Alan Dershowitz, the retired Harvard Professor of Law and well known defense attorney, has offered up a very interesting defense of Trump that deserves to be taken seriously, although I think it displays the limits of legal reasoning rather than the inadvisability of the impeachment proceedings. Dershowitz argues that an impeachment must be based on a violation of criminal law or something close to that, something that can be identified as a crime whether or not in the statutes, rather than on the rejection of a policy of the President where he is doing something of which the Congress may disapprove but is not outside his authority. Dershowitz argues that the Congress had in effect confessed to having engaged in this impropriety when they charged the President with “abuse of power” and “obstruction of Congress” because these charges are too vague to be impeachable offenses. They could have charged him with bribery or extortion, but did not, notwithstanding assertions that have been made by supporters of impeachment that a charge of bribery would run afoul of the way that crime is defined by statute as requiring a monetary transaction, which is not what happened in the case of Ukraine, where what Trump was asking for was an exchange of favors. Dershowitz cites Supreme Court Justice Curtis as his authority. At the time of the Johnson Impeachment, Curtis had argued that impeachment was not appropriate for this same reason. There was no crime, only the violation of the Tenure of Office Act, which had been passed only in order for Johnson to run afoul of it while carrying out his legitimate powers to pick his own cabinet. No real crime; no impeachment.
Read MoreThe January Democratic Debate
Not much has changed since the December debate. The Iran crisis dissipated quickly because Trump got cold feet about following up on the assassination of an Iranian general and the Iranians gave him no excuse to take further action. The impeachment process continues, very slowly, and will fizzle out unless Mitch is somehow convinced to have witnesses even though all that they can say is that Trump did indeed hold up aid to Ukraine, which is what the Republicans have always been willing to accept. The polls have remained remarkably steady: Biden is ahead in national polls, and tied or close to tied in New Hampshire and Iowa. Bernie is steady at about twenty percent, but not moving up. So it is time for people to vote. They know what the Democratic candidates stand for and are familiar with their personalities. And voting is, in fact, three weeks away.
Read MoreThe Political Doldrums
Everyone I know is depressed about politics. Maybe it is because we are in mid-winter, and so caught up in Shakespeare “A Winter’s Tale”, where people cannot help but engage in sin for no reason at all and so, one can surmise, are cursed with original sin. Maybe it is because we are almost up to the Iowa caucuses and no Democratic candidate has caught fire, Democrats, as the axiom has it, wanting to fall in love with a candidate while Republicans only care about who is next in line. The Democratic primary candidates all seem unsuited for the role of someone who offers a new day. Warren and Sanders are too Left; Biden is too old; Buttigieg is too young; and Amy Klobuchar seems to be everybody’s idea of a perfect vice-presidential candidate: charming, left of center, a good ticket balancer-- even if Blacks may demand that place on the ticket-- but too narrow a vision in that winning every county in Minnesota is not exactly what you want to go on a bumper sticker.
Read MoreThe December Democratic Debate
The Democratic candidates have settled into their grooves. We pretty much know what each of them will sound like when they go into their spiels and so we had last night a repeat performance which lets the citizenry retaste the flavors to help them decide which one to favor. Joe Biden sounded confident and well informed and crisp on foreign policy. Unlike Warren, who said we weren’t up to the challenge, he said that the reason Obama had not closed down Guantanamo was because the Administration didn’t have the votes in Congress to do so. In answer to a question about the Administration hiding the true facts of what was going on in Afghanistan, Biden sidestepped the question of whether the Administration had mislead the public and said that he had been against the Afghan policy, including the Surge, all along, and that he, if he became President, would get out of Afghanistan as soon as possible, leaving behind only special forces to act as a counter-terrorist force rather than as a counter-insurgency force. Crisp answers. Elizabeth Warren and Bernie Sanders were full of their righteous indignation about the woes that still prevail in American society and blaming it on the few who have great wealth rather than on the many who voted for Trump and his policies. Warren says the economists who disagree with her are just wrong, and some of the commentators on PBS during the breaks in the debate wondered how long she could get away with that. Steyer said once again that he had always wanted to impeach Trump, and that is certainly true, even if it was before the Ukraine revelations that made the task necessary, which is the way Pelosi and I both see it. The Republicans who claim that Democrats wanted to impeach Trump from Day One are thinking of only a few Congresspeople plus Steyer.
Read MoreThe Impeachment Follies
The current impeachment proceedings are both a tragedy and a farce. They are a tragedy in that the nation has been brought so low by a character who has neither the grandeur of Richard III nor the fatal flaw of character that plagued Lyndon Johnson who, despite his political sophistication, thought he could negotiate with Ho Chi Minh as if the North Vietnamese leader were the head of the United Auto Workers. They are a farce because everybody is fighting against the obvious truth of the charges and defending Trump by saying that he is, at bottom, too stupid and disorganized to carry out any conspiracy. We are in the presence of a very unusual bad guy. It would take Mel Brooks to do him justice, although Alec Baldwin does a very good job.
Read MoreThe November Democratic Primary Debate
It isn’t easy to run for President, or so my reading and what I have observed on television informs me. The primary candidates are in a grind that will get even worse when one of them gets the nomination. Each of them attend four of five meetings a day at civic auditoriums, as well as in living rooms and in diners, marching in local parades, chatting with as many voters as they can, Elizabeth Warren famous for taking selfies with all comers. And, at the same time, the candidates are getting briefed on the news of the day, which means, at the moment, what is being said at the House impeachment hearings, so that they can provide instant judgments on unfolding events, those required by the journalists who trail them, the candidates knowing that any word out of place will be interpreted in the worst possible way. Also, at the same time, the candidates have to keep in touch with their donors, their staff back at headquarters and, for their own sanity, with their own families. How to manage that? It takes a lot of determination as well as a bank of stamina which few healthy people in their younger years would lay claim to, much less septuagenarians, Maybe the staff of the candidates schedule time for a snooze just so the candidate from tiredness will not lapse into a gaffe. (I remember when the Republican candidate for Vice President in 1960, Henry Cabot Lodge, Jr. was criticized for changing into pajamas for his naps). Maybe it is just that the candidates have been at campaigns for so long that the rigors of campaigning are second nature to them.
Read MoreFrom Whence Contemporary Authority Flows
Max Weber defined “authority” as the ability to convince people to follow your lead, which was different from its companion concept, ”power”, which is the ability to get people to do what you want even if they don’t want to. One of the main and perhaps original sources of that thing he called “power” was what Weber labelled as “charisma”, which meant the ability of a person to be so compelling a figure that people would do what he said, they somehow mesmerized because of that person’s personal appeal. And so Hitler was charismatic, even while FDR, however charming, was also the bearer of the TR-Wilsonian ideology, somewhat modified, that the purpose of government was to make the lives of people better and so to expand the role of government to accomplish that end, a principle Democrats come back to even if not in so many words, it certainly different from the alternative principle, which is that the purpose of government is not to make things better but to put as many brakes as possible on progressive impulses so as to further feather the nests of already rich people.
Read MoreTrump and Decorum
Now that events are moving quickly and Trump may not be in charge for much longer, it is time to consider what it was that made him such a galvanizing figure and why that ran out of steam so quickly. It is important to answer these questions in part to create a historical record while the flavor of him is still with us and also because the way he exits office, whether in chains or on a gurney, as opposed to in a Nixonian display of bravado, may lie in his character, and the clue to that character is why people were drawn to support him in the first place as well as in the three years of his Presidency.
Read MoreThe End of The Imperial Presidency
The concept of “The Imperial Presidency”, first coined by Arthur Schlesinger, Jr., was that the United States as a result of World War II had become a superpower and so implicitly ruled over the entire planet, every other country an ally, a dependency or a sphere of influence, except those that had fallen under the sway of the Soviet Union, the only other super-power because it had both a massive army and atomic weapons. The result of this geopolitical situation was that the President of the United States had almost unlimited powers in foreign policy. He could unleash nuclear war without an act of Congress that authorized war because only he could quickly respond to the threat posed by a foreign power’s nuclear arsenal. Moreover, he could engage in wars that Congress might feel the need for a role in declaring because he could manipulate the laws and sentiments of the United States citizenry in the pursuit of his policies. So Truman did not declare war in Korea because he knew it would not get through Congress and instead called the war “a police action” and no one seriously challenged that. It was a phrase that suited the purpose of legitimizing what seemed expedient during the Cold War even if Congress had not authorized it. Congress found itself reluctant to restrict Presidential military initiatives during the Cold War and so the Congress authorized the Bay of Tonkin Resolution, which was supposed to empower the President to negotiate with the Vietnamese, even as it, after the Cold War, also authorized, as a bargaining device, the resolution to go to war in Iraq, no one wanting to challenge the ability of the President alone to form foreign policy. The Javits War Power Act of 1973 was meant to circumscribe the President’s actions by requiring him to go back to Congress after thirty days to authorize whatever he had done on his own, but it has worked out that such a procedure is meaningless because if we are engaged in a major operation for thirty days, the Congress is not likely to pull the plug on an ongoing military operation, and so the President has carte blanche.
Read MoreThe Jim Garrison Standard
There are a lot of conspiracy theories out there at the moment. There is the now old one of Vice President Biden having intervened in Ukraine to help his son. There is the theory pushed by Rudolph Guiliani, that there is a link between the 2016 Hillary Clinton campaign and Ukraine in that the real intervention into the Democratic Party servers originated there. And, of course, there is still the lingering suspicion that somehow Russia had the goods on Trump and so Trump acts like Putin’s lap dog. Added to this is the most recent, which is the accusation by Hillary Clinton that Tulsi Gabbard is a Russian asset, the Democratic primary candidates running away from that. How are we to evaluate these claims? Or are we just supposed to go on the basis of who backs them? Republicans will back pro-Trump conspiracies and Democrats will back anti-Trump conspiricies and it is too soon to tell who will back the anti-Gabbard theory. Is there no way out of this mess so that a rational person can decide on his or her own who to believe? I believe there is.
Read MoreThe October Democratic Debate
Despite the complaints that the Democratic field is too large, there being too many candidates on the stage, and the usual criticism that these debates aren’t really debates because they are not sustained interchanges where people get to answer people’s answers, the CNN debate on Tuesday was very successful in that it gave a sense of each of the candidates and gave the audience an education on a range of issues. The topics touched on could have been expanded into an entire political science course. Most of all, the debate provided a sense that what unites the Democratic Party is that it sees the purpose of government as satisfying whatever needs the populace has. There is no limitation on the ways government can help people, which is the opposite of what Republicans used to say, before Trump, which was that smaller government was better government, that government had its limits because government was the enemy of liberty rather than its enhancer-- or that was the case before Trump appeared on the scene to play Mr. Bluster from the Howdy Doody show: all talk, no delivery. But before getting to the issues, let’s talk about the horse race.
Read MoreThe Necessity of Impeachment
Conservatives and moderates will say that the phone call between Donald Trump and President Zelensky of Ukraine is just Donald Trump’s usual bluster and so not to be taken seriously or, if it is, that it does not rise to the level of an impeachable offense because it is, after all, just one phone call, and that even if it is an impeachable offense, it is too late in Trump’s term to pursue impeachment because the election about a year from now is available as the preferable device for getting rid of him and so not give the Republicans the excuse of saying that the Democrats are not willing to go to the ballot box to get their way. My view is that the charges are very serious, very impeachable and, most important, it is necessary to pursue these charges because we cannot wait for the next election to correct the problem Trump presents.
Read MoreSamantha Power: Human Rights Activist
The top national security people who work in the White House are usually meritocratic appointments, the selection made from people who had been working previously in ever more important positions in either Republican or Democratic Administrations, and so you could count on how they would conduct themselves in office because they were already known quantities. That tradition goes back a long time, John Foster Dulles was the heir apparent for Secretary of State if Thomas Dewey had beaten Harry Truman and he got the office when Dwight Eisenhower won the Presidency four years later. Dean Acheson and Dean Rusk were old Washington hands. The same is true closer to the present. Madeleine Albright was a Democratic fund raiser turned professor of international relations and Condoleza Rice was a student at the University of Denver under Albright's father and she had learned a lot about deterrence theory before she signed on to educate George W. Bush about foreign policy. Colin Powell had been a political general before working in the White House.
Read MoreA Third Try at Impeachment
Here we are at the start of the third round of impeachment talk, and it is a good question whether anything will come out of it when nothing came of it in its previous iterations. First there was the Mueller investigation into connections between Trump and the Russians during 2015 and 2016. Mueller got so tied up in legalities that he couldn’t conclude that the communications between the Rusians and the Trump camp amounted to a conspiracy because there was no proof of criminal intent, which is a version of what I would call the clown defense. Trump is such a clown that he doesn’t know he is entering a conspiracy only that he is acting conspiratorially and then can deny it was malevolent because he goes public with what others would try to hide. He asked Russia at a public rally to go after Hillary’s emails and a few days later Wikileaks released a lot of information. So how could Trump be conspiring right in front of us? He is a fool rather than someone like Nixon, who worked hard to cover up what he knew to be wrong conduct on his part even if it were warranted by his sense that both political parties do it.
Read MoreThe September Democratic Primary Debate
Commentators quickly summed up the horse race aspects of last night’s Democratic Primary Debate. Heidi Heitkamp and Claire McCaskill, two former United States Senators, said on different networks that nothing had changed in that the three leading candidates, Biden, Sanders and Warren, were still in the lead, having provided acceptable though not outstanding performances, and that some of the outlier candidates, like Amy Klobacher and Corey Booker, had made some well put points. Only Julian Castro and Andrew Yang seemed to falter, Castro for aiming a haymaker at Biden that failed and which made Castro look cruel, and Yang for offering an Oprah like gift to some citizens, an offer that drew laughter from most of the candidates. So things are settling in, the longer Biden remains in the lead, the longer he is likely to maintain it, his occasional stumbles notwithstanding. So much for the feel and strategies of the candidates vis a vis one another.
I want to attend, instead, to what were the topics selected by the journalists to ask questions about, and what were the presumptions embodied in both the questions and answers. It is interesting to note, as some commentators have, that neither impeachment nor Warren’s wealth tax, both worthy of debate, were brought up in the course of the debate. Nor was abortion or the Supreme Court. What was brought up and how was that handled?
Read MoreA Nation in Crisis?
Pundits and scholars suggest that our nation is in crisis. Abroad, we are challenged by China, Russia, North Korea. We are threatened at our borders by immigration. We have an economy that doesn’t produce satisfactory jobs for many underemployed people and where career paths are uncertain for people even of the upper classes. The country is rife with regionalism and a cultural war between the people who live on the coasts and those who live inland. Race relations are still lousy or, worse than that, retrograde, what with police shootings of unarmed black citizens and the urban underclass ever more racially segregated. There is a rampage of mass shootings. We are desperately in need of infrastructure improvements and bringing about a decline in air pollution. And, of course, we have separated into two political tribes which can not communicate with one another and an electoral system which two times in the last twenty years has given us a President who did not win the popular vote. How can this not be considered a crisis? Well, it is not, and that is made clear by applying even a wee bit of historical perspective. In fact, we are living in perhaps the most benign of times since the Era of Good Feeling that followed the War of 1812 and lasted, let us say, until the tariff crisis of 1824 that ushered in the Pre-Civil War Era which was a thirty-five year period in which any number of things were done to try to prevent a civil war.
Read MoreTruth in Politics
During the late Nineteenth Century, Gottlob Frege said that every sentence was a proposition in that a truth value could be attached to it. That meant that every sentence (except those that were obviously just for emphasis, like “Ugh!”) was either objectively true or not. The blue unicorn is there behind you or he isn’t. One can quibble about whether this is only true of sentences with Western grammatical constructions, but the point is telling about English and associated languages. It is not far from that to Bertrand Russell’s theory of definite description, which said, at the turn into the Twentieth Century, that every sentence says about its object that the object exists. The blue unicorn exists even if only as a figment of your imagination. That is perhaps the high point of the philosophical view that language could be reduced to the same thing as science: a set of assertions that could be put to the test of their truth because what else was there? All statements were either true or nonsense. There is no place in that sense of language for metaphor or symbol.
The way around this is to notice that while it may be the case that, strictly speaking, sentences are true or not, that often is not what people find interesting about them. If I hear gossip, I care less about whether it is true or not than about the images it puts in my mind to contemplate. Yes, I might wonder if the rumor that JFK had an affair with Marilyn Monroe is really true, but it is the contemplation of that rumor which is intriguing, and so I remember her singing a sexy version of “Happy Birthday” to Jack at a birthday party given for him. Language, in fact, has many ways of qualifying a truth claim so that it is a sort of truth where the truth of the matter is not really central. Look at some contemporary political examples of the ways language can evade or easily satisfy the demands of truth.
Read MoreThe New Case for Impeachment
The old case for the impeachment of President Trump has languished for lack of evidence that he conspired with the Russians, Robert Mueller not having tied together the dots, even though there were so many of them. Why so many contacts with the Russians that Trump’s aides and associates lied about? What was to be found in his tax returns or in Deutsche Bank records? Mueller said that he didn’t go into either one because it was outside his purview, but I don’t see how that could be the case. Those records could show if there was any financial advantage for Trump in cooperating with the Russians or any disadvantage if the Russians did not see him as cooperating with them. There is also the legal question of whether there can be obstruction of justice when there is no proof of any underlying crime. And so the various House Committees try to unearth what Mueller did not. It seems a futile quest and unnecessary if the election of 2020 will unseat him even if Jerry Nadler insists that he is indeed engaged in an impeachment inquiry and more than half of Democratic House members think Trump should be impeached.
Read MoreThe Second August Democratic Debate
CNN is to be congratulated on how well it choreographed the ceremonials that preceded the two nights of Democratic debates. The candidates were paraded out one by one, as if on a quiz program, and for the same reason: to provide viewers a chance to associate names and faces. The first four candidates shook one another’s hands, and then that was dispensed with because it would become too cumbersome to have more than that greet one another individually. The men were allowed to kiss the cheeks of their female competitors though sexual harassment officers at corporations and schools would advise against that. Then there was an old geezer color guard bringing in the American flag and every one of the candidates were very serious and respectful, hands over their hearts, as “The Star Spangled Banner” was sung. I remember, when a kid, joining the crowd at Yankee Stadium in singing the national anthem and I remember when I took my son to ballgames at the same place and he and I were the only ones who sung along with the piped in rendition of “The Star Spangled Banner”. Political debates are a good place to remind people of how serious an occasion politics is for the American people and the American system.
Read MoreThe First Democratic August Debate
The general consensus about the first night of the two days of debate is that Elizabeth Warren and Bernie Sanders were, as the NY Times put it, a “tag team” fielding questions about their “radical” health care and other economic proposals. I agree with that but would add that I think they did a very credible job of doing so and, to the extent that the parameters of a debate allow that, made what seemed to me convincing arguments though not conclusive ones. They explained that Medicare for All was not all that radical but just a meaningful extension of Johnson Era programs. They were convincing in arguing that people would, in sum, pay less for their insurance than they now did. They never had to address whether anybody would be left behind in the transition but did point out that unions could then go about their business of securing higher wages. It did occur to me that the argument against change, which is that it would be disruptive of present arrangements and so some people might suffer, is the one that is used whenever a new program comes along, whether it is to control toxic plant emissions, or regulate child labor, or most recently, to enact Obamacare. The transition passes, just as the noise of construction on Second Avenue has passed and new high rises are being built all the time to take advantage of the new subway.
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