October 16, 2019

Let’s Add a Different Presidential Primary Debate to the Schedule

When two additional Democratic presidential candidates who were not invited to the September debate qualified for the October event, I had hoped that the debate would be conducted on two nights, with six candidates participating in each debate. Clearly, having 10 candidates was too many, and the 12 crowded onto the stage last night were many too many. As usual, the top candidates got most of the air time. As is becoming common, no one scored big, and no one committed fatal mistakes.

We know that Biden, Sanders, and Warren are the current leaders of the pack, but it is also true that there is significant talent in the pool consisting of the nine other Democrats who sparred last night. Each of those other candidates, however, had limited time to talk.

The reality is that early Democratic front-runners for their party’s nomination often do not become the party’s standard-bearer. Think Carter, Clinton, or Obama. (Even Trump himself was an early long-shot.) Unless the seeming also-rans have significant opportunities to be seen in action by the public, the choice of candidates in 2020 will be drawn from among contenders who are too old, too depleted, and too radical.

Of course, as long as less popular candidates can accumulate funds from their most ardent fans, they can continue to toil on the campaign trail in hopes of sparking interest among the rest of the electorate. But continuing to sponsor debates that favor the already popular candidates makes it hard for anyone in the rest of the pack to gain traction.

So, here is my idea to level the presidential-primary playing field a bit. Let’s sponsor a debate—it can even use the standard format, even though that could be greatly improved (see “A Different Kind of Presidential Candidate Debate”)—that includes all the major candidates except the top three. In the current instance, that would leave 9 participants, a group that would not include Sanders, Biden, or Warren.

My second-tier debate would allow participants more time to speak and to make their case to the public for their candidacy. Of course, the debaters could simply take the opportunity to trash the front-runners, but I think that either would not happen or would not dominate the conversation. The debate would help Democrats decide which candidates are promising, perhaps surprisingly so, and which should go back to whatever they had been doing. It might even help to winnow the field faster.

What do we have to lose? What about it, DNC?

October 9, 2019

Further Thoughts on Impeachment

I have already written two posts concerning the possible impeachment of President Donald Trump (see “Don’t Impeach Trump” and “Slow Order for the Impeachment Train”). Here, I want to comment on the Trump administration’s reaction to the official beginning of an impeachment inquiry and to add to what I have already said about a possible impeachment.


The Trump Attack on Impeachment


Most readers no doubt recognize that President Trump’s attack on the impeachment inquiry by the House of Representatives recently announced by Speaker Nancy Pelosi is diversionary and without merit. As a help to anyone who might have to argue the validity of what the House is undertaking with a member of the Trump cult, I will set forth the case for what is taking place.

Mr. Trump has argued that the pursuit of articles of impeachment by House Democrats is merely an attempt to nullify the 2016 election. On the contrary, his disparagement of the House action and his categorical refusal to allow co-operation with the inquiry by the executive branch is an attempt to nullify the Constitution itself.

Article I, Section 2, Clause 5 of the Constitution reads
The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.1
Reasons for impeachment are set forth in Article II, Section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Not only members of the House but, judging by recent polls, a majority of voters believe that there is a reasonable case to be made that President Trump is guilty of infractions of the sort listed in Article II.

If the president is impeached by the House of Representatives, the Senate is empowered to conduct a trial of the president according to Article I, Section 3, Clause 6:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds [sic] of the Members present.
Article III, Section 2, Clause 3 further clarifies the special status of an impeachment trial:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Mr. Trump has referred to the action of the House as a “coup,” by which, presumably, he means a coup d'état, which dictionary.com defines as
a sudden and decisive action in politics, especially one resulting in a change of government illegally or by force.
What is happening in the House is, of course, not illegal, not being effected by force, and is certainly neither sudden nor decisive. (Only the Senate has the power to make impeachment decisive.)

Counsel for the president has called the House action “unconstitutional,” but, as illustrated above, this is not the case.

Mr. Trump has also asserted that no impeachment investigation can go forward without a vote to do so by the entire House. The Constitution is silent on such a reputed requirement and no House rule demands it.


Impeachment Consequences


Article I, Section 3, Clause 7, enumerates the consequences of impeachment and conviction:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
This provision makes clear that, if a president is convicted by the Senate, acting on a bill of impeachment passed by the House of Representatives, he or she is to be removed from office and may be subject to prosecution for any crimes committed in office. Because the Senate trial need not involve actual statutory crimes, a cashiered president may or may not face legal jeopardy for actions taken while in office.

In the current circumstances, it appears that President Trump will, at a minimum, be charged with soliciting something of value for his re-election campaign from a foreign party, which is an actual crime. If convicted by the Senate, Mr. Trump could be therefore be prosecuted after leaving office for it, for misrepresenting payment to Ms. Stormy Daniels, and for other offenses.

The removal of the president from office would, of course, elevate Vice President Mike Pence to the presidency. As noted in my earlier essays, this raises the question of whether President Pence would immediately pardon the ex-president for past and future crimes, as President Gerald Ford did for Mr. Richard Nixon after he resigned from office in the face of certain impeachment and conviction.

As it happens, President Pence would not find himself in quite the same position as Mr. Ford. This is by virtue of Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment [emphasis added]. 
Mr. Ford could pardon Mr. Nixon because his predecessor resigned. Had the Senate convicted President Nixon and removed him from office, he could have been indicted and tried for obstruction of justice, etc. I see two lessons to be learned here.

First, President Trump can maintain his ability to be pardoned by a President Pence by resigning before he can be impeached and convicted. This is the Nixon strategy. As I noted previously, however, he can only be pardoned for offenses against the United States and could still be prosecuted for violating state (e.g., New York) laws. Trump’s self-importance makes resignation unlikely unless the march to conviction in the Senate seems inevitable.

Perhaps more significantly, the nature of the articles of impeachment drawn up by the House and the handling of those articles by the Senate make a difference. If the president is charged and convicted of only one offense, he could be prosecuted for that offense after leaving office, but he could be pardoned for all other crimes he may have committed. Even if the House impeaches the president for many offenses, the Senate could remove him from office by voting to endorse only one. This could allow Mr. Pence to offer his former boss at least a partial get-out-of-jail-free card.

If Trump leaves office before the end of his term, I hope that he can be indicted, convicted, and imprisoned. In reality, he is most likely to serve jail time by being beaten in the November 2020 election and prosecuted under a Democratic president. In normal times, this would seem the actions of a banana republic, but Mr. Trump’s outrageous behavior might convince citizens that he is simply receiving his just rewards.

Can Trump leave office early and not be pardoned by Mr. Pence? Probably not. Although Mr. Pence’s pardon power is somewhat limited, Trump’s pardonable offenses are legion. Congress could pass a bill—one unlikely to become law—to the effect that a president cannot pardon a convicted or resigned president. The Supreme Could would likely find such a law unconstitutional. Alternatively, though equally unlikely, Congress could make it clear that it would consider President Pence’s pardoning Trump an impeachable offense. This would be kosher, but, removing Pence from office would install Pelosi, a Democrat, so that circumstance seems very farfetched indeed.

I continue to think that investigating Trump, even impeaching him without conviction is the best plan. Democrats in the house can build a strong case against the president. Senate Democrats are numerous enough to keep Trump from being convicted and therefore subject to later prosecution.


NOTE: All references to impeachment in the United States Constitution are discussed in the above essay.

_________
1The constitutional quotations are from the National Archives.

September 27, 2019

Slow Order for the Impeachment Train

Now that the House of Representatives is onboard the impeachment train, everyone is asking just where that train is going. Because Nancy Pelosi indicated that six existing committees, rather than a special impeachment committee, would be responsible for dealing with impeachment of the president, I initially assumed that the case to be made against President Donald Trump would be comprehensive. It seemed reasonable that the Ukraine affair (Ukrainegate?) was, to the Speaker of the House, the last straw, rather than the first incontrovertible high crime committed by the incumbent president. It will make a difference, however, whether the impeachment train leaves the station with a full complement of coaches or departs carrying a single railcar.

Democrats believe that Mr. Trump’s attempt to induce Ukraine to assist in his re-election campaign is egregious and unmistakably so. That this is not so clear to Republican politicians, however, suggests that the outrage felt by Democrats might not be universally appreciated by the electorate. If the House votes impeachment on the basis of Ukrainegate only—some have suggested this should be the case, and Ms. Pelosi has not been entirely clear about how the House should proceed—the case for removing the president may be unconvincing to the American people and to the Senate. The effort, in that case, would be a disaster and might well improve the chances of having to endure a second Trump term.

Since Mr. Trump seems to engage in treason, bribery, or other high crimes and misdemeanors during most of his waking hours, it seems prudent to draw up articles of impeachment that convincingly portray a president out of control and more concerned with his own welfare than that of the nation. Such a comprehensive indictment is more likely to sway public opinion in its favor. Conviction by the Senate needs only a single infraction found to be a constitutional violation, so the House can improve the odds of conviction by giving the Senate more options to choose from. Besides, to limit impeachment to Ukrainegate might suggest that all the other insults to the Constitution committed by the president are unimportant. That would allow Republicans to suggest that Ukrainegate was merely an aberration, inconsistent with the president’s overall performance.

As much as my sense of justice is bouyed by Nancy Pelosi’s decision to set the impeachment train in motion, I find the development worrisome. I expressed my greatest fear in an earlier essay (Don’t Impeach Trump, July 25, 2019). Were Mr. Trump actually removed from office, Mike Pence would become president and, undoubtedly, would pardon Donald Trump for all past and future offenses, thereby depriving the Republic of the opportunity to indict the ex-president, convict him, and send him to prison.

There is another contingency that could prevent Mr. Trump from getting his just rewards, namely, resignation from office. The House of Representatives might build such a strong case for impeachment that Donald Trump, like Richard Nixon before him, might resign rather than face likely conviction by the Senate. (Admittedly, this would take much change-of-heart among GOP Senators.) Again, in this scenario, President Pence could pardon Mr. Trump and preserve his undeserved freedom.

Ukrainegate revelations are coming out uncomfortably fast. Some people believe this will allow a single-issue bill of impeachment to be drawn up rather quickly and approved by the House of Representatives. Either conviction or exoneration on such a bill would have a bad outcome. It will, in fact, take some time to fully investigate Ukrainegate, though it won’t take forever. It would be better for the house patiently to develop articles of impeachment involving all the incumbent's misdeeds without actually completing the process in time to send the impeachment train to the Senate before, one hopes, a new Democratic president is inaugurated. Slowly building the case against Donald Trump may strengthen public opinion against his presidency without either calling upon the Senate to act or alarming the president so much that he takes the Richard Nixon option.

September 11, 2019

A Different Kind of Presidential Candidate Debate

With yet another debate among Democratic presidential candidates nearly upon us, now is a good time to consider the value of these events and whether the present format is serving us well.

Aside from anything that happens on camera, a candidate benefits from simply being in a debate, particularly in the early stages of the campaign. Whereas a candidate like Joe Biden is well-known, a candidate such as Julián Castro is less familiar to the electorate and benefits substantially from the exposure afforded by a spot on the stage. Candidates, such as Tulsi Gabbard, who were cut from the pack this time, miss an opportunity to re-introduce themselves and put their policies before the public. Of course, participation in a debate is not a guaranteed benefit. Who can forget Rick Perry’s failure to remember the three cabinet departments he wanted to get rid of? (Ironically, of course, he now heads one of those.)

What we have come to call a debate is really not a debate in the formal sense, and the more people there are on the stage the less debate-like it becomes. With ten “debaters,” there is little opportunity for sustained disputation, and, unless moderators aggressively enforce rules of who can speak when, the event can quickly become a verbal free-for-all. Candidates trailing in the polls have every incentive to speak out-of-turn knowing, realistically, that they will be called on by the moderators less frequently than the more popular participants.

Moderators have conflicting objectives. They want to be (or at least seem to be) fair to everyone; they want to explore issues that have been raised in the campaign; and they want to produce engaging television. Should they try to give everyone equal time, knowing full well that some of the hopefuls have no chance of becoming their party’s nominee? And who wants to hear from the least popular candidate as much as from the front-runner anyway? Both to explore issues and to generate lively discussion, moderators have a tendency to play let’s-you-and-him (or her)-fight by asking participants to critique the policies of a particular rival. This can make for exciting television, but it often exaggerates the differences between candidates and leaves some participants out of the discussion.

Particularly at this point in the campaign, the usual debate format encourages fights over minutiae among people who largely agree with one another, and it rewards clever bons mots created in advance specially for the occasion. Debates (and the primary campaign generally) artificially encourage articulation of policies that are markedly different from (and, implicitly, better than) those of other candidates. Politicians generally, not only Donald Trump, are loath to admit to either having made a mistake or to having found another’s idea to be an improvement on the politician’s own.

Debates can be enhanced in small ways. Four years ago, I offered some possible improvements. (See “Suggestions for Presidential Debates.”)  But perhaps what we need is something quite different, at least during the early presidential primary season. I offer a debate-alternative below and suggest why I think it would be a helpful addition to our political toolbox. Others may have even better ideas. I do think we need better ideas!

Let’s face it; debating skills (or whatever skills are needed for what we call debates) are not an important skill required of the chief executive. In fact, skills needed to become president, particularly those observable to voters, are not necessarily the most important skills needed to be president. Candidates can exhibit more important presidential skills and give voters a better sense of just who they are by radically changing the nature of intra-party debates.

Here is my suggested format: Seat (not stand) the candidates in a semi-circle faced by the moderator. There should be no studio audience. Candidates are not allowed to have notes. The moderator will have chosen in advance a set of problems (not solutions) to discuss and an amount of time to be devoted to each problem. Although candidates could be given a problem list ahead of time, this is likely unnecessary, as the important issues facing the nation should be obvious. A surprise topic or two might usefully contribute to the program, however. Candidates are expected to discuss—this could mean arguing about—the nature and causes of the problem, as well as possible approaches to ameliorating it. Other duties of the moderator are the following:

  • Call on participants based on raised hands.
  • Without imposing a fixed time limit on contributions, ensure that no one dominates the discussion.
  • Keep the discussion on topic.
  • Do not allow discussion of measures to deal with the problem until a substantial consensus is reached about the nature and causes of the problem.
  • Insofar as it’s possible, give everyone who wants to speak an equal opportunity to do so.
  • Move on to the next topic when the time for the current one expires, irrespective of the state of the discussion. (The moderator should avoid interrupting a speaker if possible.)
 The event could begin with brief statements by the candidates without limit on what they may say. It should end with statements responding to the experience of what has just occurred.

This format has a number of advantages over the conventional one:

  • It provides a sense of how candidates approach problems and make decisions, important presidential skills.
  • It is likely to provide a better sense of candidates’ temperaments than does the usual high-pressure debate, with its need to upstage particular rivals.
  • It provides a better sense of candidates’ philosophical orientation.
  • It educates the audience about the issues of the day, something that provides insight into proposed policies.
  • To the degree that candidates put forth a plan devised in advance, they are forced to “show their work,” i.e., explain explicitly how their “solution” relates to their understanding of the problem.
  • It provides a sense of where the party itself stands and of the distribution of views within the party. The format encourages consensus, rather than uniqueness of ideas, offering a strong sense of the party. (Commentators have complained that people no longer know what the Democratic Party stands for.)
  • Ultimately, it should help candidates hone their proposals, based on ideas from other candidates.
This format is not perfect. For example, it relies on candidates themselves to criticize ideas that may not be implementable. (In the debates so far, participants have put forward many programs that would require the coöperation of Congress. These are unlikely to come to pass unless the Democratic Party achieves control of the Senate, in 2022, if not 2020.)

Debates later in the campaign season should probably be some variation of the conventional events.

Evidence suggests that, for many people, policy positions are less important than character, the 2016 election notwithstanding. My modified debate scheme may be more helpful to voters for whom that is true.

September 6, 2019

Arguing Against an Anti-abortion Argument

In a story titled “Plan C,” by Nona Liss-Schultz, in the current issue of Mother Jones, Alabama State Senator Clyde Chambliss is quoted as saying, “When God creates the miracle of life inside a woman’s womb, it is not our place as human beings to extinguish that life.” That being a religious argument, of course, it is hardly a legitimate basis for legislation. There is nothing wrong with legislators taking religious concerns into account, however. But this argument is crazy even as a religious argument.

Chambliss’s reasoning can easily lead to a sense of powerlessness and a willingness to accept whatever fortune or tragedy comes our way. But fatalism is not a particularly useful philosophy, and a Christianity that rejects free will must necessarily reject salvation as well. I don’t think I exaggerate by paraphrasing Chambliss’s statement as don’t fuck with God’s plan.

If we are to accept a pregnancy as a God-given event not properly subject to human intervention, what other “gifts” of God should receive similar consideration? How about breast cancer? Muscular dystrophy? Polio? Swine flu? Are we to eschew medicine entirely? Why stop at medicine. Aren’t floods “acts of God?” Is it moral to try to avoid them, say, by building levies? You get my point.

But, back to the pregnancy thing. You may choose to think of pregnancy as an act of God, but, let’s face it, two people are directly responsible for it. Parents—willing or not—need to take responsibility for a largely avoidable event, not blame it on God. If the pregnancy was a human “mistake,” why should we prohibit a human correction?

On the other hand, contracting breast cancer or muscular dystrophy is, as far as we know,  a circumstance over which we have no control. Surely, such medical tragedies are more easily seen as God’s work than pregnancy. Is it “not our place as human beings” to intervene? Why is the case for non-intervention regarding pregnancy stronger than that for breast cancer?

Let’s face it, Chambliss, like so many “pro-life” partisans, abhor abortions for their own reasons, and they are willing to advance any argument, however illogical or inconsistent, to try to make abortions illegal. Their arguments, however crazy, must always be countered.

September 4, 2019

Happy Summer Day

Happy Summer Day
by Lionel Deimel

An ordinary drive across town
Past the usual scenery with its familiar flagpoles
Fronting fire station, bank, courthouse, high school
Flying red, white, and blue banners
Emblazoned against a cloudless azure sky
Below their bold silver finials
Evincing pride in a great nation
And announcing a happy day across the land:
There were no mass shootings yesterday.


The above poem is a second draft. I’m not sure if I will revise it further.

It seems that flags fly at half-staff frequently these days. As I drive past them, I sometimes have to ask why they are not flying high that particular day. Often, however, I know the flags are at half-staff in acknowledgment of a mass shooting somewhere in the country. These were not always so common.

August 30, 2019

A Long-Awaited Movie Arrives

I am a big fan of the late Shirley Jackson. I discovered her writing on my own in my early college years. After reading her infamous short story The Lottery, I went on to explore her novels and was particularly taken by her last novel We Have Always Lived in the Castle.

Like much of Jackson’s writing, We Have Always Lived in the Castle is a bit strange. It involves the surviving members of a wealthy family living in a large estate in a small town. The story is told from the point of view of 18-year-old Mary Katherine Blackwood, Merricat, who lives with her older sister Constance and uncle Julian. Other members of the family were killed by ingesting arsenic-laced sugar six years earlier, an incident for which Constance was tried and acquited. As a result, Constance refuses to leave the grounds, and Merricat is responsible for obtaining groceries and library books from the town. (Uncle Julian is confined to a wheelchair.) Townsfolk were apparently hostile to the Blackwood family even before the poisoning, an attitude intensified by the perception that Constance got away with murder. Merricat is also responsible, in her mind, at least, for protecting the family through magic. The girl is odd. In fact, all three inhabitants of the Blackwood “castle” are odd, perhaps downright crazy.

Into this peculiar family, comes, unbidden, Cousin Charles, whose motives Merricat rightly suspects. Lest I fully reveal the plot, suffice it to say that Charles ultimately brings tragedy to the family, which, reduced by the death of Uncle Julian, is determined, at the end of the novel, to carry on.

Ever since I read and reread the Jackson novel, I have wished for it to be turned into a movie. About a decade ago, there was an announcement that this was actually going to happen. Year after year, hints of progress surfaced, but no film appeared. It seemed unlikely that the novel would become a blockbuster movie, but I wanted to see the cinematic product even if it turned out to be a bad film. Finally, nearly ago, We Have Always Lived in the Castle became an actual movie. For months, however, I searched in vain for it. It was unlikely that it would show up in the local theater. It was not on Netflix; it was not on Amazon; it was not on television. I kept looking, and I recently found it in a Red Box kiosk. It was checked out from the kiosk where I first saw it, but I was able to obtain the DVD from another Red Box dispenser a few days later.

The wait was worth it. The movie, though not perfect—it contains a few stupid missteps—is wonderful. It captures and intensifies the weirdness of Jackson’s novel without deviating from its bizarre story. (You can find details about the movie on Wikipedia, but, if you have yet to read the book or see the movie, skip the plot summary.) Ironically, I just learned that We Have Always Lived in the Castle will be available on Netflix on September 14, nearly a year after its premiere at the LA Film Festival. I will watch it again and recommend it to you as well.