VP Pence Rushing Home Thursday. Can We Look at the 25th Amendment and Wonder Why?

As The Hill puts it:

Pence’s office said the vice president was returning to Washington on Thursday night instead of Friday morning to attend the president’s meeting at Camp David. Those meetings are expected to focus on North Korea.  

Pence deputy chief of staff Jarrod Agen also said the vice president’s other weekend plans had been canceled in case the president needed any follow up.

Pence’s office said the vice president was returning to Washington on Thursday night instead of Friday morning to attend the president’s meeting at Camp David. Those meetings are expected to focus on North Korea.  

Pence deputy chief of staff Jarrod Agen also said the vice president’s other weekend plans had been canceled in case the president needed any follow up.

With an administration this transparent, this should explain it all, but, as the 25th Amendment says in part:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. (Bold added; remainder of section text describes resolution process.)

So, you have to wonder about those plans, particularly since N. Korea is supposed to be cooled down.

You also have to wonder if the lack of cabinet resignations displays a support of Trump, or an awareness that the action moment is approaching, and that for cabinet members staying now makes more sense both personally and for the country.

More info and analysis on the 25th here.

 

 

 

 

Did Trump Spontaneously Add the Problem Words to His Charlottesville Statement?

Most of the problems in Trump Charlottesville statement come from the phrase “amny sides.”  In fact, if you watch it, here, you see you will see that the phrase, actually repeated, at the 16 second mark, is delivered very differently from the rest of the statement.

The phrase is emphasized, by tone and repetition and it is underlined by an arm wave (an old rhetorical trick).

manysides

To me, the whole thing only makes verbal and non-verbal sense as a spontaneous addition by Trump.  In other words he wanted and needed to weaken and qualify an originally more powerful statement.

Note that at the beginning, he is clearly reading something, but at this critical point he looks up, not needing to be guided by the previously drafted statement and his body argue changes.

Moreover he similarly does not look at the written statement when referencing his name and that of Obama, and when he talks of how long the hated has been going on.  It might well be that this additional dilution by time is also added personally by him.

I would urge news organizations to do all they can to get the original draft, although when you look at this in this light, it all makes sense, even without knowing the written text.

If I am right, this is an additional insight into his soul, if any were needed.

Update, August 15.  Now confirmed.

 

 

Lets Face It — a Constitutional Crisis Is Certain

Calm, measured, careful David Brooks, on the News Hour Friday night, said something like this (reconstructed, not quoted):

Look Trump is transparent.  He has said — if you want to find my corruption go to the tex returns.  And he has said to Mueller, if you got the tax returns, I will fire you. So, we know exactly what will happen.  Mueller will go to the tax returns, Trmp will fire him, and we will have a constitutional crisis of some king.

I conclude that at this point we all actually know that a constitutional crisis is coming.  All that remains to find out is exactly what will trigger it, how the parties align at that point and perhaps how it will end.  Although I am pretty confident of the ultimate outcome.

This reminds me of my mother, who as 15 at the time of the events, saying that after Munich in 1938, everyone knew that war was coming, and that it was almost a relief when it finally did so.  Then people knew what they had to do.  I think it is the same now.

Now, the crisis could come from an attempted firing, it could be triggered by a refusal to comply with court or congressional orders, or less likely, it could be set off by extra-judicial illegal executive actions.  Nor do we know what the triggering event will be about.  It could be the now essentially admitted as to intent, Russia Collusion, the obstruction of justice claim, financial irregularities, or even the emoluments clause, to name just a few of the options.

But the outcome will depend on the willingness of the Courts and Republican politicians to enforce our constitutional norms. While it is clear that almost none of our Republican leaders have read or internalized Profiles in Courage, at some point the pain barrier will be reached.

Finally, I sometimes wonder what the definition of a constitutional crisis is?  Is it when one when of the corrective measures in the constittuion cuts in and works, as it did in 1974, or is it when that mechanisms are not triggered, or fail, causing a braoder legitimacy problem.  I hope we do not find out.

How About “Frighteningly Unpatriotic” as a Label for the Trump Operation’s Newly Revealed Behavior

Obviously, the astonishing developments of the last few days remove from the Trumps any intent or mens rea defenses.  All that is left is that “nothing happened,” which in politics, or in adultery, does not really get you very far.

The developments have also caused the first upswing in  the use of the word “treason.”  There may well be a legal case, perhaps ultimately a compelling one, but for the target population of traditional low information Republicans, it may be a wall too far right now.

So let me suggest that the concept we should be pushing is “patriotism,” or rather the astonishing lack of it.  How can anyone truly patriotic, if and when approached by a foreign and hostile power offering partnership in interfering with our sacred democratic election process, do anything other than say “no,” and then call the FBI.  Nor, would we expect any patriot of another country to do anything other than that country’s equivalent.

Obviously, such an idea never occurred to anyone in the Trump operation.  But, I am sure that the vast majority of Trump voters, while happy to get hear of dirt on Hilary, would not want to be in partnership with Russia to get that dirt.  They are better and more patriotic people than that.

So I would experiment with phrases like “frighteningly unpatriotic to even consider participating with Russia to undermine our election system,” or “at best shockingly unpatriotic and maybe at worst treasonous behavior.”

The point is to use words that resonate with the Republican base.

 

 

‘Europeans Can’t Think of Building a Future Without the Americans’ — You Won’t Have To, But We Do All Have to Think Differently

Politico has a great article, with the self-explanatory title, itself a quote from the French Ambassador to the US – ‘Europeans Can’t Think of Building a Future Without the Americans’

Nor can I imagine a US without Europe deeply engaged with us.  (I am coming to be able to understand a Europe without the UK, or rather parts of it, but that is a much simpler matter, more related to Britain’s 150 year decline.)

What North Americans and Europeans have to do is understand that together we are one political  system, although not one nation.  Politics in one of these two mega nations (lumping Canada in with the US for now) are already deeply intertwined, and will get more so.  That is much more the case than any other large countries dyad.

As recent elections have shown, political events in one of the mega-nations trigger and influence those in the other — and not always in fully predictable ways.  Skilled demagogues, well actually all demagogues, will try to use events in one as a source of fear or reactionary possibility in the other, and building a positive “liberal system” vision will always require more nuance and time.

In short, in order to leverage each other, ideas have to flow between the two groupings as easily as capital already does.  We in the US have so much to learn about managing technology to limit the forces of inequality, and our friends in Europe have so much to ,learn about building greater flexibility into their economic system.

In the end, however, we have to learn to think about the impact on the European system of all that we do, and they have to do the same about us.  Think about how Trump’s failure to understand the nuances of this have enhanced European integration, and perhaps even saved Europe from disintegration.  The more Trump embraces Putin, the more the rest of Europe fears him, or rather both of them. I personally will not get tired of these kinds of winning.

 

 

 

The Deeply Disturbing Implications of the Washington Post Story of the Inadequate US Response to Russian Hacking, and a Long Term Proposal

It is almost impossible to force oneself to read the Washington Post’s brilliant reporting of the US failure to respond adequately to the Russian election-related hacking.

However, attention must be paid, and the implications go far further than judgements about the Obama administration, that I am sure will go well explored in classic blame the victim manner.

First,  I think we have to admit that the current situation of a largely unpunished and undeterred coup/attack on the US has to be broadly blamed on the entire political process in the US.  While the lack of response, either public or covert, is hard to defend either now, or then, it has to be seen as in part the product of the hyper-politicization of foreign policy.  The Obama administration was operating in a toxic environment in which any honest reporting or respect was, and would be thrown back in the face of the government and the electorate, without any concern for considerations other than short term victory.   The administration could not ignore the reality of that environment.

That must be recognized as a product of Trump active encouragement of hacking, of his trivialization of any reporting, and of his contempt for truth.  The enablers carry as much if not more of the blame.

Second, we must be honest about where we are.  We no longer can be confident that the American people control our own fates through the political process.  It was and has to be assumed to be about to be again, another Pearl Harbor.  (That the US has its own long bi-partisan history of interference in other counties electoral, and political processes, not to mention coups, does not make this any less serious, it only makes it harder to defeat.)  Given the massive reluctance of Trump to take this threat in any way seriously, or even to recognize the risks of the legitimacy this has already lost him, we can have no faith that the governmental system will protect us against more and worse future surrenders of control.  (If Trump is forced out, as I strongly believe he has to be, and will be, this last is no longer true, but issues of trust and legitimacy will long remain.)

Finally, we have to build a new layer of institutions that protect the integrity of our political system regardless of short term interest.  For a start, I can imagine a Commission led by prior presidents, with an independent staff, with direct access to the intelligent services.  The Commission would have a mandate to issue public reports, including on the credibility of challenges to our democratic electoral system, and to publicly and privately urge actions of all kinds, thereby making it easier for presidents to take needed actions without being effectively accused of putting partisan interests first.  While hacking will be one part of the charter of duties, all forms of foreign interference and collusion will need to be included.

The problem, as always, and as we learned in the cold war, is that is is almost impossible to give groups power that is not democratically constrained without then in fact surrendering democracy to those powers.  In the absence of the consensus of  the cold war years, the need is even greater than it was then, and the risks are far greater.

It is a measure of what Trump and his enablers have wrought, and what his opponents have failed to do, that we now face this choice.

 

 

 

 

 

 

Could the Provisions of the 25th Amendment Make It Possible to Indict Trump While Still In Office

It has been perceived as received wisdom that sitting presidents can not be indicted.  In fact, that was regarded as an open question in the early days of the Watergate.  My impressionistic recollection is that the strategic decision was made by investigators that there was no point in providing Nixon an additional area of defense and distraction.  Now we have a fascinating perspective from Obama’s legal counsel, undercutting the then used public rationale for that conclusion, reflected in 1973 and 2000 DOJ Office of Legal Counsel Opinions, and the conclusion itself.  Bob Bauer on Lawfare:

OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”

However, Bauer argues persuasively, from both the Nixon record and current events that the Opinion, which viewed investigation as appropriate, but not indictment, simply ignores reality:

.  .  .  Mostly the opinion fell back on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.

But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.

Bauer then goes on to bring in the 25th Amendment, and its provisions allowing a president to temporarily withdraw from the presidency, or, more likely in the real world, be declared unable to fulfill the duties of his or her office.

A president who faced what the OLC termed the “substantial preparation” required for a criminal defense, and the “dramatically destabilizing effects” of criminal process on his capacity to govern, would have a clear choice under the 25th Amendment. The same choice is open to the vice president with the support of the Cabinet if they reach this conclusion but the president resists.

Simple bottom line.  Just because the possibility of indictment would be disruptive to a president and governance is not a sufficient argument for forbidding such indictment.  Investigation and impeachment are allowed and are disruptive enough, and remedies exist for the disruption.

As I have argued before, given Trump’s utter self-absorption and unpredictability, the argument for a process that ultimately puts him under some form of restraint is compellingly in the national interest.  Otherwise, who knows what a Trump post-presidency would look like — “Take this plane to Moscow.”