When the crisis in Ukraine started ramping up, I would begin every morning by checking News Today to see if Russia had invaded Ukraine while I was sleeping. After a while it became increasingly hard to sustain that level of alarm and the project lost some urgency.
Well, I guess it is time to become anxious again. Russia has started large scale war games in neighboring Belarus. The map makes clear why this is so alarming. It greatly expands Ukraine's vulnerable border.
The Russian government says the war games will continue for ten days (until February 20) and that the Russian troops with withdraw from Belarus at the end of that time. Are such promises worth the paper they are printed on? (Or the pixels the broadcast?) Probably worth that much, but not much more. If Putin decides to invade Ukraine, the wargames will make it trivially easy for him to manufacture a pretext and then say he had intended to withdraw but events forced his hand. On the other hand, if he ends up deciding that discretion is the better part of valor, he can withdraw as promised without loss of face and even laugh at us for being so alarmist.
And if the Russians do withdraw from Belarus after February 20, the next question will be how much a reduction of tensions that is.
The Select Committee is promising hearings some time this spring, to be shown on prime time TV. And I think of family lore about my grandfather's second wife during the Watergate hearings. She dropped out of society and spend all her time watching the hearings and shouting "Get him! Get him!" I am starting to understand the feeling.
I am old enough to dimly remember the time. It had been so long since the last impeachment that news broadcasters had to explain how the process worked. The House was solely responsible for the investigation. If the House found grounds for impeachment, then they would try it with the Senate serving as the court.
Look, I know this is not a third impeachment inquiry. But somehow I can't help noticing that the inquiry is being handled entirely by the House. Is that significant?
I can only see this turning into a third impeachment if members of the House very discreetly sound out Senate Republicans and find the votes to convict. It seems most unlikely.
During the second impeachment, the obvious question was whether you can impeach an official who is no longer in office. Obviously removal from office will be a moot point. The important point is barring him from ever holding office again. Jamie Raskin, the impeachment manager, made the argument that a rule barring the impeachment of ex-officials creates a January exception. A President can do absolutely anything during his last month in office with complete impunity, at least with regard to holding future office.
By contrast, Trump's lawyer, Michael Van der Veen, denied any such exception and made four arguments, two of which, I remarked, were not only mutually incompatible, but served to create considerably more than a January exception. Van der Veen's arguments were:
Impeachment is only possible for officials who are still in office. The House unduly delayed and should have presented the trial to the Senate by January 20.
The impeachment violated Senate rules by not having separate counts.
Donald Trump was denied due process. The House acted with undue haste by failing to make an adequate investigation before acting.
Trump's speech to the crowd was constitutionally protected free speech and did not meet the legal definition of criminal incitement.
I think we can safely ignore the second defense as something that no normal person could possibly care about. But the other three are significant. In fact, defenses (1) and (3) are directly opposed to each other. On the one hand, the House had to do a full investigation into the facts of what happened. Van der Veen's co-counsel, David Schoen, even said:
Speaker Pelosi herself on February 2nd, called for a 9/11 style commission to investigate the events of January 6th. Speaker Pelosi says that the commission is needed to determine the causes of the events. She says it herself. If an inquiry of that magnitude is needed to determine the causes of the riot, and it may very well be, then how can these same Democrats have the certainty needed to bring articles of impeachment and blame the riots on President Trump? They don’t.
Can we point out the obvious here? There is no way to form a 9-11 style commission to thoroughly investigate the events of January 6 and have the results ready for trial before January 20. To require the House to do both things in order to impeach a President would create window considerably longer than one month in which it was not possible to do both. In other words, not just a January exception, but a December, November, and quite possibly October exception -- and maybe more than that.
At that same time, what has come out of the select committee so far has shown considerable merit to defenses numbers three and four. The first impeachment, focused entirely on the January 6 violence, tended to assume that Trump incited it with rather thin proof. Subsequent events make clear that neither Trump nor any of the rally organizers anticipated or intended a violent riot, although they may have intended the threat of violence to put pressure on Congress. In other words, Trump's speech on January 6 probably really was constitutionally protected speech and not criminal incitement.
But that does not end the inquiry by a long shot. The standard Republican line these days is to condemn the January 6 riot as of course a crime, but merely the work of a small number of rowdies and completely unrelated to anything else. Mainstream Republicans definitely want to gloss over the possibility that there might have been anything illegal in all the other attempts to overturn the election -- say, by pressuring Georgia Secretary of State Brad Raffensperger to change the vote total, or by presenting false slates of electors, or considering having Homeland Security seize voting machines. Republicans want to focus on the most dramatic and visible, but also most deniable attempt to overturn the election and pretend that the rest did not happen, or if it did that it was "legitimate political discourse."
That is why Republicans like Ronna McDaniel are so angry at Representatives Cheney and Kinzinger. Because they are not willing to treat the insurrection as an isolated incident by a violent mob, but as part of a much larger attempt to overturn an election involving many prominent and respectable Republicans.
And that is another reason impeachment would be the most appropriate remedy here, politically impossible though it may be.
Attempting to overturn an election is a very serious political offense, as serious a political offense as there can be. Indeed, it strikes at the core of our whole system of elective government -- that the loser of an election must accept the outcome. But much of it is not necessarily a criminal offense, and for an obvious reason. What is forbidden has been done. The truly unthinkable is never a crime because no one ever thought to forbid it. Much of Trump's attempt to overturn the election, such as pressuring state legislatures to send alternate slates of electors, or pressuring Republicans in Congress to accept the alternate slates of electors, does not appear to have broken any laws. And any action that was not a crime when done cannot be prosecuted US Constitution, Article I, Section 9, clause 3.*
But it is more than ample proof that the offender is an intolerable threat to our political system and has no business holding office. Which is to say, the hitherto unthinkable, and therefore not illegal, can be legitimate grounds for impeachment. Especially when it places our entire political system in jeopardy.
________________________________________ *Indeed, one can make a fair argument that pressuring a legislative body to take even illegal action is mere inappropriate lobbying and not a crime.
The obvious question to all of this is, is it illegal? You see, when something is illegal, it means that people have done it in the past. The truly unthinkable is never illegal because no one ever thought to outlaw it. Thus it probably never occurred to anyone to forbid private citizens from declaring themselves to be electors, or Congress from accepting them as electors, or the Vice President from overriding Congress and throwing out the vote in states where private citizens claimed to be electors, or for people to cajole or plan to do any of these things. Thus there may very well not be laws against doing any of those things.
There are laws against falsifying election results -- against throwing out legitimate ballots or against voting if one is not registered or voting more than once and so forth. These are very thinkable crimes that have been committed many times. And there are probably laws, both federal and state, against using the machinery of the government to tamper with election results.
But are there laws against state legislatures overruling the voters and choosing a different slate of electors? Are there laws against private citizens declaring themselves to be the elector? Are there laws against Congress accepting as electors people not chosen in ways established by state law? Or against the Vice President of rejecting electors if Congress won't? Or against Congress or the Vice President sending the vote back to the states if they don't like the results? All of these fit into the category of things so unthinkable that no one thought to forbid them.
So let's start with some basics.
The U.S. Constitution Article II, Section i, paragraph 2 provides that, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . " This is the section that leads to controversy over whether every change, no matter how minute, in election procedure requires an act of the state legislature. Clearly, though, if a legislature decides that the people cannot reliably counted on to vote Republican while the legislature can always be safely gerrymandered, the legislature is free to have presidential electors chosen by the state legislature and not by the people directly. In fact, that was how electors were normally chosen at the beginning. In New Jersey, electors were originally chosen by the governor and council. I suppose it would even be constitutional for a state legislature to make a law that presidential electors will be chosen by the central committee of the state Republican Party. But having the electors chosen by the legislature is one thing. Having the legislature decide that the people will choose and then attempt to change the rules after the election if the legislature does not respect the outcome is quite another. To be clear, such an action would not be a crime. No legislation, no matter how outrageous, is a crime. But it can be invalidated. The Electoral Count Act (3 USC 5) provides that:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
(Emphasis added). Yes, the legalese is a bit dense, but basically this means that once a state holds an election under a pre-determined process, both Congress and the state are bound by the results. Furthermore 3 USC 15 of the same act provides that:
If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed.
This does not criminalize putting up an irregular slate of electors, but it does declare the irregular slate to be invalid. No wonder John Eastman wanted to find this statute unconstitutional! And I suppose it does raise interesting questions about whether one Congress can pass a statute limiting the procedural actions of a future Congress. But the constitutional principle in the Electoral Count Act is sound. Once a lawful vote is made, neither Congress nor the state may modify it. If you are concerned about whether one Congress can constrain its successors in their general conduct -- well, the statute can be changed. The change merely has to be passed by both houses and signed by the President.
As for criminal law, Title 18 of the U.S. Code has a whole panoply of federal crimes. Chapter 29 deals with elections. For instance 18 USC 593, barring military inference in elections provides:
Whoever, being such officer or member [of the armed forces], interferes in any manner with an election officer’s discharge of his duties— Shall be fined under this title or imprisoned not more than five years, or both; and disqualified from holding any office of honor, profit or trust under the United States.
Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof . . . uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.
That would appear bar the Department of Homeland Security from seizing voting machines as well as the armed forces, although doing so would carry a sentence of one year instead of five. In short, there are clear federal laws against using federal executive machinery to sway the outcome of an election. There is some dispute as to whether the false electoral certificates are criminal forgeries.
But so far as I can tell, there are no laws against elected officials trying to persuade state legislatures to overturn a popular election and appoint its own slate of electors, even though the Electoral Count Act that such an action will not be valid. And it does not appear to be illegal to attempt to persuade the Vice President or a member of Congress to violate the Electoral Count Act, at least so long as no bribe or threat is involved.
The unthinkable has now been done. We need laws to keep it from happening again.
I am actually inclined to give Ronna Romney McDaniel the benefit of the doubt. Maybe her resolution to censure Adam Kinzinger and Liz Cheney for "persecution of ordinary citizens engaged in legitimate political discourse" really was not meant to include the January 6 insurrection, but only to “ordinary citizens who engaged in legitimate political discourse that had nothing to do with violence at the Capitol.”* But let there be no mistake. If that is what McDaniel meant, then she was saying that disputing whether to accept the outcome of an election is "legitimate political discourse," and that any attempt to overcome the outcome that stops short of violence is ordinary partisan politics.
To that only one answer can be acceptable. The question of whether to accept the result of an election is not "legitimate political discourse" or ordinary partisan politics, but foundational to our very system of elective government. If the loser of elections does not accept the outcome and resorts to every means short of violence to overturn the outcome, then the downfall of our system may not be as dramatic as a violent revolt, but it is no less certain.
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*On the other hand, one can also argue that if that was what the censure meant, it should have said so.
The whole Ukrainian crisis has a certain air of madness to it. On the one hand, there are actually broad areas of agreement. I think Americans all pretty much agree both that (1) a Russian invasion of Ukraine would be intolerable, and (2) we are nonetheless not willing to actually go to war to stop it. Yes, I know, Tucker Carlson and some of his ilk are siding with Russia in this dispute, but I think we can safely assume that if Russia invaded on a large scale even Tucker Carlson would be hard-pressed to defend it.
So what is going on here? Well, the Russians are insisting that Ukraine not be allowed to join NATO. And, in fact, everyone more or less agrees that Ukraine is not going to join NATO any time soon. In fact, under NATO rules Ukraine is not even allowed to join right now, since it has a disputed border with Russia. But the overwhelming consensus is that we mustn't come right out and say so because to come out and say so would be to deny Ukraine's sovereign right to join any alliance it wants. Um, don't allies also have the right to refuse any entrant the want also?
And, in fairness to our hawks, the Russians are also demanding that we kick former Warsaw Pact countries out of NATO much against their wishes, which is clearly a non-starter.
But the hawkish viewpoint is nonetheless that even though we are not prepared to risk war with Russia over Ukraine, we still have to stand up for Ukraine's right to do something that isn't actually going to happen because to do otherwise would be to concede Russia a sphere of influence in its near abroad, i.e., in the old Soviet Union. And they tut-tut that supposed anti-imperialists seem to be willing to accede to Russian imperialism within its sphere of influence. Of course, these fierce opponents of spheres of influence are really just saying that we should have a sphere of influence over the entire world, and that no one can ever reasonably oppose our uniform global hegemony.
But more to the point, there are certain parts of the world that Russia sees as so critical to its interests that it is willing to risk WWIII to maintain domination. During the Cold War, those areas were known as the Warsaw Pact. We conceded the Soviet Union a sphere of influence in the Warsaw Pact, not because we saw it as morally legitimate, but because we saw it as preferable to nuclear war. Well, the areas Russia is willing to start WWIII over have retreated eastward by several hundred miles, but they haven't ceased to exist. And ultimately, we are not willing to risk WWIII to prevent Russian domination over its near-abroad. That means that Russia has a sphere of influence over these areas whether we like it or not.
To suggest that we should not take this painful reality into account in our foreign policy is absurd.
Follow up: None of this is to deny that we should do our best to deter an invasion. But if there is any way to defuse this standoff without a resort to war, it will probably involve allowing Russia some sort of symbolic concession to allow them to back down without losing face. And who can doubt that if we do reach such a resolution, the usual suspects will cry appeasement, which is their name for anything short of unconditional surrender.
I do have a word of advice for people on our side when we talk to their side about the danger Trump and his supporters pose to democracy. Which is to say, don't use the word "democracy." Why? Because they have a pre-programmed response. "We are a republic, not a democracy."
What does that mean? Well, it depends. Sometimes it is just a snappy line to derail conversations. Other times, it actually does mean something. Most often, to the extent that these terms mean anything, it means that we are not a government of unchecked majority rule (democracy), but a government under law (republic). Of course, at the risk of using a term the Communists have grossly misused, we are a democratic republic. In other words, we are a system of majority rule under law. Indeed, we do not want to give the majority unchecked and lawless power. We want the majority to act in a manner constrained by law, to follow constitutional procedures, and to respect the rights of the minority. The system may even be set up in such a way that occasionally the minority nonetheless wins an electoral or legislative majority. But it should not be set up in such a way that the majority and minority are equally likely to win, much less in such a way as to lock in permanent minority rule.
Besides, most of the time saying we are a republic, not a democracy is just a snappy comeback meant to derail the conversation. Recently, for instance some Michigan Republicans proposed that if you suspect voter fraud you should unplug the voting machine or show up armed, ready to lock and load. And when this went onto Twitter, predictably enough some people denounced this as an intolerable threat to democracy, while others, just as predictably, said, "We aren't a democracy. We are a constitutional republic." So apparently a constitutional republic in this poster's view includes letting anyone who suspects fraud unplug voting machines or show up with guns.
Of course, you can demand that such a person define terms and explain under what reasonable definition of a constitutional republic are such random acts of vigilantism allowed. But in that case the other person has achieve that they really wanted -- the conversation has been derailed and gone off into the weeds away from the subject of how intolerable the latest provocation is.
So my advice is that in order to prevent the conversation from being derailed, instead of democracy you should say "elective government" or "contested elections." It's a bit longer, but I very much doubt the "we're a republic, not a democracy" can derail the conversation by denying that we have an elective government.
The latest more or less respectable response to the Capitol Hill riot of January 6 appears to be to dismiss it as unimportant since, after all, it failed. The most obvious, if rather flippant, response is to say, so did the Beer Hall Putsch. The problem with such a response is that its main effect will be to enrage. You will probably meet with the response that you are comparing Trump to Hitler. And it is true. To compare January 6 to the Beer Hall Putsch because both were failed attempts to overthrow democracy really is to compare Trump to Hitler.
On the other hand, if someone dismisses the January 6 insurrection because it failed and you say, so did Hugo Chavez' 1992 coup attempt, most people will not know what you are talking about. Let's face facts. When this country was founded, the archetypal example of a failure of democracy was Rome. Today it is Germany. One of the reasons we have so many Nazi comparisons is that many people don't really have any other point of reference.
But we do need other points of comparison. I frankly think it is to the credit of Trump's detractors that we have come up with so many insults and forms of invective against the man that don't so much as hint at Hitler. We call him the Short Fingered Vulgarian, the Orange Demagogue, the Orange Clown, Cheeto Jesus,* Pussy Grabber, Very Stable Genius, or VSG for short,** or Individual 1 (taken from the Michael Cohen indictment). The final choice appears to have been simply "45" while in office and The Former Guy (TFG for short) after he left. Just as FDR's detractors called him "that man in the White House," referred to Trump as 45 or The Former Guy is refusing him the legitimacy that goes with speaking his name. Our favorite insulting imagery does not show him as a fascist, but as a spoiled baby. (Or a baby balloon, presumably to show that he is so much hot air).
Trump Baby Balloon
So if the Beer Hall Putsch is the only example you know of a failed attempt to overthrow democracy that ended up succeeding, but you don't want to compare Trump to Hitler, what can you do instead? My advice would be, use computer imagery instead. Have you ever downloaded an app and had a really hard time getting it to work? Have you ever had the first attempt or two totally fail, but after getting the bugs worked out it worked like a charm? Well guess what? All across the country Trump supporters are at work getting the bugs worked out so that next time the want to use the app it will be working like a charm.
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*I don't recommend using this one, by the way. This one does not mock Trump so much as it mocks his followers' religious fervor, which is both impolitic and in bad taste.
**Spoken in sarcastic tones, of course, but taken from what TFG actually called himself.
