Something is Wrong with Pocahontas

Pocahontas

Elizabeth Warren’s earnestness and intellect appeal to me. But beware earnest, smart, appealing people who lack good judgment.

By all means, invite such people to your next cocktail party. But do not give them positions that demand solid good judgment.

I understand that Senator Warren sensed her campaign was sputtering, and that she needed to draw some distinction between her and Bernie. An obvious choice was available. He calls himself a “socialist,” while she calls herself a “capitalist.” She could have made the claim that someone calling herself a “capitalist” is more electable that some who calls himself a “socialist.” That claim might even be true. Certainly, it wouldn’t be dishonest or implausible.

Instead, she picked a fight over a private conversation from long ago. Picking that particular fight exhibited very bad judgment, even if Bernie is lying about the conversation and she is telling the truth.

This episode, along with others from her past, give me grave concern.

It’s time for Democrats who want a nominee espousing what passes for a radical agenda in the United States to rally round Bernie.

It’s time for Democrats who emphasize electability to rally around someone else.

Write Me a Letter, Just Send it by Mail

Giuliani letter

Philip Bump, With an impeachment trial looming, new evidence that Trump sought personal benefit in Ukraine

Politico, McConnell courts GOP and Trump amid tensions over impeachment witnesses

Greg Sargent, Four big takeaways from the explosive Lev Parnas documents

Here is what seems to be going on, as of this morning.

Moscow Mitch’s contemptuous and dismissive demeanor is bogus. In reality, he’s shitting bricks.

The man is flailing around to keep his flock together. Right now, Moscow Mitch is postponing key votes, on witnesses and documentary evidence, in hopes that somehow he will get to 51 votes for doing things his way.

But time is not on his side. The longer it drags on, the worse it looks for Doofus Donald and Moscow Mitch.

Now, I know that some of you out there in internetland have a visceral feeling that our political enemies are ten feet tall—and are adroitly playing some kind of evil three-dimensional chess.

But read the three sourced referenced above, and think again.

A Statement by the Texas Catholic Conference of Bishops

a stranger

The statement reads as follows:

Governor Greg Abbott’s decision to turn away refugees from the great state of Texas is deeply discouraging and disheartening. While the Texas Catholic Conference of Bishops respects the governor, this decision is simply misguided. It denies people who are fleeing persecution, including religious persecution, from being able to bring their gifts and talents to our state and contribute to the general common good of all Texans. The refugees who have already resettled in Texas have made our communities even more vibrant. As Catholics, an essential aspect of our faith is to welcome the stranger and care for the alien. We use this occasion to commit ourselves even more ardently to work with all people of good will, including our federal, state and local governments, to help refugees integrate and become productive members of our communities.

Like I Said, Uncharted Waters

uncharted

Greg Sargent, How GOP senators are already pre-spinning their coverup for Trump

Sargent has a different take from Jennifer Rubin.

Sargent thinks the Republicans’ cynical strategy will be (1) to reject Trump’s call to dismiss the charges before hearing any arguments—which is supposed to make them look “fair”—then (2) hear arguments of counsel, and then (3) vote to acquit without hearing any witnesses.

Cuter than Bambi

I share Sargent’s assessment of their utter shamelessness, but my overall reaction: it’s too clever by half.

Whenever your client is in deep doodoo, there’s often someone sitting in the conference room who comes up with a really clever proposed stratagem. I call it the “cuter than Bambi approach.”

It’s never a good idea.

OK, So What Will Trump’s Argument Be?

In addition to the general Bambi problem with this alleged strategy, there’s the more specific question, What will Trump’s lawyers argue?

If they argue that the House case is too indirect and too circumstantial, then anyone who votes to acquit without hearing the direct testimony looks really bad.

On the other hand, they might deep-six the “too indirect/too circumstantial” claim and go for the “not impeachable” argument, and try to draw all manner of purported comparisons with purported bad acts of Obama and other past presidents that did not result in impoeachment efforts.

At that point, the vote to acquit becomes the analogue of a judge’s granting summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

I have said it before and I’ll say it again, if that’s the game the Republicans want to play, just fine by me. We will have had a nice national debate about what’s impeachable and what isn’t impeachable, and we’ll see them in November.

Republicans for the Rule of Law Have a Few Choice Words

As a matter of policy, I tend to stay away from stories and opinion pieces about things that may or may not happen. That said, Jennifer Rubin may well prove to be right when she observes that Nancy Pelosi may yet have the last laugh.

As I said yesterday, it really stinks to argue that the House’s factual case is “too indirect” and “too circumstantial”—and then vote to block the witnesses with direct knowledge from testifying. You can fool all of the people some of the time, and you can fool some of the people all of the time, but even those you can fool pretty much all of the time have their limits, and if you sling enough bullshit for a long enough time, you will find out what those limits are. That’s the point we’re at now.

“What about Executive Privilege?” Asks a Friend from the Progressive Table at Happy Acres

“Can’t Trump just order Bolton not to testify?” she asks.

Yes, he can do that very thing. And he can also order Bolton to jump off the Brooklyn Bridge or to douse himself with gasoline and light a match.

But Bolton does not have to obey the order.

The legal analysis goes like this. There is case law telling us that conversations between a president and his close aides, about policy, are protected from disclosure by the doctrine of executive privilege. Bolton was a close aide. The matters about which he will testify concern policy. So executive privilege presumptively applies.

But legal privileges against disclosure may be waived, and Trump may already have waived this one—by disclosing some of the evidence but trying to hide the rest of it. And legal privileges do not protect conversations intended to implement ongoing crime or fraud. (And do remember that Bolton called Ukrainegate “Giuliani’s drug deal.”)

How Could Trump Try to Use Executive Privilege to Block Bolton’s Testimony?

The lawyer-client privilege belongs to the client, not the lawyer, and the executive privilege belongs to the executive, not the aide.

I assume that, if we get to the point where Bolton actually takes the stand in the Senate, then Trump’s defense lawyers will try to assert executive privilege pretty much after every question. I assume that Chief Justice Roberts would initially rule on whether Bolton must answer the question, but that ruling is subject to the views of a majority of the Senate. So if some of the Republicans want to play that game, there could be lots and lots of votes.

Could Trump Assert the Executive Privilege in Court to Prevent Bolton from Testifying in the Senate?

He could always try. There are multiple reasons to think he would not get very far. But we are sailing into uncharted waters, here.

In Impeachment News Today: The Plot Thickens

Plot Thickens

Washington Post, Top Senate Republicans reject Trump’s renewed call for immediate dismissal of impeachment charges

I find it gratifying that, in the depraved circumstances in which we live, there remains some role for logic. Rationality doesn’t matter much any more, but it still matters, at least a little.

Let’s take this in steps. Nothing new in the analysis below, but it seems the talking heads keep forgetting the key points.

  1. Trump, it appears, has now decided that he doesn’t want a trial, after all. Instead, he would prefer dismissal without trial.

No real surprise there.

Of course, he would.

  1. Republican senators, it is said, are refusing to dismiss the case in an offhand manner.

If that is true—a big “if”—then it’s a sane decision on their part, but also a surprising decision.

  1. Logically, Trump should be entitled to argue that the facts alleged in the articles of impeachment do not describe an impeachable offense. I didn’t say it would be prudent to make such an argument. I didn’t say such an argument would be persuasive. I said he has the right to make that argument, if he chooses to make it.

Trump’s right to make this sort of argument doesn’t depend on Senate Republicans, and it doesn’t depend on Senate Democrats. Logically, it’s his prerogative to make the argument, if he wants to.

  1. What tonight’s story is telling us—accurately or inaccurately—is that some significant portion of Senate Republicans are unlikely to embrace the argument that the facts alleged in the articles of impeachment do not describe an impeachable offense.

I find that both very interesting and somewhat surprising.

The reason I find it somewhat surprising is that it’s by far the best argument Republicans have, if they are bound and determined to acquit.

Their alternative route to acquittal is a real stinker.

  1. Rationally speaking, the other alternative route to acquittal is the say the House Democrats have not proved their case: it’s too “indirect” and too “circumstantial.”
  2. But, to reject the House’ case as “too indirect and circumstantial” while, at the same time, refusing to listen to the testimony of persons with direct knowledge is not just a bad argument, it’s not just a losing argument, it is in fact loony tunes.
  3. If Republicans want to acquit Trump based on a loony tunes argument, then be my guest.

Just go ahead.

Make my day.