Champing at the Impeachment Bit

Historians try to cultivate past-mindedness. That means they are trying to recapture the sense and the dynamics of a past time without reference to or explanation by what comes afterwards. Don’t tell the story of the Civil War in the light of the Civil Rights Movement because that will make you forget that emancipation of the slaves became a central issue only when the Civil War was well underway. Political commentators and cable channel news anchors, on the other hand, cultivate present centeredness. They are on the lookout to see how the past is made relevant by the present and so they talk about what a past event predicts about the future. And so both cable and print people spent the three days of the George H. W. Bush funeral pointing out how statesmanlike and presidential he was in comparison to the current President, though that is to set a very low bar over which to hurdle. That and interviewing incoming members of the House, who have nothing much to say, is a way to fill the time until something serious comes out of the Mueller investigation, the cable and print people trying to squeeze what they can out of sentencing recommendations about what the future will hold because newscasters seem ever less interested in reporting what has happened and ever more interested in guessing at what will happen.

What can be said, however, is that the news people are in the first rounds of deliberating on what might constitute an impeachable offense even though Nancy Pelosi is not engaging in that game. Most Democrats prefer to see what Mueller has and will probably move on impeachment only if the allegations are shocking enough that a number of Republican legislators line up to support them, a more likely scenario being that senior Republican legislators will just march down Pennsylvania Avenue to tell the President that he should not run again, a verdict I suspect he would be happy to hear. He wants to get back to his hotel business.

The sentencing memo on Flynn told us nothing of significance. It takes more than a few meetings between campaign staff and Russians to justify an impeachment, something the Constitution provides as a last resort to make needless the chopping off of the head of the King. There must be a subversion of the Constitution that puts the whole system in jeopardy, and that was certainly true of Watergate because Nixon was engaged in an attempt to undermine the electoral system and was also true, I would argue, in the case Iran-Contra, because Reagan’s actions were a direct violation of the provision of the Constitution that says only Congress can appropriate funds for the operation of the Executive Branch. Trading arms for hostages was a way around that, a separate non-Congressional source of income to fund Nicaraguan rebels, when Congress, through the Hamilton Amendments, had said that no government money could be spent on the Contras.

That high standard for impeachment is not met by Flynn having talked to the Russians about the fact that they should go easy on sanctions against the United States because when Trump assumed power he would go easy on them or reduce sanctions entirely. It is clear that Trump’s son and key advisors had already talked with Russians about reducing the punishment on Russian oligarchs. But Richard Nixon had talked to South Vietnamese officials during his campaign about having them delay negotiations because they would get a better deal once Nixon was in charge (although that didn’t happen, Henry Kissinger having famously pronounced that diplomacy was a dirty business). Nixon just kept withdrawing American troops so that there were no longer enough of them to defend the South Korean regime. That episode of negotiating before taking power was not included in the impeachment charges against Nixon.

The same false leap to Impeachment occurs when the sentencing memo on Cohen says Trump and Cohen arranged to pay off two women. It is a violation of the campaign finance laws, and so it may be criminal. But it is not impeachable any more than some technical violation of real estate law would be impeachable. Yes, the payoffs were meant to mislead the American public about Trump’s private life, but it is not a crime to lie to the electorate about what you do or think when you are running for office because otherwise any successful candidate could be charged after the election with any number of charges of lying or distorting the truth. It is up to the public to decide if a candidate is trustworthy and it is their fault if they have misjudged.

There is also a problem in jumping to conclusions about the fact that, according to the pleading papers revealed on Friday, Trump had ongoing hopes of cashing in on a Moscow Trump Tower deal right up to convention time even though he said he had no dealings with Moscow, which might, by a stretch, be true in that no deal was ever consummated, and so no money changed hands and, anyway, he wasn’t an elected official at the time. It is hard to construe a non-deal prior to the election as a violation of the Emoluments Clause, though it is easy to see that what happens at the Trump International Hotel which occupies the old Post Office Building in Washington, D. C. is a violation of the Emoluments Clause because Saudi Arabia rents out a lot of rooms so as to feed Trump’s kitty. But we knew about this a long time ago when an accountant he hired said that Trump was not going to be in violation of the Emoluments Clause because Trump would turn over any profit he made on the renting of rooms to foreign dignitaries to charity. That doesn’t take into account that the occupancy rate of the hotel contributes to its value even if direct profits are turned over to charity. (By the way, has anyone queried Trump or his associates about whether any checks have been written to charity?)

So the Emoluments issue has been out there since the beginning. No Special Prosecutor required to get to the bottom of that, only a Congress willing to take it on, but it doesn’t seem to be an issue which has caught on with the American people. Trump was well known to be a real estate developer when he was elected and it would have been a leap to think he would have divested himself of all his investments, no other President having such a large private portfolio of ongoing businesses. So why think he would try to do what a bevy of accountants would probably not know how to pull off? And, as I say,  the Moscow deal is a non-starter. The real question for a Special Prosecutor is whether Trump was in hock to the Russians from years before when he was in financial trouble with his Atlantic City hotels. So far, Mueller has been mum about that.

Trump so dominates the news that people do not notice evolving stories that will become important when Trump, for one reason or another, leaves the stage. One of these is the debate about abortion that may again become prominent if the Supreme Court overrules Roe v. Wade. This past week, the Supreme Court took up the question of whether a precedent of more than a hundred and seventy years standing should be reversed. It has been that long that people could be tried in both state and federal courts in violation of the constitutional prohibition of double jeopardy. Both Liberals and Conservatives agree that it is about time to overthrow that precedent which was useful in convicting people who violated the Fugitive Slave Act who had been found not guilty by juries in Northern states that had no use for slavery or returning slaves to their masters, even if the Fugitive Slave Act that was passed as part of the Compromise of 1850 was needed so as to hold the Union together by a thread. With typical present mindedness, commentators suggest that such a decision on double jeopardy would impact on whether Manafort could be tried in state courts if the President pardons him. I see a different trail of findings. If a decision that had stood for so long can be overturned for no compelling reason other than that it was wrongly settled in the first place, then a clear avenue is presented for violating stare decisis one more time with regard to an issue that people really care about. Roe v. Wade is less than fifty years old and a lot of people think it was wrongly decided, even though it has had an impact on the way we live our lives and has so woven its way into the social fabric that reversing it would seem unjust.

The thing about Supreme Court decisions is that they can’t be reversed until they are, The same is true of any other body of sacred tenets. The Catholic Church can’t change its mind about priestly celibacy because to do so would make people question a firmly held and thousand year old tenet of the Church, but it could be abolished when it is abolished, just as meatless Fridays were, and how long is that before contraception is accepted as a normal and practical remedy for unwanted births? So the passions around Roe v. Wade are deeply held ones that will rise to the surface as the politics of the day when we are no longer pre-occupied by Trump and the issues that are specific to him: his greed; his ignorance about issues domestic and foreign; his meanness. We will have to deal with what will live after him, like his two Supreme Court appointments but, I think, not much else. It will feel very liberating to confront normal politics again, however bitter a resumption of the abortion wars will be, though that is to fall into this error I mentioned at the beginning of this essay, which is predicting the future rather than reporting the present.