Feb. 01

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Party First (and Second, and Third...)

Although this is being written at the end of the day on Friday, roughly 95% of it could just as well have been written on Thursday. Or last Thursday, or in December, for that matter. The trial of Donald Trump is, in effect, over. The GOP (largely) held firm, and there will be no witnesses. His acquittal, all-but-inevitable from the beginning, will be made official next week.

Friday's proceedings, given their air of inevitability, were not especially interesting. Team Trump repeated the same motley collection of defenses they've been serving up throughout the process. Team Schiff pushed back against those, and made one last argument for hearing from witnesses. When it came time to vote on the witness question, the vote came out as expected, with 45 Democrats, 2 independents, and 2 Republicans (Mitt Romney, UT and Susan Collins, ME) voting in favor of hearing from witnesses, and the other 51 Republicans voting against. Sen. Lisa Murkowski (R-AK) was, in effect, the decider, when early Friday she became the last fence-sitter to declare intent to vote against. One wonders what kind of horse trading went on behind closed doors so that she didn't vote the other way and put John Roberts in a very awkward position. Maybe none, and it really and truly took her until the last minute to search her feelings, and to figure out where she stood on all of this. On the other hand, a few hundred million dollars in pork goes a long way in Alaska. Maybe that bridge to nowhere will get built after all. It was projected to cost only $398 million, hardly more than what the Ukrainians finally got.

When all is said and done, it is hard to see how this was anything but an utter disaster for the country, and for the democratic system of government. If you are someone who believes that Donald Trump committed a serious offense here, and/or that his style of governance is destructive, well, he just went from being bulletproof to being missile-proof. For the next nine months, or for the next four years and nine months if he is reelected, there will be virtually no constitutional checks on his power. The Senate has made clear they will look the other way, regardless of what he does. The courts are jam-packed, now, with judges appointed by Trump. Other presidents have yielded to tradition and to the norms of civil government, willingly constraining themselves in important ways. The Donald cares nothing for tradition or the norms of civil government.

Even for those who generally support what Trump stands for, this result is a hollow victory. Trump may be acquitted, but he is not, in any meaningful way, exonerated. The whole proceeding has a distinct odor to it, and that odor ain't baby powder and rose petals. Trump and the GOP are going to take some damage from this at the polls (more on this below). And although the constitutional checks on his authority are dangerously close to moot, there are certain informal checks that are going to be empowered by all of this. Blue states will have even more basis for ignoring or pushing back against his leadership. So too will the bureaucracy. The President will be able to do things like forcibly redirecting billions in dollars to his (collapsed) fence along the border. But good luck trying to implement broad policy initiatives when the folks who are tasked with making that happen on the ground feel entitled to defy you.

Of course, the day will come when Trump leaves the Oval Office (maybe with "encouragement" from a U.S. marshal, maybe not). But even once he's gone, he will leave permanent damage to the Constitution in his wake. He was caught about as red-handed as it's possible for a president to be caught. And in their efforts to save the President, the Republicans declared, over and over, that this was a politically motivated sham, while also finding half a dozen different justifications for Trump's behavior. Next week, the Senate will formally vote to endorse those arguments, presumably by a 53-47 margin. Surely, it is going to become much easier to impeach a president the next time, particularly if it's a Republican House visiting "payback" on a Democratic president. Meanwhile, it is inconceivable that any president, Democrat or Republican, could be legitimately convicted in an impeachment trial, given all of the defenses that are about to be enshrined into precedent. In short, the "nuclear option" afforded by the Constitution appears to effectively be dead. Perhaps, 50 years from now, it will turn out that we were dead wrong about this. But we doubt it.

So, it was a very bad day for the country and for the government, in our view. Some folks are also declaring it was a very bad day for the Democrats, politically. On that point, however, we don't agree. When this whole thing began, the general idea was that conviction was a longshot, and that the only real possibility of Trump being removed would be if: (1) New witnesses were heard, and (2) Those witnesses, most notably former NSA John Bolton, revealed startling new details about Trump's misdeeds. Well, John Bolton was heard from. Not in the Senate chamber, of course, but via leaks from his book that made headlines. There was even a new, and quite damning, revelation on Friday, namely that Trump first asked Bolton to help with the pressure campaign against Ukraine all the way back in May of last year. Not only does this underscore that Trump lied about his ignorance of the whole thing, it means that the scheme began far earlier than was previously known (before Friday, the timeline basically started in August of last year).

Anyhow, plenty of witnesses were heard from, one way or another. Plenty of evidence was brought to the attention of the senators and the general public, one way or another. And none of it mattered. When the House formally voted to adopt articles of impeachment on Dec. 18 of last year, the best guess was that Trump would be acquitted on a party-line vote, and that looks exactly like what is going to happen. Even if Romney and Collins vote for conviction, which is unlikely, then the whole trial will have had the effect of (maybe) causing two senators to change their votes. That, of course, is short of a majority, and is far short of the 67 votes needed for conviction. And the senators' remarks on Friday, explaining their vote against witnesses, make clear that they were never, ever going to vote for conviction under any circumstances. Two examples:

Rubio and Alexander are both conceding that Trump is guilty of the things that he's accused of doing. They're even admitting that it was wrong for him to do it. But they are also bending themselves into pretzels to avoid any responsibility for doing anything about it. The Constitution's rules for impeachment, short and vague as they are, have no proviso that says "unless the senators think it would upset people too much" or "unless there's an election coming up soon, anyhow." Rubio and Alexander are just making things up as they go. And they are, respectively, a person who was attacked and humiliated on national TV by Trump, and a person who is retiring later this year. If neither of them was willing to get to "yes," or even to get in the same ZIP code as "yes," then there was no way that the Democrats were going to get the 20 GOP votes needed for conviction, no matter what John Bolton or Chief of Staff Mick Mulvaney or Secretary of State Mike Pompeo or anyone else said. Heck, when the senators decided yesterday to extend the trial to the middle of next week, so as to give the individual senators a chance to make statements, and to make all of this look more legitimate, Senate Majority Leader Mitch McConnell (R-KY) actually telephoned Trump to secure his approval. That's right, the jury literally called the defendant and asked for permission to acquit him a few days later than he preferred. Trump signed off, albeit grudgingly. Is there really any question about who is calling the shots here, and who is licking whose boots?

Now, one might observe that these senators are all politicians, and that they follow where public sentiment leads them. Maybe so, although that really shouldn't apply in the case of Alexander (or Pat Roberts of Kansas, who is also retiring). But, in any case, public sentiment barely budged over the course of the trial. The very first poll to ask "should Trump be removed" after the House vote to impeach was conducted by YouGov. It had 87% of Democrats, 37% of independents, 10% of Republicans, and 48% of people overall supporting conviction and removal. The most recent poll to ask "should Trump be removed" was also conducted by YouGov. It had 83% of Democrats, 39% of independents, 13% of Republicans, and 47% of people overall supporting conviction and removal. Those numbers are virtually identical, and the tiny bit of variance that does exist is well within the margin of error. Just as with the senators, the trial had no impact on public opinion, one way or the other.

In sum, it turns out that conviction wasn't a long shot, it was an impossibility. And to return to our main point, in that circumstance, the Democrats were not especially going to benefit by butting their heads against that intractable wall. They got everything they were going to get, politically speaking. To wit:

We suspect that each of those things will work to the political benefit of the blue team, when all is said and done.

Now, it's possible we may be wrong. After all, if Trump has shown any particular talent, it is an ability to avoid taking damage from any scandal, primarily by supplanting the latest outrage with another and yet another. After all, when was the last time anyone talked about Gold Star families? Or the four soldiers who died under dubious circumstances in Africa? Or obstruction of justice? Or immigrant children in cages? However, we think impeachment will be different from all of these other controversies. First of all, impeachment has a character different from any other political/legal setback that a president can suffer. It is the scarlet "I," and will be right at the top of Trump's résumé for the rest of his days, and beyond. As (Z) can attest, inasmuch as these are the folks he teaches, the things that people who were not alive for the Clinton years know about him are: "sex scandal" and "impeached." The booming economy of the 1990s, NAFTA, Somalia, three strikes, first female AG, "don't ask, don't tell"? Never heard of any of it.

Second, and more importantly, this story is not over. The closest Trumpian analog is the Mueller investigation, which was in the headlines for about a year, and triggered negative coverage (and Presidential Twitter outbursts) every time some new revelation came to light. Since the Senate hardly got to the bottom of the Ukraine mess, that means there is still plenty of stuff left to leak out, and to keep this matter in the headlines. John Bolton will be heard, one way or another, whether when his book is published, or when he gets a subpoena from the House. Lev Parnas is clearly going to sing, publicly and repeatedly. And who knows who else will go rogue, or what else intrepid reporters will uncover, or how things will turn out when it comes to ongoing efforts to subpoena Mulvaney and others? Oh, and while the Congress remains in lockstep behind the president, other prominent Republicans are not so encumbered, and will play a role in keeping this story at the forefront. We're talking people like George Conway, or George Will, or former chief of staff John Kelly, who declared on Friday that without witnesses, the impeachment trial was "a job only half done."

Further, Trump may well have a preternatural ability to avoid taking damage due to his misdeeds. However, the senators who are about to hand the President a "Get out of Jail Free" card have shown no such superpower. Roughly half the country wanted Trump removed. More than half of the senators not only failed to do that, they ran the other way when asked to even consider the possibility. It's inconceivable that voters will forget that in nine months, particularly as they consider returning someone like Cory Gardner (R-CO) or Martha McSally (R-AZ) to Washington. In the latter case, one might observe that Arizona is pretty red and Trumpy. However, McSally lost an election by three points even before she'd aided and abetted Trump, and last time she was running against an openly bisexual woman, not a military veteran and astronaut as she will be this year. The math does not figure to improve, and there are a number of other red-to-purple states where a GOP senator is up for reelection and impeachment could also leave a bad taste in some voters' mouths: Iowa (Joni Ernst), Georgia (Kelly Loeffler and David Perdue), Texas (John Cornyn), North Carolina (Thom Tillis), etc.

Of course, there is also a chance the Democrats will take some damage here, too. Anything is possible, but the evidence thus far does not support that contention. In the polls on impeachment, roughly 42% of respondents have consistently opposed Trump's removal from office. That, of course, is the base. Outside of the base, however, the President has engendered very little support on this matter. Roughly half the country, as noted above, wanted him removed. Hard to see those folks voting for him in November. Another 8% didn't want him removed, but overwhelmingly wanted to hear from witnesses, see evidence, etc. Those folks, some who opposed removal for anti-Trump reasons (for example, "I prefer to see him defeated at the ballot box") are not likely to be too happy with the President and the GOP right now, either. In short, it's clear the Democrats enraged Trump's base, but their votes were lost anyhow. Most of the remaining voters were somewhat-to-very supportive of what Schiff & Co. were doing.

That said, there is one Democrat who could very well be hurt by this, and it's Joe Biden. While there's no evidence he did anything corrupt or inappropriate, the optics of him dealing with Ukraine in an official capacity while his son worked a plum Ukrainian gig in the private sector are not good. And Hunter Biden's failure to testify denied the Republicans an opportunity to stage a Biden dog and pony show, but it also denied him an opportunity to forcefully clear the air and to defend himself. So, maybe this will linger. On the other hand, in contrast to the Ukraine situation, there aren't likely to be new revelations that keep returning this story to the headlines. So, it could fade out. We just can't say at the moment.

So Friday marked the effective end of the trial. If we're right, however, it's also the beginning of a whole new chapter in the Ukraine saga. (Z)

Delaney Is Out

Former representative John Delaney was the first serious Democrat to declare his presidential bid, doing so all the way back on July 28, 2017. He's basically lived in Iowa ever since then, and has insisted that the voters would eventually embrace his moderate vision. Well, it didn't happen. He has barely made a dent in the polls, and he was denied an invite to the last five Democratic presidential debates as a result. He's also had little success with fundraising. On Friday, he finally bowed to reality, and dropped out of the race.

It seems very strange that Delaney would pour two years of his life into this, only to jump ship with just 72 hours until ballots are cast. His explanation is that his campaign's internal polls made clear he had no hope of reaching the 15% cutoff in any precinct, and that he did not want to risk diluting the moderate vote. This seems reasonable, though it may also be that since we're going to get raw vote totals from Iowa this year (a first), he did not want the embarrassment of getting virtually no votes. At 56, he presumably envisions a future as a lobbyist or a pundit or maybe even as a candidate for some other office. None of those goals is well served by "I got a total of 103 votes in Iowa." Anyhow, whatever the reason, another candidate has bitten the dust. Sen. Bennet, your turn is next. (Z)

The UK Is Out, Too

Brexit entered like a lion, and kept roaring for many, many months thereafter. But, on Friday, it left like a lamb. The United Kingdom has officially become the first nation ever to leave the European Union. PM Boris Johnson has done what Theresa May and David Cameron could not, and fulfilled the will of the (slight) majority of British voters.

Friday's exit was largely symbolic, as it begins a "transition" period in which the nuts and bolts of the UK's future relationship with the EU will be hammered out. So, most or all of the long-term effects of Brexit will not be known for a while. Will Scotland leave the UK? Will Northern Ireland or Wales? How will Johnson, aided by a comfortable parliamentary majority and an electoral mandate, remake the UK? What will happen to the British, and to the world, economy? Actually, that last question is one that just might get answered more quickly. The Dow Jones index has had a bad couple of days, allegedly due to the outbreak of coronavirus (though how can they possibly know that?). However, stock investing is very much about predicting the future, and if things are already rocky in the markets, and investors fear what the final Brexit will bring next year, anything might happen. (Z)

Saturday Q&A

We're going to go with an abbreviated, all-impeachment group of questions today. Some of the very good non-impeachment questions in the inbox will run next week.

Q: As I write this, the Senate has just voted 51-49 to not hear any witnesses, get documents, etc. Especially upsetting, is the general impression that they did this because no further evidence is required; Senate Republicans seem to concede that Trump did exactly what the House managers said he did, but that bribing foreign governments to interfere in his behalf in our elections doesn't warrant punishment. That's essentially what Lamar Alexander said, and Ben Sasse told the press that Alexander speaks for "lots and lots" of Republican Senators. Marco Rubio released a similar statement. They seem to be endorsing Alan Dershowitz's argument that, if Trump thinks his reelection is in the nation's best interest, then he can cheat to achieve it.

My question is: does this line of reasoning extend to other parts of the government? Could the House, for example, offer to unfreeze Russian assets in exchange for damaging information about the Trump Administration (like tapped phone calls, stolen emails, etc.)? If they did this right out in the open, what legal recourse would Trump or his Republican enablers have to stop them?

Follow-up question if you have the time and space: now that the United States has abdicated its position as the world's chief advocate beacon of Constitutional Democracy, which country gets to make that claim? A.F., Seattle, WA

A: Consistent with what we wrote above, you are right that the implications of this trial are significant, and may well be used to justify bad behavior by politicians for years. As to your specific question, there is relatively little that would stop the House from doing something like this, if the majority can all get on the same page. Keep in mind that the members of the legislative branch are not impeachable, and each chamber of Congress polices itself. So, the only entity that could punish the House for doing what you propose is...the House. Generally speaking, Democrats have been unwilling to push boundaries like this, at least not to such extremes. But on the day that the GOP controls the House again, assuming that day ever comes? You have to think that the sky's the limit.

As to your second question, there is a think tank called EIU that studies that very thing, and releases a "democracy index" every year. Last year's ratings had Norway, Iceland, Sweden, New Zealand, Finland, Ireland, Denmark, Canada, Australia, and Switzerland as the Top 10, which seems reasonable to us. The United States came in at #25, putting it in the "flawed democracy" tier. Presumably, it is going to drop a few spots in the next ranking; we shall see if EIU decides to make a statement by kicking it all the way to the "authoritarian" tier.


Q: The GOP has the majority. If they really wanted Hunter Biden, couldn't they just vote to call him and him only as a witness and give the Democrats the proverbial finger? It's not like Mitch McConnell is above doing something like that. D.R., Massapequa Park, NY

A: This would certainly be possible, but it's not practical. The whole trial was bad enough, optics wise, and a stunt like this would be a bridge too far for at least a few GOP senators. Further, the Republicans don't particularly want to hear from Biden, anyhow. "He was totally unwilling to testify! And the Democrats helped with the cover-up! What are they hiding?" will enrage the base more than anything he might actually say.


Q: As the impeachment trial drumbeat rattles toward a frustratingly predictable (prefabricated?) conclusion, I wondered if a call for presidential censure would ever be considered? It sounds like a sort of milquetoast way the divided Congress could send some sort of message. The House could claim vindication that something was deemed worth admonishing regarding Ukraine conduct, and that they had "made their case"; the Senate (particularly, vulnerable incumbents) could offer the cover of finger wagging, suggesting they would be vigilant about any future election meddling. For both houses, a way to mildly assert checks and balances, enumerated powers, etc. I know Andrew Jackson was the only U.S. President to be censured, and that it was later expunged. I would love to hear the circumstances of how that came about, and if it might ever be put on the proverbial table again. M.P., Fort Worth, TX

A: This is an idea that's being bandied about, at least by the commentariat. We doubt that it comes to fruition, though. Donald Trump is thin-skinned enough that even a mild rebuke would enrage him, and he would likely try to punish any senator who dared vote for it. So, Republicans probably wouldn't want to try it. Meanwhile, the Democrats would likely prefer not to give folks like Cory Gardner and Susan Collins an "out." They want vulnerable Republicans to be firmly on the record when it comes to enabling Trump, and they don't want to create a mushy middle where a GOP senator can effectively have it both ways.

As to historical precedents, there have been a few actions taken by the Congress that could be interpreted as presidential censures. The clearest was indeed targeted at Andrew Jackson, and was the work of his Whig enemies in the Senate, who were unhappy about his handling of the Second Bank of the United States. Once Jackson's Democratic Party regained control of the Senate, they quickly expunged the censure. This precedent is probably why presidential censures are rare-to-non-existent. What is the point, if they are only going to last until the chamber changes hands?


Q: In listening to the Q&A session of the impeachment trial, it seems the defense team has violated Rule 3.3(a)(1) for the ABA's Rules of Professional Conduct several times over. Any chance anyone is paying attention and moves to disbar members of the team? K.C., Roseville, CA

A: For those who don't want to click on the link, that rule says:

A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

In turn, ABA Rule 1.0 defines "tribunal" thusly:

"Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

On first reading this, our general sense was that the impeachment trial did not quite fit the definition of "tribunal," since there is no "neutral official" making a ruling, nor is there a "binding legal judgment," per se. We also doubted that a bunch of high-powered attorneys would go on national TV and engage in behavior that could put their bar card in jeopardy. However, two lawyers we talked to via e-mail opined that impeachment did fit the definition of "tribunal." And if so, well, Trump's lawyers definitely perpetrated obvious falsehoods. So, maybe they really are just the latest in a long line of folks willing to risk everything in order to enable the Donald. After all, it's not like Alan Dershowitz has a long career as a trial lawyer ahead of him.


Q: If (when?) the Senate acquits Trump, would Speaker Nancy Pelosi's (D-CA) best move be to impeach Secretary of State Mike Pompeo? He's appointed by the Senate and is connected to the case. Could AG William Barr be next? Isn't anyone appointed and Senate approved capable of being impeached? J.P., Chicago, IL

A: We're not seeing the upside to doing this. Pompeo and Barr would just refuse to say anything, and the Senate would obviously acquit them both.

On the other hand, we do see plenty of downside. The evidence needed to justify impeachment is not forthcoming, and so it would be a fishing expedition, and would be portrayed by much (or all) of the media as such. Vulnerable moderate Democrats would not be thrilled to play along, and so Democratic unity would take a hit. Meanwhile, such a move would be used by Republicans and their friends in the media as evidence that House Democrats view impeachment as a political weapon to be wielded against their enemies, and not a serious process.


Q: I've only tuned in sporadically to the Q&A portion, but I'm very disappointed that almost no questions seem to be addressed to the counsel for the opposing side. I hoped things would get real once the Republicans had to answer direct questions from the Democrats but I only saw that happen once.

Do the rules allow questions to be freely addressed to either side? If so, why aren't the Republicans put on the hot seat? The Democrats too, of course, but they have a far better case. D.L., Bellevue, WA

A: The senators were allowed to address their questions to either side, or to both. However, it quickly became clear that neither team was yielding much of anything when hit with a tough question. They would either refuse to answer, or would bloviate. And so, there was an obvious tactical decision by each side—probably dictated by the leadership—to use the questions to allow their lawyers to expound on why the other side's lawyers were wrong, wrong, wrong.


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