February 11, primary) are swing states, the critical states of Michigan (March 10, )  Wisconsin (April 7), and Pennsylvania (April 28) come after the March 3, Super Tuesday which features 14 states and includes California and Texas.  Super Tuesday could well filter out candidates who could run well in swing states because of either the costs or ideological orientation of these 14.  Of these 14 states, arguably only Minnesota and Virginia are swing.  Running and winning the gauntlet of Super Tuesday does not mean one is prepared to win in the swing states that will decide the road to 270.

Perhaps the electoral college is unfair and needs to be eliminated or reformed.  But it is a reality at least for next year.  Democrats need a process that vets candidates and strategy to win the electoral college in 2020.  They do not have it.

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.