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Nov. 08

Saturday Q&A

If we may say so, a pretty interesting range of questions this week.

Q: With former NSA John Bolton willing to testify, but only if a court ruling clears him to do so, can the Democrats just simply wait him out? In other words, compel his testimony via subpoena when impeachment goes to the Senate for trial? Can he possibly refuse then? R.C., Burlington, NJ

A: First of all, whatever game John Bolton is playing is a mystery. He says he's willing to testify, but only if a court orders him to do so, which seems a stalling tactic. On Friday, however, his lawyer said that Bolton knows things that have not been made public, and that would put the impeachment inquiry "inside the White House." That makes it seem like he really wants to say his piece.

There are two ways to read this that we can see. The first is that Bolton really, really wants to stick it to Trump, but he wants to make absolutely certain he's in no danger of legal trouble when he does so. The second is that Bolton is still covertly a member of Team Trump (like, say, Steve Bannon), and he's trying to set up a bait-and-switch. In other words, he's thinking that once he gets called to testify, he will say lots of things that exonerate the administration rather than implicating it.

Anyhow, it's probably true that if Bolton was subpoenaed during an impeachment trial, he'd probably have to show up pronto. However, it is very unlikely that Rep. Adam Schiff (D-CA) & Co. would play their hand that way. The first rule of trial lawyering is "Never ask a question where you don't already know the answer." If they put Bolton up on the stand, on national TV, and his first answer is something like, "I was witness to the whole chain of events, I was listening on the phone call, and while the President and I have certainly had our disagreements, I never seriously believed there was an attempt to extort Volodymyr Zelensky." That would be devastating for the blue team. It's unlikely that Bolton would say that, but the risk is great enough that the Democrats just can't chance it.

It could be that Schiff & Co. decide they just don't need to hear from Bolton. It could also be that they decide to wait as long as it takes to get a court to order him to testify. Our guess, however, is that the Democrats have a plan for getting this subpoena question fast tracked by a federal judge, once they really need an answer.

Q: I have a question about Donald Trump's pardon power with the impeachment investigation. Let's say Trump staffers and/or cabinet continue to defy subpoenas and House Democrats finally start arresting people for contempt of Congress. Could Trump just start handing out pardons left and right? Wouldn't this effectively mean that no one would ever feel compelled to testify since they know they will get a Get Out of Jail Free card? D.C., Woolridge, IL

A: As we've learned in the last year or two, the presidential pardon power and Congress' contempt power are both poorly defined areas of the law. So, any answer to this question is largely theoretical.

It is definitely the case that the President can pardon someone guilty of criminal contempt charges; that was established by the Supreme Court in Ex Parte Grossman. However, contempt of Congress is not a criminal offense, so Grossman doesn't apply here.

This question actually came up a few years back, during the George W. Bush administration. Back then, House Democrats were trying to get to the bottom of the Scooter Libby-Valerie Plame mess, and it looked like Bush might try to use his pardon powers to save Libby. Quite a few legal experts, most notably Frank Askin of Rutgers University, opined on whether that was possible. Askin wrote (and most other legal scholars agreed) that the president cannot use the pardon power to excuse people from contempt of Congress. There are two reasons for this. The first is the Congress is quite clearly empowered by the Constitution to conduct investigations, and the executive is not empowered to overrule Congress. The second is that, referring back to Ex Parte Grossman, SCOTUS established that the pardon power serves to "vindicate offenses against the dignity of public authority." Writing for the majority, Chief Justice William Howard Taft specifically observed that civil contempt charges (a category that includes contempt of Congress) do not qualify.

So, Trump could try to use the pardon power to save his underlings from testifying, if it came to that. But the matter would surely end up in the Supreme Court very quickly, and John Roberts & Co. would have to twist themselves into pretzels if they wanted to rule in Trump's favor.

Q: The first impeachment conviction by the United States Senate was in 1804 of John Pickering, a judge of the United States District Court for the District of New Hampshire, for chronic intoxication." If someone can be impeached for chronic intoxication, why can't Trump be impeached for chronic lying? Isn't that worse? D.K., Iowa City, IA

A: Undoubtedly, the crimes Donald Trump is accused of are worse than public drunkenness. And the precedent is even more salient than that. The real reason they got rid of Pickering is that he had begun to manifest symptoms of dementia. Proving that in a court of law, especially with 19th century science, is difficult, but proving public drunkenness is easy. It's entirely possible that one or more senators votes to convict Donald Trump, with their official reason being the Ukraine mess, but their real reason being their concerns about his mental fitness.

Q: There has been a lot of discussion of the Imperial Presidency lately, and how Trump has used this notion as a mechanism to help avoid jail and maintain his position in office. He and his supporters point to the Constitution as they talk about this, focusing on Article II, where the powers of the presidency are established. However, since our country was developed to be a trilateral government, with all three branches equal, doesn't this take that argument and sort of, well, eliminate it? G.C., South Pasadena, CA

A: Forgive us, but we're going to have to correct your history/civics here, a little. The Founding Parents did not, in fact, intend all three branches to be entirely equal. In fact, they expected the legislature to call most of the shots. That is why the legislative branch comes first in the Constitution, and gets the largest amount of attention (2,269 words). The executive branch comes second, and gets considerably less attention (1,023 words). The judicial branch brings up the rear, and gets almost no attention (375 words). At best, it might be said that the framers intended the legislature to be first among equals. But really, the idea of three co-equal branches of government was a post hoc development, for which we can thank John Marshall and Marbury v. Madison, in particular.

What they most certainly did not intend was to create a president-king. The fellows who gathered in Philadelphia in 1787 realized they had blown it the first time around, by creating an utterly powerless president under the Articles of Confederation. So, after that dress rehearsal, they crafted a much more effectual chief executive position in the Constitution. But these were still folks who had rebelled against the too-powerful-for-their-tastes King of Great Britain, and who believed staunchly in the Enlightenment-era argument of John Locke (and others) that political authority derives from the consent of the governed. So, you're absolutely right that anyone who argues for the existence of an Imperial Presidency is ignoring all of the historical, legal, and philosophical underpinnings of the Constitution, some of which predates that document by more than a century.

Q: The chances of Trump being impeached in the House appear extremely high. The chances of Trump being convicted by the Senate and removed from office appear extremely low. However, I do rate the chances of removal from office as being higher than zero. Therefore, if the Senate did in fact "convict and remove" the President following an impeachment trial, what actually happens next? Would Supreme Court Chief Justice John Roberts literally turn to the presiding Senate President (aka Vice President) Mike Pence and swear him in as President? Would Trump be ushered out of the White House by the Secret Service onto Marine 2 and whisked away to a golf course? What happens to the motorcade, the security detail, and the 'nuclear football'? Does it all make a quick trip down Pennsylvania Avenue to await President Pence? When Nixon resigned, he gave 15 hours' notice. Obviously a different scenario but what protocols or niceties, if any, would Trump receive? H.H., Auckland, New Zealand

A: Let us start by noting that if Trump is going to be convicted, that's not likely to be a secret among Washington insiders. Consequently, the likeliest scenario, in that eventuality, is that he pulls a Richard Nixon and resigns. That has more dignity in the end, and also preserves the fringe benefits of being an ex-president. It would also, we might point out, stop the Senate from declaring Trump ineligible to hold future office. So, he could resign tactically, with plans to ask voters to return him to the White House in November.

But if it does come down to a vote in the Senate, and if Trump does come up short in that vote, it will likely be very much like any other mid-presidential-term transfer of power. The powers of the presidency would devolve immediately upon Pence, and he'd presumably be sworn in post-haste, by Roberts. The nuclear codes would be transferred, and Pence's security detail—already substantial—would be beefed up. When Nixon resigned, he ceased to be president at 11:35 a.m., while Gerald Ford fully assumed the office (taking the oath, transfer of the football, etc.) at 12:05 p.m. So, there was about a half an hour in there where things were in flux. It would be about the same this time around, presumably.

As to Trump, our guess is that for all of his bluster and bravado, he knows a lost cause when he sees one. After all, he did declare bankruptcy six times. It would be impractical for him to throw a temper tantrum and refuse to leave the Oval Office. But if he did, he'd be escorted out by some combination of U.S. Marshals and Secret Service. In that scenario, he would have forfeited the privileges of being an ex-president, including free, secure transport. However, President Pence would surely tell the military to take Trump wherever he wants to go (probably aboard Air Force Two).

Q: Assuming Trump gets impeached by the House and not convicted by the Senate, how does this whole exercise not backfire against the Democrats? His base won't care about his impeachment, and if anything will be fired up to get retribution, while his haters already hate him and are already fired up to vote him out. It is hard to imagine that anyone is on the fence about Trump at this point, so how is this ultimately, at worst, not just a net neutral for him by the summer/fall? In some ways I see it helping Trump once he is not convicted by the Senate, due to some measure of sympathy and the GOP battering the Democrats with wasting everyone's time. It's easy to see Trump turning this against the Democrats once all is said and done. A.L., Cambridge, MA

A: The readers of this site are, by definition, high-information voters/politics-watchers. So are the authors. It is difficult for us to imagine the existence of low-information voters out there who don't have a strong opinion on Donald Trump or who, at very least, don't currently feel a strong motivation to get to the polls to vote for/against him. But those folks exist, and an impeachment trial might well reach them when other news events have not.

Beyond that, an impeachment trial will force many vulnerable GOP senators to cast a very difficult vote. Majority Leader Mitch McConnell (R-KY) has given us all an object lesson in the last few years in how very powerful the occupant of that position is. If their impeachment votes bring down Sens. Susan Collins (R-ME), Thom Tillis (R-NC), Joni Ernst (R-IA), and Cory Gardner (R-CO), thus giving the upper chamber back to the Democrats, that's a big deal.

And finally, sometimes a person just has to do what is right. One of the main critiques raised by third-party candidates in the last 20-30 years, from Ross Perot to Ralph Nader to Jill Stein, is that both major parties are exactly the same, and are equally swampy, and equally focused on maintaining power at all costs. If the Democrats looked the other way on Ukraine, despite the obvious evidence of malfeasance, it could dishearten their base and cause some of them to stay home or vote third party again.

This is not to say that impeachment carries no risks for the blue team, and nobody can know what the effects will be until they happen. However, our guess is that this whole process does much more harm to the GOP and its president than it does to the Democrats.

Q: Now that it's a matter of when, not if, an impeachment trial happens, do you have any thoughts on who the house will choose as the "trial managers"? Will there be (does there have to be?) more than one manager? J.K., Las Vegas, CA

A: It is all-but-certain that Adam Schiff will be the "manager among managers." However, other Democrats will also want the publicity and high profile that comes from being center stage for the biggest political event of the last...two decades? So, it's unlikely that Schiff gets to keep the attention all for himself. During the Clinton impeachment, the chairs of the committees that had been investigating him became the impeachment managers. Odds are, the Democrats do the same thing this time.

Q: I'd like to know your thoughts on the term "quid pro quo." I believe this is simply a gentler way of saying "bribery" or "extortion," and that this may be a phrase that was carefully selected by the administration and Republicans to soften the severity of the impeachment issue. Why isn't the media or the House leadership using the B or E word when they refer to the inquiry? I believe that calling out the Ukraine scandal for what it really is would have a significant impact on the public's perception of this impeachment process.

This reminds me of the Mueller investigation, where the GOP constantly shouted "no collusion!" and even stated that collusion is not a crime, as it's nowhere to be found in the legal code. Well, "collusion" may not be in the legal code, but "conspiracy" certainly is. K.P., Mesa, AZ

A: We agree entirely that Trump's supporters have encouraged the use of a somewhat abstruse Latin term that does not get the blood boiling like a more blunt/accurate word would. Consequently, we have been gravitating, more recently, toward using "extortion" when we discuss the misdeed in question. That is not because we are engaging in advocacy, it's because we don't want to be party to propagating GOP spin.

Q: I noticed that in your item on Tuesday about the withdrawal from the Paris Accord, you used the term "global warming" rather than what has become the more widely used "climate change." This change in the zeitgeist has been a pet peeve of mine because it seems to intentionally discount the man-made cause of a rapidly warming planet and leave open the possibility of said warming planet to be a natural phenomenon. My question is two-fold: How did "climate change" come to be the preferred nomenclature, and was your use of "global warming" on Tuesday intentional? M.B., San Jose, CA

A: We deliberately put this question, and the previous one, back to back. The usage of the term "climate change" in favor of "global warming" is not only Republican-manufactured spin, it's spin whose exact origins are known. In 2003, Bush administration strategist/pollster Frank Luntz wrote a memo in which he suggested that GOP politicians start using the former term, because it was less harsh, and also that they make a big point of saying that global warming is not "settled science." Luntz's suggestions found a wide audience among his fellow partisans, and he managed to change the narrative almost overnight.

As we note above, we are not interested in being "useful idiots" on the part of any political party. So, the choice to use "global warming" was indeed deliberate.

Q: On Friday, in regard to the $2 million dollar settlement for bilking charities, you wrote, "For Trump, however, this barely breaks the Top 20 list of most scandalous things he's done." In your opinion, what would make the Top 10? N.W., Andover, CT

A: All right, we'll give it a try. We're going to base this on our sense of how much damage each incident did to Trump, politically:

Sh**hole countries
Pulling out of the Iran deal, with no alternative approach planned
Pulling out of the Paris Accord, with no alternative approach planned
Courting Russian assistance in the 2016 election
"Grab 'em by the pu**y"
Abandoning Syrian Kurds
Immigrant children in cages
Trade wars
Russia probe obstruction of justice
Ukraine extortion

This means that we're leaving quite a few things off the list, including mocking a disabled reporter, the "Resistance" op-ed, looking the other way when Jamal Khashoggi was murdered, disastrous Cabinet appointments like Ronny Jackson, constant turnover among high-ranking administration officials, the inauguration photos, badmouthing Gold Star soldiers/prisoners-of-war, palling around with Vlad Putin, leaking intelligence, Stormy Daniels, and anything related to Michael Cohen or Rudy Giuliani. In other words, it's pretty hard to keep the list to only 10.

Q: Both ABC News/WaPo and NYT/Siena received an A+ in 538's pollster ratings. But this week's polls are baffling. While the NYT/Siena has battleground state polls as very close, the ABC News/WaPo poll has the Democratic front-runners beating Trump in range from 10-17%. In 1984, Ronald Reagan won the popular vote by 18%, which translated into 525 EV's for him. So, if Joe Biden were to win by 17%, it is very difficult to believe that PA, MI, & WI will be close. At that margin, even TX and SC should be in play. Your thoughts? R.V., Pittsburgh, PA

A: The different results between the two polling houses are not that surprising. This far out, it's hard to know what the electorate will look like. If one house (ABC News) assumes unusually high Democratic enthusiasm, and another (NYT) assumes normal Democratic enthusiasm, that alone would be enough to explain the disparity. Similarly, accepting responses from any registered voters versus only those voters who say they are likely to vote could explain it.

You're right—and we've made the point a couple of times—that losing the national vote by a double-digit margin is simply not survivable. There have been four elections with a head-to-head matchup in which one candidate won the popular vote, but the other won the Electoral College. In those four, the people elected president were Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000), and Donald Trump (2016). And the popular vote margins in those elections, respectively, were 0.9%, 0.8%, 0.5%, and 2.1%. Even if we allow for the enormous polarization of the modern era, it is clear that there is an upper limit here, and that upper limit is somewhere in the 4% range. Maybe less. It's unlikely that a Reagan-like (or LBJ-like, or FDR-like) electoral vote total is possible right now, but it's inconceivable that Trump could lose the national popular vote by 5 points and win reelection. Remember, he was already swamped in the states that hate him, so that extra 3% would have to come from somewhere else, presumably the swing states.

Q: My understanding of the National Popular Vote Interstate Compact (NPVIC) and its mechanism is that the NPVIC has to be adopted by states with at least 270 votes in the Electoral College before it is given legal force. Currently, states with 196 votes have adopted the NPVIC. Given that this week's elections in Virginia have produced a Democratic trifecta there, do you consider it likely that Virgina is going to be the next state to adopt the NPVIC?

Moreover, irrespective of the possible adoption by Virginia, to me it appears very unlikely that states with 270 votes will adopt the NPVIC before next year's presidential election. However, do you see any realistic chance for this to happen before the election in 2024? If so, which states do you consider likely to be the next ones in line for adoption of the NPVIC? How about Maine, Minnesota, New Hampshire, Pennsylvania, Michigan, Wisconsin and—despite the veto by Democratic governor Steve Sissolak in May this year—Nevada? D.S., Berlin, Germany

A: We think you've got the right of it. The Electoral College is very unpopular with Democratic voters, for obvious reasons. It is likely that blue states are going to pursue this, not only as a corrective, but also to encourage a change to the Constitution. If the Virginia legislature is getting ready to take up the ERA, it seems very probable they would also take up the NPVIC.

As to other states that might get on board, there are already NPVIC bills under consideration in Minnesota, North Carolina, Pennsylvania, New Hampshire, and Wisconsin. So, those seem the likeliest guesses as to "who's next?" If those five take the plunge, along with Virginia, that would put the NPVIC at...268 EVs. In that case, Nevada would probably give it a second, very long, look.

Oh, and there's no way that this all comes together by 2020. But 2024 seems a very realistic possibility, particularly if the blue team picks up a few more state trifectas.

Q: Reading your item about Michael Bloomberg, it's unclear to me if he would be running for the Democratic nomination or as a third party candidate. Could he even run for the Democratic nomination at this late date with no infrastructure or campaigning in the early primary/caucus states? And if he really feels that Donald Trump must be defeated at all costs, running as a third party candidate would presumably steal votes from the Democratic nominee and assure Trump's second term. Does he have a pathway that doesn't hand the presidency to Trump? S.S., West Hollywood, CA

A: If Michael Bloomberg was running as an independent, the deadline for ballot access in Alabama would not arrive until August 13, 2020. The reason for this, of course, is that independent candidates do not appear on the primary ballot, only the general election ballot. His hustling to take care of business by Friday indicates he's currently considering a major party run.

We have no basis for speculating about his viability, or whom he would steal votes from. However, we bet that he does have that data, and that he won't run as a Democrat if he doesn't have some reason to believe he could win the nomination. Similarly, if he does ultimately shift to a third-party bid, it's reasonable to guess that he has polling that shows he will steal more votes from Trump than from the Democratic candidate.

Q: I was thinking about the various ways Michael Bloomberg could use his fortune to influence the election. Separate from any issues of morality and public image, could Bloomberg send each of his probable voters a coupon for a free Uber ride to their polling place, and a ride to work from there, as long as there was no quid pro quo? M.S., Westport, CT

A: The Democrats already send buses to black churches to get the folks there to the polls, and many deep-blue states make public transit free on Election Day. It's hard to see how free Uber rides would be any different, as long as there was indeed no quid pro quo.

Q: I am aware of the ups and downs of the individual candidates. There is a large amount of polling data that shows a two-tiered group of candidates with 3 or 4 at the top. While "winning" a state is important (especially with early states), I also know that when someone "wins" a state's primary, not all of the delegates are assigned to that candidate, depending on the state's primary rules. My understanding is that the total varies from state to state.

Please consider this example: There are 2 states (A and B), and both have a similar amount of delegates. If State A is winner-take-all and Candidate 1 wins, they would get all the delegates and Candidate 2 gets nothing. If State B is apportioned, and Candidate 2 wins, with Candidate 1 finishing a close second, they would basically split them. That would mean that it's much more important to win some states than others. So, is there a breakdown of which states are "winner take all" and which ones have some sort of apportionment? B.W., Easton, PA

A: Well, we can give you that information for the Republican Party; there's an interactive map about a third of the way down this page that tells you the rules for each state.

We cannot give you that information for the Democrats, however. That is because, in contrast to the GOP—which allows the state parties to decide for themselves—the blue team sets the rules at the national level. You can read the rules for 2020 here; if you skip ahead to Rule 14, Section B, you will see that delegates in all states and territories (plus Democrats Abroad) are allocated proportionally, to any and all candidates who poll above 15%.

Follow-up: Last week, we answered a question about whether or not Chief Justice John Roberts could potentially set aside an "innocent" finding in an impeachment trial, and unilaterally find Donald Trump guilty.

We (correctly) said that was not going to happen, but as reader R.M. in Brooklyn, NY, points out, our reasoning—and the original question—were both flawed. While judges can set aside guilty verdicts, they can't set aside acquittals, even in non-impeachment trials. Further, the Constitution clearly gives the Senate sole power to try an impeachment, so if Roberts tried this, he'd be breaking the law. Thanks for the heads up, R.M.!

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