THE PUBLIC AND HARD CHOICES: TWO VIEWS

This post concerns process as much as any substantive topic. Hopefully, it provides insight into how the three of us think, evaluate, and conceptualize issues. It originated in thoughts

Henry expressed about the capacity of voters and the public for sorting out complex issues and making nuanced judgments. Today’s politics, about which we so often write, forces difficult choices. Many issues are far from simple and may implicate moral and ethical dilemmas juxtaposed against deeply held social and ideological positions. Operating in the public sphere today offers few easy moments. Often no good choices exist.

Henry’s Optimism

We live in different cities, so we frequently communicate by text, though we also confer regularly by telephone about the substance of our

writing. One of us sees an idea in the day’s news or runs across an intriguing thought in an article or book. We ask for each other’s reaction to this or that development in the impeachment saga, foreign affairs, sports, or an aspect of interpersonal or family relations.

One day recently, in a series of text messages, we considered the capacity of Americans for making fine distinctions between pieces of evidence in the impeachment inquiry. Henry expressed confidence a large part of the public can sort and sift through the evidence, making intelligent decisions about such things as which acts of President Trump constitute impeachable offenses and which don’t. We recognized the impeachment enterprise could require understanding the difference, for example, between criminal acts and those which, though technically not a crime, still might constitute an impeachable abuse of power.

The Dissenters Respond

Woodson and Rob disagreed. Their text messages asserted that many members of the American

electorate can’t regularly make those distinctions. Such individuals rely on and adopt slogans and spin generated by political leaders with an agenda. Woodson and Rob pointed out, for example, our recent experience with the Mueller Report. 

One reason the early spinning by Attorney General Bill Barr derailed the potential impact of Mueller’s Report was Barr’s focus on a narrow point he claimed the report determined – “no collusion,” a term that doesn’t exist in federal criminal law. Trump and his allies took Barr’s misleading claim that Mueller found “no collusion” and ran with it, creating a false narrative the report itself never overcame.

Relatively few Americans read the dense, technically worded 400 plus page report and only

a few more closely followed the reporting concerning Mueller’s work. Those who did one or the other realized summarizing Mueller’s conclusions about Trump’s 2016 election involvement with the Russians in one or two words wasn’t possible. 

Rob and Woodson argued the Mueller Report reaction and the response to other still-emerging details of Trump’s illegal or unconstitutional behavior demonstrated the limits of popular ability for sorting out difficult public policy issues. Indeed, one reason Trump’s phone call to Ukraine’s president tying U.S. military aid to a “favor” for him in digging up dirt on former Vice President Joe Biden may have broken through with the public lies in its simplicity. Understanding a shakedown requires much less capacity for nuance than sifting through Mueller’s machinations about collusion and obstruction of justice.

Elitist?

Some may suggest the view Rob and Woodson

take smacks of elitism. You don’t trust THE PEOPLE, such observers might say. Mistrust of the general population goes back centuries in American public life. The reason for the electoral college? The framers weren’t sure voters could make informed decisions on who should occupy the White House. Instead of leaving the matter to popular will, as President Hillary Clinton discovered in 2016, they established a system they thought diminished the chance an ill-informed public could make an irrational presidential choice.  Oh, and don’t forget that until ratification in 1913 of the Seventeenth Amendment, state legislatures, not voters, elected members of the United States Senate. In short, mistrust of the public enjoys a glorious history in America and misgivings about the capacity ordinary citizens possess for sorting through complicated public policy issues doesn’t necessarily prove elitism.  

Saving Grace

Despite our disagreement about how much nuance Americans exhibit in the public policy sphere, we concurred on one thing: a thoughtful person can make a difference in public policy debate. American history is replete with examples of single individuals making distinctions about divisive issues that end up having a major impact on the body politic.

Take the example of Edmund G. Ross, an obscure Senator from Kansas, who cast the deciding vote preventing conviction and removal from office of President Andrew Johnson in 1868. Johnson was a bad president, a racist who stopped much of

Abraham Lincoln’s bold plan for healing the nation after the Civil War. The charges against Johnson, for which the House of Representatives impeached him, stemmed from a petty fight over something called the Tenure of Office Act, aimed at keeping

Secretary of War Edwin Stanton in office. The underlying issue had no real importance in American governance. Senator Ross’s vote, as chronicled in John F. Kennedy’s Profiles in Courage, prevented an injustice.

                  

Senator Ross’s vote represents but a single instance in which one person made a difference and changed history. Americans may not always recognize the fine distinctions thoughtful public policy consideration and development require, but in the republic’s 243 years, we’ve gotten some things right.                     

The Politics of Impeaching Donald Trump: How It Might Happen

As they say in radio, “The Hits Just Keep On Coming.”  That’s been American politics since May 15, when President Trump fired FBI Director James Comey.  Space doesn’t permit listing all the blockbuster stories absorbed in news cycles since then. Increasingly, the media and the public speculate whether the end game to all this is the “I” word – potential impeachment of the 45^th President of the United States.

One of us, Woodson, already is on record in suggesting Congress will impeach Trump this year.  The other two of us, as much as we’d like to see that, argue it won’t happen, if at all, until after the 2018 elections when Democrats could recapture the House of Representatives and control of the impeachment process. We realize impeachment implicates legal and political concerns and we ignore either at our peril. Now, we focus on politics. 

Some History   Three American presidents -- Andrew Johnson, Richard Nixon, and Bill Clinton – have faced impeachment proceedings.  No U.S. President has been removed from office by conviction following impeachment, though Nixon resigned in anticipation of certain impeachment and conviction. 

“High Crimes and Misdemeanors” represents the constitutional standard for impeaching a president.  Historically, a debate has raged among the political class and legal scholars over whether the term means an indictable criminal offense or merely political or practical misconduct.  The record in the three cases shows a combination of the two.  In reality, “High Crimes and Misdemeanors” means whatever Congress says it means.

The House impeached Johnson in 1868 over his violation of a likely unconstitutional statue -- the Tenure of Office Act.  Johnson tried to replace Secretary of War Edwin Stanton with General Lorenzo Thomas.  Congress passed that law to protect Stanton and when Johnson wouldn’t follow it, the House approved 11 articles of impeachment. Three conviction votes in the Senate each fell one vote short of the required two-thirds majority.  The Johnson impeachment, therefore, was blatantly political and Congressional Republicans, angry with Johnson over dealing with the defeated Confederacy after the Civil War, didn’t worry about finding a criminal charge against him.

The House Judiciary Committee adopted three articles of impeachment against Nixon in 1974, two of them essentially political – abuse of power and contempt of Congress.  But, the June 23, 1972, “smoking gun” tape in which Nixon and his chief of staff, H.R. Haldeman, plotted how to use the CIA as a cover for stopping the FBI investigation into the Watergate break-in, would have resulted in a conviction on the third article, obstruction of justice, had Nixon not resigned.

The impeachment articles against Clinton that passed the House in 1998 involved criminal charges -- perjury and obstruction of justice related to lying about his affair with Monica Lewinsky.  Because the charges against Clinton concerned sex, the Senate was never going to convict.

It’s Politics   So, the impeachment record shows it’s as much about politics as about criminal wrongdoing.  Impeaching Trump would constitute a political act as much as a legal one, with wide ranging consequences, making considering the politics of impeachment necessary.  Republicans control both chambers, so Congress wouldn’t likely impeach Trump until GOP members believe it in their political interest to do so or think they can’t afford to resist.  Assembling evidence against Trump and his associates remains important, but we must at least partly view that evidence through a political lens.

 For Republicans to desert Trump, must Special Prosecutor Robert Mueller develop an airtight criminal case against him?  Nixon’s political support didn’t collapse until his criminal culpability became clear. Since Trump’s sins, and those of his colleagues, involve national security and foreign policy matters, what will it take for enough of the public to support impeachment that Republicans get on board or get out of the way? The public saw the Johnson and Clinton impeachments as mostly political.  Americans didn’t think Congress should impeach Johnson over a personnel matter and they didn’t want to run Clinton out of office over sex. Nixon’s overt criminality, however, sufficed and he resigned in the face of the inevitable. What will the public require for getting rid of Trump?

Afterwards   Then there’s the fallout from impeachment.  What happens if enough shoes drop this summer that Congress does impeach Trump, making Mike Pence President by early 2018?  We see two possible scenarios.  Republicans could, of course, suffer a similar fate as in the aftermath of Watergate and Nixon’s resignation.  Democrats cleaned up in the 1974 mid-terms, picking up 49 seats in the House and four in the Senate. Jimmy Carter arguably won the White House in 1976 because of Watergate and Gerald Ford’s pardon of Nixon.

But, for those who oppose the Republican agenda, there’s also a nightmare scenario.  Suppose Pence puts the GOP back on track by doing things like picking a woman, say former South Carolina Governor and current UN Ambassador Nikki Haley or Iowa Senator and hog farmer Joni Ernst, as the new Vice President?  Suppose Pence cajoles his majorities into passing a big tax cut, makes Democrats a deal on infrastructure spending they can’t refuse, and cobbles together a health care deal that mollifies the firebrands in the House and blunts moderate Senate opposition to repeal of the Affordable Care Act?  Such a political resurrection might hold Republican losses in the House in 2018 to the norm for the party holding the White House and make Pence a formidable incumbent in 2020.

When thinking about impeachment, a chilling phrase for this scenario comes to mind: Be careful what you wish for.