Yet Another Refugee from Livejournal

Two entries back, I offered you an admittedly half-baked argument for impeaching (and removing) President Trump, based only on what we knew at the time.  I also promised you an explanation of why I was not planning to press forward, right away, to make that argument more fully baked.

One entry back, I gave you part of that explanation.  I said that I saw no hurry about building out the case for impeachment, given that there was at least one thing that the Congress needed to attend to more urgently than impeachment.  That would be the passage of a "no first use of nuclear weapons" law.

In that same entry, I said that this "nuclear thing" was only one of the reasons "why not," and that I had three more reasons in mind.  This time around, I plan to tell you about one more of the reasons.

But first, I want to clarify a couple of points.  The first is to emphasize that when I speak of a "reason why not," I don't mean -- at least, not primarily -- a reason not to impeach.  I mean a reason why I am not devoting my energy to arguing for impeachment.  Sometimes, a reason for the one may also serve as a reason for the other.  But not always.

And furthermore -- here comes the second clarification -- I'm also not giving reasons not to argue for impeachment, as such.  Rather, they are reasons why I'm not devoting energy to strengthening the particular argument for impeachment which I introduced two entries earlier.

(As you may recall, the crux of that argument was that it was the president's duty to improve our defenses against foreign manipulation of our election processes, and that his abject failure to perform that duty could be grounds for impeachment, even if we assumed that he was not himself actively complicit in those manipulations.)

With those points made, I am ready to get on with telling you about the second reason.

Reason Two: There's a Lot of Groundwork Involved

It is something of a truism that impeachment is a hybrid process: quasi-judicial, but also quasi-political.  One way that the latter is true is this: the process is actually performed by elected officials, that is, politicians (members of the House of Representatives, and then the Senate).  Unlike federal judges, these people are elected for finite terms; if they want to remain in their respective positions, they need to be re-elected.  And it is a simple fact, whether we like it or not, that this need has an effect on the way they do their jobs.  In particular, it means that they are concerned about what the voters will think of their actions.

Yes, in the real world, they are also concerned about what potential donors of campaign funds will think.  But in this particular discussion, I think we can afford the luxury of not focusing on that.  Instead, I am drawing attention to the difference between "What will the voters think?" and "What is the right thing to do?"  Federal judges are appointed for life, and the framers of the Constitution made that decision so that judges, unlike members of the House and Senate, could do what they thought was correct, in interpreting the law, and be relatively unconcerned about public opinion.

So ... the framers took this particular pair of responsibilities (impeachment and removal), and put it in the hands of people who -- by the nature of their jobs -- do care about public opinion.  In particular, it is safe to assume, when they think about impeaching or removing a public official, that they care about whether the voters back home will think that what they are doing is proper.

What are the voters likely to think about that?  That depends, partly, on whether those voters want to see the official in question -- in this case, President Trump -- remain in office.  And that in turn depends, partly, on their political views.

But not entirely.  A fair fraction of the voters are aware, if only vaguely, that impeachment is also a quasi-judicial process.  They know that the Constitution says something (though not much) about the permissible "grounds" for impeachment; that is, about the criteria that Congressbeings are supposed to use in making impeachment-related decisions.  Quite a few, by now, have at least heard the phrase "Treason, Bribery, or other high Crimes and Misdemeanors".

In short, many people do understand that this is a difference between our system and a parliamentary democracy.  In the latter, the legislature can dismiss the chief executive simply because they no longer approve of the way she is doing her job.  Under the US Constitution, it's not supposed to work that way.

Furthermore, not only do quite a few people know this, but a significant fraction of those people care about it, too.  They believe in following the rules.  So there are many people who would like to see President Trump gone (including, but not limited to, most of those who did not vote for him), but not all of those people automatically favor impeachment.  They won't favor that until and unless they are convinced that it is being done on Constitutionally authorized grounds.

On the other hand, there isn't a lot of clarity about what that phrase -- particularly the "high Crimes and Misdemeanors" part -- means.  Particularly among the general public.  I suspect that most folks are under a mistaken impression about this.  They think that impeachment requires the subject to be guilty of an actual crime: something explicitly prohibited in the statute books.  Along with this, they probably also think that, in the Senate "trial" phase of the impeachment process, this guilt must be established by the same standard of proof that is used in criminal trials: "beyond a reasonable doubt."

I call these beliefs "mistaken," because, having read one short book on the subject, I think I know that neither of them is the consensus view among legal scholars.  On the other hand, "mistaken" may be the wrong word, if only because there is no person or institution empowered to rule authoritatively on these things.  Gerald Ford was probably thinking about this latter fact when he expressed the opinion that an "impeachable offense" is whatever the members of the House and Senate, at the time, think it is.

That opinion about the permissible grounds for impeachment -- we might call it the "Ford doctrine" -- amounts to saying that impeachment is a political process, not a judicial one.  Whether or not you believe that it should be that way, one thing seems clear.  Assume I was right, earlier, in saying that most Congressbeings, when considering impeachment or removal, will give some thought to whether "their" voters will approve of what they decide.  If so, then, as a matter of practical fact, the Ford doctrine is at least partly correct.

That brings us close to the conclusion that I teased in the section heading, above: "There's a lot of groundwork involved."  To establish that, I just need one more premise, concerning the particular "case for impeachment" that I laid out two journal entries ago.  Namely: that argument did not claim that President Trump has committed a literal, on-the-books crime.

Given that fact about my argument ... and given the supposition that most of the public thinks, mistakenly or not, that crime is the only legitimate grounds for impeachment ... and given that the Congressional mind cares about public opinion ... it follows that you aren't going to get an impeachment, on the grounds I suggested, without doing a lot of public education first.  (If you prefer a more neutral word, substitute "persuasion" for "education.")  People will need to get used to the idea that the permissible grounds for impeachment are not that narrow.

Some voters will be much less receptive to the idea than others.  That will depend, at least partly, on whether the voters in question, legal arguments aside, like the idea of removing Trump from office.  In other words, it puts us squarely back in the political side of the process.

With the particular "case for impeachment" that I presented, it may be even a little more challenging than that.  Based on my extremely limited reading in the legal literature, that is.  That's because ... while those authors seem to have a consensus that a genuine, lock-'em-up-style crime is not required for impeachment ... almost all of what they say still uses the language of "offense" (as in "What constitutes an impeachable offense?")  My "case," on the other hand, turns on a failure by President Trump to perform the duties of his office, and it's not entirely clear how to fit that into the concept of "offense," even when the latter is taken in the looser, not-necessarily-criminal sense.

I'm not saying that it can't be done, just that it will take some work.  And in fact, there are places where the scholarship does seem to referring, obliquely, to cases of failure to perform one's duty.  I just haven't seen anyplace where "grounds" of that type are addressed head-on.

If they haven't been, then that's another chunk of "groundwork" that needs to be done.  Of course, that again raises the question: if it needs to be done, why don't I just get on with it?

Part of the answer to that question is quite simple: I am not a lawyer, let alone a "legal scholar."  Someone with those qualifications could probably do a better job at clarifying these points about "proper" grounds for impeachment.  And that person would definitely stand a better chance of being listened to.

I more-or-less promised that I would write something about impeachment.  And so I shall.  In particular, I shall explore whether there are grounds for impeachment based on what we already know.

I'll say right up front: my gut feeling is that there are.  We could, in principle, impeach the president without waiting for investigative results: all the needed facts are lying in plain view.  Those facts, if viewed correctly, supply good grounds for impeachment, and removal from office, of President Trump.

Note that when I say "good grounds," I mean that impeachment (and removal ...) would be justified, in a legal / constitutional sense, and in the light of the threats which a continued Trump presidency pose to our nation.  Whether impeachment and removal would be politically possible, or politically advisable at this time, are separate questions.

But even given that limitation on what I would try to show -- that impeachment is legally justifiable, not that it is also politically advisable -- I am not going to prove that this is so, or even attempt to.  The most that I will do is to give an idea of what a valid argument for impeachment might look like.  A sample argument, let's say ... and to make it easier to understand, let's base it on a simplified version of the real-world facts.

Before even starting to develop my sample argument, let's look at a preliminary question: what kinds of things can be grounds for impeachment?  Under our Constitution, Congress can't throw the president out because of just any presidential action of which it disapproves.  So if not all kinds of "bad decisions" are grounds for impeachment, what kinds are?

I referred, above, to "... the threats which a continued Trump presidency pose to our nation."  There are many such threats, of various kinds.  For purposes of impeachment, though, I would focus on one kind: threats to the Constitution.

"Threat to the Constitution" is a hackneyed phrase, these days, but what does it actually mean?  Here's a partial answer, for free: it does not refer to a danger that someone will break open the vault holding the official copy of the Constitution, and burn it.  (There is no "official copy."  The original of the document is kept in secure storage, but that is because of its historic, and symbolic, value; the possibility of its destruction is not a "threat to the Constitution" in the relevant sense.)

If that's not what we mean by a threat to the Constitution, then what is?  I suggest that the phrase refers to a threat to the functioning of the Constitution; that is, to the functioning of the United States government (and state governments ...) in accordance with the [United States] Constitution.

With that much said, I can begin to describe my "sample argument" for impeachment: a hypothetical example of presidential conduct that would constitute a threat to the Constitution.  Except that, in the example chosen, it's not exactly that the president's actions are the threat: the original threat comes from outside.  But the president's conduct makes the threat worse.

Suppose that some foreign country (unnamed, because this is a hypothetical example) were engaged in intensive efforts to undermine the functioning of our Constitution.  These efforts, we suppose, are ongoing, and they have multiple goals.  Sometimes they are directed at causing a specific candidate to win an election.  At other times, the goal is more diffuse (but just as toxic): to increase polarization, and thereby increase mutual distrust, in the American population.  Hitting a home run, in respect to this latter sort of goal, would consist of pushing our nation into at least a partial state of anarchy.

Some readers, at this point, might be bursting to say: "How can you stand there with your teeth in your mouth and call this a 'hypothetical example'?  It's just like our real, current situation!"

Ah, but I haven't finished describing the example yet.  Here's how it differs from the SCR (Sad Current Reality): in the SCR, something additional is alleged: that the current president, or members of his posse, actually "colluded" (whatever that means) with the hostile foreign power in question.  And because of the sensational nature of that second accusation, discussion has focused mostly on it, and less attention is being given to the underlying issue of the foreign interference itself.

Suppose that were not the case.  Suppose that there was no suspicion at all that the president, or any of his associates, were in any way complicit with the foreign interference.  The foreigners were doing it entirely on their own.

On the other hand, the hypothetical situation, let us stipulate, is also similar to the real one (as I see it) in some ways.  For one thing, suppose that no reasonable person doubts that foreign attempts at interference are happening, and are having some effect.  There is no indication that the actual counting of votes was (successfully) tampered with, in the last general election, but it does seem clear that it was attempted.

And suppose that we also know, because our intelligence professionals tell us so, that these pesky foreigners planted a lot of false stories (while making those stories appear to have come from Americans) on social media (and sometimes in other media as well).  It is impossible to know whether or not anyone, as a result of their exposure to these false stories, voted differently from the way he or she otherwise would have.  But it's certainly possible, and we can't even conclusively rule out the possibility that the overall results would have been different.

If you were living in this alternative reality, and were aware of these foreign efforts to influence our political process, I suspect that you would be concerned about them.  You might even go so far as to declare that what these bad people across the water are doing constitutes a threat to our Consitution.  And your next thought might be: "Our government needs to doing something about this!"

Just for example: remember that the bad guys made some effort to hack into the computer systems that actually count the votes.  We're confident that these systems were not actually compromised, but if Boris and Natasha are working on improving their techniques, the outcome next time might be different.  Clearly this calls for a major effort on our part to improve the security of these systems.  Or so, I suspect, you would be inclined to think.

Here we learn that an Alternate Reality can be Sad, just like the Current Reality.  For it turns out that, in the SAR we are looking at, this major "secure the systems" effort is just not happening.  Some states may be trying to do something about it on their own, but there is no nationwide coordination: nothing from the federal level.

Why not?  Well, to do this right would require cooperative efforts by multiple agencies of the federal government.  And successful interagency cooperation on this level hardly ever happens without active leadership by the President of the United States.  And as hard as it may be to imagine this, those active efforts by the POTUS, in this SAR, are ... just not happening.

To strain your credulity even further, here's something even more odd.  The hypothetical president is not just refraining from issuing the needed hypothetical orders.  He is even, from time to time, doing things that could be reasonably expected to impede whatever security efforts the various agencies are putting forward on their own.

No, he's not calling up agency heads and demanding that they stop.  Not that we know of, anyway.  What he is doing, quite publicly, is letting it be known that he is not convinced that the foreign efforts at interference even exist.

His way of doing this varies from day to day, based on ... something.  (His mood?  Who knows?)  Sometimes he just mutters that he has doubts, or that the denials by the foreign leader sound sincere to him.  At other times, he is more assertive, declaring that all the accounts of such foreign efforts to interfere in our political processes are nothing but -- are you ready for this? -- a "hoax."  Perpetrated by the "fake" mainstream media, no less.

As some alert readers may have noticed, if you put together the right pieces out of what I have said, above, I may seem to be imagining a world in which the president of the US is not a "reasonable person."  What a notion!  But bear with me, please.  Thinking about an imaginary situation, even such a far-fetched one as this, can sometimes tell us useful things, things that we can bring back and apply in the real world.

After that pause for reassurance, let's review where we are.  You, dear reader, have (willingly, I trust) imagined yourself into the role of an American citizen in a bizarre alternate reality.  In that reality, you have learned, the leaders of a foreign country (still unnamed) have caused their minions to do some nasty things which (it has, by now, become clear) pose a threat to the effective functioning of our constitutional system.  Furthermore, our president is not, as you might expect, throwing his leadership abilities into thwarting these nefarious plans.  Indeed, he sometimes complains about the efforts to thwart them, saying that certain misguided officials are wasting their time in fighting an imaginary threat.

You, on the other hand, are convinced beyond a reasonable doubt that the threat is not imaginary.  Therefore, you reluctantly conclude that the president's conduct -- the combination of inaction, and sometimes active discouragement of efforts to combat it -- are materially increasing the threat.  Or in other words, the president's conduct is materially increasing the risk that our constitutional system of government will break down.

Faced with all that, what would you do?  I think you might begin to wonder whether this peculiar conduct on the part of the US president constituted grounds for impeachment and removal from office.

At this point in my discourse (if not sooner), an argumentative person seated in the peanut gallery can contain herself no longer.  "You fraud!" she says.  "You are pretending that all you are talking about is an alternate reality.  That serves to induce the reader to lower her guard, so that it is easier to suggest to her that she 'would,' if she were in that reality, start thinking about impeachment.

"But what you are really trying to do, without admitting it, is to convince the reader that there are good grounds for impeachment (not just in the alternate reality, but) in the real world.  After all, the reader might come to the conclusion that the 'hypothetical example' differs from the real world in only one significant way: by the fact that, in the real world, the president is also suspected of active collusion with the enemy.

"Now either you believe those additional charges, or you don't.  If they are false, then there is actually no significant difference between the alternate reality and the real one.  If there is no significant difference in the facts, and if impeachment is warranted in the alternate reality, then it is also warranted in the real one.

"On the other hand, if the charges of active collusion are true, that can only make the grounds for impeachment stronger, not weaker.  So either way -- whether the president is also guilty of active collusion, or not -- if there are sufficient grounds for impeachment in the alternate reality, then there are also sufficient grounds for impeachment in the real one.

"So," the lady in the peanut gallery concludes, "if the reader accepts your argument that there are good grounds for impeachment in the imagined example, then (she may not realize it at first, but) she logically is required also to accept that there are good grounds for impeachment in the real world."

Well, alrighty then! How do I respond to that?

I hope I would remember to begin by thanking her for sharing her closely reasoned thoughts.  Perhaps I would continue by saying that what she suggests is a novel idea, one I hadn't thought of.  And so, I will need some time to think about it before I can be sure, but at first blush it sounds like her main argument may very well be correct.

If that turns out to be the case, then I will quarrel with only one part of what she said: her assumption that I was deliberately trying to mislead, rather than unintentionally leading the reader in the direction of a final conclusion which had simply not occurred to me.

However, when I claimed that it never occurred to me, possibly I was lying.  Were that to be the case, then everything that the peanut gallery lady said would be true.

Okay, all kidding aside.  It seems that I have laid out, shall we say, a scaffolding of an argument in favor of the impeachment, and removal from office, of President Donald Trump.  But a scaffolding is not a finished structure: let me be the first to admit that I have not proven my case.

That is true on several levels, beginning with the facts.  I have said a number of things about the president's conduct.  Originally I presented them as hypothetical "stipulations" ("Let's suppose ...."); eventually I admitted that I believed them to be true in the real world.  But my saying so is not likely to be sufficient to convince two-thirds of the Senate.  Nor should it be.

The same goes for the conclusions that I drew about the likely effects of that conduct.  I said that there was a real danger that the foreign efforts would undermine the functioning of our system of government.  I further claimed that the president's lack of positive action to meet this threat, along with repeated claims by him that the threat is imaginary, could be expected to produce a net increase in the level of this risk: to make it worse, I'd go so far as to say, than if he had done nothing about it at all.  But to all of this, it would be perfectly reasonable to respond: Prove it!

Now suppose that all of that were proven.  There would still be questions about the intent, and/or causes, of the president's actions (including his inaction).  To begin with, one might wonder whether he sincerely believed that the threat was imaginary.  And if he did, one might well wonder how on earth that came about.  Depending on the answers to those questions, one might construe his conduct as anything from malicious to merely incompetent.

However, it could also be claimed that the answers to those questions about intent, while interesting, are irrelevant.  Not relevant, that is, to the end in view, which is to decide whether there is justification for removing the president from office.

That question about relevance is part of a larger question, which is actually the remaining question, once we suppose the actions, and their consequences, to have been proved.  Given the actions and the consequences, and given that the consequences are (at least potentially) very bad for the country, it still remains to ask: does all of this rise to the level of an "impeachable offense"?  Does it fit under the heading of "Treason, Bribery, or other high Crimes and Misdemeanors"?

So there we are.  I think I have proven that I have not proven my case; to put that in a possibly less confusing way, I hope I have convinced you that the case for impeachment is not proven by what I have said so far.  We may have some promising ingredients, but there is a good deal of mixing, and seasoning, and cooking yet to be done.  What we have so far hardly qualifies as "instant impeachment (just add legalese)."

If there's all that work left to be done, then, you might think, clearly my next step should be to get on with it.  But I'm not going to do that.  Not in this journal entry, nor the next; in fact, not in the currently foreseeable future.

Why not?  There are multiple answers to that question.  There are so many answers that I expect my entire next journal entry to be devoted to providing them.

Over the prior three entries, I've been talking about Donald Trump's threat to "totally destroy North Korea."  When I first heard that he had said that, I simply assumed that he was referring to a large-scale nuclear attack.  Then I found out that a friend understood him differently.

So I set myself a task of finding out how a wider range of people understood the same threat.  I make no claim that there was anything scientific about this "research."  For what it's worth, most people seemed to understand it the same way I did.  Most of those people, in turn, seemed to treat the nuclear interpretation as I had originally done: as obviously correct, with no need to even think about other possibilities.

I did find a few other people who had understood him differently.  They thought, like the friend mentioned earlier, that Trump was talking about a military response, but not one using nuclear weapons.

All of these people (in my absurdly small "sample") had two more things in common with each other.  All of them (like me) did not want a nuclear attack.  They indicated that they would not approve of a nuclear response on our part, at least not as a response to a non-nuclear provocation on the part of the North Koreans.

On the other hand, all of these same people (unlike me) generally approved of Trump's performance in office.  In particular, they did not share my perception of the man as unstable, in the sense that his actions are often ruled more by the emotions of the moment than they are by reason.

I then raised the question: are these people kidding themselves?  Are they irrationally holding on to their favorable view of Trump, by refusing to believe that he was making a nuclear threat, as everyone else understood him to be?

My answer to that question was "not necessarily."  Alternative explanations are available.  As to why their favorable overall view of Trump could not be overthrown by hearing about the "totally destroy" threat: perhaps that doesn't represent a failure of rationality on their part.  It need not, because it can, instead, be explained by supposing that their belief about him is based on a different set of facts.  I had already, before that fateful day at the United Nations, read a lot of things about Donald Trump that already had me doubting his stability.  Perhaps they were simply not aware of those things.  Perhaps, also, they knew things about Trump that I did not know, things which would tend to support a more benign picture of his character.

That's a brief summary of what I've previously written on the subject.  Now, I need to repair an omission: I never explicitly said whether I, after all this study of other people's thought processes, had undergone any change of my own opinion about what Trump meant by that phrase.

The short answer to that one is: not much.  My original opinion was that he was talking about a massive nuclear attack.  My revised opinion is that he was probably talking about a massive nuclear attack.  Or, at the least, that he was willing to give that impression.  I'm almost sure about that much.  (And even if I'm wrong -- if he wasn't even aware that people would understand it that way -- then surely he knows by now that many did, in fact, understand it that way.)

Now let's switch over to talking about what President Trump actually will do.  Is there a nuclear war in our future?

I already called your attention, two entries ago, to the fact that that is a separate question.  I could have added then, but didn't, that it is a question of more direct concern.  Of overwhelming concern, maybe even.

It's a momentous question, which makes it regrettable that we don't know the answer.  In fact, on this question, I don't see any basis for offering even a "probable" answer, let alone an "almost certain" one.  We just don't know, full stop.

In fact, our state of ignorance is even greater than that, because "what Trump will do" (or, "Will he order a massive nuclear attack?") is not one question, but many.  I will cite just a few of the many forms it might take.

Has he already decided on such an attack, so that he knows (but we don't) that it's just a matter of time?

Now suppose that's not true: that he will unleash the nukes only in response to some further provocation by North Korea.  If so, what sort of provocation would it take?  Would he rain fire and fury on them in response to ...

... another nuclear test?

... another test of a long-range missile?

... their firing an anti-aircraft weapon at one of our planes?

... some North Korean infantryman accidentally firing his rifle, which just happens to be pointed across the Demilitarized Zone?

And if any of those things happens, is it already predetermined what President Trump's response will be?  Or might that also be influenced by logically extraneous factors, like what the mayor of San Juan had said about him the previous day?

We don't know the answer to any of those questions, either.

Which is kind of too bad, because we, as American citizens, might want to say something about the prospect with which we are faced -- if only we knew what it was.  During this "calm before the storm" (an even more recent quote from our presumpident), if we knew what kind of storm he was promising us, we might wish to express how we felt about it.

But don't worry!  In my next journal entry, I shall come to the rescue.  I will explain one weird trick which will allow us to escape from our paralysis, despite the fog of ignorance in which we are being kept.