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.                     

GIVING THE DEMOCRATS SOME GENERAL ADVICE

We have thoughts on how each Democratic presidential candidate can improve his or her campaign. In the weeks ahead, we’ll share those. For now, we’ll start with things that apply generally. 

 

The race for the 2020 Democratic presidential nomination remains in its early stages (the first voting in Iowa occurs February 3), but has taken shape such that we can say the nominee will probably come from a group of four candidates. Joe Biden, Bernie Sanders, Elizabeth Warren, or Kamala Harris seemingly have the best chance at standing on the stage as the nominee next July at the Democratic Convention in Milwaukee. We can make a case a few others – Pete Buttigieg, Julian Castro, Michael Bennett, Amy Klobuchar, Beto O’Rourke, Cory Booker -- might get there but, to varying degrees, they’re long shots. Unless something shakes up the race, that’s where we are.

So, how do these candidates make the nomination worth having? How, as a group, do they give whoever emerges as the nominee the best opportunity for taking down Donald Trump?  We have some suggestions.

Collective Advice 

The second debate held last month in Detroit

exposed flaws in the Democratic campaign as a whole.  Some pundits called the exercise - especially the second night when virtually everyone went after the front
runner Biden – a circular firing squad.  We're not sure the adjective applies, but some distressing things occurred that should stop.

Quit attacking President Obama Trump said the next day Obama got attacked more than he did. That wasn’t literally true, but we take his point. In going after Biden, several candidates challenged Obama’s immigration policies, pointedly asking Biden if, as Vice President, he counseled Obama against what he did on deportations. Biden, properly, wouldn’t say how he privately advised Obama. The 44^th President wasn’t perfect and he no doubt made decisions he’d prefer having back. But he has a 95 percent approval rating among Democrats. Whoever gets nominated will need his help in the 2020 fall campaign. Nothing good can come from running him down.

Demonstrate some flexibility Democrats get it that voters, as they showed in the 2018 midterms, care about health care. The health care discussion in the debate, however, served Republican ends, not Democratic ones. First, some candidates behaved with a “my way or the highway” attitude about their health care plans. These candidates argued there’s only one way on health care and it’s theirs. Second, other candidates offered health care plans so

complex no voter who has a life can figure them out. Democrats should set out principles and goals everybody wants – universal coverage, protection of coverage for pre-existing conditions, lower drug costs – and commit to working with other Democrats and enlightened Republicans on finding a plan that accomplishes them.

Don’t fight with each other The July debate in Detroit didn’t get overly personal, but we can see that happening soon if the candidates don’t commit to making this more about Trump than about each other. We wonder, for example, if the relationship between Harris and Biden isn’t already

Biden & Feud at 2nd Debate

fractured beyond repair. Whoever’s left for the September debate in Houston should base their complaints about any of their fellow Democrats on policy and make clear they’ll do everything possible for whoever wins the nomination. After all, any of them would make a much better president than the one we have now.

That brings us to what they should say about Trump and why America must rid itself of him.

Please Make It About Trump

Race Baiting Millions of words have been written about Trump’s promotion of racial division and discord, so we’ll add only a few. We have no difficulty believing his hate-filled diatribes against Hispanic immigrants fostered the climate that allowed the

mass shooting in El Paso. His attacks on four female members of congress, all women or color, are disgusting, as was his broadside at black Maryland Representative Elijah Cummings. Democrats, by calling him out, loudly and constantly, can drive minority group turnout and attract moderate white voters, especially women, in the suburbs. 

Rule of Law Whether the House impeaches Trump or not, his flagrant disregard for the rule of law merits removing him from office. The Mueller Report provides all the evidence needed for making the case he should go. Many of the Democratic candidates claim they’ve read it. It’s time they started showing their work.

Ghastly trade policy Trump’s tariffs may hurt China, but they’re damaging American farmers as much or more. Retailers will feel the effects soon, as will consumers. The policy is becoming one giant self-inflicted wound.

Federal government in disarray Every week it seems another cabinet level officer leaves. Director of National Intelligence Dan Coates, a respected former U.S. Senator from Indiana and one of the few grownups left in the Administration, announced on July 29 his resignation, effective August 15.  Trump then said he’d replace Coates with grossly unqualified Texas Congressman John Ratcliffe. He withdrew after a week when even Republican support didn’t materialize. Then there are all the other agencies operating with acting heads. 

We could name plenty of other things wrong with the Trump presidency. Piling on isn’t necessary for making the point it should end as quickly as possible. The sins named merely start the list and the Democratic candidates should lead the way in pointing them out.   

 

DOUBLE JEOPARDY OR NO JEOPARDY?

More than 1000 former federal prosecutors have publically stated they would prosecute Donald Trump for obstruction of justice were he not President of the United States. Those former prosecutors made that declaration after Special Counsel Robert Mueller decided he couldn’t prosecute Trump because of Justice Department policy. That policy, stated in an October 16, 2000, Office of Legal Counsel (OLC) opinion, prohibits indictment of a sitting President. As long as Trump remains in office, no federal grand jury will hand down charges against him, regardless of the evidence that might otherwise compel such an action.

The OLC policy, which isn’t in the constitution, and a long standing American tradition against prosecuting former political opponents, could combine in assuring the government never prosecutes Trump for the acts spelled out in the Mueller Report. This circumstance carries broad and troubling implications for the rule of law in America. The OLC policy, and that tradition, could mean getting elected President provides a permanent get-out-of-jail-free card for seriously bad actors.

Trump’s Situation

Special Counsel Mueller found ten acts by Trump that might constitute obstruction of justice. Citing the OLC opinion, Mueller declined prosecution but specifically said, “while this report does not conclude that the President committed a crime, it does not exonerate him.” Any fair reading of the Mueller Report recognizes the Special Counsel would have indicted Trump but for the OLC policy. Mueller’s decision, therefore, leaves three options for dealing with Trump’s possible crimes: (1) impeachment and removal from office by Congress, (2) prosecuting him after he leaves office, or (3) letting him slide.

Impeachment, being the ultimate political act, may or

may not happen. No one  currently thinks the Republican Senate will convict Trump. Calls for Trump’s prosecution after his term ends have started, including from House Speaker Nancy Pelosi. The problem lies in that American tradition – we don’t prosecute former Presidents, no matter their crimes in office.

Twice in modern times, the issue has arisen of what to do, after he leaves office, with a President who has committed criminal acts. It also arose in a hypothetical scenario involving Trump and his 2016 opponent, Hillary Clinton. The way the issue has been handled in each case suggests we shouldn’t hold our breath for the possibility of Trump’s post-presidency prosecution.

The History

Richard Nixon resigned before the House impeached him and before the Senate likely convicted him. Out

of office, Nixon faced obstruction of justice charges and perhaps others. Before Special Prosecutor Leon Jaworski could charge Nixon, President Gerald Ford pardoned him for all offenses against the United States. By accepting the pardon, Nixon admitted guilt, but avoided indictment, trial, and possible jail time. Ford issued the pardon in the name of putting Watergate behind the nation, potentially healing America’s wounds. The pardon probably cost Ford re-election in 1976, but he may have achieved his objective of tamping down the furor over Watergate and helping the country move on.

Republicans in the House impeached Bill Clinton in 1998 over his affair with Monica  Lewinsky. The

Senate acquitted him, essentially determining sex isn’t a reason for removing a President from office. But, Clinton didn’t get off without a price. In what amounted to a plea bargain with Independent Counsel Robert Ray that avoided prosecution for perjury and obstruction of justice, Clinton accepted a five-year suspension of his Arkansas law license and paid a $25,000 fine. He also resigned from the U.S. Supreme Court bar.

The Nixon and Clinton experiences, for different

Nixon and Cllinton

reasons, cast doubt on the possibility of a post-presidency prosecution of Trump. Trump isn’t a lawyer, so he can’t forfeit a law license, but prosecutors might extract fines and business concessions in exchange for not indicting him. A Democratic successor probably won’t pardon him as Ford did for a fellow Republican, but he or she could find other ways of shutting down a prosecution.

The Tradition

In 2016, Trump mused out loud about the possibility,

if elected, of ordering that his  Justice Department prosecute Hillary Clinton over her e-mail scandal. Even Republican-leaning pundits decried such an action, arguing that bringing down the wrath of the criminal justice system on a former opponent better fit a banana republic than a country committed to the rule of law like the United States. It’s just something we don’t do, they said. 

Democratic 2020 Presidential candidates have been reluctant to endorse the idea of prosecuting Trump after he leaves office. They understand the precedent that could set. Prosecuting a former opponent, even one like Trump, opens the possibility of future politically motivated prosecutions for trivial or made-up offenses much more about settling scores than seeking justice.

And the Rule of Law?

Between the OLC policy, which some Democratic candidates say they’d change, and the tradition, it appears the rule of law could lose big. While he’s in office, Trump, if he’s not impeached and convicted, pays no price for his sins. Once he’s out, especially if its 2021 and the statute of limitations hasn’t run on his alleged crimes, his successor may not allow prosecution in the name of preserving our reputation as a nation that doesn’t permit prosecutions of former political opponents.  

So, when does a bad actor President get punished?  What do we mean when we say we are a nation of laws, not people, and no one is above the law? Do we still have the rule of law?  We’re going to have to answer these questions at some point, perhaps the sooner the better.