Can’t Anybody Here Play This Game?

cant anybody here

Jonathan Chait further elucidates the Dershowitz argument:

Alan Dershowitz, one of the members of President Trump’s legal team, has an odd habit of using the reductio ad absurdum technique to his own arguments. Dershowitz argues that “abuse of power” is not a category of behavior that can be impeachable. He admits he previously believed the opposite, and that the vast majority of constitutional scholars believe the opposite, but claims to have delved into it and discovered that they are all wrong. Dershowitz has conceded that even if Trump handed Alaska over to Vladimir Putin, that would not be an impeachable offense.

Speaking in the Senate trial Wednesday, he managed to express his own principle in an even more absurd fashion. “If a president does something which he believes will help him get elected in the public interest,” he said, “that cannot be the kind of quid pro quo that results in impeachment.” So any abuse of presidential power designed at least in part to aid his own reelection is not impeachable.

What if the president were to pressure foreign governments to imprison members of the opposing party if they pass through their territory? Or withhold disaster aid from a governor unless that governor announces an investigation of the president’s rival? Offer pardons to anybody who kills his opponent? If it helps the president win, then you can’t impeach.

And That’s the Best They’ve Got?

A Jigsaw Puzzle with a Single Piece Missing

missing piece

Jonathan Chait writes,

A wide swath of evidence has established that the Trump administration attempted to trade diplomatic favors with Ukraine for investigations. Several aides testified, or communicated to each other at the time, that they understood this to be the policy. Trump demanded the investigations in public, implicitly dangled them in his phone call with Ukraine’s president, and his chief of staff Mick Mulvaney publicly confirmed the quid pro quo in a press conference. But every one of these pieces of testimony, in one form or another, fell short of the standard of (1) being sworn testimony (2) by a person who spoke directly to Trump AND (3) heard him explicitly condition the meeting and aid for the investigations. It was like a jigsaw puzzle with a single piece missing, the picture completely apparent. …

Well, so much for that.

Last night’s revelation that John Bolton’s forthcoming book reports the exact piece of evidence that Trump’s legal team insisted did not exist, that Trump specifically told Bolton that he was holding up the military aid in return for investigating the Bidens. Trump’s lawyers not only claimed this evidence did not yet exist, but called it one of the facts that “have not, and will not, change.”

The bind that Republican senators are in is readily apparent. (But if you need any help, check out the rest of today’s Chait piece.)

I have no idea what these fuckwits will wind up doing. But I know exactly and precisely what their least bad course of action is: adopt the Arius Aardvark Defense.

If I were, say, Cory Gardner, that would be my story and I would be stickin’ to it

 

It Usually Stops Working Around the Age of Five

toddler psychology

Jonathan Chait, Macron Uses Toddler Reverse Psychology Trick to Fool Trump Into Supporting NATO:

Today is another meeting of NATO, an organization Trump has denounced and undermined for years. The keenest minds in what remains of the free world have set themselves to the task of distracting Trump long enough to get through the NATO summit without dissolving the alliance in a tantrum. … The plans include flattering Trump with an elaborate dinner at Buckingham Palace, and presenting a series of trumped-up concessions to make it appear the allies have buckled to Trump’s demands by increasing their spending, thereby allowing him to claim victory rather than storming out in a huff. …

Amusingly, what seems to have worked instead is Emmanuel Macron’s completely different ploy. The French president gave an interview last month decrying the “brain death” of NATO, which he said had failed to account for America’s shrinking commitment under Trump.

Trump himself has called NATO “obsolete,” openly questioned whether the U.S. would come to the defense of allies under attack (the very foundation of the alliance), and privately told aides on several occasions last year he wants to withdraw from the alliance. But the notion that somebody else would question NATO, and blame its demise on Trump, has enraged him.

And now Trump is lashing out at Macron. “NATO serves a great purpose,” he declared today. “And I hear that President Macron said NATO is ‘brain dead.’ I think that’s very insulting to a lot of different forces … When you make a statement like that, that is a very, very nasty statement to 28 — including them — 28 countries.”

Manipulating children into doing what you want by pretending to demand they do the opposite thing is a trick most parents learn to use. It usually stops working around the age of 5.

 

 

Well, If That’s Your Best Defense, Then That’s Your Best Defense

three monkeys

Jonathan Chait, Gordon Sondland’s Ukraine Alibi: I was the Dumbest Diplomat Ever

To prove that he is not a knave, Sondland argues that he is a fool. It’s early for the cocktail hour, so you might want to save Chait’s humorous observations for a point in time when the sun is under the yardarm. On the other hand, it’s always five o’clock somewhere.

But, as I said before, the main issue is not Sondland’s knavish and/or foolish character. The main point, to me, is that Gordon Sondland, million dollar Trump donor, has decided that this is a really good time to jump off the Trump Train.

Axios cherry picks to select the tastiest cherries from Ambassador Sondland’s statement this morning, and serves up this tasty and nutritious dessert:

“Let me be clear: Mr. Giuliani does not work for me or my Mission and I do not know what official or unofficial role, if any, he has with the State Department. … Please know that I would not have recommended that Mr. Giuliani or any private citizen be involved in these foreign policy matters. However, given the President’s explicit direction, as well as the importance we attached to arranging a White House meeting between Presidents Trump and Zelensky, we agreed to do as President Trump directed.”

“[B]ased on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties … or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.”

“I did not understand, until much later, that Mr. Giuliani’s agenda might have also included an effort to prompt the Ukrainians to investigate Vice President Biden or his son or to involve Ukrainians, directly or indirectly, in the President’s 2020 reelection campaign.”

“On September 9, 2019, Acting Charge de Affairs/Ambassador William Taylor raised concerns about the possibility that Ukrainians could perceive a linkage between U.S. security assistance and the President’s 2020 reelection campaign. Taking the issue seriously, and given the many versions of speculation that had been circulating about the security aid, I called President Trump directly.”

“I asked the President: ‘What do you want from Ukraine? The President responded, ‘Nothing. There is no quid pro quo.’ The President repeated: ‘no quid pro quo’ multiple times. This was a very short call.”

“Let me state clearly: Inviting a foreign government to undertake investigations for the purpose of influencing an upcoming U.S. election would be wrong. Withholding foreign aid in order to pressure a foreign government to take such steps would be wrong.”

“I did not and would not ever participate in such undertakings. In my opinion, security aid to Ukraine was in our vital national interest and should not have been delayed for any reason

On the Unconstitutionality of Impeachment

presidential oath

Jonathan Chait, In Deranged, Quasi-legal Rant, Trump Calls Impeachment Unconstitutional:

The letter charges that Schiff “chose to concoct a false version of the call and to read his made-up transcript,” a “fact” that, it proceeds to assert, proves Trump did nothing wrong. The “fact” is also one of those bizarre implanted memories from the Fox News fever swamp. Schiff, in a hearing, paraphrased Trump’s call to Ukrainian President Vlodomyr Zelensky, saying, “In not so many words, this is the essence of what the president communicates,” before going on to summarize Trump’s meaning. Trump and his allies have pretended this paraphrase, which Schiff openly billed as a paraphrase, was an attempt to concoct a falsified transcript of the call. It is unnerving to see this unhinged fantasy not only making its way into a formal White House legal document, but playing a central role in its argument.

The letter also cites, by way of defending Trump, two additional pieces of evidence to establish his innocence. It notes that the Department of Justice reviewed the call and did not find a campaign finance violation — as if a campaign finance violation is the only, or even primary problem with extorting a foreign leader for dirt on domestic rivals, and as if Trump’s attorney general is a remotely credible figure. Even more comically, it notes that Zelensky has publicly stated, in Trump’s presence no less, that he was not pressured on the call — as if the leader of a country dependent on American support for its very existence, who has already been extorted, is in a position to undercut its president.

The presence of these vapid talking points in a putative legal document is tribute to the dearth of support for its shocking central claim: that the House has no right to impeach Trump. It calls the proceedings “illegal,” and one of Congress’ “unconstitutional efforts to overturn the democratic process.” There is no remotely plausible constitutional theory to support this claim. The Constitution gives the House absolute right to conduct impeachment hearings in a manner determined by the House.

The letter complains that the House fails to grant Trump sufficient control over the impeachment agenda. Though there’s a reason for that — the trial takes place in the Senate, not the House — Trump could in theory try to negotiate for more Republican input into the process. In a briefing with reporters, a senior administration official was asked what changes Trump would need to cooperate. “A full halt” was the answer. That is, Trump will cooperate with an impeachment probe if Democrats stop the impeachment probe.

The Words on the Page

Screen Shot 2019-09-30 at 11.11.11 AM

David Frum, A Realist’s Guide to Impeachment: Trump should face the consequences of his misdeeds, but the road ahead is perilous.

Jeff Greenfield, 5 Ways Impeachment Could Play Out

Greg Sargent. Trump is cornered, and his ‘civil war’ threat stinks of panic

Jonathan Chait, Lindsey Graham Rests Entire Trump Defense on Word He Doesn’t Understand

The words on the paper that Trump released as an accurate account of his conversation with the president of Ukraine demonstrate a gross misuse of office.

The logical counter to the claim made in the previous sentence is to assert, “No, the words on the paper don’t show any such thing”—or, at the very least, to assert “The words on the paper are ambiguous, and there is a plausible implication that is different from your claim.”

It is Monday morning, Trump’s spokesbots have had a few days to think about their response, and their response is to run headlong away from the words on the paper Trump released. There is preliminary polling evidence that twenty percent of Republicans support the impeachment inquiry. Meanwhile, Trump is tweeting about inciting a civil war and arresting his accusers for treason.

In the piece cited above, Frum writes, “Nobody should have any illusions: Bringing anything like justice to President Trump will be neither easy nor safe. The exposure of Trump’s Ukraine extortion scheme forced impeachment on the country. It could not be ignored, and devices like censure are inadequate. But the days ahead are dark.” That seems a fair prognostication.

I think the four posts cited above are worth the reading, but please read for yourselves. I won’t discuss the substance of them. Instead, I want to set out some reflections on the first and second of Frum’s six suggestions, namely, “Keep the story simple” and “Be political, not legal.”

How to Defend Your Guy from Impeachment

There are four ways you can go.

One: he didn’t do it. In other words, you are drawing the wrong inference from the documents and testimony.

Two: he did it, but it was OK.

Three: he did it, and it wasn’t OK, but it wasn’t impeachable.

Four: stick your fingers in your ears and go “la la la la la.”

Defending Your Guy Against Impeachment—Some Examples

The Andrew Johnson impeachment illustrates argument two. He did violate the Tenure of Office Act, but the statute was unconstitutional. A rough analogy might be an article of impeachment based on Trump’s bogus “national emergency” declaration. It was illegal and wrong, but there’s enough legal confusion surrounding the issue to give Trump’s defenders a lot of wiggle room. So it would be a bad idea to include such a charge in the final articles of impeachment

The Clinton impeachment illustrates argument three. Yes, he lied under oath about sex, and yes, there might be some legitimate legal consequences that should flow from his perjury, but impeachment is not warranted. A rough analogy might be an article of impeachment based on Trump’s payment of hush money, just before the election, to a couple of well upholstered women of easy virtue. A lot of people would jump up and down charging the Democrats with hypocrisy for a sex-related allegation. So it would be a bad idea to. include such a charge.

As of this morning, it seems that some of Trump’s spokesbots are giving argument three a whirl, along the lines of, “there was nothing in the phone call that was impeachable.” But they’re coupling this argument with a manful refusal to face what was actually said in the call, as proved by the “transcript.” That would be the very same “transcript” Trump ordered released, in the delusion expectation that it would prove his innocence.

The Nixon near-impeachment illustrates the first argument. For quite a while, his defenders just tried to cover up the facts. But it didn’t work. And it never works—as long as there is an investigative body that is competent and determined.

OK, How Many Bad Acts Should be Charged in the Articles of Impeachment?

Good question. But it’s premature, so I won’t offer an answer. I will instead offer a blueprint on how to find the answer.

The key is to include only charges that can only be “refuted” by

  • denying the proven facts, or by
  • defending the indefensible.

The Ukraine scandal meets this test. Many others do not. Example: the charge of collusion with Russia in 2016 is factually complicated and murky. Example: the bogus “national emergency” to fund the Mexican wall is unconstitutional and contrary to our system of government. But the relevant statutory law is complicated, giving the Trump side the opportunity to make us all lose our way in the weeds. So leave it out.

The second key is to avoid accusing Trump of specific statutory crimes, and keep the focus on the overall concept of abuse of office. Impeachable offenses need not be statutory crimes, and statutory crimes need not be impeachable offenses.

What’s Left, Other Than Ukrainegate?

Three come to mind.

One, there is talk about how Trump may have actually said he was unconcerned about Russian electoral interference during his 2017 meeting with the Russian ambassador. If proved, I think that would fill the bill.

Two, if it can be proved by irrefutable evidence, misusing office for pecuniary gain would qualify.

Three, obstruction of Congress during the course of the impeachment inquiry would probably be on the list. (Prior numerous acts of obstruction should be impeachable in principle, but probably do not qualify for inclusion because of the legal quibbles that each obstructive act would engender. Keep it simple, stupid. Obstruction of the impeachment inquiry itself is a different breed of cat.)

So, How Many Articles Should There Be?

As many as meet the stringent tests I have laid out. If they fill the bill, put ‘em in. If not, leave ‘em out.

**

Greetings to today’s reader. The U.S. leads, followed in second place by Kenya, but with Canada in strong contention to overtake Kenya. Mauritius is in solid fourth place. Go Mauritius! Also in the running so far: Japan, Taiwan, the U.K., and Russia. HELLO VLADIMIR!

The Mad King’s Adviser

mad king

Jonathan Chait, John Bolton Era Ends With No Casualties Except Bolton’s Dignity

A key dynamic about the Trump presidency is that, in keeping with the prestige television era in which it is situated, there are no good guys, just different levels of villainy, often leavened by dark comedy. Trump has pronounced instincts on foreign policy that drive him away from shooting wars and into trade wars. On the whole, however, he is sub-ideological. He initially hesitated to hire Bolton on account of his thick mustache. Later, he impulsively decided to hire him, despite the facial hair, “because he was impressed by his many appearances on Fox News.”…

Bolton was an advocate of consistently bad ideas that were often set in opposition to other bad ideas. Trump has maintained an elaborate pretense that North Korea is giving up its nuclear weapons program, touting his own negotiating genius in securing imaginary concessions while appearing to view the fawning letters he receives from Kim Jong-un as important concessions. This fantasy is less dangerous than Bolton’s barely concealed desire to launch a military strike against North Korea.

The wedge between them drove Bolton into increasingly obvious isolation. On a recent diplomatic visit, Trump and his more favored advisers met with North Korea’s leaders while Bolton was sent literally to Outer Mongolia.

The inevitable humiliating conclusion was finally reached when Trump fired Bolton via tweet, the most inglorious of exits. Like the vast majority of Trump staffers, Bolton came into the administration believing he could manipulate the Mad King, but surrendered his dignity in the process. The serial debasement of some of the most odious members of the Republican governing class is one of the few bright spots of the Trump presidency. Bolton’s tenure ended in the best possible way. Nothing was destroyed except his own stature.