A New Year's open thread

by liberal japonicus

New Year's is a big holiday in Japan, but it snuck up on me (if that is possible) and I wasn't prepared for so many things to be closed. Still, it is a lot better than my first New Year's in Japan, when there were no convenience stores and everything was closed for 3 days. Not sure how I managed it. Anyway here's hoping that 2018 will treat you better than 2017 did. Feel free to put your thoughts on that or anything else below.

Comments

[Tony P.]

During the conventional exchanges of good wishes with friends and family over the holidays, it occurred to me that 2017 treated me, personally, plenty well enough, and my most rational wish would be for 2018 to be as indistinguishable as possible from 2017. Personally speaking.

Speaking as a member-at-large of the human race, I would erase 2017 and all its works from the history books.

Speaking as a citizen of the USA who shares a decent respect to the opinions of mankind with the likes of young Tom Jefferson and his ilk, all I can do is apologize to the world for the damage we Americans have done, and the dangers we have created, by indulging ourselves to the extent of electing a madman to preside over us -- and putting up with him. That we should be ushering in a new year with a nuclear-threat pissing match between our elected wannabe-dictator and ... well, anybody ... is simply an admission that our day as a rational nation has passed.

ITMFA. Despise those who won't. We might possibly make it through 2018 that way.

--TP

[Pollo de muerte]

Tony-

RE: apologies to the world and our nation crossing some rational tipping point of no return …

I’m traveling to Europe this year and I’m reminded of a time when I was in the UK and briefly considered getting a Canadian flag patch for my backpack as the initial reports debunking the rationale for the second Iraq war came to light. Sitting in the common room of a youth hostel in Notting Hill watching the BBC, my face got hot and I was embarrassed to be an American.

This year my accommodations will be a bit more posh and my luggage has wheels instead of shoulder straps, but the same feeling of unease lurks.

But I didn’t hide being an American then and I won’t this time. Trump is a colossal embarrassment. There is no overstating that, but I didn’t vote for him (most Americans didn’t). I’d like nothing better than to see him removed from office, but the rule of law is more important than my discomfort and even more important that the short term damage that Trump can do to our nation’s reputation.

I don’t think we are “putting up with him”. He has historically low approval ratings and the midterms will most likely create a major roadblock for the remainder of his Presidency. Mueller is continuing his work and while it’s easy to get impatient, the current investigation is still young compared to Watergate.

Of course if Trump pushes things with NK from a twitter war to a shooting war, all my efforts maintaining sanguinity will be tragically quaint. I’m reading the Guns of August and it’s disconcerting to draw parallels between the accounts of those (mostly in Britain) who thought that WWI would not happen simply because it was unthinkable. But what’s the alternative beyond the ballot box and the impeachment process?

As much as I hate the thought of an another second of the Trump presidency, we can't become what we hate; we can't turn our back on the rule of law. In large measure, that's what separates us from Trump and his ilk. In the end, not "putting up with him" means not allowing him to drag us to his level.

[cleek]

He has historically low approval ratings

his approval rating today is identical to the one he had in the poll Gallup released 11/8/16.

he has always been unpopular.

what we have here is a fundamentally broken electoral system and a disengaged electorate.

[Marty]

Or we have fundamentally inaccurate polling and an electoral system working exactly as designed.

[cleek]

nope. that's not it.

[Pollo de muerte]

I don't think it's fundamentally broken. I'd be in favor of moving away from the electoral college, but I don't see an easy short term path for that ... we have a structural problem in that small states have disproportionate power both in the electoral college and in constitutional amendment process.

It sucks, but is not fundamentally broken.

If Florida continues to trend blue, the electoral college path for Republicans could get so narrow that perhaps they'll agree to an amendment, but it will take some time. These next two elections are vital at the state level in advance of the 2020 census.

[cleek]

It sucks, but is not fundamentally broken.

it's fundamentally broken. it was broken by design. but it's still broken.

the President of everyone can't be elected by a minority of people who voted.

there is absolutely no rational reason that the election for this one seat, out of the thousands of seats people get elected to, should be selected by an anti-democratic weighted average.

we don't weigh the votes from people on one side of my town more than people on the other side. no state says "people who live in this county get three votes, people who live in these counties get two, and people who live in the cities get one". no judge, mayor, congressperson, governor, DA, clerk, dog catcher or school board member is elected that way. why? because everybody knows it would be unfair and undemocratic.

that there is no hope that we will never be rid of the EC is yet another fundamental breakage.

[hairshirthedonist]

the President of everyone can't be elected by a minority of people who voted.

Sure. But what if he's the president of everyone except California and New York? Ever think of that, smart guy?

[byomtov]

an electoral system working exactly as designed.

But the design is a bad one. That doesn't mean it's broken, just that it needs redesign.

[cleek]

it's not even working as designed.

the majority of states make it illegal for pledged electors to vote against their party's choice. and that breaks the idea that the EC can act as a last-chance goalkeeper to keep unsuitable candidates out (itself an anti-democratic feature). Hamilton himself cited that as justification for the EC.

it doesn't provide stability.

that leaves the ridiculous notion that a vote's worth should be determined by the location of the voter's residence. and that's completely indefensible.

furthermore, the Senate already gives small states an extraordinary amount of influence over the federal government.

[Marty]

It boggles the mind that Cal and NY shouldn't have to take their huge electoral advantage and just convince enough other states to vote with them.

[Snarki, child of Loki]

The EC is broken. It broke in 1800 with the introduction of political parties, so that electors are no longer exercising the independent judgment which the design of the EC is predicated upon.

Those electors? They had ONE JOB. And if ever there was a time to do it, 2016 was IT. Yet, here we are.

[Nigel]

till, it is a lot better than my first New Year's in Japan, when there were no convenience stores and everything was closed for 3 days...

Reminds me of weekends in Oxford back when I was an undergraduate.
*Nothing* was open on a Sunday... except the tobacconist - and that was only for a half day.

[wj]

Trump is a colossal embarrassment. There is no overstating that

But isn't part of the reason that there is no overstating it a simple lack of imagination on our part? Just because we can't imagine any President doing the sorts of half-assed, lame-brained things that Trump comes up with repeatedly.

Yesterday was the capper . . . if only for the moment. "Mine is bigger than yours" (to the leader of North Korea). How pathetic is that?!?!?

[russell]

It boggles the mind that Cal and NY shouldn't have to take their huge electoral advantage and just convince enough other states to vote with them.

We've been having this same debate since about 1788.

Are we a nation of people, or a nation of states?

Take your pick.

In other news, the new year has brought the passing of Rick Hall. You might not know the name, but you sure as hell know the music.

In what IMO ought to be a source of national embarrassment, I got this news from the Guardian UK and the BBC before I saw it in any domestic news outlet.

[wj]

Are we a nation of people, or a nation of states?

The Constitution would appear to address that right up front. The very first words of the Preamble being:
"We, the people, of the United States..." (emphasis added)

[Pollo de muerte]

wj-

Pathetic is the right word. Trump can actually be relatively gracious when he is in his comfort zone, i.e., having his ego stroked. As he becomes less comfortable, his tweets get more unhinged.

I wonder if Trump got an advance copy of “Fire and Fury”:

https://www.washingtonpost.com/news/the-fix/wp/2018/01/03/new-trump-book-bannons-treasonous-claim-ivankas-presidential-ambitions-and-melanias-first-lady-concerns/?utm_term=.ae11c6410d14

[Michael Cain]

But what if he's the president of everyone except California and New York? Ever think of that, smart guy?

Here's the question I'm interested in come the elections in November: Will the long-term current geographic regional trends continue to play out? Namely, will the Dems continue to make gains in the northeast urban corridor states and the West, while losing in the Midwest and South. Measure it by US Senate and House seats, state legislative chambers, and state governors.

For example, wrt the US House, it is common to read pieces about this being a wave election, but almost all of them start by talking about picking up seats in California, New Jersey, Pennsylvania. When they talk about vulnerable Republican Senators, the list starts with (and sometimes ends with) Heller(NV) and Flake(AZ).

Alabama was a freak case, as was the Louisiana governor's race a couple of years ago (note to Republicans: don't nominate candidates accused of improper sexual advances towards minors, or with a prostitution scandal in their background).

If you ask me to bet, I'd bet on the Dems getting stronger where they're already strong, and breaking even in the places where they're not.

[hairshirthedonist]

It's something when the reality outdoes the parody, even when it was fully expected to do so. Thanks for playing!

[bob mcmanus]

The problem is not with the states or with the EC, the problem is with the people. If you want your vote to count more than it currently does, just freaking move.

Obviously the apportionment and distribution of people, power, and party affiliations have varied drastically over the centuries. If California was 80% Republican with 50 million voters say 25% of total electorate, Democrats would not be as enthused about a fairer EC.

Our current problem is entirely contingent and historical, and a general ruling document and system should need to be changed everytime a few people cross border.

We are ruled by states, but that does not make politics impossible, it makes politics necessary. If every faction can isolate itself geographically and then escape having to compromise, negotiate, of persuade any neighbors, then we do have a clear perhaps inevitable path to civil war.

Etc. Two solutions for Democrats. Move to Red States or turn Republicans into Democrats.

[wj]

Will the long-term current geographic regional trends continue to play out? Namely, will the Dems continue to make gains in the northeast urban corridor states and the West, while losing in the Midwest and South.
...
Alabama was a freak case, as was the Louisiana governor's race a couple of years ago

At some point, you have to wonder whether you are really seeing anomalies. Or signs of an emerging trend.

[hairshirthedonist]

That last comment was not in response to you, Michael Cain. You posted while I was reading.

But, in response to your comment, as was mentioned previously, Florida is going to change things, though mostly for the presidency, but also in the congress, if to a lesser degree. (Obviously, the presidency is an all-or-nothing situation.)

[Pollo de muerte]

Florida has already done away with gerrymandering by constitutional amendment and the Dems netted three seats in a tough 2016 election (Clinton was extremely unpopular here as was DWS outside of her home district). If there is a wave in 2018, then there may be a few more pickups. Unfortunately, Rubio was reelected in 2016, so we're stuck with him for a while.

[Countme-a-Demon]

Sure as hell, I know the music:

https://m.youtube.com/watch?v=3mz_EXHKGHs

In the age of rump, nothing, and everything, is an embarrassment, unless one is a dupe, in which case America is great again, circa 1857.

Bannon seems to think the money laundering is the key, and Mueller is going to roll em all up in the most flagrant, corrupt, and seditious election-stealing scandal in the history of democracies.

rump will foil all of it with unconstitutional obstructions of justice never encountered in American history and then all of the talk here the other day regarding the political spectrum and who sits where will be irrelevant, as we encounter something wholly new and monstrous, a traitorous, lawless kleptocracy aided and abetted by Russian agents "serving" in Congress and the now compromised bureaucracy corrupted by rump roaches.

Hundreds and thousands Alger Hiss's hissing like snakes, Nunes, Sessions, the lot of them.

Richard Hofstadler in "The Paranoid Style in American Politics", but especially in "The Pseudo-Conservative Revolt-1964"' and "Pseudo-Conservatism Revisited 1965, but most especially in "Goldwater and Pseudo-Conservative Politics" as freshly prescient as if those essays were penned this morning.

He missed the ascendancy of these racist, right-wing John Birch Society mofos to corrupt leadership of all three branches of our dead form of government, but the American imagination of how low the filth who infest this country will go has never been particularly imaginative enough.

Here's some small gummint conservative principles about to go into practice:

http://www.esquire.com/news-politics/politics/a14538420/trump-ice-jail-politicians-sanctuary-cities/

https://www.thedailybeast.com/jeff-sessions-marijuana-adviser-wants-doctors-to-drug-test-everyone?via=newsletter&source=DDMorning

The best of all right wing John Birch plans for America, with KGB Putin designated as partner.

Ohhh, hep me!

[wj]

This morning's stirring of the pot. Here's Steve Bannon(!) saying that the Trump Tower meeting over Russia providing access to dirt on Clinton was "treason". I can hardly wait for the tweet storm....

[hairshirthedonist]

Re: Pollo de muerte | January 03, 2018 at 01:38 PM

Puerto Ricans are and will continue to be flowing into FL. They are not happy with Republicans.

[Pollo de muerte]

HSH-

Exactly. The demographic changes to Orange County are not trivial. We are going through the process of transitioning from a swing district to a solid blue one. The Pubs are not going quietly (they have suddenly developed a fervor for nonpartisan elections), but it's a matter of time.

[Michael Cain]

Florida is going to change things...

Can I interest you in a bet? Four regions: NE urban corridor states (the Census Bureau's NE plus Delaware, Maryland, DC, and Virginia); the South (the Bureau's South less Delaware, Maryland, DC, and Virginia), the Midwest, and the West. Governors, state legislative chambers, and Congress critters each worth one point. The Dems' net gains in the NE-plus-West will be at least twice as large as the net gains in the Midwest-plus-South.

I'd say three times as large, except that 2016 was already a +6 year for the Dems in the West.

[hairshirthedonist]

The Dems' net gains in the NE-plus-West will be at least twice as large as the net gains in the Midwest-plus-South.

I wouldn't be against that, but Florida will not act like the rest of the South.

It will only marginally affect the overall picture for state legislative chambers and governorships (since it's only one state), will have a somewhat bigger effect on the US congress, and will make very difficult Republican attempts to retain or later take back the White House.

[cleek]

well, this is depressing

Everybody in his rich-guy social circle knew about his wide-ranging ignorance. Early in the campaign, Sam Nunberg was sent to explain the Constitution to the candidate. "I got as far as the Fourth Amendment," Nunberg recalled, "before his finger is pulling down on his lip and his eyes are rolling back in his head."

thanks again, "conservatives"

[Tony P.]

Marty (or a Putin sock-puppet using that handle; hard to tell) wrote:
Or we have fundamentally inaccurate polling and an electoral system working exactly as designed.

Marty claims to disdain He, Trump which is why I suspect some Russian hood hijacked his username to post that comment.

Pollo de muerte (seemingly from the best of motives) wrote:
As much as I hate the thought of an another second of the Trump presidency, we can't become what we hate; we can't turn our back on the rule of law.

Impeachment is written into The Law just as much as the Electoral College is. ITMFA.

--TP

[Pollo de muerte]

Tony-

I'm fine with impeachment as soon as we can meet the legal/evidentiary standard.

[cleek]

the only requirement for impeachment is sufficient votes in Congress.

[Pollo de muerte]

Cleek-

I can't square your statement with an adherence to the rule of law.

[wj]

It's a different law for impeachment than for, for example, money laundering. With different restrictions, different evidentiary standards.

[Tony P.]

Pdm,

Can you square "I can do what I want with the Justice Department" with (your idea of) the Rule of Law?

If The Law permits a petulant megalomaniac to launch a nuke, do you think maybe The Law is a ass?

In all seriousness, I want to know ...
1) What "evidence" would you consider adequate?
2) What "legal standard" should we go by?
... when it comes to impeachment?

--TP

[cleek]

I can't square your statement with an adherence to the rule of law.

Congress can impeach over literally anything, if the votes are there. the Founders knew this, and they assumed the political cost would be too great, if Congress was to impeach for a transparently political reason. but that's the only check in the system. there's simply no higher power that forbids Congress from impeaching over partisanship.

seems to me that we're pretty close to - and maybe past - the point where most Congresspeople are safe enough in their districts that they would suffer no electoral consequences for a purely political impeachment.

[hairshirthedonist]

The rule for impeachment under the law is what cleek describes. It is an act of political will that the law allows for.

It requires one legislative body to vote to impeach and another to convict, as they see fit as duly elected representatives of the people. The reasons or justifications required are for them to decide, given the political costs. It's actually a fairly high bar, particularly as an actual conviction goes.

[hairshirthedonist]

I'm the king of cross-posting today.

[Pollo de muerte]

I don't think it's "literally anything". You still need Treason, Bribery, or other High Crimes and Misdemeanors.

I think obstruction of justice, if Trump used the powers of his office, would fit the historical definition of "high crimes".

I like that the originalists on the court would end up using the lower standard for "high crimes".

[wj]

But once you include "misdemeanors", the field is pretty wide open. Not, perhaps, for what should be grounds, but certainly for what could be within the letter of the specification. And who among us has contrived to live our lives while avoiding even an occasional, mismisdemeanor?

[Tony P.]

Pdm,

You seem to have answered my 2nd question: the "legal standard" is "Treason, Bribery, or other High Crimes and Misdemeanors".

Cool.

Now, how about my 1st question:
What "evidence" would you consider adequate?

Do we need a video-tape of Vladimir Putin handing He, Trump a briefcase full of $100 bills with non-consecutive serial numbers? Do we need a signed confession that "I, Donald John Trump, promised to lift sanctions on Russia in exchange for dirt on Hillary Clinton"? Do we need to see He, Trump actually drop his trousers on national TV to prove that his nuclear button is bigger than Li'l Kim's? Or what?

And, not incidentally, do YOU, personally, get a veto on what constitutes adequate evidence of "high crimes and misdemeanors"?

ITMFA. You'll regret it if you wait.

--TP

[Marty]

I am sure that the members of Congress understand that the reason better be clear, legitimate and explainable.

I don't like him or his style of communicating simply isn't enough. What he says is no more dangerous than what other Presidents have said, personally or through their talking heads.

Collusion, proven to the satisfaction of the Senate, would be a reason that fits the criteria. But, if they take him out they better be sure there is bipartisan agreement at some level or the President becomes fair game for literally any reason. The next one as well. In a political climate like we have we might never get a President to serve a full term again.

[russell]

Two solutions for Democrats. Move to Red States or turn Republicans into Democrats.

I'm not sure political identities are all that firm and fast. If lots of (D)'s move to red states, they won't all remain (D)'s. Vice versa for (R)'s moving to blue states.

Some (many?) red states are red because the social and economic issues that are relevant to folks there skew toward being (R). Vice versa for blue states.

If nothing else, typical / average population density lends itself to going one way or the other. Economic base, ditto, e.g. agricultural vs industrial vs post-industrial (tech, finance).

Take 100 liberal (D) MA residents and move them to AR. Within 5 or 10 years, fewer than 100 of them will be (D)'s. Don't know how many, but fewer.

Take 100 conservative (R) ID residents and move them to CA. Within 5 or 10 years, fewer than 100 of them will be (R)'s. Don't know how many, but fewer.

Because what makes sense in MA and AR are different, and what makes sense in ID and CA are different.

My personal completely non-scientific take on what's going on in the country now is that people in general are drifting toward places that are more likely to skew (D). Conservatives are losing their base, so they are freaking out and resorting to bullsh*t like gerrymandering and voter suppression to retain power. The emphasis on states rights is of a piece with this.

All in my opinion.

So, "move to a red state" is not really going to get it done, if your goal is just to dilute the pool of (R) votes in that red state. Not long term, anyway.

Unless so many blue staters move there that they change the fundamental character of the place.

AR is just under 3 million people. Move 2 million folks from metro NY there, and you won't make a big change in the character of NY, but AR will be unrecognizable.

But 2 million NY'ers aren't going to move to AR.

[hairshirthedonist]

I don't think it's "literally anything".

Maybe not, but it’s practically anything. Again, it’s an act of political will. That’s not nothing. Political will sufficient to impeach and convict even a particularly terrible president is hard to come by. And it’s not entirely independent of bad actions by a given president.

Think of it as a recall election, done via legislative representation. It’s democracy in action.

[Marty]

No hsh, it's not that. He is supposed to have done something wrong that rises to an impeachable offense. It is specifically not "anything".

[russell]

they better be sure there is bipartisan agreement

My take, which is to say my opinion, is that 90% of the (R)'s in the House and Senate are, straight up, in the tank. There will be no bipartisan agreement on the merits of the case, ever, short of replacing nearly every (R) in Congress. And I don't care if we replace them with other (R)'s, fine with me, as long as they are remotely honorable. But the guys there now are living the wingnut dream, and if impeaching Trump is going to put that at risk, it ain't gonna happen with their participation.

Kushner wanted to set up a back channel to Russia, using Russian diplomatic comms infrastructure. For one readily available example.

If anything remotely similar happened in a (D) administration there would be a guillotine installed on the White House lawn.

Trump's an (R) and he'll sign whatever they hand him, so it's a yawn.

I have no idea how we get from where are to something than reasonably be called "bipartisan". That well is pretty much poisoned. Maybe we'll get back there in a generation or so. You and I will probably be dead and gone.

[Tony P.]

Ok, Marty, I'll ask you too:

What does He, Trump have to have done do justify his impeachment?

What evidence would YOU demand before agreeing that he had done it?

--TP

[russell]

He is supposed to have done something wrong that rises to an impeachable offense.

It's not a particularly well defined term. What "misdemeanors" justify impeachment?

Being a jerk probably doesn't qualify. "Abuse of office" probably does. Abuse of office covers a lot of ground, and is to a large degree in the eyes of the beholder.

And that's just one of several things that are equally squishy, and equally reasonable reasons to impeach.

Johnson was impeached for firing the Secretary of War. It violated the Tenure of Office Act. He "broke the law". But mostly he pissed off the Senate.

[hairshirthedonist]

Saying a president has to have done something that rises to an impeachable offense in order to be impeached is tautological. There’s no information there. “What is a florg? A florg is a florg. Duh!”

As a practical matter, the idea that Donald Trump hasn’t done something that could be considered impeachable - in the right political environment - is laughable. In fact, it’s hard to think of any president who hasn’t done something that could be considered impeachable in the right political environment. It goes with the territory.

What’s so hard about the concept of political will? That’s what it comes down to. The rest is window-dressing.

[Marty]

TP, they need to put something that resembles abuse of the office or collusion in getting it at his feet.

The real problem is that it's now sport on the left to over dramatize everything he says or does. So the list of things they, maybe you, think are ok is so unrealistic we can't have a conversation about it.

Johnson was impeached for breaking the law, he might have gotten away with breaking the law if he hadn't pissed off Congress. Nonetheless they had a clear, explainable nonpartisan reason to present.

[Michael Cain]

It is specifically not "anything".

From time to time I ask my British acquaintances why, when a different party gains control of Parliament (and in the Westminster system, the entirety of government), they don't just promptly repeal all sorts of stuff the previous party did and change the direction of the country radically. The answers all seem to me to boil down to, "It's just not done."

Much of the long-term success of the US system has been because some things "just aren't done." Linz and Valenzuela argue that the US is the only example of a strong-president democracy where this hasn't broken down. The two features of the Trump administration that concern me the most -- and admittedly, the policy areas where I concern myself are limited -- are (a) rapid reversal of policies by changing regulations, not laws; and (b) nominating (and the Senate approving on party-line votes) judges with a history of supporting the new regulatory directions.

"It's just not done" is failing. No telling how bad things can get.

[Pollo de muerte]

First an observation ... IIRC the phrase "high crimes and misdemeanors" is a single term of art. Don't read "misdemeanors" on its own ... you can't impeach a president for jay walking.

I will admit that some have argued that impeachment can be born of the political will of Congress. (A) I think that's a terrible idea; and (B) I don't think it's well founded. In Nixon v. US (not the president, a recent judge named Nixon who was impeached), the SCOTUS held that it could not review Congressional impeachment of judges, but held the door open if a president was impeached without some connection to a legal standard.

So for policy reasons and legal reasons, I don't think "literally or practically anything" is defensible.

Again, IIRC, "high crimes and misdemeanors" relates to misuse of the powers of one's office. I don't want to imply that this is completely settled law, but I believe it is a good policy and consistent with the use of the term when the Constitution was drafted.

Tony ... I think if there is evidence that Trump used the power of his office to obstruct justice, then that's enough. That's within the old definition of "high crimes and misdemeanors". We might already be there with the firing of Comey. Treason is a separate basis for impeachment, and IMO you would need some quid pro quo related to helping Russia for monetary gain. The standard for treason is and should be higher. Much higher.

[bobbyp]

What evidence would YOU demand before agreeing that he had done it?

A semen stained blue dress should do it.

[Marty]

Michael,

The challenge in what you are pointing out is that this administration is rolling back regulations used by the last administration to implement things they couldn't get through Congress. Particularly over the last two years.

It's just not done failed then. So now the shoes are on the opposite feet. D's are obstructing R's are getting around them. If this level of mtual petulanve doesnt convince one that a poorly supported impeachment is a bad ideathen nothing will.

Political will is just saying we want to so screw it let's impeach him. That's not hard to understand, it's wrong.

[bobbyp]

Nonetheless they (radical Republicans) had a clear, explainable nonpartisan reason to present.

This claim has no basis in the actual historical record:

Sir, the bloody and untilled fields of the ten unreconstructed States, the unsheeted ghosts of the two thousand murdered negroes in Texas, cry, if the dead ever evoke vengeance, for the punishment of Andrew Johnson.

Yup. No vicious partisanship there!

[bobbyp]

Political will is just saying we want to so screw it...

Sorta' reminds me of the concept of "the unitary executive", but no matter. It's OK when Republicans do it.

So to those who defend Trump and the GOP, please tell us why George Bush was not impeached and convicted for his torture regime? Was it because his actions did not constitute "high crimes and misdemeanors" or was it because there was a lack of "political will"?

[hairshirthedonist]

So for policy reasons and legal reasons, I don't think "literally or practically anything" is defensible.

Then you aren’t taking “practically” to mean “practically” in the context of the discussion. Let’s put it this way: If the house voted to impeach, and the senate to convict, for some unnamed transgression, how ridiculous of an alleged transgression would the least ridiculous alleged transgression available to justify impeachment and conviction have to be for the courts to prevent the impeachment and conviction?

What president in the real world hasn’t plausibly done something plausibly bad enough for impeachment and conviction in a sufficiently conducive political environment, if any? Is Trump one o fhem?

I’m not even suggesting that Trump should be impeached, at least not now (not that I think he could be, practically speaking). But, if the political will existed, the rest would be academic.

[Pollo de muerte]

HSH ...

To suss out "the least ridiculous alleged transgression", I'll let you unpack the dicta from Nixon v. US:

"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."

***

"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate."

I can't glean much detail from these quotes, but I think we need more than political will with no other basis.

[hairshirthedonist]

Political will is just saying we want to so screw it let's impeach him. That's not hard to understand, it's wrong.

It seems to be hard for you to understand, because “political will” means something other than “I just want to.” It means that politicians believe that whatever political price is to be paid is worth what they intend to do. That means that either the political price is very low (in the current discussion, the president is broadly and strongly unpopular) and/or that impeachent is an extremely important and necessary step (in the current discussion, the president represents a clear danger or some sort to the nation).

Simply initiating impeachment proceedings can be political suicide. That’s why political will isn’t just a whim.

[Pollo de muerte]

Bobby ...

I was also reminded of the "unitary executive" when thinking back on Watergate. When Nixon's presidency was in trouble, Republicans pushed for a standard that required an "Indictable Crime", which is significantly higher than what I'm advocating.

If you are looking for some balance to your "checks and balances", the "political will" standard shifts the power to Congress and the "Indictable Crime" standard to the executive. The abuse of official power standard sits somewhere in between.

[bobbyp]

were the Senate to convict the President without any kind of trial

There. Unpacked.

The idea that the Supreme Court stepping in to overturn a Senate conviction of a sitting President would not in and of itself be a highly partisan act is simply risible.

Also, the actual fact of a lawless Supreme Court is not something buried in the mists of history or simply unthinkable. cf Bush v. Gore.

[Tony P.]

Marty has GOT to be kidding: The real problem is that it's now sport on the left to over dramatize everything he says or does.

"I alone can fix it."
"This American carnage stops right here and stops right now."
"I can do anything I want with the Justice Department."
Marty will be telling us next that He, Trump is the least self-dramatizing president evah!

Some things are just too ridiculous to take seriously. But, since I positively seethe with goodwill toward those who defend He, Trump at every opportunity while proclaiming their disdain for Him, I feel obliged to address this:

... this administration is rolling back regulations used by the last administration to implement things they couldn't get through Congress.

"This administration" is refusing to continue the "last administration" policy of NOT DEPORTING a large cohort of people who grew up American after being brought into the country as kids. So the original sin was obviously Obama's. I suppose this is one example of what Marty is talking about.

I find that particular example despicable. I think people who support "this administration" on that score are despicable. I would be pleased to learn two things:
1) That Marty also finds it despicable; and
2) What non-despicable examples Marty has in mind.

--TP

[Pollo de muerte]

HSH...

I'm not against political will because it reduces impeachment to a whim. I'm against it because it abandons any pretense of due process and allows something approaching mob rule to remove a president.

[Pollo de muerte]

Bobby ...

The words "any kind of trial" implies some level due process and not merely "political will".

[hairshirthedonist]

I can't glean much detail from these quotes, but I think we need more than political will with no other basis.

There’s almost never no other basis. There’s practically never no other basis if the political will exists. Those things aren’t independent variables. There’s a correlation between the politicial will and other bases, in the real world. This isn’t an abstract discussion about possible universes. It’s a practical discussion, and the law doesn’t have specific standards beyond the congress following the proper procedures.

My take on what you quoted was the court avoiding explicitly declaring that they have no recourse whatsoever if something totally outrageous were to happen, not that anyone would give a crap about the courts if the conditions were that bad. (They don’t have an army.) But judges (i.e. lawyers) don’t always think that way.

[hairshirthedonist]

I'm not against political will because it reduces impeachment to a whim. I'm against it because it abandons any pretense of due process and allows something approaching mob rule to remove a president.

I was responding to Marty on that point. But, to your point, as a practical matter, I’m sure the congress will always be able to manage the pretense of due process. If it got to the point that they didn’t bother with such pretense, all bets would be off. It would be like worrying about which mutual fund to invest in when money, itself, became worthless.

[Marty]

No hsh, you are describing political will as being bereft of any actual reason for impeachment. That means I just want to, the rest is rationalization.

Articles of impeachment have been brought to the floor of the house, no ones political career was ruined.

If they impeach him at this point, with the information thats public,it is simply a coup, and he isnt the one making us a third world country.

[Pollo de muerte]

HSH ...

I'm not trying to be dense, but I don't completely follow your 8:51 post.

I'm not saying that political will is not a necessary condition for impeachment (it is). I'm saying that it isn't sufficient (or shouldn't be)

You say: "the law doesn’t have specific standards beyond the congress following the proper procedures." The problem is that the Constitution is light on what those procedures are.

I guess I'll take a guilty plea w/r/t the charge that as a lawyer I have a judicial mindset in approaching this issue, but if the Constitution is not clear on the procedure for impeachment, where else can we turn to fill in the blanks but the courts?

On your 8:56 post, I would hope the bar is set higher than mere pretense.

[sapient]

the SCOTUS held that it could not review Congressional impeachment of judges, but held the door open if a president was impeached without some connection to a legal standard.

You're awfully sanguine about the legal standards of the Supreme Court. Always remember: Bush v. Gore.

In any case, there's plenty of "legal standard" applicable to Trump, including, most obviously, violation of the emoluments clause and obstruction of justice, not to mention threatening witnesses, which certainly would fit the definition of high crimes or misdemeanors. Not sure what your idea of a "legal standard" is if these things don't fit it.

It's also quite obvious that his campaign was run in collusion with Russians, who criminally hacked emails in order to impugn the integrity of the Democratic candidate. If we don't have a "smoking gun" with regard to Trump himself (which we kind of do), so what - he knew or should have known about the Republican criminal enterprise that was working to get him elected. I'm happy for the investigation to continue to go forward so that traitors (using that term in a nontechnical sense) such as Nunes can be frogmarched out of office, and so that the entirety of the Trump criminal enterprise can be exposed.

I guess I'll take a guilty plea w/r/t the charge that as a lawyer I have a judicial mindset in approaching this issue, but if the Constitution is not clear on the procedure for impeachment, where else can we turn to fill in the blanks but the courts?

As a lawyer too, in what way are we confused about the procedure for impeachment? And as to the courts, political question doctrine anyone? Pollo, for whatever reason, you're trying too hard.

[sapient]

allows something approaching mob rule to remove a president.

How would it be that a bunch of elected officials in the House, and 2/3 of the Senate would constitute "mob rule" in impeaching a President that didn't even obtain a majority of the country's votes?

Again, keep pearl clutching if that's your thing, but it will be just fine if impeachment happens in this case.

[cleek]

You still need Treason, Bribery, or other High Crimes and Misdemeanors.

you seem to be under the impression that there is something - some body or process or regulation - that can tell Congress "no, you can't do that". but there is no body that can tell Congress that it can't impeach a President for any reason it feels like. the only thing that matters is the votes. there is no procedural hurdle or higher power that can stop Congress if its reason isn't up to "high crimes and misdemeanors".

if you disagree, you're going to need to point to the statute that says otherwise. because, the process is simply:

the House votes. if that passes, the Senate votes. if that passes, the process is over and the person is impeached.

there is nothing stopping either chamber from voting to impeach for literally any reason.

literally all that matters is political will.

[cleek]

but if the Constitution is not clear on the procedure for impeachment, where else can we turn to fill in the blanks but the courts?

the Constitution is perfectly clear on the procedure. the people who wrote it spent a lot of time trying to come up with a way to make it workable. they were well aware of the problems with this and all of the other proposals on offer. and what we have is what they settled on. and with this one, they were totally aware that the only backstop to the procedure they came up with was political will. as with many other things, they were wrong about how much hold things like honor and dignity would have on people.

[cleek]

F

[wj]

Actually, if the House votes, that's impeachment. When the Senate votes, that's removal.

[sapient]

the House votes. if that passes, the Senate votes. if that passes, the process is over and the person is impeached.

there is nothing stopping either chamber from voting to impeach for literally any reason.

literally all that matters is political will.

I agree with this, except that I think that in real life, Congress will want to have an excuse that looks like a violation of law, be it ever so small. In the current situation, Congress really doesn't need to make stuff up. It's there.

[wj]

Pedantry lives! (Even outside the legal profession.)

[sapient]

Actually, if the House votes, that's impeachment. When the Senate votes, that's removal.

Right, and it's due process, not mob rule. And it's also, as cleek said, pretty unassailable.

[cleek]

If they impeach him at this point, with the information thats public,it is simply a coup

coup noun: coup; plural noun: coups; noun: coup d'état; plural noun: coups d'état; plural noun: coup d'états

1.
a sudden, violent, and illegal seizure of power from a government.

2.
a notable or successful stroke or move.

3.
a contusion caused by contact of the brain with the skull at the point of trauma.

4.
historical
(among North American Indians) an act of touching an armed enemy in battle as a deed of bravery, or an act of first touching an item of the enemy's in order to claim it.

which definition are you using?

[Pollo de muerte]

sapient ...

Bush v. Gore was an abomination. Having said that, I won't abandon the rule of law because the SCOTUS screwed the pooch on that decision.

As for Trump, I've already suggested obstruction of justice as a potential basis for impeachment. I think emoluments is kind of a difficult argument. I've also suggested that treason may be in the cards, but that one's also hard.

As for the questions about procedure, I don't think the standard for "high crimes and misdemeanors" is clear. I like the abuse of power standard, but some have suggested political will is enough and some have argued for a higher "indictable crime" standard.

If we have a wave election and Dems sweep into power and then impeach Trump without anything that approaches due process, then I think that would approach mob rule.

I don't think I've been clutching any pearls. I haven't even been snarky. I've tried to be even handed in explaining my understanding of ambiguities of the impeachment process.

"Pollo, for whatever reason, you're trying too hard."

I'm starting to agree with you there.

[bobbyp]

where else can we turn to fill in the blanks but the courts?

I take pains to remind you we had this thing called "The Civil War", and if one party imposed its 'political will' via a vote in the Senate "without even the pretense of a trial" then the Court's adverse opinion on the matter would essentially be as meaningless as Dred Scott was, and the tragedy of mass slaughter could well be repeated.

The outcome of such a struggle would not be a matter of law, but one of raw power, and the subsequent justification for that outcome, whatever it may be, is a matter for historians, not the legal profession.

If the Senate had voted 68-32 to convict Clinton, would that have met your standards for adhering to de jure and de facto legal niceties, or would it have been the ruthless application of raw political power?

[bobbyp]

"you are describing political will as being bereft of any actual reason for impeachment."

For crying out loud, marty, there is always a reason. For good or for ill.

[bobbyp]

If we have a wave election and Dems sweep into power and then impeach Trump without anything that approaches due process.

In what universe do you imagine this happening? This is an argument totally devoid of historical grounding or even actual existing political analysis.

regards,

[Pro Bono]

The constitution is clear enough: impeachment is to be for "high crimes and misdemeanours", where "high", in context in the language of the time, means "abusing the power of high office".

Nixon abused his power to try to cover up the Watergate burglary, and recorded himself doing it. Once the tape was made public, there was overwhelming bipartisan support for his impeachment, which he forestalled by resigning.

Bill Clinton lied (or was deliberately misleading) about his relationship with Monica Lewinsky, in a civil action and in response to partisan questioning. Whatever you think of that, it was not an abuse of power. His impeachment was a partisan affair, and he was rightly acquitted by the Senate (which requires a two-thirds majority for conviction, but, thanks to a few Republicans voting on the right side, failed to reach a simple majority).

Trump has abused his power to further his business interests in a small way, which would seem to qualify as a high misdemeanour. But his "treasonous" dealings with Russia occurred, so far as is yet known, before he took office. I think for impeachment you'd have to demonstrate some reciprocal favour to Russia he's granted as president.

I don't suppose the US really wants to get rid of Trump because he's made his hotels more profitable since his election. Rather you (the sane ones) want to get rid of him because he's an embarrassment (constitutionally that's insufficient grounds) and perhaps because he can't be trusted not to press his big nuclear button in a fit of pique. The nuclear button worry would be grounds to get rid of him, but you should use the 25th amendment for that.

Trump is obviously unfit to be president, but that was nearly as obvious before he was elected, and the electorate (combined with the undemocratic electoral college rules, and voter suppression) voted him in anyway. Impeachment is not supposed to replace voting.

And do you really prefer Pence as president to Trump? Yes, if you are genuinely afraid of nuclear war, but probably No otherwise.

[Michael Cain]

...used by the last administration to implement things they couldn't get through Congress. Particularly over the last two years.

Some yes, some no, at least for the things I watch. The "waters of the United States" changes are suspect, in the sense of whether they are within the authority Congress granted to the EPA. Congress was pretty wishy-washy about diffuse non-mobile sources. All of the CO2 regulations, plus MATS, plus the CSAPR, plus coal ash regulation, are the result of the SCOTUS ruling that not only could those regulations be done, but that they must be done under the plain language of the amended CAA and CWA. You and I may not like it, but the rules are such that Anthony Kennedy and John Roberts get to make those calls.

I admit that the one that has pissed me off the most is that ten years -- starting pre-Obama -- of work by ten western states to reach a compromise agreement on habitat maintenance involving the oil/gas companies, private land owners, and the BLM was tossed when the new administration pulled out with no explanation.

[Sebastian H]

"Congress can impeach over literally anything, if the votes are there. the Founders knew this, and they assumed the political cost would be too great, if Congress was to impeach for a transparently political reason. but that's the only check in the system. there's simply no higher power that forbids Congress from impeaching over partisanship."

Gack. You're having an argument over the power to do something and the right to do something. Lots of people have the power to do lots of wrong things. Congressional power is essentially unreviewable in cases of impeachment. So they have the POWER to impeach over whatever. That doesn't make it 'right' under the Constitution. Under the Constitution they can only impeach for Treason and High Crimes and Misdemeanors. That is famously not well defined, especially because we don't impeach anyone very often (arguably we should impeach more often). But it isn't just "I don't like him and his policies".

That said, if Trump has done anything in the zone of what I think he probably has done, he ought to be impeached. I mean I think that the Clinton Foundation operated at a money funnel level that was inappropriate and very suspicious (see especially when we find out how much the donations were down in 2017). Trump very very likely goes well beyond that. If we find evidence that Russia has been say buying up his properties at inflated prices, or if he laundered money, or did stuff like that, he should be impeached.

For me the evidence that Russia has him by the short hairs is circumstantial but strong--he crazily shifts on EVERYTHING--except Putin.

[Marty]

For crying out loud, you can always make one up, diesnt mean there is one. More important, this is how crazy dictators come to power, we don't care how, just get rid of that guy. Kill the EC, impeach him for no reason at all, just f the constitution. We want him gone. At any cost.

[Pollo de muerte]

Bobby ...

"In what universe do you imagine this happening? This is an argument totally devoid of historical grounding or even actual existing political analysis."

The hypothetical of a completely political impeachment was raised by others. I'm just saying it would be a bad thing. I'm not suggesting it is plausible ... the Dems would be lucky to get a simple majority in the Senate with the current map, a ⅔ majority is not happening. Trump won't be impeached without some Pub votes in the Senate.

[Pollo de muerte]

PB ...

"Trump has abused his power to further his business interests in a small way, which would seem to qualify as a high misdemeanour. But his "treasonous" dealings with Russia occurred, so far as is yet known, before he took office. I think for impeachment you'd have to demonstrate some reciprocal favour to Russia he's granted as president."

I was thinking about this as well. "High crimes and misdemeanors" implies abuse of power in office and would require an act after he became president.

Both treason and bribery are set off by themselves in Art II § 4 which could imply that commission of those crimes before taking office may be a basis for impeachment.

[Michael Cain]

...the Dems would be lucky to get a simple majority in the Senate with the current map, a ⅔ majority is not happening.

Screw two-thirds for impeachment or overriding a veto; if the Dems win every Senate seat currently held by a Republican that is up for election in 2018, and hold all of the seats they currently hold, they will be short of the 60 votes needed to break a filibuster.

[Pollo de muerte]

Bobby ...

"If the Senate had voted 68-32 to convict Clinton, would that have met your standards for adhering to de jure and de facto legal niceties, or would it have been the ruthless application of raw political power?"

I think it would have been purely political based on the fact that Clinton did not commit any "high crime and misdemeanors" as I understand the term. He abused his position as ML's "supervisor", but there wasn't anything particular to the office of the president involved.

[hairshirthedonist]

Who is Marty arguing with?

PdM, what does “completely political” mean? Who raised that, as such? Politics isn’t physics. It doesn’t exist without humans making judgements about other humans, and the judgements of those other humans, or the judgements those other humans will make about the judgements one might make about those other humans or their judgements (or whether they’ll vote you out of office).

Political will doesn’t exist in a vacuum like the force of gravity. Yes, it’s necessary for impeachment and/or conviction, but it also depends on the things that are sufficient so long as there is also the politicial will.

Ultimately, the standard that actually is clear is the number of votes in the chambers of congress. And it’s a high standard, practically speaking.

[hairshirthedonist]

Removing someone from office by impeachment and conviction is the preferred alternative to a coup or assasination, if that makes anyone feel better. That’s why we have that method under our system of government.

[wj]

if one party imposed its 'political will' via a vote in the Senate "without even the pretense of a trial" then the Court's adverse opinion on the matter would essentially be as meaningless as Dred Scott was, and the tragedy of mass slaughter could well be repeated.

The question which simply leaps to mind is, how many people (with how many guns) will refuse to accept even incontrovertible facts in such a case? And how will they react when the real world (yet again) declines to conform to their fantasies? We are, sadly, well past the point where we are operating on the basis of shared facts.

[Pollo de muerte]

HSH ...

It was raised several times.

e.g. cleek: "Congress can impeach over literally anything, if the votes are there. the Founders knew this, and they assumed the political cost would be too great, if Congress was to impeach for a transparently political reason. but that's the only check in the system. there's simply no higher power that forbids Congress from impeaching over partisanship."

I accept that a ⅔ vote in the Senate is hard. I'm suggesting that reaching that threshold without some finding of treason, bribery, or other high crimes and misdemeanors is not appropriate.

I'm going to call it a night.

I disagree that "treason, bribery, or other high crimes and misdemeanors" is well defined.

I disagree that the courts have no role in reviewing the application of the "treason, bribery, or other high crimes and misdemeanors" standard.

I disagree that "treason, bribery, or other high crimes and misdemeanors" is window dressing for a purely political exercise of reaching a voting threshold.

[dr ngo]

I am, as usual, late to the party, so let me just make a couple of comments to prove I showed up at last.

First, from Cleek: "we don't weigh the votes from people on one side of my town more than people on the other side. no state says "people who live in this county get three votes, people who live in these counties get two, and people who live in the cities get one". no judge, mayor, congressperson, governor, DA, clerk, dog catcher or school board member is elected that way. why? because everybody knows it would be unfair and undemocratic."

Just keep an eye on North Carolina, where a minority of (Republican) voters consistently gets greater representation in both the US Congress and the NC Legislature, thanks to extreme gerrymandering. "Unfair and undemocratic" is, I believe, the state motto of the Republican Party here. (Not that the Dems are consistently fair and democratic, I hasten to add.)

WRT grounds for impeachment, I can see the problems both for treason (hard to prove, and it happened before Trump was President) and emoluments (Trump could reasonably argue that if Congress had wanted him to give up his income stream, they should have asked - which of course they didn't).

But the big issue here would seem to me (and IANAL, of course) obstruction of justice. It was what brought down Nixon and many of his henchmen, and what the Trump administration seems most openly to be doing. And that is using the power of office to prevent justice from taking its course. That's certainly a "high crime," and not just IMHO.

Watergate was nothing until the coverup. The various attempts to pin something on Trump will probably falter or bog down in legalisms, but deliberate sabotage of the process may be what does it.

[russell]

The real problem is that it's now sport on the left to over dramatize everything he says or does

the real problem is that the POTUS is a venal, vain, willfully and proudly ignorant horse's ass and unevolved rich-boy brat, who has no understanding of or regard for the importance, responsibilities, or obligations of the office he holds.

that is the real problem.

"It's just not done" is failing

see also "the president can't have a conflict of interest".

the phrase "high crimes and misdemeanors" is a single term of art.

fine. WTF does it mean?

Again, IIRC, "high crimes and misdemeanors" relates to misuse of the powers of one's office.

fine. upon taking office, Trump doubled the membership fee to mar-e-lago.

he fired comey because comey wouldn't drop the investigation into flynn's activities.

it's a really long list, ranging from almost comically petty cupidity, to the profoundly wrong.

there is no crisp definition of what is meant by the Four Impeachable Offenses. it's only come up a very small handful of times. the language is less than crystal clear and the body of precedent is thin.

your guess is as good as mine.

articles of impeachment have already been introduced based on obstruction in the case of comey and violations of the emoluments clause. all are reasonable, demonstrable bases for proceeding.

it won't happen, because the political will in fact is not there. most likely, the fact that the freaking wheels would come and people would likely end up dead is another factor.

i do not expect trump to be impeached, but it really depends on what coms out of mueller's work.

we are living in a profoundly low point in our national history. let's hope it doesn't get a lot worse. it could.

[dr ngo]

"till, it is a lot better than my first New Year's in Japan, when there were no convenience stores and everything was closed for 3 days...

Reminds me of weekends in Oxford back when I was an undergraduate.
*Nothing* was open on a Sunday... except the tobacconist - and that was only for a half day."

Try arriving in Canberra for the first time on a weekend between Christmas and New Year's Day!

[russell]

High crimes and misdemeanors" implies abuse of power in office and would require an act after he became president.

Clinton was impeached for lying under oath. Broke the law, but hard to see as an abuse of office.

Is just breaking the law sufficient?

[dr ngo]

BobbyP: So to those who defend Trump and the GOP, please tell us why George Bush was not impeached and convicted for his torture regime? Was it because his actions did not constitute "high crimes and misdemeanors" or was it because there was a lack of "political will"?

Not many people remember, I guess, but in the early drafts of the bill of impeachment against Nixon there were charges relating to his conduct of the "secret" and illegal bombing of Cambodia, which was in direct violation of US law as well as international justice. It was dropped, presumably because of the belief that there was no way that anything under the general heading of foreign policy - even a murderous and illegal one - could serve as a serious basis for impeachment. Sad, but there it is, and I'm afraid it's the answer to your question.