A Matter of Duty

After thinking about this matter for some time, I had to collect my thoughts about it and write them down, for no other reason than the sake of expressing them  And once this has been finished, I can happily, at least for myself, let it go.  The truth is that I don't have that much at personal stake in American political circumstances anymore and, I am finding as time goes by, I am less and less able to understand them all that well anyway.  Changing times can do that to a fellow who has been used to seeing things in a certain way for many years.  However, after going a bit back and forth in my own reflections about this issue, I have arrived at a conclusion.  And now that I have reached it and once I have finished writing about it, I can lay it to rest.

A number of you are not going to like and/or disagree with what I am about to write here. In fact, I suspect that two groups of people will not welcome this opinion--fans of president Trump and American Democrats hoping for political gains in 2020. Indeed, I don't expect my views will convince anyone. More than that, I doubt anything like my preference for how things should unfold will even come close to materialising. But having read a lot of historical and legal literature on impeachment 21 years ago, and reading over the findings of the redacted Mueller Report for myself, I have come to these conclusions. 

Before I explain what I believe should happen in an ideal world, I will begin here with a few remarks about what I think will happen in the real world. 

I don’t believe anything like my recommendations below will come to pass--not even close. I think the House Judiciary Committee, over the next month or so, will demand public testimony from Mueller and a few other witnesses in an attempt to cause the president some more political damage. They will be stymied in some cases by the president’s legal team denying and delaying compliance with subpoenas of current and former executive officials. After some hubbub over the next month, House Democrats will back off, freeing their overcrowded field of candidates of any worries about impeachment “overreach.” After all, Speaker Pelosi has already practically decided that, without bipartisan buy-in, no chance for conviction and removal of the president exists, and in the absence of any such chance, the effort would only carry political costs by aggravating a polarised divide at the very time when Democrats are trying to swing votes back to their camp. And, in 2020, the Democratic nominee will probably lose anyway and president Trump will get a second term. Let’s face it; the Democratic field will probably not be able to produce a nominee that has broader-based support among its disseduolus voters than Trump will retain among Republican and “Independent” voters. And in the future, the United States will get used to a new campaign tradition, where candidates of all parties may feel free to benefit from foreign government help because, at this moment, we decided to collectively shrug and not discourage this behaviour. And domestic democracy and the American public will go on losing out to all of this, because their interests will be more and more left in the lurch. 

Now that we have spent enough time on the unfortunate state of the real word, I will move on to what I think should happen.

There is a certain palpable degree to which democracy, if it is real, demands that human beings restrain their baser political instincts. Base political instincts have to do with gaining enough control over others to enforce one’s own will and aims on others. Whether it’s done through force, economic coercion, rhetorical skills, subconscious romance or genuine persuasion, political desires are met when one gets other people to do what one wants or envisions. There is an old academic joke about administrative politics, where a long-time professor reflects to himself: “wouldn’t the world be ideal if everyone just did what I believed in?” For democracy to work in any meaningful and genuine sense, one must at minimum, contrary to these instincts, limit one’s desires for control and cede both credibility to the interests of others and willingly observe limits to one’s own ability to dominate the destinies of others. Such requirements of self-limitation are hard. They are hard in everyday life, in the “politics” of relations with loved ones, neighbours, co-workers and fellow citizens. They are harder in real political institutions, where the amounts of money, influence, aggrandisement and ego at work can be overwhelming--and in many cases, zero-sum, where only one side wins and all the others are supposed to lose. And it is hard for the citizen to wish for the imposition of power limitations on the politicians they support, because the citizen very much wants their own political aims and ideals put into practice, and wants their team to be able to implement them as quickly and effectively as possible. But it is a dangerous temptation to want limitless power for your allies and as little power as possible for your adversaries. It is dangerous because one day, your adversaries may exercise the powers you granted your allies over you, and over all those you care about. I realise of course that I am reducing politics to conflict in this portrayal. Politics can be much more than just conflict, certainly. Politics can also be defined in ways that speak to the accomplishment of higher and more noble human ideals, and creating these more lofty conceptions of politics is desirable enough. But the facts of the matter are such that we all have very different conceptions of what noble political ideals are, and we at the same time live in the world together. And so, there will always be agonism about which ideals to enact and how. And granting unlimited power to oneself and one's allies in the pursuit of political ideals is dangerous--maybe not immediately, but in the long run, it certainly is. 

So, in democracies, we need to decide how to limit power, and under what circumstances. One of the tools for limiting power authorised by the American Constitution is impeachment of certain officials in the executive and judicial branches of government. Under what circumstances then should this impeachment power be exercised when it comes to the president? One good rule of thumb, I suggest, would be this. Ask yourself two basic questions. 1. Do the actions of the president threaten the democratic process in some fundamental way, either domestically or to foreign influence, or do they contravene the duties of the president described by the Constitution? 2. Would you condone the behaviour being considered for impeachment if the president belonged not to your own party, but to a party opposed to yours? If the answer to question 1 is “no,” you need not answer question 2 and you should not favour impeachment. However, if the answer to the first question is “yes” and the answer to the second question is “no,” one should favour impeachment.

Impeachment of the president was not believed by the American founders to be primarily about whether civil or criminal offences were committed by the officeholder, though criminal offences might be sufficient grounds for considering it. What makes “high crimes and misdemeanours” “high” is that they are acts that violate specifically Constitutional duties and procedures required of officeholders, not necessarily or merely the laws that pertain to every citizen. Unlike civil and criminal penalties, the only punishment levelled by a conviction triggered by impeachment is removal from office, not fines or jail time. Bottom line: you don’t have to commit a crime to be impeached, you have to violate the Constitution or betray the country. If one is a real conservative, then read what the American founders were debating in the summer of 1787 about this issue, read the sections of the Federalist Papers about impeachment, read the relevant British precedents and what was in British common law at the time to find out what was in their minds.  For the founders, the phrase "high crimes and misdemeanours," though a legal term of art, was not vague; its meaning was so obvious to them that they did not feel a need in the Constitution to explain its reference.  “High” crimes of the president were considered by the founders to fall into two classes. They could be acts that directly contravened the president’s Constitutional duties as detailed by Article 2. Or they could be acts that jeopardised the integrity of the United States by making it vulnerable to political control by foreign powers--putting “treason” and “bribery” at the top of the offences list in ways that do not put them at the top of punishment lists in criminal law.  The founders had just fought a war of independence, and they continued to be pressured by countries that cast jealous eyes at the North American continent. Thus, making the U.S. vulnerable to foreign control was a matter of grave concern, and presidents , as crafters of international treaties and heads of state, were particularly prime targets for suspicion of sellout. Impeachment, though the founders were well-aware it would create political polarisation in society, was not to be a partisan exercise, either in its pursuit or in its refusal. Indeed, impeachment was a process adopted by the founders from British law before there were any institutionalised American political parties. The Constitution, therefore, does not care whether an officeholder is a Republican, Democrat, Independent, Whig, Torie, Bull Moose, Socialist or a member of the Universal Party for Glorifying Delicious Food. The Constitution cares about malfeasance in the conduct of a public office that has Constitutionally specific duties attached to it. Finally, impeachment, by itself, is a step in a process where the House, based on suspicions that the president has transgressed the boundaries of office set by the Constitution and national autonomy, refers their charges to the Senate for trial, and it is up to the Senate to make the final decision on whether the allegations are true and merit removal. The House need not reach a definitive conclusion about impeachment charges; they need only decide whether or not the charges merit being brought to a Senate trial.

The Mueller Report did not charge president Trump with any crimes or clear president Trump of legal liability on any matter under investigation because that was not its function. The investigation was originally given the central task of looking into Russian interference in the 2016 presidential election, and only involved the president and members of his campaign, legal team and White House staff when they were relevant parties in that central focus. Under the current Special Counsel provisions, Mueller and his investigative team were in the employee of the Justice Department, and the Justice Department presently operates under a doctrine holding that sitting presidents cannot be indicted. That current doctrine has not been tested by the Supreme Court and is Constitutionally debatable-and I will return to this issue a bit below-but it is current DoJ policy. It was therefore never Mueller’s job to recommend or initiate legal proceedings against the president, and not his job to deliver a determinate verdict about presidential violations of law. The Mueller investigation, because of the scope it was given, did lead to known indictments of 34 people, plus the convictions or guilty pleas of about half a dozen major players in president Trump’s campaign and early cabinet, plus 12 sealed indictments that have not been released yet. But it was not charged with coming to any legal conclusions about the president. And so Attorney General Barr saying the results of the report were somehow legally his “baby” and his to deliver a final verdict on after the report was finished is simply not the case, and was not the case to begin with.  What Mueller did do, and what it was entirely appropriate under current Justice Department provisions for him to do, was report the results of his investigation and leave it to Congress, during Trump’s presidency, or the legal system, after Trump’s presidency, to decide whether either impeachment or legal charges should be brought. The report is a step in a process, not the end of the process. It is up to Congress now or the courts later to decide whether they want to do anything with those facts. 

It is true that the Mueller Report did not find direct evidence of a mutually agreed-upon conspiratorial arrangement between the 2016 Trump campaign and Russian government officials that would breech existing civil or criminal law. Though "collusion" is not a meaningful legal category here, criminal conspiracy is. The Report did not find sufficient evidence to conclude that there was a formal agreement between Trump campaign representatives and Russian government agents to amount to a criminal conspiracy. But that is not the end of the story, because the Report did uncover some very troubling things.  Those troubling things, in my view, should give us some Constitutional concerns because they reveal a very basic kind of disloyalty to the United States and its domestic democratic process on behalf of the candidate who now holds office. It found, along with a number of other federal investigations, that official agencies of the Russian government and other outlets, through hacking, e-mail dumps in coordination with Wikileaks and internet disinformation projects, undertook major and prolonged efforts to influence the American presidential election by damaging the Clinton campaign and aiding the Trump cause in the 2016 race. It also found that the Trump campaign, though they may not have arranged for these activities directly in exchange for policy favours should they win, publicly and privately sought to benefit from them. The candidate himself openly invited “Russia” to uncover Clinton’s emails and applauded the e-mail dumps during the DNC national convention. His campaign staff took meetings with Russian nationals promising “dirt” on Clinton. His team also, and this strikes me as particularly serious, shared polling data on multiple occasions with members of Russian intelligence agencies. Why is the latter part so potentially serious? Because the top line of who is ahead and who is behind in a given state over a certain stretch of days is not the most important data in a poll. The most important data is in the poll’s “cosstabs,” showing what messages work and don’t work with different voter demographics given their views and preferences. This crosstab data is used to guide campaign strategy, not merely to give it information. The Russian intelligence agencies engaging in disinformation campaigns could easily, in principle, learn more about where to target their messaging with such crosstab data, though whether they did so or not, I do not yet know. “Well, so what?” you may ask, as Trump counsel Rudy Giulliani now rhetorically asks--”don’t campaigns do this kind of thing, called opposition research in the trade, all the time?” Um, not with foreign government agents, they don’t. It has been standard convention for a very long time for American campaigns approached by foreign agents offering help to both refuses the help and report the offers to the FBI. “Ok, that is the standard convention, but it is not a matter of law,” you may again say. Maybe there is presently on the books no particular statue forbidding these kinds of associations between U.S. campaign workers and representatives of foreign governments. But, especially in the new “global Information age,” allowing these kinds of activities to go on un-penalized sets a clear precedent that American presidential campaigns may henceforth and forevermore welcome, and perhaps even seek, extremely well-funded, well-organized help from foreign governments and agencies in order to defeat their domestic political rivals. And that, in turn, may to a certain degree hold the benefitting victors in political debt to those that aided them, and maybe in ways contrary to what would otherwise be in the country’s interests. Now, it is very easy, as a political partisan, to shrug this behaviour off if there are no clear laws against it and tell oneself that such things are worth it in order to gain power in the present. But, once that precedent has been firmly set, once allowance has been given to politicians in general, on all sides, to act this way, they will help themselves quite gladly to acting this way. For the partisan then, one day, an opponent may use these same tactics to vanquish the partisan’s team in the near and distant future, and how will the partisan feel about the situation then? More importantly, if such activities succeed in the case of an American president, they, at least in principle, potentially subordinate the country’s interests to foreign powers in ways that fundamentally jeopardise the domestic democratic process. That is a danger, I believe, that all should care about. I am of course also well-aware that still others may not care so greatly about this issue because they consider it karmic retribution for all the democratic elections around the world the United States has meddled in and subverted in the past century. Perhaps this is so, but that does not mean that any of it, including this instance, should be considered acceptable. If the law presently does not discourage such activities, it should. And if Congress can discourage presidents from undertaking such activities, which it has the unquestioned Constitutional power to do, then it should. Now, I will add one important qualification here. This ground for considering impeachment is not as strong as the one I am about to discuss, mostly because it concerns actions undertaken by candidate Trump, and not by president Trump, so they can’t strictly be construed as misconduct of his office. Ideally, there would be quite toothy overt laws against these kinds of associations that would discourage the conduct on behalf of any candidate, whether they win or lose. However, two factors are still relevant here that make this kind of conduct worth flagging. If a presidential candidate is willing to show this kind of disloyalty to the democratic political process at home, what can ensure that, if elected, that person will protect democratic processes while in office? Second, as the next paragraph will detail, since president Trump, once in office, actively, intently and repeatedly tried to shut down a duly formed federal investigation into these activities, those attempts make the pre-presidential activities relevant.

On the matter of obstruction, the case is also gravely concerning, but also much more directly impeachable, since it concerns actions while in office. It is the express Article 2 duty of the president, in their person and through executive offices, to “take care the laws be faithfully executed.” The president exercises this power primarily through the Justice Department. Now, it is certainly the case that the Justice Department is an executive office and the president has the power to hire or nominate and fire personnel to and from it. But there are dangerous problems evoked when presidents believe that power includes the prerogative to directly control which DoJ investigations to pursue and which to close down. The “take care” clause has, after all, generally been held to prevent presidents from penalising federal officials with dismissal for performing duties enjoined upon them by law and duly followed process. I would also suggest that this problem becomes especially pertinent when the president is himself or herself under investigation. What is to stop a president from ending or trying to end an investigation into their own behaviour simply to avoid accountability? There used to be an Independent Council statute that protected investigators (remember Kenneth Starr of the Clinton impeachment) from presidential discharge because they were responsible to Congress, but that statute was allowed to expire in 1999. The current Special Counsel provisions place the investigator in the executive branch, and thus directly vulnerable to presidential discharge. In this circumstance, since taking office, president Trump has tirelessly and quite intently tried both to publicly discredit the investigation and, more importantly, relieve or harass the officials with oversight power who did not comply with his demands to shut the investigation down. Even though the main focus of the investigation was Russian meddling in the 2016 presidential election, which every federal body from Homeland Security to the FBI to the Justice Department to the CIA and to Congress agree happened, the president from the beginning often referred to the whole investigation as a “hoax.” He encouraged former FBI Director Comey to let certain of his campaign and cabinet members like Flynn and Mannefort off the hook when it turned out they were all found guilty of the crimes of which they were accused. He fired Comey, telling NBC’s Lester Holt in a nationally televised interview that it was partly because of the “Russia investigation.” He repeatedly urged former AG Sessions and former White House counsel Don McGhan to have the Mueller investigation disbanded, and even told McGhan to write a public statement denying that he had been on multiple occasions asked to engineer Mueller’s firing. Trump only failed in these obstruction attempts because his officials refused in this case to obey his directives. The primary reason for Attorney Genral Barr’s conclusion that the obstruction charges don’t merit consideration for indictment is that no crime of obstruction actually occurred; the Mueller investigation was permitted to come to its natural conclusion, and thus the fact that obstruction did not occur supposedly makes the intent issue irrelevant. Again, within the context of impeachment, it does not matter that a crime was prevented only because the staff members of president Trump were unwilling to carry through his directives.  They might just as easily have carried out his wishes, and another group of staff members in the future might carry out such wishes if we do not red-flag the conduct this time.  The intent of obstruction was and is quite consistently reflected in president Trump’s pattern of conduct. This pattern of conduct, just to mention something that is fairly obvious at least to me, is also inconsistent with a firm confidence in one’s own innocence. If one believes one is completely innocent of wrongdoing, then calmly and cooly allowing an investigation to vindicate that innocence carries no danger, and allows the legal process to work itself through unimpeded. Trying repeatedly to shut down the investigation and tongue-lash the investigators and their superiors in public only arouses more suspicion from one’s opponents and more cynicism about the justice system from one’s supporters, while the president’s duty the whole time is to safeguard the integrity of the judicial process. In this case, I can make a stronger claim than in the last paragraph. The president violates the Constitutional duty to ensure the laws be executed when he or she even attempts to quash an investigation into their own conduct, and Trump’s attempts to do just this with the Mueller investigation were both multiple and serious.  And if Congress can discourage presidents from doing this, which it has the unquestioned Constitutional power to do, then it should. Activities like this undermine the public confidence in the office of the presidency as the executor of the laws. 

Impeachment is not a process to be invoked or demurred from on the basis of political convenience--either primarily to defeat a president of an opposing party or to avoid disadvantageous political consequences to members of Congress. The Constitution is fundamentally about process, about the means to democratic ends, and not about the ends themselves. Deciding to impeach or not to impeach on the basis of envisioned political consequences takes that order and turns it on its head, making the Constitution little more than a means to one’s own preferred ends. House Democrats now should certainly not impeach the president so that they won’t have to deal with him in 2020. They should also not turn away from impeachment just because they believe there will be political downsides to it that will need to be faced in 2020. Officials of all parties take their oaths to the country and the Constitution, and they are supposed to fulfil those oaths while they are presently in office, and not only after being elected to their next terms. House members should take appropriate measures if they genuinely believe the integrity of the Constitution stands under threat from the actions of an officeholder and they can formulate clear accusations that this threat is real. If they do not genuinely believe Trump’s actions threaten the Constitutional order, they should get on with the country’s other business. That choice represents a duty of office, convenient or not. Yes, much of politics is about expediency and compromise, because democracy is about living with and governing with others, and the broad range of needs and interests among a whole populous usually require that even conflicting interests be attended to in some ways. But sometimes, especially where fundamental duties of office are at stake, politics should also be about principle. And each must decide when those principles need to be invoked. That is what conscience is for. That’s what it means to care about justice, instead of only about advantage, success or power.

And what of the reservation that, even if the House did vote to impeach, the Republican-controlled Senate would never vote to convict and remove Trump from office, and so the whole thing would be a waste of valuable Democratic campaign time and a neglect of other pressing public needs? Wouldn’t Trump benefit politically from a Senate acquittal and Democrats politically suffer from it? I freely concede that this would almost certainly be the outcome. With only 34% of the American public presently favouring impeachment, and with Democratic candidates on the trail getting very, very few questions about the Mueller Report and impeachment at their town halls, I can do nothing but admit that insisting on impeachment hearings in the House could carry quite unwelcome costs for Democrats. The costs might be so high that I could at the very least understand why the Democrats would take a pass on all this. But, at this point, my understanding of such a decision would not constitute agreement with it. Why do I say that?

In the 1998 Clinton impeachment, Republican House Majority Whip Tom DeLay of Texas did something I intensely disliked at the time. He faced GOP pushback in the House on the possibility of a Clinton impeachment. Some of his Republican colleagues in the House were certain that the Democratic majority Senate would not convict, and worried that voters would hold Republicans responsible for overreaching in the midterms. Both forecasts, of course, came true too--Clinton was acquitted and Republicans lost valuable Congressional seats. Some House Republicans therefore preferred at the time to pass a Congressional Censure of Clinton for his conduct, and the White House showed willingness to accept that outcome. Faced with this resistance from members of his own party, Delay invented a new argument. He told his colleagues that it didn’t really matter if the Senate would not convict Clinton in an impeachment trial, because in this case, impeachment could be a “super-censure,” a warning to all presidents future that, if they thought they could seduce White House interns and lie to civil or federal investigators about it, they should think twice, because the political consequence of impeachment would thenceforth hang over their heads. I did not like that argument at the time because there is really nothing in the Constitution or any precedent surrounding it about impeachment being “super censure.” And now, I still don’t believe at all that impeachment should be considered some other class of Congressional Censure. Still, there was in DeLay’s argument a kernel of principle that, in this case, seems now to be worth reconsidering. Welcoming, at the very least, the help of foreign government agencies in the campaign against a domestic opposition party candidate, and then, once in power, repeatedly telling subordinates to fire duly appointed investigators of that conduct skirt dangerously close to, and perhaps even overstep, the responsibilities and duties of the office of the presidency. They come close enough, at any rate, to make it worth the country’s time for the Congress to clearly say: “No, Mr. President, neither you nor any president who comes after you may do such things. Stepping over this line should and will put your presidency in peril and stain your reputation throughout history.” Even if political realities are such that the Senate will not convict in these circumstances, we owe it to the Constitution and the democratic principles it enshrines to warn the current and future presidents that these limits are not to be breeched. Maybe a Senate trial will not remove the president in this case. But Congress laying down its equivalent of a “bright line” is worth doing on matters of such importance.

For politicians, all politicians (and perhaps for people in general), the refusal to penalise misconduct is tantamount to permitting that conduct. Politicians will use any and every power they are permitted to use, if given the chance. That’s why it is so important in a democracy to limit political power, and that is exactly why the founders took such prolonged and concerted efforts to limit it. So, in deciding whether or not a president should be politically penalised for a certain course of conduct or not, it is best to ask oneself if one would approve if a president of an opposing party would do the same things as the one you are supporting. If the answer is “no,” then one should impose limits on one’s political ally too. Politics is inevitably about conflicts of interest, clashing ideals, a clamouring for resources that will in the end be divided up one way or another depending on who is in charge. Democracy, despite its many imperfections, is at the very least an aspiration to make the fight fair. It was philosophers like Mozi and Hobbes who described early humans as insisting on only their own desires and ideals without concern for others or for the community at large, and thus coming to unending strife in early societies. This picture of early civilisation is probably at best a myth, of course. However, if we lose the instinct even to fight fair, Mozi and Hobbes will not only be myth-makers about the human past, but prophets of the human future.

But, if anyone or everyone is unsettled by any of this, you may take immediate comfort in reality, in the ceaselessly ironic universe. The irony of our universe is that a candidate who campaigned on an “America first” platform welcomed and benefitted from substantial foreign government assistance to his campiagn, and that the green light we now turn on for this conduct not only shines for him, but for all future candidates charged with stewardship of the country. After a month or so of hearings, impeachment will be foreclosed in the House, and the 2020 race will proceed, with both all of its familiar ritualised agony and its brandishing of new global weapons.