2020-02-01

What I’ve Learned This Week about the U.S. and Impeachment

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by Neil Godfrey

As an Australian I am not as immersed in U.S. political news as some readers of this blog but I try to keep up with the main points that I think have some relevance for the rest of the world. A few days ago I naively posted Woops! thinking it was going to cause some sort of crisis for Trump. Naive was the word. At that time I had not fully appreciated (perhaps I had forgotten) the extent to which an impeachment process is not bound by formal judicial processes, but rather . . .

Professor and impeachment expert Michael Lawlor says that members of Congress don’t have to act anything like attorneys, judges or even jurors when investigating, authoring or considering articles of impeachment against President Donald Trump.

That’s because impeachment is inherently political–not legal, according to the University of New Haven associate professor of criminal justice. Lawlor explained how the law doesn’t strictly apply to impeachment via an op-ed in The News-Times on Monday.

“This is not a criminal trial,” he notes. “There need not be specific allegations at first. When articles of impeachment are considered, they need not be proven beyond a reasonable doubt. In fact, there is no evidentiary standard. Hearsay, conjecture, your own political instincts are all fair game. There is no appeal from your decision.”

As Law&Crime previously reported, impeachment is a quasi-legal process that only bears many striking similarities to bona fide legal inquiries largely because that’s what people, including members of Congress, think impeachment is supposed to look like–since that’s how such proceedings have often looked before. . . . 

“This is a political remedy to a political problem,” Lawlor continues. “It is a process that frustrates and confounds the best criminal defense attorneys. It is not court. You must not be distracted by legal arguments that assume trial-like procedures and standards.”

The op-ed also features a relevant quote from former president Gerald Ford–himself somewhat familiar with impeachment: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Kalmbacher, Colin. 2019. “Legal Expert on Impeachment: You Don’t Need ‘Specific Allegations at First,’ Hearsay Is ‘Fair Game.’” Law&Crime. October 3, 2019. https://lawandcrime.com/high-profile/legal-expert-on-impeachment-you-dont-need-specific-allegations-at-first-hearsay-is-fair-game/.

That Bolton revelation meant nothing to the realities of the process. Chomsky seems to have his head screwed on right and what he said before the Bolton news could just as well have been said afterwards:

“Don’t think it matters,” Chomsky told Law&Crime of Harvard Law Professor emeritus Alan Dershowitz’s latest bid for publicity by joining Trump’s legal team. “It’s all predictable.”

I think the impeachment process, which avoids Trump’s major crimes and keeps to the fact that he tried to harm a prominent Democrat (like Watergate), will end up being a gift to Trump and may send him back to office. A tragedy.

“The worst crimes by far are those that literally threaten human survival, not in the distant future: his policies on escalating global warming and the race to develop still more destructive weapons,” Chomsky told Law&Crime email. “But the Dems would never agree that these are ‘high crimes.’”

. . . . also said that Democratic Party leadership would never think to consider the Trump administration’s alleged human rights abuses along the U.S-Mexico border as impeachment-worthy crimes. Chomsky said that the situation was the “same” regarding Trump’s arguably unlawful use of military force against sovereign nations in the Middle East.

“How could the Dems regard it as ‘high crimes’ to carry out more deportations than any predecessor and a global assassination campaign of unprecedented scale?” Chomsky asked out loud—referencing the immigration and national security apparatuses and policies put into place by former president Barack Obama and taken to their logical extreme by Trump.

“Same as Watergate,” Chomsky explained. “There was an attempt, by Robert Drinan, to include [Richard] Nixon‘s real crimes, like the bombing of Cambodia, in the bill of impeachment, but that was cut out and the focus was on an attack on Democrats, much as today.”

Rev. Drinan was a prominent Jesuit priest, leftist, anti-war activist and Democratic Party representative from Massachusetts who drafted and introduced the original resolution calling for Nixon’s impeachment in the U.S. House of Representatives in 1973. Ultimately frustrated by liberal members of his own party, Drinan’s language regarding Nixon’s secret and unlawful bombing of Cambodia was swapped out for the Watergate charges.

“Can we be silent about this flagrant violation of the Constitution?” Father Drinan asked his liberal colleagues at the time. “Can we impeach a president for concealing a burglary but not for concealing a massive bombing?”

House Democrats answered that question in the affirmative—setting a behavioral precedent and squeamishness with criticizing war-making that has continued to the present day.

“The message appears to be the same: a real crime is attacking the powerful,” Chomsky continued. “It’s okay to murder [Black Panther leader] Fred Hampton (or any number of Cambodians, etc.), or to send children to concentration camps, and all the rest. But not to undermine those with power here.”

Chomsky’s impeachment-focused comments are in keeping with his prior public statements about the Democratic Party’s prior single-minded focus on the ultimately ineffectual Robert Mueller investigation.

“The Democrats invested everything in this issue,” Chomsky said at a forum with progressive radio host Amy Goodman in April of last year. “Well, turned out there was nothing much there. They gave Trump a huge gift. In fact, they may have handed him the next election…That’s a matter of being so unwilling to deal with fundamental issues, that they’re looking for something on the side that will somehow give political success.”

Kalmbacher, Colin. 2020. “Noam Chomsky Torches Democrats’ Narrow Trump Impeachment: ‘A Tragedy’ That ‘May Send Him Back to Office.’” Law&Crime. January 21, 2020. https://lawandcrime.com/high-profile/noam-chomsky-torches-democrats-narrow-trump-impeachment-a-tragedy-that-may-send-him-back-to-office/.

So predictable, as he said:

Barring a lightning strike or some other miracle, the impeachment process is all done but for the final, predictable votes.

It has been a cringe-worthy process that almost certainly has further deepened divisions. The Republican Senate majority has shown its willingness to follow party loyalty right out the window, throwing out a truckload of traditional values.

Do we believe in fairness, in truth, in fact?

The trial process put forth zany legal arguments seemingly spun of whole cloth to protect Donald Trump. So what about the radical reinterpretation of the Constitution’s division of governmental responsibilities? Who cares about the simple understanding that doing bad is something to be excised and punished?

Do we really accept that a president, particularly one who has made self-aggrandizement a hallmark, can do anything to get re-elected? Is it “in the public interest” as proclaimed by presidential defender Alan Dershowitz?

. . . . L’etat, c’est Trump.

Schwadron, Terry H. 2020. “Now We Know What Trump Really Thinks of Us.” DCReport.Org (blog). January 31, 2020. https://www.dcreport.org/2020/01/31/now-we-know-what-trump-really-thinks-of-us/.

And here was me thinking the Bolton news was going to at least bring about some pause towards the “predictable end”.

It’s a worry. I have been doing lots of reading lately related to ancient history so what I’m seeing happen now between Trump and the Senate carries a strange echo of another time when a Roman Senate cowered before Augustus Caesar, yielding all power to him through flattery and a pretence of a restoration of republican values. But those Senators had an excuse. They knew the consequences of disloyalty to the imperator could be lethal.

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Neil Godfrey

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6 thoughts on “What I’ve Learned This Week about the U.S. and Impeachment”

  1. This is the most thought provoking post I’ve read on your blog, Neil. As an American, my only hope has been that we will vote Trump and his ilk out in November, but now that outside forces have so much influence on elections these days, I worry that this hope is in vain.

  2. I am a US citizen who did not vote for Trump, and will not. However, I’d like to “help out” in your “learning” about the U.S.

    1 – There are online versions of the Declaration of Independence and the U.S. Constitution. Do a search over these documents for the word “democracy.” Ain’t there. The U.S. is a Constitutional Republic. As such, the “voice of the people” is NOT SUPPOSED TO BE HEARD.

    Hey, if it’s in the founding document and the rulebook, you can’t complain if things are going the wrong way.

    2 — “Gerrymandering” is widely decried as one of the evils of this age. It is. However, it was an evil long, long ago. Elbridge Gerry invented it. Who the F is this guy? He signed the Declaration. He refused to sign the Constitution (he was at the convention) because it had no bill of rights. And he was the 5th VP of the U.S.

    According to Wikipedia, he was born rich — and got richer:
    https://en.wikipedia.org/wiki/Elbridge_Gerry

    3 — As weird as the Senate side has been on the impeachment trial, the House (specifically my team, the Dems) was weirder. Having hearings on the impeachment issue in secret? Forcing them to take place outside of the media’s view — to the point where the Republican House members “stormed” the basement where the hearings were taking place? These are dangerous precedents, more threatening to the future than the Senate’s coming verdict.

    4 – I don’t believe that Trump will be defeated in November 2020. I also don’t think it will take “help” from other countries. The big reasons are: (a) the economy has not yet seemed to have gone bad; (b) low unemployment; (c) the idiotic nature of the Democratic opponents (except for Bernie); and (d) the fact that the establishment Dems seem to be dedicated to wrecking Bernie’s chances of gaining the nomination.

    Note that the insanity of the Dems (my team, remember) is nothing new. Will Rogers, an American of note who has been dead since 1935, once famously said: “I am not a member of any organized political party. I am a Democrat.”

    I don’t assume you didn’t know these things, Neil. However, there is a lot more to know — and I, at 66 years old, am just unearthing some of them, and UNlearning some crap taught to me in school.

    At some level, the United States may be said to be at least 3 different things:

    a – what it claims to aspire to be, and tells citizens that it is

    b – what it tries to do outside of its own borders, something citizens can’t seem to get excited about (at least, not now, not with an all-volunteer military)

    and

    c — an historical oligarchy, albeit without royalty and titles.

    Another little fact that you may not know: The U.S. was designed to minimize the voice of the rabble. Senators were initially chosen by each state legislature — meaning the local wealthy class was able to pick its representatives (two guys from each state who were from that class). This only changed in 1913.

    1. The U.S. was designed to minimize the voice of the rabble.

      “Beginning around 1790, individual states began to reassess property ownership as a qualification for enfranchisement . . . By 1856, white men (of age) were allowed to vote in all states regardless of property ownership, although requirements for paying tax remained in five states.” (Wikipedia.)

  3. Re point #3 The rules being followed by the Dems were written by a previous Republican administration and were designed to protect witnesses, etc. of unwanted scruitiny in their “evidence” wasn’t pertinent or used. And a number of the people “storming” the hearing room were actually members allowed access to that room by their own leadership, so that was a a bit of political Kabuki theater.

    Everything else I read was spot on … except Trump getting re-elected. I suspect outrage fatigue will play a role, basically “Do we want four more years of this bullshit?” It does depend on how well the Dems leverage the campaign. I would focus on the tax cuts, for example, asking people “How are you enjoying your little tax cut, the one that will expire shortly. The corporations and fat cats are enjoying their huge tax cuts, the permanent ones.” “And they promised ‘more and better jobs’ from the tax cuts but critics said that the last time such a tax cut occurred the corporations used it to buy back their own stock, thus lining the pockets of their executives and shareholders. And what do you think happened?”

  4. Recollections from too many years ago when as an undergrad doing a year-long unit on U.S. history I studied the Federalist Papers

    — Athenian democracy was to be avoided at all costs; the Roman Republic model was preferable, with the “wise” (a.k.a. the electoral college) choosing the executive power;

    — minorities were to be protected from tyranny of the majority, a sentiment I naively interpreted as protection of religious minorities — of course the minorities in question were really the wealthy elites.

    And then there were a few little episodes after the winning of independence from Britain that involved the crushing of popular will — reminding me, for some curious reason, of Lenin’s crushing of the genuine Marxist Soviets in Russia after 1917. (esp Howard Zinn, People’s History of the United States)

    Recent events have been an interesting comparison with an earlier struggle between the executive and another branch, this time the judiciary, in the days of John Marshall. How the tide has since turned!

    Most remarkable of all has been the application of public relations from the time of Edward Bernays (Freud’s nephew) to manage “democracy”. (esp Alex Carey, Taking the Risk Out of Democracy, followed up by Herman and Chomsky’s Manufacturing Consent)

    Toss in a bit of Gramsci for perspective on the current divide in the U.S. If those challenges don’t seem heavy enough toss in some thoughts on large group psychology and regression according to Volkan’s Blind Trust.

    It’s enough to leave one a little pessimistic. But that won’t help, will it.

  5. #1 We wouldn’t be in this situation if America were a real democracy to begin with, which this country never was and most likely never will be.
    #2 At this point I believe there is about an 80% chance Donald Trump will remain president for at least four more years, perhaps longer if he survives that long.
    #3 The way this impeachment has played out will essentially grant Trump total immunity from all oversight and hand him a level of individual power never before seen in America. Once this vote takes place he’s going to come out swinging and I can’t even fathom what he’ll do.
    #4 McConnell will likely try use what he’s done as a leverage over Trump. I’m not sure if he’ll succeed.

    The big issue is this: The Republicans wouldn’t have gone through all this effort just to allow Trump to be voted out of office. Now that they’ve gone this far, it can only make sense to do whatever it takes to remain in power. To have done what they’ve done, if they lose power in a year it’s not only all for nothing, but they’ll face some potential reprisals. So they are going to do whatever it takes to hold on to power.

    I won’t be shocked to see that we end up with Republican majorities in the House and Senate and Trump stays in office. How that will happen I can’t say, but I won’t at all be shocked if it does.

    I think right now only like 35 to 40% of the population supports Trump & the Republicans. So whatever they do to rig the elections, which I’m assuming they will, it’s going to result in a major national crisis.

    Whatever the case, be prepared because the 2020 elections are going to something like this country has never seen before and no matter what the outcome I’m kind of expecting a major national crisis following them. I wouldn’t say it will go a far as civil war, but depending on exactly what happens, it’s possible.

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