The president lit up the news Tuesday during an Oval Office interview with Reuters. Asked whether he’s concerned about the prospect of impeachment, given that his former attorney, Michael Cohen, was sentenced Wednesday to three years in prison for bribery, fraud and other crimes, he said no. No, not worried. Not worried at all! But if Democrats do impeach him, Donald Trump said, “the people would revolt.”

"It's hard to impeach somebody who hasn't done anything wrong and who's created the greatest economy in the history of our country. I'm not concerned, no. I think that the people would revolt if that happened."

That got a lot of people’s attention, because it spoke to a threat we all face from right-wing violence in this country (more accurately called fascism, but I digress). Right on cue, some of Trump’s ghouls got on social media to warn “the libs” that if they’re scared now, before Trump’s theoretical demise, they ain’t seen nothing yet.

David A. Clarke, Jr.@SheriffClarkeWhat's happening in France will look like childs play if the deep state tries to undo the 2016 election by MANUFACTURING a way to remove @realDonaldTrump before 2020. They are underestimating the resolve of Trump's supporters. Like in France, people will only put up with so much.

December 8 2018

4662 Retweets10337 Likes

That stance is hard to square with reporting this morning from NBC News. Turns out, even as he was huffing and puffing, Trump was out of his mind with fear. In addition to Cohen’s sentencing, Senate Republicans said things you don’t want to hear when Senate Republicans are the surest thing standing between you and prison.

US Sen. Marco Rubio, he of jellied spine, said everyone is subject to the law.

"If someone has violated the law, the application of the law should be applied to them like it would to any other citizen in this country, and obviously if you're in a position of great authority like the presidency that would be the case."

Worse came from US Sen. Bill Cassidy:

"Am I concerned that the president might be involved in a crime? Of course.”

That was Tuesday.

Wednesday brought news that AMI, the owner of National Inquirer, negotiated a deal with federal prosecutors over its role in bribing a woman to keep quiet about an affair she had with the president, thus defrauding the American people by depriving them of critical information. In reaction, here’s what a Trump ally told NBC News:

“The entire question about whether the president committed an impeachable offense now hinges on the testimony of two men: David Pecker and Allen Weisselberg, both cooperating witnesses in the SDNY investigation.”

Pecker is AMI’s chief executive. Weisselberg is the chief financial officer of the Trump Organization. He was at the center of cash transfers between Pecker and Karen McDougal, the woman in question. Weisselberg has been granted immunity. The guy who knows where the bodies are buried, as it were, is working with the feds.

All of this brings us to two things. One, I can’t talk about anything else today though I’d like it. Two, there are so many angles to consider with respect to crime and impeachment. Specifically, we need to talk about whether a sitting president can be indicted, and whether impeaching a president is a political choice.

Laurence Tribe, the Harvard professor, argued this week that that Watergate-era legal opinion stating that a sitting president can’t be indicted is nonsensical and unconstitutional. Referring to other legal experts, Tribe said the decades-old brief, on which nearly all of Washington is basing its assumption, rests “on the odd theory that a sitting president is just too busy to meet the demands of an ordinary criminal trial but not too busy to stand trial in the US Senate on impeachment charges.”

Nick Akerman, a Watergate prosecutor, echoed that claim. He told NPR Monday: “That was the main argument that was made there—about the president being too busy. But the bottom line is this president has gone into federal court in Los Angeles, suing somebody who claims he doesn't know, and spends most of his time on a golf course. So the idea that he's too busy just doesn't cut it here” (my italics).

Cass Sunstein is another constitutional authority. He argued that if Trump committed “an impeachable offense,” it wasn’t matter of if he should be impeached but when. The Constitution makes impeachment a moral duty, not a choice: The “constitutional obligation is to protect We the People. It is not entitled to look the other way.”

Again, I don’t know what’s going to happen. No one knows what’s going to happen. Not even the president, who fears that the worse, knows what’s going to happen.

But these are the arguments that will inform what’s going to happen.

Best to think them through as best we can.

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Tweet of the day

(((John Stoehr)))@johnastoehrFact: the DOJ opinion saying a sitting president can't be indicted is based on the theory that a president is too busy to represent himself in criminal court.

Elaina Plott@elainaplott

The president has 9.5 hours of executive time today.

December 13 2018

14 Retweets28 Likes

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What Road House tells us about politics

So much of American politics can be summed up in this short clip from the movie Road House. Here, the late Patrick Swayze is a “cooler” teaching other bouncers how to behave when the bucket o’ blood they work in gets crazy at night. As you watch this, keep in mind how Nancy Pelosi, “the cooler,” handled the president this week.

(Warning: explicit language!)

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Um, yeah. About that Oval Office meeting Tuesday. It was, like, a doozy. But … seriously. Let’s get something out of the way: Donald Trump doesn’t have leverage.

The president sure thinks he does, and Nancy Pelosi surely knows that he thinks he does. The House leader tried explaining to him that he doesn’t, but in trying to explain that he doesn’t, she ended up hardening his belief that he does.

She later hinted that if he shuts down the government, that’s on him. House Democrats will open it back up (with a “clean CR”) come January, and the bill will pass both chambers, because Senate Republicans know they don’t have leverage, and will demand the president sign it. (Trump said Senate Democrats were standing in the way of his border wall, so he’d blame them for a government shutdown. But if Pelosi passes a “continuing resolution” without wall funding, it will be up to the Senate to pass or kill it. That means, one way or another, a shutdown will be on Donald Trump.)

The other thing to get out of the way is that Tuesday’s spectacle was precisely that, and probably nothing else. Yes, House Republicans are making some noise about backing up the president’s claim of having all the House votes he needs to get money for a border wall. But given how handily Pelosi is dealing with this president, my guess is that she knows where the votes are, and that the president does not have, and will never have, enough votes in the House, even though the GOP still controls it.

I’d expect Trump to cave, as he did last week in agreeing to a two-week extension of government funding. The president entered Tuesday’s televised negotiation with nothing, and he’s going to leave with nothing—except an indelible image of himself as a master dealmaker who can’t negotiate his way out of a brown paper bag.

Washington, if you haven’t guessed, is a prudish place exceedingly sensitive to matters of etiquette. Perhaps that’s as it should be, as the nation’s capital is where powerful people make important decisions affecting millions here and around the world.

But sensitivity to decorum can mean blindness to method. The news this morning was about two parties clashing in a “heated discussion,” and about a president vowing, amazingly, to take responsibility for a government shutdown.

(It was also about Schumer “dunking” on Trump in front of a national audience, and Pelosi’s brilliance. The AP: She told Democrats privately, "He said at the end of the meeting, he said, 'We can go two routes with this meeting: with a knife or a candy. I said, 'Exactly.'" The Times: Pelosi told aides afterward that the border wall is “like a manhood thing for him. As if manhood could ever be associated with him.”)

Missing from the coverage is something obvious, or that should be obvious given that it was televised: You can’t negotiate with someone who can’t stop lying, who won’t recognize basic political truths, and who is willing to hurt himself to hurt opponents.

Yes, it was funny when Pelosi said, “Mr. President, please don’t characterize the strength that I bring to this meeting as the Leader of the House Democrats who just won a big victory.” She was doing what no Republican has done, which was not accepting Trump’s nonsense, and moving ahead on her own agenda.

What she was trying to do, however, is get the president to see that he did not have the advantage, that the Democrats were willing to give him money for border security, not a wall, because, she said, that’s a “way to effectively honor our responsibilities.” But she said the president could not have more, because, well, he wasn’t in a position to ask for more. Schumer said as much when he said: “Elections have consequences.”

But Trump refused to concede this plain fact. Moreover, he seemed to suggest he had the advantage, given that the economy has been humming along since 2016. It’s as if the GOP’s crushing losses in the House were moot. I suppose that’s what we can expect from a man who believes he’s a winner amid evidence to the contrary.

In response, Pelosi said, but no one has focused on: “What the President is representing in terms of his cards over there are not factual. We have to have to an evidence-based conversation about what does work, what money has been spent, and how effective it is.” She kept asking to hold the talks in private so she did not have to explain Trump’s political weakness in front of cameras. He refused.

Schumer urged Trump to understand that Democrats can’t and won’t negotiate with someone willing to blow himself up (i.e., do something politically hare-brained like partially closing the government because he didn’t get what he wants.) Schumer said: “The one thing I think we can agree on is we shouldn’t shut down the government over a dispute. And you want to shut it down. You keep talking about it.”

Schumer also tried getting Trump to concede that they can agree on one thing. He said: “The Washington Post today gave you a whole lot of Pinocchios because they say you constantly misstate how much the wall is—how much of the wall is built and how much is there. But that’s not the point here. We have a disagreement about the wall … whether it’s effective or it isn’t. Not on border security, but on the wall.”

But the president refused to take what was being handed to him.

One takeaway, and a good one, is that this meeting is a taste of what’s to come. There’s little these parties can agree on. But objective observers, and anyone desiring to understand what’s going on, should ask why the parties can’t agree.

It’s not because they are at loggerheads over facts, evidence and policy. The parties can’t agree, because the president can’t stop lying, won’t recognize basic political truths, and is willing to hurt himself to hurt political opponents.

—John Stoehr

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Caption Contest!

This is a real picture of the real Mike Pence sitting beside a real American president who could not figure out for the life of him that he had no leverage. So …

Time for a contest! Leave a comment on the Editorial Board.

The winner gets hugs and kisses (or at least our undying admiration)! —JS

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I said Monday that no one knows anything about what’s going to happen to this president in the wake of federal prosecutors alleging in court Friday that Donald Trump committed two felonies. Yes, a lot of people are saying with a lot of confidence that they know he’ll be impeached, that he’ll be removed, that he’ll be indicted. But fact is, no one knows. That includes people saying nothing will happen to him.

Why? We have not been here before. No sitting president has ever been accused in open court by government attorneys of breaking federal law. Yes, Richard Nixon was found to have paid hush money to operatives who broke into the Watergate Hotel Complex looking for documents that might damage his 1972 Democratic rival. But those crimes came to light after John Dean revealed the existence of Oval Office tapes. In them was proof of criminal wrongdoing, but there had not been prosecutorial allegations requiring proof. In this sense, what’s happening now is different from Watergate. And for that reason, it is historically unprecedented. (Allegations may be forthcoming, of course, but we don’t know yet if that’s the case—stayed tuned.)

All that said, there is something happening right now that we can talk about with real certainty—that criminal indictment is a greater and more immediate threat to this president than even impeachment or removal. Yes, there is a debate going on about whether a sitting president can be indicted, but what’s not up for debate is this: that Trump would almost certainly be facing the same legal jeopardy that his collaborators are now facing. The only thing preventing that is the presidency.

Let’s put that another way. No matter what happens from this point onward—no matter what the Mueller inquiry reveals or doesn’t about conspiracy with the Russian government—the fact is that prosecutors have evidence to allege that “Individual-1,” aka Trump, ordered Michael Cohen to break campaign-finance law and lie about it. Even if you believe, as Republicans do, that those crimes are unworthy of impeachment and removal (even if less severe crimes were enough to impeach Bill Clinton), few would say they should go unpunished after Trump leaves office.

In other words, the president now has a great deal of incentive to remain president, to avoid resigning for as long as he possibly can, and even to win reelection in two years, because being president is almost certainly the only thing standing between him and arrest, prosecution and prison. As Democratic Congressman Adam Schiff, the incoming chair of the House Intelligence Committee, told CBS on Sunday:

There’s a very real prospect that on the day Donald Trump leaves office the Justice Department may indict him, that he may be the first president in quite some time to face the real prospect of jail time. We have been discussing the issue of pardons that the president may offer to people or dangle in front of people. The bigger pardon question may come down the road as the next president has to determine whether to pardon Donald Trump.

Isn’t it interesting that Schiff would bring up the “next president”?

It could be, though I’d need to see more evidence to be sure, but it could be that Congressional Democrats are already exploring a new line of attack on this president, which, if I’m right, is rather brilliant. That line of attack would go something like this: the only reason Donald Trump wants to be reelected is to avoid prison.

It sounded so good to Democratic Congressman Eric Swalwell that he said it four times on NPR on Monday: “If the president has a very high degree of criminal exposure once he leaves office and the only reason he's not being prosecuted is because of a Department of Justice policy, that would fall on him once he left office. You don't want a president in a position who could, you know, act out or be erratic because he's fearful that losing an election would send him to jail.” He added:

And so I think we have to be mindful of that. I think there's an opportunity, though, to also look at extending the statute of limitations, you know, as they exist to just pause and not run until a president leaves office because right now, it looks like if President Trump is not re-elected, he could potentially go to jail. If he is re-elected, he could avoid going to jail. We don't want presidents to, you know, be making decisions based on their, you know, jail exposure.

Making this line of attack so brilliant is that you really don’t want a president willing to use the awesome power of the presidency to deny justice. That’s what despots do, not leaders upholding the rule of law. So when Trump does abuse his power, and there’s no reason to think he would not, then he’s proving the attack against him.

The line is brilliant also because the debate as of right now isn’t about whether Donald Trump committed federal offenses (the Republicans do not appear to be contesting this point much). It’s about whether any president can be held accountable while he’s president. Well, the Democrats can say, if Donald Trump can’t be held accountable while president, then he wants to stay president in order to deny justice.

Again, nobody knows what’s going to happen, but there are some things we can count on. One is that Trump broke federal law. Two is that anyone who is not the president would be in deep trouble. Three is that in being president, Trump denies justice.

So the Democrats have incentive to keep hammering at this point. Indeed, it may be, in the end, a politically preferable strategy, as it would push the electorate to push Trump out rather than take the extraordinary risk that comes with impeachment.

—John Stoehr

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I love hearing from readers.

Write to me at johnastoehr at gmail dot com.

Thanks! —JS

I want to start today’s newsletter with a dose of caution: no one knows anything about what’s going to happen to this president. Yes, federal prosecutors in Manhattan alleged Friday that Donald Trump had committed at least two felonies. Yes, that’s a BFD, as Joe Biden might say. And yes, when the government accuses you of committing federal crimes, that’s usually the end of normal civilian life as you know it.

But these norms don’t necessarily mean anything, as the person in question is not a normal person, but the president. On the one hand, you could say, as the Justice Department said during Watergate, that no sitting president can be indicted. On the other hand, you could say, as US Rep. Jerry Nadler said Sunday, that there’s no reason, historically or constitutionally speaking, why a sitting president can’t be indicted.

Moreover, you could say, as the National Review’s Andrew McCarthy argued Sunday, that “the president is very likely to be indicted on a charge of violating federal campaign finance laws.” On the other hand, you could say, as any historically minded person might, that that’s never happened before, and because that’s never happened before, there’s no reason to say anything, much less indictment, is “very likely.”

McCarthy, who would normally defend Trump, is mistaken when he said: “Prosecutors [in Manhattan] would not have done this [alleged federal crimes] if the president was not on their radar screen. Indeed, if the president was not implicated, I suspect they would not have prosecuted Cohen for campaign finance violations at all.”

Politically, there’s a powerful reason for prosecutors to follow the facts wherever they lead while stopping short of what would, in any other circumstance, be a forgone conclusion. That reason, again, is that Donald Trump is president of the United States.

Don’t get me wrong. Trump could be indicted. I’m not saying that’s impossible. My goal here is to assert strongly that no one truly knows what’s going to happen even when they sound super confident that they know what’s going to happen.

Same thing for impeachment and removal. The press corps is asking Democratic leaders whether they plan to start impeachment proceedings. (You can expect these inquiries to pick up pace and grow in intensity every time federal prosecutors reveal new facts deepening our understanding of how rotten this president is.)

From these repeated inquiries might arise an unrealistic expectation: that this president will be impeached and removed. Again, please allow me stress that this is not likely, not “very likely,” not anything. This is the president we’re talking about.

Impeachment and removal are acts that overturn the will of the American people. (Set aside for now that Trump lost the popular vote.) Impeachment is a political process, not a criminal one. You don’t impeach a president because he broke the law. But breaking the law might be part of why he should be impeached.

The GOP can be blamed for this misunderstanding. Their case against former President Bill Clinton rested on a very narrow set of facts and a very narrow constitutional interpretation of those facts. Clinton lied to a grand jury about his affair with an intern. Ergo, Republicans argued, he must be impeached and removed. Public opinion ultimately disagreed, but not before the GOP’s accusations established in a lot of people’s minds that breaking the law equals grounds for impeachment.

Public opinion will make or break impeaching and removing Trump. (Remember, it takes two-thirds of the Senate to remove a president; and remember, the Republicans control the Senate.) And because of that, watch carefully how House Democrats do two things at the same time: they are going to react to public opinion but also do what they can to influence public opinion, so that it will be hard to tell where one begins and the other ends. Case in point is Jerry Nadler’ interview Sunday on CNN.

Next year, Nadler will be chairman of the House Judiciary Committee, the epicenter of impeachment proceedings, if they happen. In this interview, Nadler makes the case for impeachment while cautioning against it. Trump defrauded voters (by paying hush money to women he had sexual relations with), he said, but that might not be enough to justify impeachment. Trump’s offenses are worthy of impeachment, he said, but that doesn’t necessarily mean the new House Majority will follow that course. This is the kind of push and pull that we can expect to see more of in the coming year. Why?

Because the case for impeachment is still unclear.

—John Stoehr

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This week saw a salvo of social-media attacks on Beto O’Rourke by a cranky cabal of writers associated with Bernie Sanders. O’Rourke, as you’ll recall, is the Texas congressman who nearly knocked off US Senator Ted Cruz. He mounted a spirited effort and has great promise, perhaps even as a presidential nominee. His attackers claim that he’s in league with Big Oil and other fossil-fuel concerns, noting that individuals who work for oil firms contributed at least $1,000 to his campaign.

I don’t want to get into how idiotic this is, but the uproar was enough to get the attention of Bill Kristol, who is, you know, so not a liberal. Kristol is the founding editor of The Weekly Standard and one of the architects of the disastrous Iraq War. He’s now on the outside of the Republican Party looking in thanks to Donald Trump, and he actually wants Democrats to succeed in two years. So he said this:

Bill Kristol@BillKristolHey, Democrats: I don’t want to meddle and it’s not really my business and all, but maybe you guys should put off the launch of the 2020 circular firing squad until, say...2019?

December 7 2018

133 Retweets1028 Likes

Here’s the reason I don’t want to get into how idiotic these attacks were: They were not about ideas or ideology, issues or policies. They were about smearing a candidate who hasn’t even announced yet his interest in the presidency (though he met with Barack Obama after conceding defeat last month, thus sparking fear, I presume, among Sanders supporters who want to clear the field of the senator’s rivals).

And isn’t that interesting that these attacks are about personality and not first principles? Yes, you could say, and Sanders supporters are saying, that taking money from people who work in the oil industry means you’re in hock to Big Oil. But that could be said of any candidate, including Bernie Sanders. Employers don’t control whom their employees favor politically. (That’s the nut of this, the difference between corporations donating money to candidates and employees who must declare what industry they work in. That’s why this smear can be applied to anyone any time. I’m in the media, so you can add up all the media people who gave at least $1000 to any candidate and say that that candidate is in hock to Big Media. So. Very. Idiotic.)

Because these salvos were about personality and not about values and first principles, it’s easy to wonder if the Democratic Party has moved sufficiently enough to the left since 2016 that Sanders’ supporters (though I presume not Sanders himself) must scream that much louder to get attention. After all, what can you do when you’re no longer the only one pounding for Medicare for All, etc.? You pound all the harder.

I think that’s more interesting to talk about than to complain about the ideological warfare of 2016 happening all over again. It bears repeating that the Democratic Party is a liberal party and as such, there are going to be fierce factional disagreements over what to do and how to do it. That’s a given. The fact that Bill Kristol, someone I presume is not in touch with intra-party tensions, is furrowing his brow is not a bad omen. It’s an indicator of the party’s vitality. It’s a myth that Democrats kill themselves. What they do do, are doing, is sort things out, as parties must.

Bear in mind that these salvos were partly an expression of a kind of leftist who can’t quite see, or won’t see, that the party has moved dramatically leftward since 2004. They do not, for whatever reason, recognize the fantastic diversity—of race, gender, ideology and other things—that now characterizes the party, and because they do not recognize what the party has become, they continue to assail it for what it was.

And in not recognizing what the party has become, these “personality leftists,” let’s call them, are going to find themselves increasingly marginalized over time. As Michael Berube wrote last summer, the market for “liberal contrarianism” isn’t what it used to be. Liberals are no longer vested in the views of Andrew Sullivan, from the right, or Thomas Frank, from the left, to name just two elite gadflies. And that’s because, I contend, the two main historical branches of liberalism—one political and one economic—are coming back together after a long period in which liberals, though they defended the New Deal, stressed rights over civic duty and the common good.

I think that changed over the last decade. That’s why I see this moment, in which the country is actually seeing actual fascism expressed by the formerly conservative Republican Party, as a moment of great political clarity, in which Democrats, in being principled liberals, are the defenders of democracy and champions of the common good. These “personality leftists” had their moment. That moment is gone.

—John Stoehr

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