The Debate Link

At the start of the congressional session, I predicted that "endless stunt investigations is all the House GOP will do, because it's all they can agree upon". I'll give myself a pat on the back for that one, as the House -- on its second try -- decided to impeach Homeland Security Secretary Alejandro Mayorkas for absolutely no discernible reason.

It's dead-on-arrival in the Senate, and rightfully so, but we need to reiterate just how pathetic and embarrassing this was. It was embarrassing when it failed the first time, and it's embarrassing that it succeeded the second time. The nominal complaint -- that Mayorkas isn't enforcing border policy to Republicans liking -- is not only not an impeachable offense (except insofar as Republicans believe it's unconstitutional for them to lose elections, which appears to be increasingly their consensus view), but it's doubly-embarrassing to blame Mayorkas for inaction on the border given that congressional Republicans can't even pass their own bill on the border because they think doing so will help Biden in the next election (and because actual policymaking, unlike endless stunt investigations, requires actual position-taking). Republicans dealing with the fact that they are too chaotic and incompetent to even have, let alone enact, an agenda on the issue they say is a Crisis Invasion Destroying America!!1!!1! by impeaching a Democrat is the latest example of the crippling infantilization that has completely overtaken the party.

The fiasco did give me a chance to call my Republican congressional representative, Lori Chavez-Deremer (R-OR), and Be Mad At Her, but to by honest my heart wasn't fully in it this time. I genuinely don't understand why Chavez-Deremer even wants to be in Congress at this point. She's not doing anything there -- she's certainly not legislating -- she just mindlessly nods along with whatever ridiculous circus show her more creative MAGA colleagues decide to put forward in any given week. One would think she could do the same thing much more remuneratively as a talk radio host, and with any luck after the next election she'll get that opportunity. 

[Image: NYT]

The House of Representatives has voted to impeach President Donald Trump.

Maybe I'm naive, but I think Democrats have gotten baited into the wrong set of questions regarding impeachment. The debate terms seem to be "Trump is awful, and it's imperative to remove him" on the one side, versus "Republicans control the Senate, and they'll never go for it" on the other.

It should go without saying that, in a functioning democratic system, these would not be the questions. On the one hand, impeachment is not a remedy for generically awful people, it's a remedy for high crimes and misdemeanors. It shouldn't be a tool for exacting political vengeance. On the other hand, precisely because impeachment should ideally be about rule of law, not political vengeance, it should be equally appalling the prejudged confidence by Republicans that of course they'd never impeach their own President. That's simply them closing ranks around a political compatriot -- it represents an obvious abdication of democratic duty.

So the right move, for Democrats, is not to promise impeachment. It's to be very earnest about impeachment. Impeachment is not about politics. It's about rule of law, wherever that takes us. The Mueller Report (among other sources) plausibly raises some very worrisome acts of misconduct by the President, which Congress should investigate. If that investigation leads to the discovery of an impeachable offense, then Congress should impeach. If it doesn't, then it shouldn't.

Any time a media figure tries to pivot the conversation back to "but Republicans in the Senate won't ever convict", be aghast -- not because they won't convict, but because they've prejudged the investigation. How could they say, in advance, that they won't convict the President unless they were admitting that partisan motives would take precedence over the outcome of the investigation?

The thing is -- this isn't just me being a starry-eyed idealist. This is a strategic thing, albeit strategic as a poor substitute for the ideal thing (where there was a chance in hell that Republicans cared about actual oversight).

If we learned anything from Benghazi and email-gate and all the rest, it's really that the outcome of the investigation doesn't matter. The constant, steady, drip-drip-drip of scandal is what matters. It helps if you've got something real to go on -- and in Trump's case, we clearly do -- and it really helps if it isn't seen as a mere political stunt (though, as Benghazi and email-gate also teach us, neither of those are really necessary either). Be earnest about impeachment -- not as a prejudged gambit in a political chess match, but as a procedural step in an investigative process. Then bleed the man dry.

From a strategic standpoint, it doesn't really matter whether the investigation ends in impeachment (let along conviction) or not. What matters is the cloud. And the longer it can be dragged out, the more consecutive days "Trump" and "corruption/obstruction/Russia" are in headlines next to each other, the better.

Drip-drip-drip.

One of the first plot points on the TV series The Americans occurs in the aftermath of the attempted assassination of President Reagan, and Secretary of State Alexander Haig's famous declaration "I am in control here" while the President was in the hospital.

Among Americans, this statement was roundly mocked as Haig being overzealous and ill-informed. But -- while there certainly was anxiety around the assassination attempt regarding who was behind it, whether it was a military move, etc. -- there wasn't really any concern among the American public that Haig was actually launching a coup.

But (in the show, at least) the Russians don't know that. From their vantage point, a top government official had just seized on the chaos of the assassination attempt to declare himself head of state. Without a sort of deep enmeshment in American law, culture, and society, it could be hard to tell -- from afar -- why Haig's statement wouldn't be seen as really worrisome, and what distinguished it from a "real" coup attempt.

I was thinking about this with respect to two ways the ticket that wins the presidential election (as understood in the conventional sense) could nonetheless be blocked or removed from office. One way is, immediately after election day but before he is inaugurated, "faithless electors" deciding en masse to vote for someone else. So even though Trump and Pence won most electoral votes, they could just decide to vote for Nancy Pelosi and some other Vice President. The other way is, after the President Vice President are inaugurated and seated, Congress impeaches and removes them.

To any American observer, though, these are two very different things. Congress impeaching and convicting Donald Trump would be controversial, no doubt, and high profile. But it is still basically recognized as a valid "move"; it isn't an illicit seizure of power. By contrast, the faithless elector route would not be seen that way. It'd be seen as, more or less, a coup.

But why? Both are formally legal. Article II, Section 4 of the Constitution allows for the President and Vice President's removal by impeachment (and, under the law, the next person in the Line of Succession is the Speaker of the House). And under the 12th Amendment Electors have the authority to vote for whomever they like for President (I leave aside the issue of "faithless elector" statutes and their applicability -- we can assume that all the faithless electors come from states which do not prohibit such acts).

And it's not a matter of some established tradition either. Sure, we've never had a case where faithless electors have altered the victor of an election. But we've also never impeached and removed a President (two Presidents -- Johnson and Clinton -- were impeached but not removed; Nixon resigned before he could be impeached).

So suppose Congress does impeach Trump and Pence. Your friend from abroad hears the news and worries -- has Nancy Pelosi just announced a coup? How do you explain that that isn't really an accurate description of what happened, in a way that distinguishes the "faithless elector" case?

(As you might imagine, what's really prompted this line of thinking is the "legal" arguments for Juan Guaido claiming the presidency in Venezuela. Even assuming he's obeying the letter of the law -- is this more like an impeachment, or more like a faithless elector? Of course, I think the actual answer is that the "legitimate" legal structures in Venezuela have decayed so severely that trying to think in terms of legitimated legal pathways is just a misfire completely -- we're talking about a country where the Supreme Court, stacked with Maduro loyalists, just outright dissolved the national assembly, after all)

Impeachment is the word of the day, as after faux-scandal after faux-scandal have failed to stick, Republicans have finally found a government act that everyone agrees was an abuse of power (the IRS audits). Now, from what we know if the IRS scandal at this stage talk of impeachment is obviously ludicrous. Nonetheless, Jon Chait argues that Republicans should let the crazy fly.

It's an interesting question, to be honest. Our constitutional system depends on norms to function, and what we've seen these past few years is what happens when these norms start to breakdown -- when it becomes acceptable to try and kneecap entire wings of government by refusing outright to confirm any agency appointees, or to hold the entire economy hostage through the debt ceiling, or, for that matter, by tossing "impeachment" around every time Obama hears a sneeze without saying "God bless you." Our political system (defined crudely as who wins and loses elections), by contrast, is zero-sum -- it doesn't matter how much the American people hate you so long as they hate the other guy more. Chaos, as Littlefinger reminds us, is a ladder, and a calculated decision to sow chaos certainly can end up redounding to one party's benefit. The system is calibrated to respond to people who stay within well-defined borders, and when a player comes along who openly flouts those rules, he can gain a distinct advantage. This is why the Joker is Batman's most dangerous foe -- his behavior defies even those norms which govern how criminals behave.

But that chaos can aid its progenitors does not mean it always will, and the truly chaotic actor is by definition incapable of ceasing setting fires just because its no longer in his interest. The problem for Republicans is that I don't think this is planned chaos. The Clinton impeachment, for example, was obviously farcically weak on its merits, but at least it could be plausibly sold as a political strategy. It turned out to be a bad gambit -- the American people reacted badly, and the GOP was tarred as a bunch of overzealous hypocritical loons -- but they at least could claim that outcome was apparent only with the benefit of hindsight.

By contrast, today it seems quite clear that all the impeachment chatter is not a calculated strategy but simply an uncontrollable reflex. Impeachment was uttered about Solyndra and Fast and Furious. A number of high-profile Republicans have contemplated it for one alleged offense or another. World Net Daily convened a panel to discuss impeaching Obama over no less than a dozen different "scandals" ranging from the Libya war to Cap and Trade. Rob Portman gets elder statesman points for not being ready to commit to impeachment yet.

Republicans were convinced in 2012 that Benghazi was their ticket to victory, and were shocked that American voters didn't seem to think the Obama administration did anything wrong. One could say they've learned nothing. But I think the problem is deeper. The impeachment talk is no longer a political strategy -- its just the raw result of the conservative id flailing about, and Republicans can no longer keep it under control.

I mentioned earlier that Arizona Governor Jan Brewer (R) had threatened to impeach Colleen Mathis, the chair of the state's independent redistricting committee, nominally for relatively non-specified malfeasance, in reality because the commission produced a map that was "only" slanted 4-2 in favor of Republican safe seats over Democratic ones (with another 3 seats competitive). Well, she followed through with their threat and the Republican-controlled state senate impeached Mathis. Mathis and the commissioned then sued, and today the Arizona Supreme Court just ordered her reinstated. The order is here, with a fuller opinion to follow.

Like David Nir, I am a bit surprised by this decision -- not because I didn't think the move by the Arizona state senate was a reckless abuse of power (it was), but because I thought this could easily be considered a non-justiciable political question. The Court concluded that it was not (not being particularly knowledgeable about Arizona state law, I have no idea whether they are correct or not), and found that the letter Brewer sent to Mathis spelling out her "allegations" did not rise to the level of offenses warranting impeachment.

Shocking news out of Arizona, where Gov. Jan Brewer (R) is threatening impeachment proceedings against the state's non-partisan redistricting commission because it failed to sufficiently gerrymander the maps for Republicans. The map it released has 4 safe GOP seats, 2 safe Democratic seats, and three competitive ones -- hardly something Republicans should be bawling over.

But Arizona politics have of late taken a decided step towards the lawless, with Maricopa County sheriff Joe Arpaio leading the charge by issuing indictments of his political opponents (where "political" here includes judges trying to curb his reckless abuses of power). So far, it hasn't seemed to dampen Sheriff Joe's political popularity amongst Arizona Republicans; so why not take a page from his book by threatening to impeachment independent commissioners as a suasion mechanism?

Right-wing Rep. Michael Burgess (R-TX) met with some of his Tea Party supporters who were unhappy that he eventually supporting a debt ceiling increase. Responsible governing being an anathema to the base, Burgess promised to cast no such vote again.

But he still needed to do something to placate angry conservative, something that would provide a more effective way of obstructing the President's agenda (clearly, one of the major failures of the Republican Congress has been its inability to effectively obstruct). And he thinks he's got the answer: impeachment!

When one attendee suggested that the House push for impeachment proceedings against President Barack Obama to obstruct the president from pushing his agenda, Burgess was receptive.

"It needs to happen, and I agree with you it would tie things up," Burgess said. "No question about that."

When asked about the comment later, Burgess said he wasn't sure whether the proper charges to bring up articles of impeachment against Obama were there, but he didn't rule out pursuing such a course.

"We need to tie things up," Burgess said. "The longer we allow the damage to continue unchecked, the worse things are going to be for us."

Undoubtedly, when the founders included an impeachment provision in the Constitution, they meant it to be just one more tool for a recalcitrant Congress to use for delay. Hell, Burgess doesn't even know what charges would be appropriate. That step comes later -- the important thing is to further "tie things up."

I just found out that Maryland doesn't require one to take the MPRE. Guess where I'm taking the bar?

* * *

Interesting study out in the Journal of Social Issues on the conscious versus subconscious value people place upon their race (full text here, may be behind a pay-wall).

Howard Jacobson's "The Finkler Question" has won the Man Booker prize.

Mormon leader's comments on gays and lesbians spark an outcry. The church is responding with the usual pablum about how -- support for institutionalized discrimination notwithstanding -- they love and respect everyone, and it inspires the usual mix of bile and contempt in me.

Jon Chait is convinced a GOP-controlled Congress will attempt to impeach Barack Obama.

Harry Reid may finally be putting some space between himself and Sharron Angle.

Alex Knapp fisks the "education" Pam Geller (and, presumably, many others) have received about Islam.

The Faculty Lounge points me to a horrifying story involving Texas appellate court judge Sharon Keller. Basically, what happened was this: Michael Richards was on death row, about to be executed. But the day before his scheduled execution, the US Supreme Court accepted cert in Baze v. Rees, which threw into question whether lethal injection was "cruel and unusual punishment" under the 8th amendment. So Richards' attorneys spent all day crafting and filing an appeal -- and then their computer crashed.

The court was scheduled to close at 5 PM. So Richards attorneys went to Judge Keller, presiding judge of the Texas Court of Criminal Appeals, and asked if she would keep the court's clerk office open 20 minutes beyond closing time so they would have time to print and deliver their petition. Judge Keller refused to do so, even though she was not the judge assigned to Mr. Richards' case. Indeed, the judge who was assigned to the case was present in the court building, and would remain so along with other judges on the court who stayed well after 5 PM in anticipation of an appeal that never came (because it was not allowed to be filed). Judge Keller never consulted with any of the other judges.

Michael Richards was executed the next day.

After an ethics complaint against Judge Keller went nowhere, a Texas legislator has introduced impeachment proceedings against her. These likely will go nowhere either -- Judge Keller is a Republican, and so are the majority in the House and the Senate.

But her conduct was a gross abdication of judicial duty, one that displays a shocking indifference to justice and human life. She deserves to be punished -- even if that punishment can only come in the form of publicizing and memorializing her misdeeds.

A group to impeach Nancy Pelosi. I was curious as to their grounds, so I clicked on it. Let's see... "overwhelming lack of competence, dereliction of duty, and failure to act on behalf of the American public....", yikes, that sounds bad. What did she do wrong?

With the Speakers stated position not to allow a vote on the floor of the United States House of Representatives which would address energy reform and offshore drilling while we are in the midst of rising fuel costs and a 70% dependence on foreign oil, Nancy Pelosi has demonstrated a complete unwillingness to act as the people's agent. Instead, she has stubbornly opted to stand on ideology and partisan politics instead of heeding the will of the American people.

That's it? Not allowing a vote (on an absolutely bone-headed piece legislation, no less)? That's your impeachable offense?

We, my friends, are not dealing with a rational community.

(Unfortunately, but unsurprisingly, Michael van der Galien joined, continuing his slide into the right-wing cesspool).