June 17, 2019

How the Upcoming Debates Could Have Been Better Designed

We will soon see the first debates among the myriad Democratic candidates vying for their party’s presidential nomination. How to organize the debate (or debates) is an even bigger problem than that faced by the Republicans in 2015. In that year, the Republicans had a gaggle of candidates to accommodate, but, in 2019, there are even more Democrats running. The GOP solution was to hold two debates, one with the top-polling candidates, the other with the potential also-rans. That latter debate quickly accumulated various unflattering names such as the “kids table.” Democrats, able to learn from history and being more committed to the concept of fairness, tried to avoid slighting any candidate with even a modicum of support.

The Democratic Party solution was to plan for two debates in the same format, each accommodating 10 candidates. As more and more candidates entered the race, their total number exceeded 20, so a few candidates with little visible public support were necessarily cut from the debates. All the major candidates and most of the minor candidates would be guaranteed nationwide exposure on television, however. So far, so good. Next, the 20 selected candidates had to be distributed between the two debates. Here is where the Democrats screwed up. The party decided to draw lots to determine which candidates would participate in which debate.

The random drawing was intended to avoid any favoritism, real or imagined, in the debate assignment. Surely, a random assignment would be fair. Well, actually no. The procedure allowed the producers of the debate to avoid charges of favoritism, but it did not assure a “best” outcome. It did not even assure a reasonable outcome. The random drawing could easily have placed all the most popular candidates in one debate and all the least popular candidates in the other. That did not happen, but, arguably, the outcome was still less than ideal.

Here are the lineups for the two debates:
FIRST NIGHT DEBATERS       SECOND NIGHT DEBATERS
Cory Booker Michael Bennet
Julián Castro Joe Biden
Bill de Blasio Pete Buttigieg
John Delaney Kirsten Gillibrand
Tulsi Gabbard Kamala Harris
Jay Inslee John Hickenlooper
Amy Klobuchar Bernie Sanders
Beto O’Rourke Eric Swalwell
Tim Ryan Marianne Williamson
Elizabeth Warren Andrew Yang
What is odd about these assignments is that the currently most popular candidates largely ended up in the second night debate. Below are the candidates, from most to least popular, ranked by poll results. This ranking is only approximate, but it’s close enough for our purposes.
Joe Biden
Bernie Sanders
Elizabeth Warren
Kamala Harris
Pete Buttigieg
Beto O’Rourke
Cory Booker
Amy Klobuchar
Andrew Yang
Julián Castro
Tim Ryan
Kirsten Gillibrand
Tulsi Gabbard
John Hickenlooper
Jay Inslee
Bill de Blasio
Michael Bennet
John Delaney
Marianne Williamson
Eric Swalwell
Notice that, of the first five candidates, four are scheduled for the second debate. Four of the next five candidates are in the first debate. This assignment is less than ideal. Frontrunners Biden, Sanders, Harris, and Buttigieg will be fighting it out on the second night, but Warren will seemingly be debating lesser lights.

To be sure, the Democrats did not create a varsity debate and a junior varsity debate as the GOP did, but the Democrats did not completely avoid the GOP error. If we rank the candidates by popularity, as judged by the polls, and number them 1 to 20, we find that the rank of the average participant in the first debate is 10.7 and the average rank of the average participant in the second debate is 10.3. In other words, the second debate has, on average, heavier hitters.

A much more evenhanded distribution would have placed candidates ranked by popularity in alternate debates. Such a procedure would have produced something like the following (first and second night rosters could be reversed):
FIRST NIGHT DEBATERS       SECOND NIGHT DEBATERS
Julián Castro Michael Bennet
Bill de Blasio Joe Biden
John Delaney Cory Booker
Kirsten Gillibrand Pete Buttigieg
Kamala Harris Tulsi Gabbard
John Hickenlooper Jay Inslee
Amy Klobuchar Tim Ryan
Beto O’Rourke Elizabeth Warren
Bernie Sanders Marianne Williamson
Eric Swalwell Andrew Yang
In this assignment, of the top six candidates, three are in each debate. Compared with the assignment actually being used, the above distribution moves five candidates from the first to the second night and five candidates from the second night to the first. This seems like a fairer candidate distribution. On the other hand, one could argue that the second night still is the more popular group, since we began by placing the most popular candidate, Joe Biden, in this group and then alternated selections based on the relative positions of the candidates. Ironically, the average position of the candidates on the first night is 11th, whereas the average position of the candidates on the second night is 10th. The second debate still looks like the more popular group.

This suggests a final “best” sorting of candidates. To compensate for putting the top-ranking candidate on the second night, we then choose the next two candidates for the first night, after which, we alternate debates taking two candidates at a time. This procedure yields the following schedule:
FIRST NIGHT DEBATERS       SECOND NIGHT DEBATERS
Cory Booker Michael Bennet
Julián Castro Joe Biden
John Delaney Pete Buttigieg
John Hickenlooper Bill de Blasio
Jay Inslee Tulsi Gabbard
Beto O’Rourke Kirsten Gillibrand
Tim Ryan Kamala Harris
Bernie Sanders Amy Klobuchar
Elizabeth Warren Eric Swalwell
Marianne Williamson Andrew Yang
In this assignment, three of the top six candidates are in each debate. The average position of a participant in each debate is 10.5. Interestingly, this scheme can be derived from the one being used by exchanging three first-night debaters for three second-night debaters.

One can quibble about whether my final proposal really is the best possible way to divide the candidates into two groups, but I think it’s pretty good and clearly better than what the Democrats came up with by drawing names from a hat (or whatever random procedure they used.)

After the debates, of course, the candidate rankings are certainly going to change. Stay tuned.

June 4, 2019

Can a President Be Indicted?

Despite clear evidence that the wealthy and well-connected receive preferential treatment by our justice system, America nonetheless aspires to a system of legal evenhandedness. We speak of “equal justice under law,” claim to have “a government of law, not of men,” speak of Justice being blind, and assert that “no one is above the law.”

Given this context, it is unsettling that the United States Department of Justice continues to maintain the position that the President of the United States cannot be indicted for actual crimes, whether in office or prior to assuming office. Longstanding Department of Justice policy holds that the president can only be disciplined through impeachment for “high crimes and misdemeanors.” In this process, the House of Representatives draws up charges and the Senate determines guilt, a procedure seldom begun and never carried to its ultimate conclusion by removing a president from office.

In his recent statement before the press, Robert Mueller explained that Department of Justice policy precluded his indicting President Donald Trump for obstruction of justice despite the seemingly overwhelming evidence of Trump’s guilt. Had he been able to determine that the president had not obstructed justice, Mueller explained, he could have said so. He could not assert that Trump did obstruct justice because, given Department of Justice policy, Trump could not actually be indicted and could not defend himself against a publically announced charge absent an indictment. Mueller asserted that indicting a sitting president is unconstitutional.

Surely, the departmental logic explained by Mueller is a kind of Catch-22. It is also maddening in that nowhere in the Constitution is it stated, or even strongly implied, that a president cannot be indicted. That the Constitution provides for impeachment and conviction for “high crimes and misdemeanors,” does not logically entail a president’s immunity to more pedestrian prosecution mechanisms. A simple thought experiment is helpful here. Suppose that President Donald Trump actually shot and killed a citizen on Fifth Avenue. Is it reasonable that he would have to be impeached, convicted, indicted, tried, and convicted again in order to obtain justice?

 Two arguments are usually advanced for the president’s immunity from indictment. The most commonly advanced rationale is that the job of president is so demanding that we cannot have the occupant of the office distracted by an indictment. But President Bill Clinton faced a civil suit while in office and was forced to testify under oath. He faced impeachment as well and managed to fulfill his duties without bringing the government to a halt. Would having to deal with a criminal indictment be any more distracting?

In the case of Donald Trump, there is reason to believe that dealing with a criminal indictment might be easier than it would have been for most presidents, as our current chief executive spends an inordinate amount of time playing golf and is known to maintain a light schedule. If Trump found that defending himself against criminal charges would have a devastating effect on his golfing or tweeting, the Twenty-fifth Amendment could come to his rescue, relieving him, at least temporarily from ordinary presidential obligations.

The other argument raised against presidential indictments is rooted in the so-called unitary executive theory. This theory relies on an expansive reading of Article Two of the Constitution and claims that the president can assert power over the entire executive branch. He can therefore direct actions of the attorney general and prevent an indictment of the president from issuing. This theory, though attractive to those favoring a strong presidency—a class including the likes of Richard Nixon and Donald Trump—discounts undisputed powers over the executive branch held by the legislative branch, such as the power to approve or reject cabinet appointments. The Constitution does not say that the president cannot influence the Department of Justice—that department didn’t even exist in 1789—but logic and tradition argue against presidential interference. In any case, the unitary executive theory is rejected by a majority of legal scholars.

Actually, the notion that a president cannot be indicted and that this conclusion follows from the Constitution simply makes no sense. Our Founding Fathers had a bad experience with a king; they certainly did not want to create one to rule over their new nation. Only kings and dictators can do whatever they like without fear of consequences.

Some have argued—Mueller himself seems to believe—that the Constitution’s provision of the impeachment mechanism implies that there is no other way to discipline a president. But, the framers had no need to state explicitly that the president is subject to all the normal laws of the country that any citizen is expected to obey.

In fact, indictment/conviction and impeachment/conviction do different things. The former punishes a president but leaves him in office. The latter removes the president from office with no further penalty. It is conceivable that either process could be executed without the other. A president convicted of a crime could remain in office, though matters would get dicey were he incarcerated. If the crime is serious—certainly if the president were sent to jail—the chief executive would most likely be impeached. It is unclear that an impeached president would necessarily be subject to indictment if the impeachment process uncovered a crime. Nixon avoided impeachment only by resigning; Ford promptly pardoned him. (I thought this was wise at the time, but I’ve changed my mind.)

One final argument in favor of the ability to indict a president: delaying indictment for a suspected crime could mean that the statute of limitations might run out before the president is out of office. Mueller, in his recent public statement, asserted that the president could not even be subjected to a sealed indictment that was not revealed until the target left office. Because of the statute of limitations, this might mean that a criminal president could escape justice completely.

I believe the above arguments strongly support the federal government’s ability to indict a president. On the other hand, I see no move by the Justice Department to change its policy despite suggestions that it should do so. It is worth knowing how the department’s policy originated, however, something uncovered and described by Rachel Maddow on her MNBC show. (I will briefly describe what Maddow discovered, but recommend watching this video for complete details.)

In 1973, Attorney General Elliott Richardson had discovered that Vice President Spiro Agnew was engaged in ongoing criminal activity. He was also aware that President Richard Nixon might well be removed from office because of the developing Watergate scandal. Richardson wanted to get Agnew out of office lest he become president upon Nixon’s departure. Richardson asked Robert Dixon, in the Office of Legal Counsel, to determine if Agnew could be indicted. Dixon discovered that this question was not easily answered definitively. Understanding Richardson’s need, however, he wrote that a vice president could be indicted, but he contrasted this with the situation of the president, whose duties were such as to make indictment problematic. In other words, the Department of Justice’s policy on indicting a president was a kind of footnote to a policy involving the question of indicting the vice president. With Dixon’s memo in hand, Richardson was able to negotiate Agnew’s resignation, though at the cost of letting him walk free. Dixon’s memo has been revisited but retains Dixon’s basic logic. (You can read the successor to the Dixon memo here.)

Whereas I do not expect Donald Trump to be indicted on federal crimes anytime soon, it is worth mentioning another possibility. Trump’s financial activities are being investigated by the state of New York. There seems to be no obstacle to his being charged with a New York state crime. That would be very interesting.


Update, 6/7/2019, 8:54 PM. The text above contains minor additions and corrections.

June 1, 2019

Congress Should Rescind the President’s Tariff Authority

There has been much discussion about whether President Trump has the statutory authority to impose tariffs on products from Mexico in order to punish our southern neighbor for not stopping emigration from Central America. The just-announced tariffs are being widely seen as an inappropriate (and perhaps illegal) response to the reputed “crisis” on our southern border, as well as a supremely stupid move by a president trying to get his own recently negotiated North American trade treaty ratified.

Of course, Trump’s Mexico ploy is yet another crude attempt to use presidential tariff-making authority to bully friends and rivals alike to change their behavior to advance Trump’s own ignorant notion of American interest. Using a national-defense justification for imposing tariffs on Canadian steel and aluminum, for example, was ludicrous. The U.S. has adequate facilities to supply strategic metals, and it is inconceivable that the country is going to face Canada as an enemy.

To be sure, China has not always played fair in the world trade game, but Western greed has been an enabler of Chinese bad behavior. Moreover, our complaints against China are not so much about trade levies as about restrictions on American firms operating in China and theft of intellectual property. The U.S. might have pursued diplomacy as a first move rather than initiating what is rapidly becoming an alarming trade war. Trump, however, prefers bluster and brute force.

The president, who reputedly studied economics, does not understand that tariffs, although they may impose costs on nations against whose products they are levied, are paid directly by importers. Those importers are largely from the importing nation, and they usually pass on tariff costs to consumers of the importing nation.

In other words, Trump tariffs, whether on Canadian, Mexican, Chinese goods, or goods of other nations, are actually taxes on Americans. And taxes are, or should be, levies imposed by the representatives of Americans in Congress. Tariffs imposed by a president are really a form of taxation without representation, despite the fact that, in some sense, the president was elected by the American people. We do not intend to elect kings whose every action is authorized by virtue of his having been elected.

It is not President Trump’s fault that Congress has ceded certain tariff-making powers to the president. As it has in other areas, Congress has shirked its responsibilities in this area, either out of laziness, indifference, or conviction that it cannot reach consensus in a timely fashion (or, perhaps, ever). It is Congress’s fault that the president continues to be authorized to impose tariffs more or less at will.

The need to impose a tariff—a tax on the American people, remember—is almost never urgent. Why, then, should it be the president who has the ability to initiate a tariff with no warning or consultation with representatives of the American people? Whether a tariff is a foreign-policy or an economic tool, let the president make his case to the legislative branch. Trump’s national defense rationale for recent tariffs is hardly credible, and there was surely no need to impose tariffs without warning. If the need for a tariff is thought to be truly urgent, Congress should concur with that determination and act accordingly. If necessary, Congress can be called into an emergency session.

In recent years, the presidency has accumulated increasing power, largely due to Congress’s indifference or spinelessness. It is time that Congress, in rare bipartisan form, take back the power to impose tariffs from the chief executive. Doing so would be a first step toward re-establishing Congress as an effective co-equal branch of the American government instead of an extension of the administration in power. Such a step would help ensure our liberty in the coming years.