Tag Archives: separation of powers

Approaching A Major Crisis

Donald Trump is refusing to produce documents demanded–subpoenaed–by Congress, and has instructed members of his administration not to comply with orders to testify to Congressional committees.

If this isn’t a constitutional crisis, the term has no meaning.

As several sources have reminded us, Article 3 of the Articles of Impeachment against Nixon asserted that the President

… has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

As Josh Marshall of Talking Points Memo reports,

The White House isn’t doing the standard tussling with Congress about oversight: some stonewalling, some negotiation, taking some questions of privilege to court. It’s more accurately characterized as massive resistance. The Congress has a constitutionally mandated responsibility to oversee the executive branch. They are flatly refusing to comply with ordinary document production and testimonial requests across the board. It’s not a difference of degree but of kind. In itself it is an impeachment worthy refusal to follow the constitutionally mandated framework of American government. It’s up to Democrats to make this clear.

Here’s the very simple bottom line: If a President can refuse to comply with the demands of a Congressional oversight committee–part of a co-equal branch of government– America no longer has checks and balances or the rule of law.

Checks and balances and the rule of law are the very foundation of the American constitution. Governmental legitimacy is defined as adherence to that government’s legal framework–in our case, the constitution. Trump’s defiance is thus evidence of his administration’s lack of legitimacy.

If the Senate, under the control of Mitch McConnell (aka the most evil man in America), fails to stand up for the prerogatives of the Congress, history–assuming we survive to have a history–will brand them traitors. Their first duty is to protect the Constitution and the Separation of Powers; the crisis Trump is precipitating requires them to stop cowering in fear of Trump’s ignorant, rabid base and discharge their obligation to protect America.

(Speaking of ignorance, Trump has said he’ll fight any effort to impeach him by taking the matter to his buddies on the Supreme Court–once again demonstrating his utter cluelessness about constitutional processes and American governance.)

It’s hard to argue with Josh Marshall’s analysis of the current impasse.

But as much as anything else this is a political conflict: how to bring to heel a lawless President. The big error I see so far is that these joustings are being treated as legitimate legal processes which must be allowed to work their way through conventional processes and the courts. That’s not right and it gives the President free rein to try to run out the clock on any sort of oversight. Democrats need to find a language for the political debate that makes clear these are not tedious legal processes which will run their course. They are active cover-ups and law breaking, ones that confirm the President’s bad acting status and add to his and his top advisors legal vulnerability.

There is no hope for Trump; the man is aggressively stupid, proudly ignorant and quite obviously mentally ill (and those are his better qualities!) He is a perfect example of the Dunning-Kruger Effect.

The only question that still remains open is: how many Republican Senators are genuine patriots and how many are self-serving cowards? We’re about to find out.

When You’re Right, You’re Right

When folks on the Right are right, it’s worth noting–and applauding.

A few weeks ago, when some polls were showing a dead-heat Presidential contest, an article in the Weekly Standard titled “Donald Trump Cannot Save Our Republic” began

With the election now a virtual dead heat, conservative opponents to Donald Trump have never faced greater pressure to support him. Capitulation is needed, it is said, because the survival of the republic is at stake. If we allow Hillary Clinton to win the presidency, our constitutional system of government will be destroyed forevermore. Thus, we have no choice but to forbear.

This rhetoric is well-designed to prey upon the fears of conservatives who loathe Hillary Clinton, but it is not the language of American republicanism. Indeed, the fact that it has gained such traction on the right is a signal that many conservatives themselves have lost touch with the traditions of our constitutional system.

Put simply: This argument places the presidency at the center of American political life, which is a progressive innovation popularized by Woodrow Wilson and Theodore Roosevelt. The Framers rejected this implicitly, for most of their attention was spent perfecting the legislative branch, which was to be the primary repository of political power, as well as the tribune of the people.

The article argued that support for Trump would not only be implicit support for the (relatively) new centrality of the Presidency, it would allow conservatives and others to  continue ignoring the real problem: Congress.

The ailment, simply put, is this: Congress is a basket case. It refuses to exercise many of its sovereign responsibilities under the Constitution. Many of the tasks it retains it executes badly. Worst of all, the legislature itself has ceded these authorities. They were not taken from it, but granted, happily, of its own volition. A return to true constitutional government does not require us to elect a kingly president who vaguely sympathizes with the platform of the Republican party, but insisting that the legislature reconstitute itself under the Framers’ original vision.

I do not necessarily agree with every point raised in the article, but its major thrust is clearly on target. I’ve written previously about the consequences of Americans’ evident–and troubling–belief that every four years we elect a monarch, who will either keep the promises made on the campaign trail, or earn public ire for failing to do so.

That drastically inaccurate view of the executive ignores Constitutional checks and balances, blames whoever holds the office of President for doing or not doing things over which he (or she) has influence but ultimately no control, and–worse– lets Congress off the hook. That view also explains why turnout falls off precipitously in off-year elections.

Voters who don’t recognize the importance of the legislative function fail to pay attention to the qualifications and temperament–let alone the work ethic–of those they send to Congress. The result is a legislature filled with partisan ideologues, empty suits (and too often, idiots) who are woefully unprepared to carry their share of the governing load.

As the article notes, “Reform of the legislature begins with electing to it a majority that is actually interested in reform.” To which I would add, “and actually interested in governing.”

The Presidency is important. In this election,which offers a choice between a well-qualified politician who operates–in P.J. O’Rourke’s memorable phrase–within normal paramagnets, and a dangerously autocratic ignoramus, it is supremely important. But we ignore our choices for the Senate and House at the nation’s peril.

I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.