Instead of Booing Him, CPAC Should Have Embraced Mitt Romney.

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This is a piece I wrote on last weekend’s CPAC that was never able to place.  –JF

The name of Mitt Romney was booed relentlessly at last weekend’s Conservative Political Action Conference (CPAC) in Fort Washington, Maryland.

This year’s CPAC was noteworthy for the relative absence of Christian Right speakers and the general downplaying of the religious wing of today’s conservative movement, but it still spoke volumes about the nature of the movement’s view of the role of religion in public life.

Donald Trump has used his bully pulpit to attack Romney for voting in favor of removing him from office during the Senate impeachment trial.  At last month’s National Prayer Breakfast, the president made a less-than-veiled attack on Romney’s Mormon faith when he said: “I don’t like people who use their faith as justification for doing what they know is wrong.”

On Saturday, as he spoke to the CPAC faithful, Trump called Romney “a low life.”

Trump’s followers on social media and conservative cable outlets have also excoriated Romney.  Pundit Ann Coulter dubbed him a “useful idiot” for Democrats.  Donald Trump Jr. demanded Romney’s remove from the Republican Party: “He’s now officially a member of the resistance & should be expelled.”

In the immediate wake of Romney’s vote, Matt Schlapp, chairman of the American Conservative Union, the special interest group that stages CPAC each year, tweeted that the 2012 Republican presidential nominee was “formally NOT invited” to this year’s conference.  In a Fox News interview, he added: “This year I’d actually be afraid for his physical safety, people are so mad at him.

Schlapp may have been right about Romney’s safety at this year’s CPAC. Charlie Kirk, a pro-Trump activist who works on college campuses, encouraged the audience to boo every time Romney’s name was mentioned during the conference.

In a relatively successful attempt to work the crowd into a frenzy, Kirk claimed that Romney lied to the people of Utah about his conservative credentials while campaigning for his Senate seat.

These attacks on Romney at CPAC and elsewhere seem counter-intuitive when one considers that the Senator’s deeply held religious convictions informed his vote to remove Trump from office.

“I am a profoundly religious person,” Romney said as he fought back tears during his address on the floor of the Senate on February 5, 2020, the day before the removal votes, “I take an oath before God as enormously consequential.”

Whatever one thinks about Romney’s speech and its references to his Mormon faith, it is hard to argue with the fact that it was exactly the kind of faith-informed, conscience-driven style of politics that Christian conservatives have long championed.

Romney’s speech seemed to bolster, not undermine, what Kirk calls his “conservative credentials.” It was an exercise of religious liberty, one of the major political issues that led many conservatives to support Trump in 2016 and will lead them to pull a lever for the president again in November.

Why then would Jerry Falwell Jr., the president of Liberty University, a Christian RIght school founded by his father in 1971 to fight for conservative evangelical values and the freedom to express those values in the public square, tell Romney, in a Fox News interview, to “keep his religion in his personal life?”

Falwell and Kirk recently founded the Falkirk Center, a Liberty University think tank designed to advance Judeo-Christian values and defend “religious liberty.”  Perhaps Falwell and Kirk should hire Romney as a spokesperson for their new center.

When Romney delivered his anti-Trump speech on the Senate floor, he was bringing religious belief and conviction to what John Roberts described during the impeachment trial as the “world’s greatest deliberative body.”  Romney’s integration of faith and politics was a direct assault on secularism in government.

Romney exercised his religious-shaped conscience at a crucial moment in our nation’s political history.  When future school children study his speech, they will inevitably think about it in this light.

Those who care about religious liberty for all Americans should cheer, not boo, Romney’s invocation of faith on the floor of the Senate.  Unless, of course, Christian conservatives care only about faith-informed politics and religious freedom when it benefits Trump or their own political agenda.

Has Trump Learned Any Lessons from His Impeachment?

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No. None.

Here is CNN:

On Wednesday, Trump publicly praised the Justice Department for reversing its call for a stiff jail term for Stone after his own critical late night tweet that laid bare fears of blatant interference in bedrock US justice.

“I want to thank the Justice Department for seeing this horrible thing. And I didn’t speak to them by the way, just so you understand. They saw the horribleness of a nine-year sentence for doing nothing,” the President told reporters.

He noted that the four prosecutors who quit the Stone case “hit the road,” raising the prospect that their protests failed to introduce accountability to the administration and only served to further hollow out the government and make it more pliable to the President.

Trump denied that he crossed a line. But his tweet left no doubt about what he wanted to happen. And his strategy, in this case and others, actually worked.

Just as he used US government power to smear Joe Biden in the Ukraine scandal, he succeeded in getting favorable treatment for a friend in the Stone case — though the final sentence will be up to a judge.

The Stone affair has also added to evidence that Attorney General William Barr is acting more as the President’s personal lawyer and less to ensure the neutral administration of justice.

Trump’s brazen approach was on also display Wednesday when he was asked what he learned from impeachment — after several GOP senators said they hoped he would take lessons to be restrained.

“That the Democrats are crooked, they got a lot of crooked things going. That they’re vicious, that they shouldn’t have brought impeachment,” Trump told reporters.

Read the entire piece here.

Will Future Students Read Mitt Romney’s Speech Against Trump’s Acquittal?

Eliot Cohen, Dean of the Johns Hopkins University School of Advanced International Studies, thinks Romney’s speech will be read for a long time.  Here is a taste of his piece at The Atlantic, “In the Long Run, Romney Wins“:

Political speeches derive their power and durability from authenticity, from the way in which phrases and sentences seem to emanate directly from a personality and its vision. That is why Lincoln’s speeches will never lose their force: They captured the dignity, simplicity, and courage of the man who made them. Romney is no Lincoln, but he wrote the speech, and the voice is his.

Yet more is at work here than the powerful words. The speech contained all the elements of drama: the man of quiet faith, whose presidential campaign underplayed his charitable works; the handsome politician, whose political career involved both high office and the failure to achieve it; the public figure, who briefly became a hero to opponents who had shamefully vilified him seven years earlier; the successful businessman, who returned repeatedly to public affairs; the patriarch of a large and loving family, whose own niece repeatedly yielded her conscience to the man he rightly condemned. Comparing Romney with the grifter president and his venal clan yields an instructive contrast.

The Romney story plays to something very deep in the American self-conception, to myth—not in the sense of fairy tale or falsehood, but of something Americans want to believe about who they are and who, because of what they want to believe, they can become. Americans embrace the story of the lone man or woman of conscience who does the right thing, knowing that the risks are high. They remember Rosa Parks refusing to give up her seat for a white passenger on a Montgomery bus in 1955, but forget the three other passengers who prudently moved. They relish the staple theme of Western stories and films—John Wayne in Stagecoach saying, “Well, there’s some things a man just can’t run away from.” They honor John Adams for defending British soldiers accused of shooting down his fellow Americans, in an era when tar and feathers could be the consequence of that act. In an altogether different vein, they laud Henry David Thoreau for choosing civil disobedience and marching to the beat of his own drum, resolved to remain indifferent to what his fellow Yankees thought of him.

Read the entire piece here.

Would the Founders Have Recognized GOP Arguments Against Trump’s Removal?

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As we enter the 2020 election season I have been trying to do more writing for local and regional outlets here in Pennsylvania. This morning I have an op-ed on the impeachment trial at LNP/Lancaster On-Line (formerly Intelligencer Journal-Lancaster New Era).  Here is a taste:

Other Republican senators, including Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska, Ben Sasse of Nebraska, and Pennsylvania’s own Pat Toomey, argued that Trump’s phone call with the Ukrainian president was “inappropriate,” but did not rise to the level of impeachment.

This last group of senators justified their acquittal votes in two ways.

First, some of them argued that the Founding Fathers would have opposed a partisan impeachment. (No House Republicans supported impeachment.)

This is not true.

In Federalist Paper No. 65, Alexander Hamilton, one of the most prolific defenders of the Constitution during the ratification debates of 1787-1788, predicted that impeachments would always be political. As a result, the Senate should always proceed with caution, prudence and wisdom.

Moreover, the framers of the Constitution would never have referred to an impeachment trial as “bipartisan,” since at the time of its writing there were no political parties in the United States.

The second way that this cohort of Republican senators justified their acquittal vote was by claiming that “the people” should decide whether Trump should be removed from office and this should be done when they cast their ballots during the November presidential election.

The Founding Fathers would not have recognized such an argument.

Read the entire piece here.

More Historians Weigh-In on the Trump Acquittal

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Politico has gathered historians Michael Kimmage, Claire Potter, Mary Frances Berry, David Blight, Allan Lichtman, Brooks Simpson, and Jeremi Suri.

Here is Blight:

The impeachment and acquittal of Trump in 2020 left the country’s political culture in spiraling decline. For the portion of the country’s politically engaged population that was not securely within the Fox News universe, the Trump acquittal demonstrated the sheer cravenness of the Republican Party. Republicans continued to be seen in the 2020s as the party of white people, of a white nationalist, of a xenophobic vision of America that flew in the face of reality: an increasingly multiethnic, multiracial, multireligious nation. The Democratic Party also frayed into divisions between left and right. Democrats managed to defeat Trump in 2020, decisively in the popular vote but only narrowly in the Electoral College—vulnerable to charges even then that it was an archaic institution.

After his defeat in 2020, Trump cut a lucrative deal with Fox News and appeared on the channel three nights per week in prime time, stoking a racist, nationalist vision of the country, while the country divided and fragmented into increasingly identity-based groups.

The United States also continued to decline as a world power, losing influence in international organizations and in global economics. American institutions and corporations went into decline, and the country lost its place in the world as a model republic. Trumpism had become the watchword for American decline.

By the end of the 2020s, more voters than ever identified as independent. Attempts to establish third parties surged. In 2027, a movement for a new constitutional convention succeeded. The resulting constitutional amendments to eliminate the Electoral College and to reorganize the U.S. Senate into a more democratic institution just barely failed to pass in three quarters of state legislatures for approval.

Read the entire piece here.

Six Historians on Trump’s Acquittal

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(AP Photo/Patrick Semansky)

Over at Time, Olivia Waxman asked Carol Anderson, Jeffrey Engel, Kevin Kruse, Barbara Perry, Manisha Sinha, and Brenda Wineapple to reflect historically on Trump’s acquittal.

Here is Sinha:

I think the person who was a real profile in courage [Wednesday] was Romney, whose speech will be remembered in history for its very careful constitutional reasoning on why he voted to convict. His vote made clear that this was not simply a partisan impeachment.

Historians are eventually going to remember this trial as a real blow, as a bad day for American democracy, when the Senate Republicans were just unable to put aside their partisan loyalty to the president, which is kind of ironic because the Republicans have called this a partisan impeachment. The only way a democracy works is when those who are opposed to each other in ideology or in policy goals agree to a set of ground rules on governance and procedures.

I wonder about the future of the Republican Party. It took the Democratic party a long time, a lot of realignments, especially during the New Deal, to recoup from being the party of slaveholders and white supremacy in the 19th century to being the party of civil rights during the civil rights movement. I wonder whether the Republican party is capable of reinventing itself. It’s certainly no longer the party of Lincoln. It’s the party of Trump.

Read the entire roundtable here.

 

The Complex Nature of Mormon Politics

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I haven’t seen this much writing about Mormons since Romney ran for president in 2012.

Over at NBC News,  historian Benjamin Park puts Mitt Romney’s impeachment trial vote to remove Donald Trump from office into some historical and religious context.  Here is a taste of his piece, “How Mitt Romney’s Impeachment Vote Was Influenced by His Mormon Faith“:

Members of the Mormon tradition once refused to fit into traditional political boundaries: Early members of the church typically threw their votes behind candidates on a case-by-case basis, predicated upon pledged support. And when political circumstances looked dire, they were not afraid of bold actions. Joseph Smith, the founding prophet of the faith, ran for president in 1844 and, once the church was settled in Utah, they formed their own political party in opposition to the national establishment. It was only in the 20th century, when the church and its members yearned for credibility and acceptance, that they embraced America’s two-party system.

But as the decades evolved, Utah’s vote transitioned as well. While the state at first featured two vibrant parties, after World War II — and especially following the culture wars of the 60s and the 70s — the “Mormon vote” became more or less synonymous with the “Republican Vote.” This was primarily due to a vocal LDS leadership who echoed anti-communist policies and anti-liberal social ideas, but it was also rooted the demographic makeup of Utah that positioned them with similar red states in the post-war era. Pew polling even revealed Mormons to be the most Republican religion in the nation.

So the fact that entrenched dissatisfaction with the current Republican establishment among the Mormon population has continued well into Trump’s administration is not surprising. A number of Trump’s most prominent Republican critics — including Romney, McMullin and Flake — are Mormon. And polling demonstrates that support for Trump continues to lag among Latter-day Saints voters compared to other Republican constituencies. It appears Mormons are less likely to simply overlook the morality issues that other white Christians broadly ignore, and less willing to make a pragmatic, silent sacrifice of principles for party unity.

Read the entire piece here.

Why Romney Did It

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Here is McKay Coppins at The Atlantic:

Mitt Romney didn’t want to go through with it.

“This has been the most difficult decision I have ever had to make in my life,” he told me yesterday afternoon in his Senate office. Roughly 24 hours later, Romney would deliver a speech announcing that he was voting to convict President Donald Trump on the first article of impeachment—abuse of power. For weeks, the senator from Utah had sat silently in the impeachment trial alongside his 99 colleagues, reviewing the evidence at night and praying for guidance. The gravity of the moment weighed on him, as did the pressure from members of his own party to acquit their leader. As his conscience tugged at him, he said, the exercise took on a spiritual dimension.

Romney, a devout member of the Church of Jesus Christ of Latter-day Saints, described to me the power of taking an oath before God: “It’s something which I take very seriously.” Throughout the trial, he said, he was guided by his father’s favorite verse of Mormon scripture: Search diligently, pray always, and be believing, and all things shall work together for your good. “I have gone through a process of very thorough analysis and searching, and I have prayed through this process,” he told me. “But I don’t pretend that God told me what to do.”

In the end, the evidence was inescapable. “The president did in fact pressure a foreign government to corrupt our election process,” Romney said. “And really, corrupting an election process in a democratic republic is about as abusive and egregious an act against the Constitution—and one’s oath—that I can imagine. It’s what autocrats do.”

According to Romney’s interpretation of Alexander Hamilton’s treatise on impeachment in “Federalist No. 65”—which he says he’s read “multiple, multiple times”—Trump’s attempts to enlist the Ukrainian president in interfering with the 2020 election clearly rose to the level of “high crimes and misdemeanors.” (He told me he would not vote to convict on the second article of impeachment, obstruction of Congress.)

Read the rest here.

Wehner: Mitt Romney is a “Profile in Courage”

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Here is a taste of Wehner’s piece at The Atlantic:

This also needs to be said: Romney’s views are not all that rare among his Republican colleagues, who know in their hearts that what Trump did was inexcusable and indefensible, the crossing of a once unthinkable moral and ethical red line. Had a Democratic president done the same, it would easily have cleared their bar for impeachment and removal from office. What is rare, however, his Romney’s courage. He acted honorably, and he acted alone.

To see so many Republicans who know better tie themselves into ethical knots to justify their fealty to Trump—and then to watch them lash out defensively when they are called on it—is a sad and pitiable thing.

Read the entire piece here.

More GOP Senators Make the “Let the People Decide” Argument to Defend Their Votes for Trump’s Acquittal

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Last weekend it was Lamar Alexander.  Yesterday it was Lisa Murkowski.  Today it was Susan Collins and Joni Ernst.

As I argued (with the help of historian Jeffrey Engel) last weekend in the case of Marco Rubio, in an impeachment trial a Senator can vote however they want to vote.  They don’t have to explain their vote.  They can argue that Trump committed an impeachable act (Collins and Ernst do not go this far) and still choose to acquit him.

Alexander, Murkowski, Collins, Ernst all believe that Trump did something wrong when he asked Ukraine to investigate Joe Biden.  Alexander said that the framers of the Constitution believed that it was the “people” through the “ballot”who should remove a president in an election year. This is an absurd historical claim.  Though Murkowski, Collins, and Ernst do not appeal to the founding fathers, they seem to accept Alexander’s argument.

So here is my question for these Senators:  How will you hold Trump accountable for what he did?  Is delaying the acquittal vote until Wednesday in order to make Trump deliver tonight’s State of the Union address amid an impeachment trial enough of a punishment? If Trump did something wrong, as the majority of Senators believe, how will the Senate exercise its constitutional requirement to check the executive branch?

Alan Dershowitz on the Academic Margins

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Alan Dershowitz‘s case against the removal of Donald Trump may have won over many GOP Senators during the president’s impeachment trial, but it has failed to convince law professors, legal scholars, and historians.  At one point during the trial, Dershowtiz ripped into his academic colleagues, suggesting that they are all “influenced by their own bias, by their own politics and their views.”  As I wrote last week, this plays into the belief, popularized by Fox News and other conservative media, that the opponents of Trump are liberal, ivory-tower elites who are out of touch with real people.  This is the kind of anti-elitism driving conservative activist Matt Schlapp’s recent tweet defending Donald Trump after the president thought the Kansas City Chiefs played football in Kansas.

Over at Inside Higher Ed, Colleen Flaherty has an informative piece on how Derhowitz’s views on impeachment are well outside the academic mainstream.  Here is a taste:

Does any of this challenge Dershowitz’s standing in academe? Is his expert analysis so left of field that he can no longer be deemed an expert, especially one affiliated with Harvard?

Bowman said Dershowitz has never really had such standing, and that he’s “never done any serious legal scholarship.” Instead, Bowman said he’s focused on op-eds and trying his own cases. (Perhaps most famously, Dershowitz defended O. J. Simpson.)

That Senate Republicans hail Dershowitz as an expert “just shows how desperate they are to find somebody, anybody, to tell them what they wanted to hear,” Bowman added.

Harvard had no comment on the matter of Dershowitz’s status, while Fried said that “even Harvard faculty members sometimes make arguments with absurd entailments.”

Dershowitz, of course, disagrees with his detractors. He says that he’s been intellectually alone often in his career, including in being against the death penalty in the 1960s and, more recently, for the limited use of what he’s called emergency “torture warrants.” He also said he wasn’t afraid to “impugn” his colleagues in asserting that they would not, in some alternative universe, support the same impeachment case against former Democratic presidential nominee Hillary Clinton.

“The burden of proof here is on those who ignore the plain language” of the Constitution on impeachment, which specifically mentions treason, bribery and high crimes and misdemeanors, he said.

“I think professors often allow, consciously or unconsciously, politics to seep into their constitutional analysis,” he added. “I’ve been proved right more often than not, and I think history will prove me correct here. The next time there’s a Democrat president and a Republican-controlled House, the president will be impeached and all the scholars criticizing me now will be making similar arguments.” (For the record, Dershowitz said during the trial that he voted for Hillary Clinton.)

Dershowitz is currently writing a book on impeachment.

Read the entire piece here.

In Search of Impeachment Artifacts

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The National Museum of American History wants them.  Here is Peggy McGlone at The Washington Post:

Years from now, when school groups visit the National Museum of American History, they might learn about the impeachment of a president through a fidget spinner. And they will have Jon Grinspan, the Smithsonian’s curator of political history, to thank.

Grinspan is a soft-spoken, academic version of Indiana Jones, on the hunt not for the Ark of the Covenant but for something perhaps more elusive: the exactly right objects to tell the story of the impeachment of President Donald J. Trump.

Grinspan was in the Senate gallery last week when he observed several politicians — who are banned from using cellphones during the trial — keeping their hands busy with the popular toys. Maybe the items will be used to illustrate the tedium of the marathon sessions and the challenge of keeping senators/jurors alert and focused on the proceedings.

Grinspan has yet to acquire a fidget spinner — or any object that tells the story of these events, only the third presidential impeachment trial in the nation’s history. But he and two colleagues will do their best to compile a group of items that will help the museum chronicle this highly charged moment in a nonpartisan way.

It’s not an easy task, although the danger is not of the Indiana Jones, giant-rolling-boulder variety.

Read the rest here.

What the Senate’s Refusal to Remove Donald Trump Means for (at least) the Next Nine Months

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The Senate will inevitably acquit Donald Trump this weekend.  Unless something happens in the next couple of hours, we will not hear from additional witnesses, including John Bolton.

Once the vote is taken, Donald Trump will be unconstrained for at least the next nine months.  Congress will have no power over him. He will give his State of the Union speech next week and no doubt bask in his victory in this impeachment trial as his supporters in Congress cheer his depravity

There is now nothing to stop Donald Trump from getting on the phone tomorrow, calling Ukrainian president Zelinsky, and asking him to start investigating Joe Biden in exchange for additional aid to Ukraine or some other “favor.”

Wofford University history professor Mark Byrnes recent tweet about Lamar Alexander’s recent statement can be applied to almost all the GOP Senators “He concedes that Trump did something ‘inappropriate’ to try to affect the election, and then says the only remedy is election.”

Making Sense of Marco Rubio’s Statement on Impeachment and Removal

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Here is Rubio’s statement:

Voting to find the President guilty would not just be a condemnation of his action. If I vote guilty, I will be voting to remove a President from office for the first time in the 243-year history of our Republic.

When they decided to include impeachment in the Constitution, the Framers understood how disruptive and traumatic it would be. As Alexander Hamilton warned, impeachment will “agitate the passions of the whole community.”

This is why they decided to require the support of two thirds of the Senate to remove a President — we serve as a guardrail against partisan impeachment and against removal of a President without broad public support.

Leaders in both parties previously recognized that impeachment must be bipartisan and must enjoy broad public support. In fact, as recently as March of last year, Manager Adam Schiff (D-CA) said there would be “little to be gained by putting the country through” the “wrenching experience” of a partisan impeachment.

And yet, only a few months later, a partisan impeachment is exactly what the House produced.

This meant two Articles of Impeachment whose true purpose was not to protect the nation but rather to, as Speaker Nancy Pelosi (D-CA) said, stain the President’s record because “he has been impeached forever” and “they can never erase that.”

It now falls upon this Senate to take up what the House produced and faithfully execute our duties under the Constitution of the United States.

Why does impeachment exist?

As Manager Jerry Nadler (D-NY) reminded us Wednesday night, removal is not a punishment for a crime. Nor is removal supposed to be a way to hold Presidents accountable; that is what elections are for.

The sole purpose of this extraordinary power to remove the one person entrusted with all of the powers of an entire branch of government is to provide a last-resort remedy to protect the country. That is why Hamilton wrote that in these trials our decisions should be pursuing “the public good.”

That is why six weeks ago I announced that, for me, the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.

The two are not the same. Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office.

To answer this question, the first step was to ask whether it would serve the public good to remove the President, even if I assumed the President did everything the House alleges.

It was not difficult to answer that question on the charge of “Obstruction of Congress.” The President availed himself of legal defenses and constitutional privileges on the advice of his legal counsel. That is not an impeachable offense, much less a removable one.

Negotiations with Congress and enforcement in the courts, not impeachment, should be the front-line recourse when Congress and the President disagree on the separation of powers. But here, the House failed to go to court because, as Manager Schiff admitted, they did not want to go through a yearlong exercise to get the information they wanted. Ironically, they now demand that the Senate go through this very long exercise they themselves decided to avoid.

On the first Article of Impeachment, I reject the argument that “Abuse of Power” can never constitute grounds for removal unless a crime or a crime-like action is alleged.

However, for purposes of answering my threshold question I assumed what is alleged is true. And then I sought to answer the question of whether under these assumptions it would be in the interest of the nation to remove the President.

Determining which outcome is in the best interests requires a political judgment — one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation.

I disagree with the House Managers’ argument that, if we find the allegations they have made are true, failing to remove the President leaves us with no remedy to constrain this or future Presidents. Congress and the courts have multiple ways by which to constrain the power of the executive. And ultimately, voters themselves can hold the President accountable in an election, including the one just nine months from now.

I also considered removal in the context of the bitter divisions and deep polarization our country currently faces. The removal of the President — especially one based on a narrowly voted impeachment, supported by one political party and opposed by another, and without broad public support — would, as Manager Nadler warned over two decades ago, “produce divisiveness and bitterness” that will threaten our nation for decades.

Can anyone doubt that at least half of the country would view his removal as illegitimate — as nothing short of a coup d’état? It is difficult to conceive of any scheme Putin could undertake that would undermine confidence in our democracy more than removal would.

I also reject the argument that unless we call new witnesses this is not a fair trial. They cannot argue that fairness demands we seek witnesses they did little to pursue.

Nevertheless, new witnesses that would testify to the truth of the allegations are not needed for my threshold analysis, which already assumed that all the allegations made are true.

This high bar I have set is not new for me. In 2014, I rejected calls to pursue impeachment of President Obama, noting that he “has two years left in his term,” and, instead of pursuing impeachment, we should use existing tools at our disposal to “limit the amount of damage he’s doing to our economy and our national security.”

Senator Patrick Leahy (D-VT), the President Pro Tempore Emeritus, once warned, “[A] partisan impeachment cannot command the respect of the American people. It is no more valid than a stolen election.”

His words are more true today than when he said them two decades ago. We should heed his advice. I will not vote to remove the President because doing so would inflict extraordinary and potentially irreparable damage to our already divided nation.

There is a lot we can say about this statement, but two things strike me.

First, Rubio rejects Alan Dershowitz’s argument that the Senate can only remove the president if he commits a crime.

Second, Rubio’s argument seems to reflect the words of presidential historian Jeffrey Engel.  In my interview with Engel on Episode 61 of The Way of Improvement Leads Home Podcast he said:

Because Senators can use any standard of evidence that they want, any standard of burden of proof that they want, and any piece of information that they want (including from their own experience), their job is to determine whether or not the nation will be best served by having the president continue in office or not. It’s to use the evidence that has been accumulated of a “high crime” not necessarily to decide whether or not a crime has been committed, but whether a president is likely to continue to do so in the future having demonstrated a flaw in their character, if you will, that makes them dangerous to the American people. 

Consequently, you could have Senators who believe in their hearts that Donald Trump committed every single act that the House Managers say he did, and if you still believe the nation is better off with him as the president than not, you have an obligation to vote to retain him in office.

By the same token, you could decide that Donald Trump is innocent of the crimes that he has been accused of, the specific crimes he has been accused of, the specific deeds he has been accused of, and decide that he has demonstrated nonetheless a proclivity for putting himself above the needs of the nation, so therefore he should be removed from office. This is entirely subjective and intentionally so because there is no court of appeal.  There is no one who will ever be able to make a Senator change their mind if they don’t want to, or a Senator change their vote if they don’t want to, and they can’t change their vote once it’s submitted. A Senator never has to tell you why he or she voted for or against a presidential impeachment. Now most of them love microphones, so of course they will, but ultimately if you have a court–not a jury, but a court–that is able to make a decision that is without appeal and never has to justify it appeal what that really tells us is people can choose to do what they think is best, and what they think is best may be a political calculation, it may be a moral calculation, it may be a civic calculation, we’ll simply never know.

Which ultimately is why I think Donald Trump is going to be acquitted in this trial because Senators on his side, at least one-third of them, could look themselves in the mirror and say “I like the way the country is going.  I think this man committed a few crimes, but who hasn’t…and I think the country is better off with him in place.” And they can genuinely and justifiably say that to themselves in order to make their vote for acquittal.

Like it or not, Rubio believes that keeping Trump in power is what is best for the country.  Case closed.

Lamar Alexander’s Statement is Full of Historical Problems

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If Lamar Alexander wants to oppose witnesses in the Donald Trump impeachment trial he has that right.  But spare us the “history” lesson.

Alexander statement says:

I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.

So it sounds like Alan Dershowitz’s “absurd” and “baffling” argument convinced the senior Senator from Tennessee.  In embracing the Dershowitz argument, Alexander has chosen to reject the consensus of legal scholars and American historians.

Alexander continues:

“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’ There is no need to consider further the frivolous second article of impeachment that would remove the president for asserting his constitutional prerogative to protect confidential conversations with his close advisers.

“It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.

So what is the difference between an “impeachable” offense and an “inappropriate” offense?  Again, Alexander has been swayed by Dershowitz’s argument.  Alexander believes that the president is guilty, but he does not believe that Trump committed an impeachable offense.  (Dershowitz doesn’t think Trump is guilty of anything). This is also clear from the next part of Alexander’s statement:

“The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.  

“The Senate has spent nine long days considering this ‘mountain’ of evidence, the arguments of the House managers and the president’s lawyers, their answers to senators’ questions and the House record. Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.

Alexander goes on:

“The framers believed that there should never, ever be a partisan impeachment. That is why the Constitution requires a 2/3 vote of the Senate for conviction. Yet not one House Republican voted for these articles. If this shallow, hurried and wholly partisan impeachment were to succeed, it would rip the country apart, pouring gasoline on the fire of cultural divisions that already exist. It would create the weapon of perpetual impeachment to be used against future presidents whenever the House of Representatives is of a different political party.

“Our founding documents provide for duly elected presidents who serve with ‘the consent of the governed,’ not at the pleasure of the United States Congress. Let the people decide.”

On the issue of “partisan” impeachments and the founders, here is historian Joanne Freeman:

Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:

Alexander also suggests that the “founding documents” teach that “the people” should decide whether to move a president.  Here he is connecting “impeachment” with the vote and will of “the people.” But the Constitution makes no such connection.

First, as James Madison made clear in Federalist 39, “The President of the United States is impeachable at any time during his continuance in office.” In other words, the president can be impeached during an election year.

Second, the framers were skeptical about trusting the people to make decisions about important matters such as impeachment.  The framers did not trust the “ballot”on impeachment.  Read the Constitution as it was written in 1787.  Senators were not directly elected by the people.  They were appointed by state legislatures. This is precisely why the framers believed that the Senate was best suited to serve as judges in an impeachment trial. The “people” in the House of Representatives brought charges in the president (impeachment), but the Senate, those so called “gods on Mount Olympus,” would decide whether or not the people were right (removal). As Madison wrote in Federalist 10, the passions of the people needed to be filtered through “a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”  In fact, the framers of the Constitution had such a mistrust of the people that they did not allow them to vote directly for the president.  It is worth noting that they did not even record the popular vote in presidential elections until 1824.

In the end, Lamar Alexander can oppose impeachment trial witnesses for all kinds of reasons, but please don’t appeal to the founders.

Alexander’s sketchy use of the founding-era is particularly troubling considering that he has always been a strong advocate for more history and civics in public schools.

Jonathan Turley Criticizes Alan Dershowitz’s “Suprising and Baffling” Claims on the Floor of the Senate

Turley

Some of you remember Jonathan Turley.  He is the George Washington University law professor who testified before the House Judiciary Committee during the impeachment inquiry.  Turley argued that there was not enough evidence to impeach Donald Trump.

Turley still believes that the House did not have enough evidence (at least right now) to impeach Trump.  But he also thinks the current Trump defense during the Senate trial is filled with problems.  This is especially the case with Alan Dershowitz’s claims that removal from office in an impeachment trial requires a crime.  Turley believes that abuse of power is an impeachable offense, he just doesn’t believe that the House has made its case for the abuse of power.  Moreover, Turley rejects Dershowitz’s argument that Trump had every right to solicit Ukraine’s help in the investigation of his political rival because Trump believed he was doing so for the “public interest.”

Here is Turley today in USA TODAY:

While I praised Dershowitz’s presentation of his theory on Monday as cogently and powerfully argued, I still believe that he is fundamentally wrong in maintaining that impeachable offenses must be based on actual crimes or “crime-like” conduct. However, the tight argument on Monday seemed to gradually loose more and more definition with every hour and day. Dershowitz declared that “Every public official that I know believes that his election is in the public interest. And mostly, you’re right. Your election is in the public interest. And if a president does something, which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

It was a surprising and baffling statement. Where his definition of impeachable offenses would proscribe too little, this argument would protect too much in presidential misconduct. Clearly everything that a president does in office will come with a patina of politics. However, this argument would make that common denominator into an absolute defense. It is akin to saying that the Navy cannot commit maritime crimes carried out in water. Politics is the common element of presidential conduct just as water is the common element of naval action. That is why the argument becomes circular.  Presidents cannot be impeached for politics but he argues all is politics for presidents. To use a Simpson-like construct: if it is political, there must be acquittal. 

While Dershowitz encourages senators not to consider the overwhelming view of academics (who he described as biased and dishonest), his narrow view of impeachment quickly unravels using the very hypotheticals that he raised.  

For example, Dershowitz repeatedly cited how President Abraham Lincoln’s call on General William Tecumseh Sherman to release Indiana soldiers to return to that state to vote in the key 1864 election. Dershowitz also noted that Lincoln unconstitutionally suspended habeas corpus but was not impeached for either act. The examples however prove the contrary to Dershowitz’s position. 

Degrading our defenses for political benefits or suspending habeas corpus are non-criminal act that show why we cannot limit impeachable conduct to the criminal code. They are examples of potential impeachable abuses of power. While Lincoln could defend his authority or privileges in the courts, it is precisely such abuses that militate against the narrow definition advanced by Dershowitz. Otherwise, a president could be impeached for accepting a small bribe but not denying an entire nation the protections of its army or the great writ. 

Read the entire piece here.

Heather Cox Richardson on Alan Dershowitz’s Absurd Argument on the Senate Floor

Dershowitz Senate

Here is Boston College history professor Heather Cox Richardson at her site, “Letters from an American“:

Today, on the floor of the Senate, retired Harvard Professor Alan Dershowitz said the quiet part out loud. Trying to argue that it was okay for Trump to withhold congressionally approved funds from Ukraine until Ukraine’s president agreed to smear Trump’s key rival in the 2020 election, Dershowitz said that Trump’s actions were in the public interest because Trump believes that his reelection is what’s best for the country. “Every public official that I know believes that his election is in the public interest… and if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz is so far out on a limb on this one he’s dangling out there on the fuzzy tips. Other legal scholars note that his interpretation of what is acceptable behavior from a president quite literally means that the president can do anything to stay in power. Republicans are flocking to Dershowitz’s argument, although some are willing to concede that if a president breaks a law, that would be an impeachable offense. That concession is marred in this case, of course, by the fact that the Government Accountability Office has concluded that Trump did, in fact, break a law by withholding funds from Ukraine, and also by the complication that currently, a 1973 Department of Justice memo does not permit a sitting president to be indicted. Trump’s lawyers are currently in court arguing that a sitting president cannot be investigated, either. So… how would we establish that a president had committed a crime?

In any case, this interpretation is so completely ahistorical and bonkers that lawyers and constitutional scholars are chewing it to bits all over the media tonight. If a president can do anything to get reelected, including using the power of the American government to pressure a foreign country into smearing a rival, under what possible circumstances would we ever have a change in president? He or his selected replacements will rule forever.

But this chilling perversion of the American presidency does say a great deal about today’s Republican leaders. They have bought into the idea that they, and only they, should rule. This has been a long time coming.

Read the rest here.

What Happened in the Senate Yesterday?

Impeachment Image

CNN has a nice overview. Here is a taste:

Republicans have variously argued that Trump did nothing wrong, the Democrats made up impeachment charges or that there was no quid pro quo in Ukraine. But they have apparently been pushed to this final, fallback position in the light of Bolton’s claim in a manuscript for his new book first reported by The New York Times that Trump did indeed tell him to withhold aid to Kiev until it opened probes into his domestic foes.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his reelection is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz argued.

Lead House impeachment manager Adam Schiff however argued that such a position suggested an interpretation of the Constitution that held it acceptable for a President to abuse his power and Congress could do nothing about it.

“You can’t do anything about it because if he views it as in his personal interest, that’s just fine. He’s allowed to do it. None of the founders would have accepted that kind of reasoning,” Schiff said, adding later, “In fact, the idea that the core offense that the founders protected against, that core offense is abuse of power, is beyond the reach of Congress through impeachment would have terrified the founders.”

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest,” Cordero said.

“It invites and opens the door to anything that is in the realm of foreign influence.”

Dershowitz reacted angrily later on in the question-and-answer session to suggestions by the House impeachment managers that he was in a slim minority of legal thought, claiming that constitutional experts who did not agree with him treated Republican and Democratic presidents by different legal standards.

“These scholars are influenced by their own bias, by their own politics and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history,” Dershowitz said.

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr. In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Read the entire piece here.

I was struck by Dershowitz’s statement that all other Constitutional scholars are “influenced by their own bias, by their own politics and their views should be taken with that in mind.  They simply do not give objective assessments of constitutional history.”

Such a statement implies that Dershowitz is the only true, objective constitutional scholar in the world.   Everyone else is biased.  Only he is right.  This is like Trump saying “I alone can fix it.”

Dershowitz’s absurd argument is an appeal to the Trump base.  Dershowitz is telling Trump supporters that there is a deep state of elite liberal law professors who are out to get them and their president.  I have not had a chance to watch Fox News today, but I am imagine they are running with this argument.

“Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him”

Dershowitz

During the impeachment trial, Trump defense lawyer Alan Dershowitz made the case that “abuse of power” is not an impeachable offense. Harvard University constitutional law scholar Noah Feldman (along with nearly all other constitution scholars) disagree.

Here is Feldman today at Bloomberg News:

As Republicans scramble to argue that they don’t need to call witnesses in Donald Trump’s Senate impeachment trial, one argument seems to be gaining traction: that witnesses are irrelevant, because even if Trump did everything he’s accused of doing, abuse of power is not an impeachable offense.

This argument isn’t merely wrong. It is the single most dangerous argument that any of Trump’s defenders have made during the entire impeachment process. If abuse of power isn’t impeachable, what is?

The strongest version of this argument has been made by Alan Dershowitz, who has insisted that the Constitution’s “high crimes and misdemeanors” include only crimes found in the statute books, not abuse of power.

That’s obviously wrong. In 1725, in a case the framers knew, Thomas, Earl of Macclesfield, was impeached by the House of Commons specifically for “Abuse of his Power” and “great Abuse of his Authority.” The House of Lords convicted him for it.

At the constitutional convention, on July 20, 1787, Edmund Randolph, the governor of Virginia who had introduced the Virginia plan, stated specifically that “the propriety of impeachments was a favorite principle with him” because “[t]he Executive will have great opportunitys of abusing his power.” In Federalist 65, Alexander Hamilton defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him. That includes Dershowitz himself, who in 1998 said (correctly) that impeachment doesn’t have to be for a crime.

Read the rest here.