Democrats Conclude their Case

The House impeachment managers used their remaining 8 hours on Friday to finish making their case for the removal of Donald Trump. They spent the time reiterating that the President is a "threat to democracy," trying to pre-but the case the defense will put on, and advocating for the calling of witnesses.

To the extent that there was a difference between Thursday's presentation and Friday's, it's that the Democrats were notably more strident. For example, Rep. Jerrold Nadler (D-NY) was back to his mortar-throwing ways, slamming Trump as a dictator. Rep. Adam Schiff (D-CA), commenting on the pressure that the President is applying in search of an acquittal, claimed that "GOP senators were warned...vote against the president and your head will be on a pike." The response in the room was not good, and many GOP senators denied that was true. Neither of these moments went viral on Twitter, nor did they earn the rave reviews we saw on Thursday, so it's fair to say that the Blue Team had a mediocre day.

And now, the defense is up. As rumored, they will only present the bare outlines of their case this morning, so that the Senators can make a beeline out of town and spend most of the weekend at home. Details have already begun to leak out, though, and their main argument—WAIT! WHAT IS THAT? LOOK OVER THERE! Oh, wait. Where were we? Ah yes, the defense case. Turns out, the Senators will spend the next several days of impeachment dining on a menu of red herring. In a pretty clear sign that their client's actions are indefensible, the President's lawyers will focus on distractions, like the Biden family, Burisma, and...you guessed it...Hillary Clinton. After all, how can we get to the bottom of the question of whether or not Trump extorted Ukraine without fully examining the Clinton angle?

The big question about the defense case is exactly how long it will last. It's not going to be easy to fill 24 hours with Biden and Clinton finger-pointing. Further, this is the one place where the President has the power to shorten the trial, by ordering his attorneys to cut it short (at, say, 8 hours). Since most of Trump's "defense" is actually being conducted via Twitter (55 tweets in four hours Friday morning!) and Fox News, and since he wants this done by the State of the Union on February 4, it may be worth it to him to cede 10-15 hours of his allotted time.

That said, no matter what happens in this impeachment (short of a conviction), Trump and the GOP are going to spend the next nine months waiting anxiously for the other shoe(s) to drop. They suspect that the Democrats have more Ukraine-related dirt and that, instead of using it during the trial, they'll let it drip, drip, drip out for the rest of the year. It's certainly possible. And even if that's not entirely correct, it is definitely the case that non-Democrats will be sharing some choice information. We mentioned NSA John Bolton's book, which is scheduled to come out about a month before the election. Similarly, Lev Parnas seems to be on a mission to torpedo Trump, and who knows what he might come up with. On Friday, for example, someone, possibly his attorney, apparently released a tape where Trump can be heard angrily ordering the firing of former U.S. Ambassador to Ukraine Masha Yovanovitch.

All of this is to say that the case against Donald Trump could be a story that will reach its conclusion within the next week and yet, at the same time, might be just beginning. (Z)

Saturday Q&A

An impeachy keen week.

Q: Given Alan Dershowitz's recently becoming 'much more correct' about how impeachment really should have been treated, does that imply that he thinks Clinton should not have been impeached back in the day? (I would presume his answer is "no," so he can be consistently inconsistent.) In any case, it got me thinking: Is it possible for Congress to un-impeach someone, be it Clinton, Trump or even Andrew Johnson if they were so inclined? J.I., San Francisco, CA

Q: My wife said the other day that if the Senate dismisses the articles of impeachment voted on by the House, then President Trump is not impeached. It is my understanding that once the House impeaches the president there is no removing it. All that remains for the Senate is to decide whether to remove him from office. B.M., New York, New York

A: Articles of impeachment are an instruction from the House of Representatives to the U.S. Senate to take a specific action, namely to try an executive or judicial officeholder on one or more "high crimes and misdemeanors." Articles of impeachment can be rendered moot, and not acted upon, if their target dies or resigns first (for example, Richard Nixon). It is at least theoretically possible that articles of impeachment could be passed, and then rescinded before the trial is held, though this has never happened, and experts disagree as to whether or not it would be OK.

Whatever happens, though, whether it is one of these wonky situations, or it's an acquittal before the Senate, once a person is impeached, they are impeached forever. Because he knows it's bad for his image and his historical legacy, Donald Trump has been trying to persuade voters that if he's acquitted, he's not impeached anymore, but that's just another of his many falsehoods.

Further, once a trial has been conducted, regardless of the outcome, then the terms of the articles of impeachment have been fulfilled, and there is nothing left for a future House to repeal. A future House could pass a resolution denouncing Trump's impeachment, or apologizing to him, or whatever they want, but it doesn't nullify the original articles. To take a rough parallel, sometimes Congress issues a resolution calling for a distinguished, deceased American to lay in state in the Capitol rotunda. For example, long-serving Michigan representative John Dingell received this honor last year. If it were to come out this year that Dingell spied for the Japanese during World War II, or that he was a serial commiter of sexual crimes, or something like that, the Congress might lament that they allowed him to lay in state, but they can't go back and undo it. It already happened.

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Q: Just as this impeachment trial has decided on its rules and procedures by looking back at those from the Johnson and Clinton impeachment (and the Nixon investigation), what precedents do you see being established by Trump's impeachment that might be used (or misused) in a hypothetical future impeachment by either party? It seems like this would be the biggest long-term impact of the current trial, and thus an issue that should be more front and center. S.H., Phoenix, AZ

A: We would say that the main legacy of this trial will be to eliminate any real possibility that a future president will be impeached and convicted. Andrew Johnson committed an abuse of power (admittedly, one he was roped into by Congress) but no crime, and was acquitted. Bill Clinton committed a crime (admittedly, one he was roped into by Congress) but not an abuse of power, and was acquitted. Donald Trump has committed a crime and an abuse of power, and he's about to be acquitted. The Constitution is so imprecise on the proper grounds for impeachment and removal, that every time this issue comes up, much ink is spilled (and today, many pixels are activated) discussing exactly what does and does not justify removal from office. Trump's trial will complete the process of establishing that there is apparently nothing that justifies removal from office. Any future presidential defense team will have their choice of precedent to point to, depending on their client's circumstances: "If [Johnson/Clinton/Trump] was not impeached and removed under these circumstances, then how can you possibly impeach and remove [Bush III/Ocasio-Cortez/Zuckerberg]?"

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Q: Can any Senate votes on impeachment rules amendments be held behind closed doors, where only the vote totals will be public and not the votes of individual senators? If so, what effect do you think that could have? J.S., Truro, MA

A: Majority Leader Mitch McConnell (R-KY) controls the camera, and can turn it off whenever he sees fit. However, it is doubtful this would have much effect on the outcome of any votes. The other senators would know what happened, which would mean that eventually the President would find out. And that is the outcome they fear. The only thing that might happen differently in closed session is a discussion about having dozens of Republican senators vote for witnesses or maybe even conviction in the hope that Trump doesn't have enough pikes in stock.

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Q: John Roberts is many things, but one thing he is not is unprepared. How could he sit there silently as blatant falsehoods were being espoused by the President's legal team? I am amazed he allows this on his watch. M.M., Seattle, WA

Q: You have implied many times that John Roberts is very concerned with his reputation and his legacy as Chief Justice of the Supreme Court and that this concern sometimes leads him join in decisions with the liberal justices, as (he believes) this gives him the appearance of being nonpartisan. Has your opinion been changed by Roberts actions during the impeachment proceedings in the Senate? Even though the one television camera is firmly under the control of Mitch McConnell, anyone who is interested is hearing reports of Republican Senators leaving the room at will during the proceedings. Obviously, there is no other "courtroom" in our country where the jurors are allowed to do that and then render a verdict without listening to the entire case. No presiding judge would allow it, and yet Roberts says nothing when it happens repeatedly. Does he, in your opinion, not realize this is going to be part of his legacy, or does he just not care? Does this give you any thoughts on how he will handle controversial decisions for the remainder of his tenure on the Court? Personally, it frightens me to see him being so blasé about both the Constitution and of the oath he administered to the Senators. He's not even pretending to enforce the rules much less be non partisan. V.R., Oxford, NC

A: As to the lies and falsehoods, there isn't a lot that Roberts can do. He's not actually the judge here. Further, even in a real trial, a judge doesn't preemptively speak up like this, they rule on objections raised by counsel. Since the prosecution/defense don't get to do that here, there's no way for him to insert himself. It would also be quite difficult for him, in real time, to decide which statements cross the line from "vigorous advocacy" into "lies."

More problematic, in our view, is his failure to rebuke the folks who leave the Senate chamber, thus ignoring the rules that they themselves agreed to. Quite clearly, Roberts feels empowered to speak up, as he did after Sen. Susan Collins' (R-ME) note telling him to chastise Rep. Jerrold Nadler (D-NY). The fact that he was willing to deliver a lecture when at least one Democrat was involved, but he's not willing to do so when it's just Republicans, is not a good look for him. And people have noticed; see, for example this piece headlined "John Roberts Is Putting His Thumb on the Impeachment Scale: The Chief Justice Is Wielding the Little Power He Has in the Impeachment Trial in Support of the Republican Side."

That said, this doesn't really presage a change in his approach to jurisprudence, as he's always been someone who rarely deviates from the party line. Many judges, like Brett Kavanaugh, had the endorsement of the staunchly conservative Federalist Society. Roberts not only had their endorsement when he was tapped as Chief Justice, he was an officer of their Washington chapter. Think about the implications of that.

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Q: In following the impeachment proceedings, various members of Team Trump have made demonstrably false statements (for example: Trump was not allowed to send representation to the House hearings). This may be par for the course on cable news outlets, or rallies, or even during other Congressional business, but do the standards change when done in the course of a trial? Would knowingly introducing a false talking point amount to perjury? T.J.C., St. Louis, MO

A: It is only perjury if the person is under oath. Defense counsel, whether in this case, or in a normal trial, is not under oath, except under very unusual circumstances. So, they generally cannot commit perjury.

What can happen to a lawyer in a normal trial, however, is that if they tell outright falsehoods (or they knowingly allow their clients to do so) they can be brought before the bar for a hearing and possible discipline, up to and including disbarment. As impeachment is not a normal trial, so while it's at least possible that the President's defense attorneys could be brought up for discipline from the bar, it's not too likely.

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Q: Why and how is it that the Senate Majority Leader is granted so much power? How has it come to be that this one person has so much control over all the rules? D.M., Granite Bay, CA

A: While the Constitution requires that the House elect a speaker, the position of Senate Majority Leader has no statutory basis. It emerged in the 1920s, as members of both parties concluded that they needed to be better organized, and so decided to give a little extra authority to the men who were acting as their de facto leaders anyhow (Kansas Republican Charles Curtis and Arkansas Democrat Joseph Robinson, at that time). The job pretty quickly became the equivalent of the House's speaker, with the majority leader setting the chamber's agenda, determining committee membership, and the like.

The reason that the status quo holds is that whatever party is in power very much likes the arrangement. Not only does it give their caucus almost total control over the upper chamber, it also means that there is someone there to absorb a lot of flak on their behalf as the face of the party. Meanwhile, the minority party has no power to change the rules, nor do they push all that hard, because they foresee the day when they will be back in the majority.

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Q: There are 53 senators that are members of the GOP. What percent of America do they represent? And where is this trend is going in 20, 50, 100 years? T.S., Eugene, OR

A: With the caveat that current population figures are 9 years out of date, there is no doubt that things are way out of whack. The 53 senators in the majority represent states with about 43% of the U.S. population. Or, to put it another way, the six senators from California, Texas, and New York represent the same population as the 62 senators from the 31 least populous states. Under the most extreme circumstances, if the cards fell exactly right, it would be possible for states with a population of less than 27 million people to command a majority. As the current U.S. population is about 328 million, that means that 8% of Americans could theoretically control the Senate.

Obviously, we're not there yet, but things are headed in that direction. Based on current population growth and movement, it's estimated that by 2040 (that is, in 20 years), 70% of Americans will live in just 15 states. That would give 30% of the population the ability to elect not only a majority, but a veto-proof majority.

Is there any hope here? Maybe. The Constitution's rules about choosing senators have been amended in the past, and maybe they will be again (not likely, but possible). Alternatively, when and if the Democrats retake the White House-Senate-House trifecta, they could promptly admit a bunch of new states, like Puerto Rico, Guam, Washington D.C., and maybe even American Samoa, which would add mostly Democratic senators to the column. And finally, 20 years is a long time in politics, 50 years is an eternity, and 100 years is multiple eternities. You just can't know what will happen. For example, just a shade over 50 years ago, California had a Republican governor (Ronald Reagan) and two Republican senators (Thomas Kuchel and George Murphy). That would be inconceivable today, of course.

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Q: In other countries, it seems like there are a lot of political parties, and it's often necessary to form governing coalitions. There are lots of parties in the U.S., but how has it settled into just two that have any real chance to win elections? R.P., Redmond, WA

A: This is because many American elections, including presidential elections, require a majority in order for a candidate to be declared the winner. Under those circumstances, having more than two major parties just isn't mathematically viable. If, for example, the Democrats split into the Democratic-Progressive Party and the Democratic-Moderate Party, then neither of them would have any real hope of winning national, or even statewide, elections. So, the folks who might otherwise prefer one of those options are forced to be on the same team. They could plausibly divide up into more narrow factions for elections that do not require a majority (for example, many municipal elections are this way). And sometimes, that actually happens (Milwaukee is kind of famous for it, historically). But generally, it's impractical to be a member of one party for some elections, and a different one for others.

Most other democracies/republics have different rules. Some of them allow victory in all elections with a plurality. In that system, a candidate can win with far less than 50% of the vote (if, for example, they get 20% of the vote, and their rivals get 18%, 17%, 15%, 12%, 10%, and 8%). However, most democracies/republics (about 100 of them) use some form of proportional representation. There are numerous ways this can be done, but the most common is that a party submits a ranked list of candidates for the legislature, and whatever percentage of the vote they get dictates what percentage of the list is elected. If the Liberal Green Christian Popular Workers Front gets 10% of the vote, then the top 10% of the candidates on their list take office. And once the legislature has been populated, then it chooses the prime minister (or whatever the title of the chief executive is).

The downside of this system is that assembling a coalition can take a long time because the smaller parties are often very focused and really want what they want. If, say, an animal rights party has 2% of the seats in the parliament but those 2% are needed for the dominant parties to get to 50% and the animal rights party is only willing to join if the big ones agree to a 500% tax on meat, negotiations could take a while. In Belgium, a year is the new normal. In Israel, it takes at least three elections. All systems have their issues.

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Q: Maybe I've missed it, but if Sen. Bernie Sanders (I-VT) or Sen. Elizabeth Warren (D-MA) wins the presidency, doesn't that change the math for control of the Senate? I'm guessing the Republican governors of their respective home states would appoint a fellow Republican to their vacant seat. Yes? M.L., Gainesville, FL

A: There are 38 states where this might plausibly be an issue, as appointed senators serve until the next general election, but Vermont and Massachusetts—as chance would have it—are not among them. In Vermont, a special election for a new senator must be held within 6 months (unless a general election is already scheduled to take place within that time). In Massachusetts, it's the same, except the timeframe is 145-160 days. So, the only thing that's really being put at risk is about six months' worth of Senate service, and even then, it's possible that Govs. Phil Scott (R-VT) or Charlie Baker (R-MA) would pick a Democrat in order to burnish their crossover appeal and their reputations for being fair-minded. It's also possible that either of the two senators could try to game the rules by announcing their resignation (thus starting the clock on the special election) but waiting several months to make it official. This is particularly possible for Warren, given the way the Massachusetts law is written.

There is at least some risk that a Republican wins a special election in Vermont or Massachusetts, despite their being very blue, since special elections are wonky things that sometimes generate anomalous results. Indeed, the last Republican to represent Massachusetts in the Senate (Scott Brown) won the special election prompted by Ted Kennedy's death (and then, in turn, was unseated by Warren). However, it's not too likely.

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Q: What happens in the event that there is massive election interference from foreign actors in several states? What if the vote totals in those states are totally corrupted? I imagine there would be a lawsuit, but unlike in Al Gore's case in Florida, there would be no good way for the courts to make a credible ruling on who won. How would that be resolved? Does the Constitution mandate that the House could determine the winner? Could Donald Trump make a credible case for staying in office in this scenario? After all, how could a new President be seated if he can't prove he won? M.W., Decatur, GA

A: Let us begin by noting that presidents are elected by the Electoral College, and not by popular vote. So, as long as the electors are able to reach a majority decision, any vote irregularities will likely be rendered moot.

That said, it is possible that the election will be so compromised that it will not cleanly choose electors, and thus there will not be enough of them to give any candidate an electoral majority. The Constitution does not give any guidance about how to resolve this scenario, so the Congress would be left to improvise. However, there is a precedent for them to draw upon. In 1876, the results from the states of Florida, South Carolina, and Louisiana were grossly compromised by outright fraud and by voter intimidation, so that it was not clear which party had actually won those states (there was also a dispute over one EV in Oregon, for different reasons). Anyhow, the Congress appointed a panel to study the matter, and to decide which party should get the disputed electors. This didn't actually work out so well, in that it just ended up producing a trade wherein the Republicans got the White House in exchange for bringing an end to the military occupation of the South (a.k.a. Reconstruction). Still, if something similar came up again, it's likely the solution would look a lot like the one used in 1876.

If electoral irregularities make it impossible to identify the winner of the 2020 election, this would not allow Donald Trump to stay in office. His first term ends on Jan. 20, 2021, and if he wants a second one, the only way is to be elected to it. If neither he, nor anyone else, has been chosen by the Electoral College, then the presidency would devolve upon the vice-president-elect. If the vice-president-elect has likewise not qualified, then the presidency would devolve upon the Speaker of the House of Representatives until the matter was resolved. The Speaker begins their term in early January (usually Jan. 3), and so they would already be in office once Jan. 20 arrived. And yes, this means that if pro-Trump election manipulators (e.g., the Russians) go too far and get caught, it's at least possible they could hand the presidency to Nancy Pelosi, at least temporarily.

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Q: You wrote that it is "highly unlikely" that (among other things) Donald Trump does not become the Republican nominee because he dies. I checked, and sure enough, the U.S. mortality rate for 73-year-old men is around 3% per year. It's probably lower for President Trump, as he has professional drivers, the best bodyguards in the world, infinite access to health care, and no visible signs of advanced cancer, heart failure, or any sort of health problem likely to be fatal in the coming year.

Still, the four people that now seem most likely to be the two major-party nominees are all in their seventies. Is there really as high as a one-in-ten chance that one of the current candidates dies before Inauguration Day 2021, or are they all so much healthier than their median demographic peers that I shouldn't worry about this?

I'm not aware of any of the nearly 60 US presidential elections when death or a disabling health problem has felled a major candidate in the year before inauguration. The murder of President Kennedy only 11 months before he would have run for re-election comes close, I guess. Should I be surprised by America's run of good luck in this department? J.F. Boulder, CO

A: We're not actuaries, but we think you're right that this year's candidates are less likely to die than your average septuagenarians. First, because of the sorts of advantages you pointed out, like excellent healthcare and constant proximity to hospitals and ambulances. Second, because most 70-year-olds who will die this year are already manifesting symptoms of the condition that will claim their lives (significant heart failure, cancer, etc.). Unless there is something we don't know (which is possible), only Bernie Sanders (among the four major candidates) has shown any sign of a life-threatening condition.

It may seem that United States presidential candidates have enjoyed unusual good health, and that the nation has had unusually good luck, in this regard. That may be partly true, but it's also a little misleading, because there have certainly been deaths and other serious health problems in fairly close proximity to presidential elections. To give a few examples: (1) William Crawford suffered a debilitating stroke while a serious presidential candidate in 1824; (2) Weeks after losing the election of 1872 to Ulysses S. Grant, and before the electoral votes had been cast, Horace Greeley died; (3) A very ill Franklin D. Roosevelt was reelected to a fourth term in 1944, and then died less than three months into that term; and (4) Robert F. Kennedy was assassinated just two months before the Democratic convention of 1968 and just five months before the election. There are also vice-presidential examples; the most obvious is probably William Rufus DeVane King (Franklin Pierce's Veep), who managed to hold on for only six weeks after his inauguration (only one of which was spent in the United States) before shuffling off this mortal coil.

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Q: Ronald Reagan had Alzheimers. We have a current Oval Office occupant who may (or may not) be in cognitive decline and may (or may not) have had a recent heart attack. Bernie Sanders definitely had a heart attack. Before we get too far into primaries, it is time for all candidates to undergo complete independent physical evaluation and undergo neuropsych evaluation, to avoid a repeat of what we have now? Is there a way to make that happen? E.H.R., Los Angeles, CA

A: Is this a good idea? We think so. Is there a way to make it happen? We think not.

To start, there is the legal problem we often point out (most recently, in the context of forcing presidents to divest themselves of their financial holdings): This would almost certainly be interpreted as creating a new requirement for the presidency, and would require a constitutional amendment.

Assuming that issue could be overcome, then there's the problem of implementing this, which would get very weedy. Do we really want to give the power to disqualify a president or would-be president to a single physician? Or to a panel of physicians? What tests would be required? Would that list change as medical science evolves? What kinds of results would be disqualifying? How bad would those results have to be? What if a president is found to have a gene that gives him or her a 50% chance of getting a fatal cancer within 4 years? Would this only apply to presidential candidates, or also to serving presidents? If it applies to the latter, how often would they be subject to this requirement? Annually? Biannually? These all seem very difficult to answer.

And finally, assuming that these issues do get straightened out, and an amendment is adopted, it would likely have no effect. Note that back in the 1960s, people in both parties saw a need to set rules for what happens if a president becomes incapacitated. The result, of course, was the 25th amendment. And yet, it has never come even close to being invoked because the forcible removal of a president is so momentous that people just aren't willing to do it.

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Q: In your answer about speakers you mentioned President Reagan as an example of someone that almost everyone considered to be a great speaker. When, as both a candidate and as President, Reagan was called "The Great Communicator," I was always puzzled. Listening to him, I never felt that he communicated anything of note. Instead, his speeches seemed to be filled with empty platitudes. I never felt that I learned anything from listening to him, which I would personally consider a hallmark of a great communicator. Would you please talk about why you think Reagan was, indeed, a great speaker? L.S., Greensboro, NC

A: For much of Reagan's 1984 presidential campaign, he used Bruce Springsteen's "Born in the USA" as his campaign song, and it was played at many a rally and speech before the Gipper took the stage. Makes sense, since it's upbeat, and adrenaline-pumping, and has USA repeated over and over, so it must be patriotic, right? In truth, however, it's a staunchly anti-Vietnam War song, highly critical of politicians, and written and performed by a dyed-in-the-wool hardcore Democrat. Still, one thing Reagan learned during his years in Hollywood and in politics is that style often matters more than substance.

So it is with Reagan's speeches. Many of them were collections of silly anecdotes and empty platitudes. Some of them, like any of the ones dealing with tax or energy policy, were outright lies. However, Reagan was a handsome fellow, he had a very pleasant voice, he told a lot of funny jokes, and so his speeches affected people and influenced their voting behavior. And that is the bottom line for a successful politician/speaker, no matter how they get there.

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