Comments on the Impeachment Witnesses, Days 1-3

I don't intend to discuss the impeachment hearings in detail, just to give my brief impressions of the witnesses and their testimony.

Day One: William Taylor and George Kent.

These were the first witnesses.  A lawyer's usual strategy is to end with the strongest witness, start with the second-strongest, and put weaker witnesses in the middle.  Taylor was the acting ambassador to Ukraine at the time of the relevant events; George Kent is Deputy Assistant Secretary of State for European Affairs.  In other words, Taylor had the Ukrainian perspective and Kent the Washington perspective. 

Taylor was a strong witness.  He gave a detailed chronological account of events, date by date, based on contemporaneous notes that he took.  He reported that when serving as acting ambassador, he began to notice that there was a second, irregular channel of communications, consisting of the Three Amigos -- Gordon Sondland, Kurt Volker and Rick Perry.  At first the irregular channel seemed to share his goal -- to arrange a meeting between President Trump and Ukrainian President Zelensky.   

But by mid-July, it was apparent to Taylor that the meeting was conditioned on investigation of Burisma, and alleged Ukrainian interference and the 2016 U.S. elections. Taylor also realized about the same time that security assistance was on hold, but did not immediately connect the two. That left Taylor in an awkward position.  Ukrainians very appreciative of US security assistance and Taylor aware that assistance had been withheld and not authorized to disclose this fact and not knowing why.  Taylor first learned of the link on September 1 when he received a readout of a call between Zelensky and Vice President Pence that quoted Sondland linking military aid to "investigations."  He promptly texted Sondland -- to create a paper trail, many of us suspect.  Sondland promptly answered, "Call me," -- to avoid a paper trail, many suspect.  Sondland confirmed in the call that security aid as well as the White House meeting depended on a public commitment to "investigations."  

All these discussions of "investigations" invariably just mentioned Burisma and the 2016 election but Taylor figured out along the way that "investigations" implied the Bidens.  (No specific date of revelation; the only thing not dated). Sondland quoted Trump as denying a "quid pro quo," but saying that without investigations things were at a "stalemate" and that when a businessman is about to sign a check to someone who owes him something, the businessman asks that person to pay up before signing the check.  (Not made clear: What the Ukrainians "owed" Trump).  The release was made September 11, and Taylor followed up by urging the Ukrainians not to announce "investigations."  Indeed, no investigations were announced.  

Kent gave decidedly less information in his opening statement and answered many fewer questions.  He did, however, make the point that if the genuine concern was corruption, there were official channels to follow, that Vice President Joe Biden did have a potential conflict of interest pressing Ukraine on corruption while his son was serving on the Burisma board of directors, but that there was never any attempt by the US government (Obama Administration) to shield Burisma and many calls to resume investigation.  

Day Two, Marie Yovanovich. 

Marie Yovanovich was the Ambassador to Ukraine before William Taylor.  She was removed as a result of smears, largely orchestrated by Rudy Giuliani.  I did not find her testimony very useful, to be honest.  She was recalled before the relevant events and therefore did not witness any of them.  Her opening statement focused mostly on refuting various smears, and the questions asked by the committee were painfully focused on her feelings (perhaps because she is a woman).

 Day Three, Kurt Volker and Tim Morrison.

Volker and Morrison are considered defense (i.e., Republican) witnesses.  Once again, Volker was the witness to events in Ukraine and Morrison the witness to events in Washington.

Volker is a retired career diplomat, brought back into service to serve as one of the Three Amigos.  His testimony seemed more focused on defending his own conduct than in defending Trump.  Volker emphasized his highly reputable background, his role and an official, not irregular, channel, and his hawkishness toward Russia.  Yet his advocacy of Ukraine was being undermined by the old Prosecutor General and by Rudy Giuliani.  Volker maintained that Giuliani was acting as a private citizen and had no role in setting policy, and that he believed both Trump and Giuliani were acting out of a good-faith concern about corruption.  Although Giuliani did specifically mention the Bidens, Volker assured him there was nothing to the allegation.  While Volker hoped that a generic commitment to fighting "corruption" would be sufficient, Giuliani insisted that the Ukrainians mention "Burisma" and "2016."  He also denied being aware of the July 25 phone call until it was made public (undoubtedly true), knowing that security assistance as well as a White House visit was tied to "investigations," (possible) or knowing that "Burisma" was code for Biden (extraordinarily naive, if true).   

Volker's opening statement makes clear that Rudy Giuliani was making demands about what sort of announcement was needed before President Trump would give the Ukrainians a White House meeting, and also that he was negotiating with the Ukrainians to give the sort of statement Giuliani wanted.  He seems strangely unaware that that effectively meant that a private citizen -- and Donald Trump's personal lawyer at that -- was dictating Ukraine policy.  Indeed, Giuliani was clearly Trump's main source of information on Ukraine.  When the Three Amigos' account did not agree with Giuliani's, Trump would say, "Talk to Rudy."  Volker insisted, under questioning, that he had no idea that that was a directive to talk to Rudy. 

In short, Volker made a terrible defense witness.  He made no attempt whatever to defend Trump's conduct on the July 25 call, only to dissociate himself from it.

Morrison was the senior policy director for Europe on the National Security Council.  He testified that he saw nothing illegal on the July 25 call and only notified the NSC lawyer because it was politically embarrassing, and denied having any role in subjecting the call to an inordinately high security rating.  He did also emphasize his commitment to Ukraine's defense and his disappointment in the July 25 call.  He also referred to Sondland and Giuliani as a "parallel process."  Unlike Volker, Morrison said he was aware that investigating Burisma meant investigating the Bidens, and that Trump was withholding military aid to coerce the investigation.  Like Volker, Morrison made no attempt to defend the policy on the merits.  His defense was that it was merely a bad policy and not actually illegal.

To date, no witness has defendant Trump's actions as appropriate.

Impeachment Hearings: Some Preliminary Comments

All right, on to the impeachment hearings, knowing it is rather late.  To be clear, I did not watch the hearings on TV (some of us have day jobs), but I did read the opening statements of all witnesses and listen to Lawfare Podcast recordings of their testimony, edited to ensure "no member-infighting, no speechifying, and no unnecessary fluff."

I will begin with a few comments as a lawyer. 

Comment number 1:  The hearings did not follow the rules of evidence as to what would be admissible at trial.  Normally witnesses (with the exception of experts) are limited to what they could perceive with their five senses -- what did they see, hear, touch, smell and taste.  What witnesses heard other people say is hearsay and is not admissible, subject to numerous exceptions.  Witnesses are also not allowed to testify to what thought or concluded, or what was obvious but never expressly said or seen.  Committee witnesses testified to hearsay, opinions and general impressions all the time.

This is not necessarily wrong.  An impeachment is not the same as a trial (criminal or civil).  Impeachment has been likened to an indictment and the actual "trial" taking place in the Senate.  The rules of what is admissible in an indictment are much broader than what is admissible at trial. 

There are other differences as well.  In a trial, any juror who knows the defendant, much less has a working relationship, is automatically disqualified.  A President necessarily has a working relationship with members of Congress.  That is an essential part of the job.  President Trump has also been attempting to influence Republicans in Congress (mostly the Senate) in ways that would land him in jail in an ordinary trial.  So maybe it is appropriate to offset these advantages to the defendant with broader rules of admissibility.

Comment number 2:  Witness testimony took a different form than it does in a trial.  In a trial, the lawyers begin with opening statements explaining what they are going to present.  Witnesses then come and testify exclusively in a Q&A format.  Witnesses are not allowed to make speeches.  The lawyer introducing a witness must establish the witness's account through the Q&A format and is not allowed to ask leading questions.  The opposing party attempts to undermine the witness's testimony is is allowed (though not required) to ask leading questions.*

In the impeachment hearings, the witnesses began with an opening statement.  The committee members and committee lawyers then asked questions (open and leading) based on the witness's opening statements, but often bringing up additional information not mentioned in opening.  (All members knew what to expect, since they had previously interviewed the witnesses in closed hearings).  Committee members also took some of their time to make speeches, which is never allowed in a trial.  And, as mentioned above, the witnesses testified to a good deal more than would have been allowed at trial, but also took care to mention that it was not for them to decide whether President Trump's conduct was legal or illegal, impeachable or not impeachable.

Another difference (obviously) is that at trial only one witness testified at a time.  In the impeachment hearing, there were usually two witnesses called at once -- most typically one to testify about events in Ukraine and one to testify to events in Washington.

Comment number 3:  Despite these differences, the overall approach was what a lawyer would expect.  Democrats attempted to build a case; Republicans attempted to knock it down.  In particular, Democrats had witnesses present an account; Republicans tried to punch holes in the account.  They got admissions, for instance, that the witnesses in Washington did not know in detail what was going on in Ukraine, and that the witnesses in Ukraine did not know what was going on in Washington and never heard the relevant telephone conversation.  They got the admission that military aid to Ukraine was eventually released even though no investigation was ever announced.  Republicans exposed various other gaps in the witnesses' knowledge and probed for bias.  They did not make any serious attempt at a counter-case.  And this is fine.  It leaves non-lawyers unimpressed, but it is absolutely standard practice for defense lawyers.  Defense lawyers are only required to knock down the case against their clients; they are not required to build a case of their own.

Comment number 4:  There was one major outlier, and it was not Jim Jordan.  Many people commented on Jim Jordan appearing in his shirt sleeves (it's his schtick, deal with it), or yelling and ranting, but the substance of what he said was no different from the other Republicans -- an attempt to poke holes in the witnesses' testimony.

The real outlier was Devin Nunes, who said some very strange things.  A typical trial begins with an opening statement in which the party seeking to prove its case explaining what its case is and what evidence it intends to present.  That is what Adam Schiff did.  The opposing party then points out defects in the case being made and (usually) presents it own theory of what happened.  Devin Nunes instead engaged in a political and conspiratorial rant, convincing only to the party faithful.  His questions to witnesses raised signs of conspiracy between Burisma and the Bidens that would be genuinely alarming if true.  But that fact that no one else addressed these allegations was a strong hint that there was nothing there.  I will get to this in a later post.

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*And although every academic work explaining questioning to lawyers warns them to ask only leading questions on cross examination, I have never yet seen a lawyer who actually did that.  I have also found the ban on asking one's own witness leading questions is not as rigid in practice as it may be in theory.

Mainstream Stories About Ukrainian "Interference"

All of that puts mainstream Republicans in an awkward position.  On the one hand, they don't want to be caught quoting ridiculous conspiracy theories and make fools of themselves.  On the other hand, if Donald Trump says there was Ukrainian interference in the election, then that is the party line and they must not dissent from it.  So the response of mainstream Republicans has been to take the position that:

[T]hat opinion is based on the premise that either Russia or Ukraine interfered. It could not have been both. And the critics . . . appeared to suggest that Republicans, echoing the Kremlin, are somehow denying the fact of Russian interference. . . . In reality, what Republicans were saying is that it appears that both Russia and Ukraine interfered, although not on the same scale.

The problem here is that, whatever Congressional Republicans may have been saying, Donald Trump has definitely been saying that it was Ukraine, not Russia, that was behind the DNC hack.*  In an effort to stay on the right side of both Trump and reality, Republicans cite five instances of alleged Ukrainian "interference."

One:  The current Ukrainian interior minister and a former prime minister said nasty things about candidate Trump on Facebook (in Ukranian).  The author acknowledges that the Ukrainians' hostility toward Trump was somewhat understandable, given that they were being invaded by Russia and that Trump was running on a pro-Russian platform, even to the extent of allowing Russia to annex Ukrainian territory.  In any event, it is not illegal foreign government officials to say mean things about US candidates on Facebook.  It is illegal to hack servers and distribute private, hacked e-mails.

Two:  The Ukrainian ambassador to the US published an editorial in The Hill strongly critical of Trump's pro-Russian stance.  That is not illegal either.

The Facebook posts and the editorial are examples of white propaganda, i.e., material intended to persuade, with an acknowledged author.  White propaganda is usually considered the least dangerous kind because the author is known, can be exposed as biased, and can be held accountable.  The reason political ads identify who is paying for them is because of campaign finance laws requiring our political advertising to stay in the realm of white propaganda.  And in any event, neither editorials nor Facebook posts are covered by campaign finance laws.

Three:  Ukrainian journalist and member of parliament Serhei Leshchenko published a "black ledger" of payoffs by Ukraine's former pro-Russian government to various persons, including Trump's then-campaign chairman, Paul Manafort.  Apparently Republicans recognize that it is going a bit far to ask Ukrainians to refrain from publishing a list of payoffs in their own domestic newspapers, lest it affect the US election.  The main argument, therefore, is that the black ledger may  not be genuine.  The main evidence that it is not genuine is that the Mueller investigation did not charge Manafort for the payoffs listed in the ledger.

In any event, if this account of Leshchenko's publications are accurate, that, too, fits in the category of white propaganda.  Leschchenko, it should be noted, disputes this account.  According to Leshchenko, he received and published 22 pages of the black ledger (out of 400 to 800 total), none of which mentioned Manafort.  He first learned that Manafort was named in the black ledger from an August 15, 2016 article in the New York Times.  The National Anti-Corruption Bureau of Ukraine (NABU) confirmed the story a few days later, and it is fairly clear from the article that NABU was the source.  So, a Ukrainian government bureau leaked information to the New York Times about payoffs to Manafort.  This fits in the category of "gray propaganda," i.e., material intended to persuade, from an unknown author.  That is somewhat more troubling than white propaganda.  But the use of anonymous leakers is routine in journalism and there are no laws against publishing material from foreign leakers. 

The Russian troll farm, by contrast, was black propaganda, i.e., material that actively conceals its source.

Four:  Leshchenko was reported a source for Fusion GPS doing opposition research on Trump and family's foreign business dealings.  More accurately, Nellie Ohr (wife of senior Justice Department official Bruce Ohr) mentioned that her bosses at Fusion GPS mentioned Leshchenko as a source.  Leshchenko has denied any contact with anyone from Fusion GPS and speculates they may have been referring to his public speeches or interviews.  Nellie Ohr also stated that her research was based on open sources, and that there was abundant work by Leshchenko available from open sources.  In short, Leshchenko's work was probably a source for opposition research and might have been incorporated into gray propaganda if Fusion GPS's work ever became public, which it did not.

Five:  Alexandra Chalupa.  This is based mostly on a story in Politico that Alexandra Chalupa, a Ukrainian-American Democratic consultant, researched Paul Manafort and had extensive sources, some in Ukraine.  In the process, she may have coordinated with both the DNC and the Ukrainian embassy in violation of laws against foreign interference in elections.  So at last we have something that might constitute illegal foreign meddling, although we still know very little about it, and it was certainly nothing so direct as the e-mail Donald Trump, Jr. received telling him that the Russian government was going to share damaging information on Hillary Clinton as "part of Russia and its government’s support for Mr. Trump."  Chalupa, for what it is worth, has declared herself eager to testify and clear her name.

So, mean Facebook posts, a hostile editorial, release of documents damaging to Paul Manafort, and possible assistance in researching Manafort.  Not only is this rather weak tea, it raises an obvious question.  If this is election "interference," just how common is it.  Is Ukraine truly the only government ever to criticize a US candidate for president, or to release possibly damaging information?

And the answer, or course, is that Ukraine's actions are by no means unique.  The most obvious example Binyamin Netanyahu, Prime Minster of Israel who made not secret in 2012 that he wanted Obama to lose.  Netanyahu denounced Obama's Iran policy on Sunday talk shows, warmly welcomed Mitt Romney to Israel, and even ran an ad saying, "The world needs American strength, not apologies."  This looked very much like "interference" in the US election -- albeit legal and limited to white propaganda.  And in fairness to Netanyahu, the US had often returned the favor.

Election "interference" of this kind is perfectly legal and requires no investigation.  It is generally considered ill-advised, for two reasons.  One reason is that most people resent foreign meddling in their elections and too close an association with a foreign leader is more likely to harm than help a candidate.  The other reason is that if a country's favored candidate loses, it puts the country on a bad footing with the winner.

But personal hostility is not usually enough to overcome national interest.  Obama's personal relationship with Netanyahu was frosty after the 2012 election.  Obama continued to pursue a more conciliatory policy toward Iran than Netanyahu cared for, and he continued to pressure Israel on West Bank settlements.  But the basic strategic partnership between the US and Israel remained, and certainly Obama never withheld funding from Israel's Iron Dome defense to protect it from Hamas rockets.**

And plenty of other governments made hostile comments about candidate Trump in 2016, but without the same sort of retaliation.  Fiona Hill's testimony in that regard is revealing:

I also mentioned in my deposition of October 14th that in fact many officials from many countries including Ukraine bet on the wrong horse. They believe that Secretary Clinton, former Senator Clinton, former First Lady Clinton was going to win. And many said some pretty disparaging and hurtful thing about President Trump. But I can't blame him for feeling aggrieved about them. And when we were setting up Head of State visits, remember I have a portfolio of 50 plus countries plus NATO and the European Union, we thought it prudent to collect as much as possible about comments that people might have said about the President during the campaign when he was either one of the candidates to be the nominee for the Republican party or when he was actually the candidate running against Hillary Clinton. And I'm sorry to say that awful lot and perhaps I shouldn't name them here because it will have conscience an awful lot of Senior Officials in many Goverance (ph) including our Allied Governments said some pretty hurtful things about The President. 

And I would also personally take offense at some the things that were said if I were The President. Now the difference here however is that that hasn't had any major impact on his feelings towards those countries. Not that I have seen. But I've heard The President say, and he said it in public so I'm not revealing any kind of executive privilege here that Ukraine tried to take me down. What (ph) I have seen is this ill advised Ukrainian Officials, Ambassador Charlie been removed as being the Ambassador from here. Made some pretty unpleasant statements and above all some ill advised opeds. But I could list a whole host of Ambassadors from allied countries who tweeted out, who had public comments about The President as well. And it did not affect security assistance having meetings with them. If it would there been a lot of people he wouldn't have met with.

That is an important point that no one else at the hearings seems to have made, and one that Republicans should answer if they are going to claim Ukrainian "interference."

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*Or, perhaps, that there was no hack, but that Seth Rich stole the e-mails and then Ukraine framed Russia for a non-existent hack.
**That is actually not a bad analogy.  If Obama had withheld funding from Israel's Iron Dome in an effort to pressure a new Israeli government to "investigate" Netanyahu's actions in the 2012 election, that would have been a scandal of the highest order.

Nutty Stories About Ukrainian Interference

Wow!  It's been a long time since I last posted!  OK, on to the impeachment.

I must say that one thing that surprised me during this impeachment saga is talk about Ukrainian interference in the 2016 election.  I knew that Donald Trump and some conspiracy-minded right wingers denied that Russia interfered in the 2016 election.  I had just never heard Ukraine mentioned in that regard.

Let's start with the most basic fact that no one disputes because it took place so publicly as to be undeniable.  Wikileaks published e-mails from the Democratic National Committee (DNC) and Hillary Clinton's campaign manager, John Podesta.  That is beyond dispute.  Also not seriously disputed is that goal of this was to hurt Hillary's campaign.  So, how did Wikileaks get the e-mails?

I was well acquainted with stories (many of the originating with Julian Assange, head of Wikileaks), that the e-mails were provided by Seth Rich, a murdered DNC staffer.  Such claims invariably hint, without quite saying, that Hillary then had Rich killed to silence him.* Realizing that their e-mails had been stolen, and guessing they would be revealed, the DNC then hired Crowdstrike (a cyber security firm) to fake evidence pinning the theft on a Russian hack.  Central to this claim was that the Democrats did not turn over their server to the FBI.**  In fact, there were some 140 DNC servers, and turning them over to the FBI would mean suspending operations.  Making an electronic image of the hard drives is actually superior to taking them into evidence, because the contents of the hard drives are constantly changing.  This is long-standing and accepted practice.***

So I was familiar with all this well before Trump's phone call with Ukrainian President Volodymyr Zelensky came out.  But I had never heard so much as a hint of Ukrainian involvement.  Where did that come in.  Apparently there is belief that the servers were taken to Ukraine.  The only evidence for such a belief appears to be that the founder of Crowdstrike has a Slavic name that might sound Ukrainian.  (Actually, it is Russian and he is a naturalized citizen).

I have seen many articles since the phone call came out debunking the theory.  The articles generally begin with the bizarre belief that Ukraine hid the server, explaining where the story might come from, and why it was not true.  All agree that the purpose of the theory was to clear Russia of hacking the DNC and claim that Ukraine framed Russia.  None of them address how, under this theory, Wikileaks came into possession of the DNC e-mails.  Given that Wikileaks deployed the e-mails so as to do maximum damage to the Clinton campaign, it seems reasonable to assume that someone stole the DNC e-mails and turned them over to Wikileaks.****

I could see two alternative theories here.  One is that there was no hack.  Seth Rich stole the e-mails and turned them over to Wikileaks.  The DNC, learning of the theft and fearing the stolen e-mails would come out, hired Crowdstrike to fake a hack.  And Ukraine somehow ended up with the server.  The alternate theory that I see suggested more than stated, is that Ukraine conducted the hack and then forged evidence blaming it on Russia.  But that makes no sense at all.  Since everyone agrees that the Ukrainians wanted Hillary Clinton to win, why would they turn over the e-mails to Wikileaks to deploy against her?

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*I used to think that was for fear that claiming Hillary had Seth Rich murdered was so over-the-top that proponents of the theories refrained from saying so for fear of looking ridiculous.  Now I am starting to suspect another motive.  US libel law makes it very difficult for a public figure (which Hillary obviously is) to sue.  But falsely accusing her of murdering a DNC staffer just might be enough.
**I was once so naive as to think that, while any evidence the FBI turned up could be dismissed as a "deep state" plot, the involvement of a private company would strengthen the DNC argument, but that ignores how the conspiracist mindset works.  If a private company found evidence of Russian hacking, the private company must be part of the conspiracy.
***This source is an article dated July 17, 2018 addressing the issue of the "missing" server.  The article makes no mention of Ukraine -- or Seth Rich, for that matter.
****I would take "handed over" to include handed over through an intermediary.  I suppose one could argue that someone stole the e-mails from the original e-mail thief and handed them over to Wikileaks, or that Wikileaks used the e-mails in a manner the thief did not intend.  But it seems most implausible.

Why Impeachment is Worth Doing Even if it Gets us Mike Pence.

Some people have asked what is the point in impeaching Donald Trump if you will just get Mike Pence for President. 

Others have asked what legal justification there can be for impeaching Trump only when Pence to all appearances seems to have been involved in the Ukraine scheme (along with Secretary of State Mike Pompeo and Attorney General William Barr).

The answer to that is simple.  In the end, impeachment is political, not legal.  Politically speaking, it just is not possible to impeach the President, the Vice President, the Secretary of State, and the Attorney General.  The idea is simply too absurd to consider, especially since that would make Nancy Pelosi President.

Donald Trump is clearly the evil genius behind the whole Ukraine scheme. 

Donald Trump has also given us more than grounds to remove him under the 25th Amendment (for removing a President unfit for office).  Mike Pence has not.  Donald Trump is becoming increasingly unglued under stress and may burn the whole thing down.  Mike Pence inspires no such fears.

And finally, I will quote Matthew Yglesias on why everyone across the spectrum should vote for Hillary Clinton, with just a few nouns and pronouns changed:

[Mike Pence], for all [his] flaws, has demonstrated a basic level of competence. [He] understands how policy and government work. [He's] not openly racist; [he] hasn't encouraged street violence. There's no risk that [he] would disrupt the international order or cause an economic crisis out of pique. 

That's a really, really low bar. But it's the only bar [he] has to clear in this contest.

And a Brief Comment on Elizabeth Warren's Campaign

Donald Trump has so many faults, and is such a master of projection, that almost anything he accuses his opponent of, he is guilty of by a factor of many.

During the last election, he accused Hillary Clinton of mishandling classified information, evading disclosure laws, and using her foundation as a slush fund.  Meanwhile, he had a longstanding history of using his foundation as a slush fund and evading disclosures of all kinds.  The only reason he had never mishandle classified information was that no one was so crazy as to allow him access to it.*  Conor Friedersdorf wisely commented:

Absurdly, many seem to have convinced themselves that Trump, who won’t release his tax returns, as every presidential candidate has for decades, will be better on transparency; that a man whose finances we don’t even know, who used his charitable foundation to illegally funnel money to an attorney general investigating him for fraud, will be better on conflicts of interest; that an erratic man who blurts all manner of things out on Twitter and has shady ties to Vladimir Putin will somehow be a more trustworthy guardian of classified information.

He denounced Hillary Clinton as "Crooked Hillary."  At the same time that Trump University was facing a multi-million dollar fraud lawsuit.  Any number of investigations into Trump Enterprises has raised evidence that it was based on fraud.  He has also run a series of resorts and steered business to then while serving as President, abused classification procedures to hide politically embarrassing phone calls, intervened to obtain security clearances for cronies, and blurted out code-word level information to Russian delegates.  Also, the latest scandal has revealed that State Department employees involved were sending messages on private servers, which the last election established as the most heinous offense and American can commit.

In the current election, Joe Biden, the current front runner, has been accused of having retrograde attitudes on race and being too touchy-feely with women.  Somehow this is supposed to make us prefer an open race-baiter who brags about routine sexual assault.  And now Trump is denouncing Joe Biden because his son used his family name to obtain business opportunities. 

Kamala Harris has been denounces as an overzealous prosecutor.  Amy Klobuchar has been denounced as an abusive boss. 

But of Elizabeth Warren, Team Trump has finally come up with accusations that can't be turned against him.

It seems a safe assumption that Trump has never sought to benefit from affirmative action by claiming to be anything other than white, and that he has never alleged (truly or falsely) that he lost a job for being pregnant.

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*Some wag commented that Trump was such an obvious security risk that the only way he could ever get clearance was to be elected President.

Why Impeachment is Still Going to Be Partisan

Wow!  Developments on the impeachment have been happening very fast, faster than I could keep up.  My first thought on hearing that a whistle blower had something very inflammatory to report, on someone who was not part of the intelligence community was that it had to be either Donald Trump or William Barr.  Either Trump had done something wildly corrupt, or Barr was doing something abusive in his investigation of the Russia investigation.

The next report was that it was about a phone call with a foreign leader.  The Washington Post listed five known communications with foreign leaders in the five weeks before the whistle blower letter.  The only one that was a phone call was with Vladimir Putin, purportedly about wildfires in Siberia.  So I guessed that it was yet another discussion about how Russia could evade sanctions. 

And just to be clear, plotting with Putin to evade sanctions would be impeachable.  The sanctions were a law passed by Congress.  While agitating for the repeal of a law passed by Congress, or challenging it in court as unconstitutional are perfectly legitimate partisan politics, secretly plotting to evade such a law is as clear and impeachable offense as one could ask for.*  Impeachment in such a case would not look partisan.  The sanctions were passed with the overwhelming support of both parties.  And I thought even Republicans might be persuaded to support impeachment, partly because it was their law as much as the Democrats', and partly because, while Republicans might be willing to tolerate Trump shooting someone in the middle of Fifth Avenue, I did not expect them to tolerate an insufficiently aggressive foreign policy.

But all that is moot.  The phone call turned out to be with the President of Ukraine, seeking evidence of dirty dealing by Joe Biden.  And to Democrats this was a bridge too far.  Up till then, Democrats had held out the hope of getting rid of Trump in the next election.  But that presupposed that the next election would be free and fair.  If Trump was plotting with a foreign government to subvert the next election, suddenly events took an altogether different shape.

But it can't possibly look that way to Republicans.  To Republicans, impeaching Donald Trump for looking for foreign dirty on his Democratic rival -- even fake foreign dirt -- is bound to look partisan.  And impeaching him for efforts to win the next election -- even dishonest efforts -- is not going to hold much appeal.

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*And, yes, I do think this means that GWB's policies of indefinite detention, torture, and warrantless surveillance were impeachable.

In Defense of the Foregoing

That being said, I can see some defenses of our general ideas about what is and is not impeachable.

First of all, every country in the world does sordid and bloody things in foreign policy.  That are so many sordid and bloody things happening in the world that doing sordid and bloody things is unavoidable.  Civil wars -- even most international wars -- are not fought between good guys and bad guys.  They are fought between bad guys and other bad guys.  The most clear-cut ones are fought between bad guys and worse guys.   No matter what side you take, you will have unsavory allies.  And staying out means passively allowing the worst to happen.

It is also true that every country shows more concerns for its own citizens than for foreign nationals.  And that the U.S. cannot possibly admit everyone who wants to come here.  It is also true that most people assume that in a democratic country, and leader who harms fellow-citizens will be punished by losing the next election.

There is also the matter of upholding the rule of law.  The law is not always clear.  The executive has some, but not unlimited, discretion in interpretation and enforcement.  Donald Trump's Muslim ban was vile.  But it was not expressly illegal until the courts held that it was, and even then it was salvageable with some modification.  A lot of his other actions to limit immigration are dubious at best and have been challenged in court.  If a court holds any of these actions illegal and Trump persists, then his actions will be impeachable.  The same goes for challenges to Obamacare. It is clearly legal to attempt to pass legislation repealing Obamacare.  The penalty will be paid at the ballot box.  (That is why the attempt ultimately failed).  It is also legal to challenge legislation in court, even if the challenge is so weak as to be frivolous. 

Challenging or stretching the law is one thing.  Openly breaking it is another.  Trump almost certainly committed an impeachable offense in telling border security officials to break the law (seizing property to build the wall, automatically denying all asylum requests without hearing) and promising a pardon if they are prosecuted.  But it may be difficult to persuade the officials in question to testify against Trump, and any impeachment action will look like an attempt to criminalize policy differences. 

And finally, how the elite treat each other has a tremendous impact on the general population.

To take an extreme example, a country in which deposed rulers are killed will give rules an incentive to hold onto power at all costs.  It will lead the ruler to spend immense amounts on internal security at the expense of everything else.  It will lead to civil war any time the leader sees his power as threatened.

A country that routinely exiles deposed rulers will create a strong incentive for leaders to loot the treasure and spend a lot of money on foreign real estate to prepare for a future exile.

To move into more realistic territory, a country in which elections are rigged to ensure that the same party always wins is bound to become corrupt and sclerotic, in the manner of Mexico in the heyday of the PRI.  Parties that find themselves systematically shut out of power lose their respect for the democratic process become radicalized in dangerous ways.

A country that is able to subvert freedom of the press is one that destroys an important method for holding leaders accountable and allows corruption to flourish.

A country that makes economic success depend on political favor becomes systematically corrupt -- crony capitalism.  A leader who treats his office as an opportunity to make money is one who has no regard for the public good.

All of these lead to serious problems.  But, it would appear, these problems do not arise overnight.  I feared the results of a Trump presidency, but there is simply no denying that nothing disastrous has happened, at least not to U.S. citizens.  But the integrity of our governing institutions is being undermined, and sooner or later, things will start going down hill for the rest of us.

A Disturbing Thought on Impeachment

I whole-heartedly agree with people who say that any impeachment of Donald Trump must be on narrow grounds.  We should stick to clearly illegal or unconstitutional behavior and not impeach over mere policy differences.

And yet, the thought of what is an impeachable offense and what is a mere policy difference is disturbing.  Consider:


Mere policy differences, not impeachable:

• Precipitously withdrawing our troops in Syria and leaving the Kurds to be slaughtered.
• Supporting Saudi Arabia's murderous war on Yemen.
• The Muslim travel ban.
• Pressing for a no-deal Brexit with all resultant damage to the British economy.
• Separating parents and children at the border, and detaining asylum seekers until hearing.
• Requiring asylum seekers to remain in Mexico while their applications are processed.
• Attempts to role back protections for Dreamers.
• Gross incompetence in responding to Hurricane Maria in Puerto Rico.
• Supporting a repeal of Obamacare that could have stripped tens of millions of people of their health insurance.
• Arguing for the courts to declare Obamacare unconstitutional, strip millions of their health insurance, and take protections from people with pre-existing conditions.
• Seeking to precipitate a fiscal crisis that will force massive cuts to Medicaid, Medicare and Social Security.
• Ending environmental regulations and raising the likelihood that the planet will cook.
• Nor would it have been impeachable if Trump had blundered into a war with North Korea and ended up with West Coast cities being nuked.

Things that might be impeachable:

• Diverting funds from military projects to build the border wall.
• Telling immigration officials to disregard laws and he would pardon them.
• Abuse of anti-trust laws to punish media companies that criticize him.  
• Attempts to fire Robert Mueller and other officials investigating Trump's ties to Russia.

Impeachable offenses:

• Use of federal office the profit Trump Enterprises.
• Possible foreign (and domestic) policy decisions based on personal financial interests.
• Basing foreign policy on other countries' willingness to assist him against political rivals.
• Stonewalling all attempts at Congressional investigation.

Is it overly cynical to say that what our ruling elites do to ordinary citizens, and especially to foreigners, is a mere matter of policy, while what our ruling elites do to each other is impeachable?

On Impeachment

I don't think this latest uproar will change anything.  Certainly it does not change my views on impeachment.

My views on impeachment are this.  An impeachable offense is whatever public opinion says it is.  Public opinion has to mean not just a majority, but a super-majority, including a sizable portion of the President's party.   In today's hyper-polarized atmosphere, Republican voters would not support impeachment if Trump shot someone in the middle of Fifth Avenue.  Republicans in Congress are not willing to defy their constituents on this matter.

Furthermore Nancy Pelosi's reluctance to impeach is not just based on the knowledge that the Senate wouldn't vote to convict even if Trump shot someone in the middle of Fifth Avenue.  It is based on the knowledge that so far she doesn't even have enough Democratic votes to sustain an impeachment.  I am honestly at a loss as to what purpose it would serve to bring articles of impeachment only to see them fail.

My greatest concern about impeachment is not just that Republicans will see it as purely partisan, but that they will retaliate by impeaching the next Democrat to be elected President.  Democrats will see little choice but to retaliate in kind, and impeachment will become a routine matter of partisan politics.  I would rather see impeachment become impossible than see it degraded to a routine matter.

Nonetheless, I have changed my mind about an impeachment inquiry.  I have always favored aggressive investigation of Trump's corruption, business dealings, etc.  His response has been to stonewall the proceedings, refuse to produce documents, claim executive privilege for all witnesses, etc, even in the face of clear law requiring him to cooperate.  His argument, supported by William Barr, is essentially that Congress has  no authority to hold the President accountable, except through impeachment.

This being the case, I don't see Congress has much choice but to declare an impeachment inquiry.  No floor vote is required to do so.  A member simply introduces an impeachment resolution.  Members introduce impeachment resolutions all the time.  Most go nowhere.  The Speaker then assigns the resolution to a committee to investigate.  If the committee approves the resolution, it goes to the floor for a vote on whether to impeach.

I therefore recommend that members of the House introduce impeachment resolutions, not just on Trump's dealings with Ukraine, but on the numerous other matters that require investigation.  Nancy Pelosi should then refer all these matters to the appropriate committee to investigate and see if there is an impeachable offense.  Of course, Republicans will cry foul.  They will complain that there is no evidence of impeachable conduct and that Democrats are abusing the process to conduct routine investigations.  The Democratic response is obvious.  We don't know if there is anything impeachable going on because you-know-who is stonewalling us.  There may or may not be anything impeachable, but until we pry his hot little hands loose, we really don't know.  Then investigate, see if you find anything scandalous enough to turn public opinion in favor of impeachment.  (I will bet no, see above).  If not, at least some of what you find may be useful in the upcoming election.  And no, there is no point crying foul about that.  Republicans in Congress spent four years investigating Benghazi in hopes of finding something to hurt Hillary Clinton in her upcoming run for President.

Of course, this carries the risk of a different kind of retaliation.  It means that Republicans will call every investigation of a Democratic President an impeachment inquiry.  It will be unnecessary because I really do not expect a Democratic President to stonewall in the way that Trump is doing, but Republicans will feel the need as a matter of politics and Democrats will doubtless respond in kind.  (No guarantee against future Republican Presidents stonewalling in Trumpian manner).

But you know what?  I can live with that.  I don't think it will hurt us too much to routinely call ordinary investigations impeachment inquiries, so long as actual impeachment resolutions only occur for serious misconduct.

Final Thoughts on Zimblatt

Zimblatt's book also sheds some light on a phenomenon we have been observing recently in the U.S. -- the tendency of a defeated party to respond, not by moderating, but by doubling down.  We saw that with Republicans in the wake of their defeat by Barrack Obama (and, before that Bill Clinton), and now by Democrats in the wake of their defeat by Donald Trump. 

We see the same thing happen to British Conservatives in the wake of their 1906 defeat and to the German DNVP in the wake of their 1928 defeat.  Perhaps one can pose a theory that it is a sign of political tranquility for parties to respond to defeat by moderating to win back lost voters, and a sign of political crisis for parties to respond to defeat by radicalizing.  But Zimblatt does not research this topic and neither have I.

An alternate theory is that it is normal and expected for a political party to respond to defeat by doubling down.  After all, defeat means the loss of moderate voters, so only the more ideological voters remain.  This theory would also hold that a party with a very narrow majority will be more ideological and less inclined to compromise than one with a broader majority.  Zimblatt offers a British example.  The Liberals lost their majority after the 1910 election and were able to hold onto power only by forming an alliance with the Irish Party.  In order to do so, the Liberals had to make excessive concessions to the Irish, promising home rule to all of Ireland, very much against the wishes of the Protestants in the North.  With a larger majority, the Liberals might have made the less controversial offer of home rule that excluded the North.

We see the same phenomenon with the Republican Party in the U.S.  A classic example would be the first election of GW Bush.  News media suggested that, since he had such a narrow victory (having lost the popular vote and holding a razor-thin margin in Congress), he should govern as a moderate.  But what they failed to take into account was that with such a narrow margin, the Republicans could not afford even a small number of defections and therefore were in no position to moderate or compromise.  Likewise, the narrower the Republican majority today, the more it has been dependent on the dogmatic Freedom Caucus, and the more ideologues have a veto.*

Finally, there is a deeply disturbing aspect of Zimblatt's theory of the value of conservative parties.  He argues that the key to a successful democratic transition is the creation of a strong conservative party, representing the interests of the pre-democratic ruling elite, that can find appeals cutting across class lines to the broader public and be competitive in elections.  These appeals tend to be appeals to social conservatism, to traditional values, and to national greatness.

But there can be darker things at work, too.  The authors focus on electoral democracy (majority rule), rather than the distinction between electoral democracy and liberal democracy, i.e., majority rule with protection for the rights of the minority.  And the minority here means not just the losers of the last election, but permanent minorities of excluded identity groups.

Simply put, one form of cross-class appeal the old conservative party can find is in scapegoating some minority identity group.**  As I understand it, that is what the landed aristocracy ultimately did in the post-Reconstruction U.S. South.  And there are traces of that in the examples Ziblatt gives in Britain and Germany. 

In Britain, one of the cross-class appeals the Conservatives found was in matters of religion.  Most of the Church of England's old privileges were gone by then, but Conservatives did find an identity appeal to Church of England members while the Liberals appealed to dissenters.  I don't think appeals to a common identity are necessarily dangerous -- so long as they don't include denying rights to outsiders.  And when Conservatives emphasized denying home rule to Ireland -- well, one can see a definite danger there.  The danger was rather more obvious in Germany.  All attempts by the German Conservatives (pre-WWI) or DNVK (post WWI) to expand their appeal seemed to mean cutting a deal with anti-Semites and adopting some measure of anti-Semitism that party leaders disliked but could not get rid of. 

So this may be the answer to the defect in Zimblatt's theory that I pointed out before.  A successful conservative party, representing the interest of the pre-democratic ruling elite has to find some sort of cross-class appeal to a broader public.  This cross-class appeal may lie in a shared identity with a large section of the public.  But ties of shared identity can easily descend into bigotry.  Perhaps what Zimblatt is arguing is that the delicate task of a democratic conservative party is to hold its members together in a sense of common identity while holding the outright bigots in check. 

Thus the British Conservative were able to appeal to a sense of solidarity with Irish Protestants and their legitimate fear of their fate in a Catholic Ireland, but without letting those fears run riot and define the party.  A weaker party might have allowed the Irish Protestant fears to take over the party and turn it into an anti-Irish, anti-Catholic band of bigots.  And he may be arguing that a strong German Conservative Party might have made itself over into a rural party, championing the traditional culture and religion of the German countryside, low land taxes, pro-agriculture trade policy and agricultural improvements without yielding too much to anti-Semites.  Like all counter-factuals, we will never know.

But I am confident of this.  People who believe that the success of democracy depends on the absence of identity groups are living in a fantasy world.  Identity groups will always be with us.  Even South Korea, one of the most ethnically uniform countries in the world, has important splits between Christians, Buddhists, and the non-religious.*** 

Zimblatt has written another book entitled How Democracies Die that addresses contemporary failures of democracy, and the issue of identity in US politics.  I have begun but not finished it.  I intend to review it here at a later date.





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*This has served to block compromise on ordinary legislation.  On the other had, for must-pass items such as passing some sort of budget or raising the debt ceiling, it has forced non-Freedom Caucus Republicans to make an alliance with Democrats and therefore served to moderate.
**The sources I link offer another alternative as well.  The ruling elite can also form an alliance with minority identity groups and offer them protection from the majority, thereby forming a liberal autocracy.  That has frequently been done.
***Japan may be a rare example of a country without significant identity splits.

My Biggest Criticism of Zimblatt

Clearly I have voiced criticisms of Zimblatt's work.  I find it too full of charts, graphs and tables for the general public. I find that it assumes the reader knows a great deal more about 19th and early 20th century British and German politics that one would expect of any American who is not a professional historian, while its treatment of other countries is superficial in the extreme.

But these problems are dwarfed by a deep contradiction that lies at the heart of the entire book.  Zimblatt makes clear that the threat to democracy lies on the right.  But who are these "right" that he speaks of?  Sometimes the threat appears to come from the pre-democratic ruling elite, fearful of giving up its privileges.

But other times, the threat seems to come from somewhere else -- from the right-wing grassroots, from interest groups and activists on the right, while Zimblatt sees the role of the pre-democratic ruling elite as reigning them in.  So who are these right-wing grassroots, these interest groups and activists?  Zimblatt never exactly says.

Some of what he means can be inferred from his two examples -- Britain and Germany. Although Zimblatt never says it in so many words, the British crisis that followed the defeat of the Conservatives in 1906 was actually two crises.  One was a crisis of the old landed aristocracy seeing its class privileges threatened by redistributionist taxation and the beginnings of the welfare state.  The other was a crisis regarding Irish home rule.  Irish Catholics demanded home rule for the entire island, while Irish Protestants in the North feared for their future in a Catholic Ireland and opposed the project.  One one side of the political divide was the Conservative Party -- the party of the landed aristocracy and the social conservatives it was able to attract -- and the Irish Unionist Party,* which consisted of Irish Protestants opposed to home rule.  On the other side were the Liberals and nascent Labour Party creating the beginnings of the welfare state, and Irish Party -- a party of Irish Catholics seeking home rule.

The crisis over a landed elite fearing loss of its prerogatives came first, over the years 1906 through 1911.  It was characterized by clear violations of established norms, but not by extra-legal much less illegal actions.  Established custom at the time allowed the House of Lords some obstructive or delaying role, but ultimately did not allow it to block legislation passed by the House of Commons, especially spending bills, which threatened the House of Commons' power of the purse strings, a power going back to the Middle Ages.  But the House of Lords blocked or significantly changed many (though by no means all) of the proposed legislation and vetoed a spending bill that would have established a welfare state supported by progressive taxation -- the first such veto in two centuries.  The Liberals responded in 1911 by passing the Parliament Act which ended the House of Lord's authority to veto legislation (although it retained authority to delay).  The House of Lords submitted only when the House of Commons persuaded the King to threaten to create enough new Lords to pack the House. 

At this point the crisis escalated, but the issue changed from economic and budgetary issues to Irish home rule.  Zimblatt suggests this may have been because the Conservatives were able to poll their voters and determine that blocking the Liberals' economic agenda was not a winning issue, but that home rule for Ireland was.  And certainly from then on, Ireland became the issue.  This was at least in part because the Liberals lost their majority in Parliament.  In order to hold onto power, they had to form a coalition with the Irish Party and offer home rule to all of Ireland -- a thing unacceptable to the Protestants in the North, or the public opinion in general.**  Opposition moved from mere norm violation to the extra-legal, as Conservative leadership began to use the language of violence and revolt, and Irish Protestants began forming their own radical wing, complete with private militias. Crisis was precipitated when 57 out of 70 mid-level officers in North Ireland resigned rather than implement the Liberal government's decision, an attempt by the military to pressure the civilian government on policy and clear threat to civilian control of the military.  This shock, along with the brewing crisis in Europe that became WWI, persuaded all parties to reach a compromise, and the crisis passed.

So, in this case it would appear that the right wing grassroots consisted of militant Irish Protestants fearing for their fate in Catholic Ireland.  That the main issue shifted from economic issues to Ireland showed on the one hand, that the old landed aristocracy was willing to concede some of its privileges under democracy, and that the Conservative Party had developed a strong enough party and electoral elite to see electoral success as more important than upholding aristocratic privileges and thus be willing to yield on the former issue in favor of one with more public support.  On the other hand, it showed that the Conservative Party had dangerously radical elements in the form of militant Irish Protestants.  Though Zimblatt calls these the right wing grassroots, in the sense of not being part of the elite, they were a small portion of the total population, exercising influence all out of proportion to their numbers. 

Zimblatt goes on to discuss the Conservative Party during the interwar period, and how British democracy remained solid even as democracies fell across Europe.  Conservatives encouraged the Labour Party, feared by many as dangerous radicals, to participate in the political process, both hoping to split the left and fearing that Labour would otherwise be radicalized.  In this, they were opposed by two right-wing media moguls, Lord Beaverbrook and Viscount Rothermere (consider them the Rupert Murdochs of their day), but the strong party apparatus was able to contain both.  The author also suggests that fascism did not arise in Britain because a strong, cohesive conservative party left no space for the far right.

And then, of course, there is Germany.  Zimblatt describes not only the weakness of Germany's Conservative Party in the 19th Century, but also ill-fated search for allies, which left it unable to contain activists and interest groups.  These took two main forms -- the Agrarian League, and anti-Semites. 

The Agrarian League might seem like a promising opportunity for the landed aristocracy to broaden its appeal.  The landed aristocracy, after all, was an agricultural interest.  While there are obvious differing interests between great aristocrats and small holders, they have common interests as well, such as keeping land taxes low, pursuing a pro-agriculture trade policy, and protection from the various risks that plague agriculture.  The Agrarian League was both territorially diffuse and hierarchically centralized.  In other words it provided the broad base and strong organization that the Conservatives were so sorely lacking.  Why couldn't the Conservatives remake themselves as a farmer's party?  The problem was that the Agrarian League was not a political party, but an interest group.  It had no interest in running as a party, but only in providing support to parties that favored its program.  Better organized than the Conservative Party, the Agrarian League could regularly bend elected officials to its will.  It also had unpleasant anti-Semitic, anti-urban and militaristic undertones.  Zimblatt describes this as capture of a party by an interest group, pushing it to the right of the monarchy and the old pre-democratic order.

The Conservative Party also tried outreach to urban lower middle class groups of conservative outlook.  These tended to be demagogic and anti-Semitic in ways that the leadership found distasteful but was unable to stop.  Zimblatt comments that party activists, whether of the left or right, are more ideologically extreme than election-minded party leaders.  This would imply that activists are also more extreme than the general public, even as they (often) regard themselves as the true voice of the people.  Hence his emphasis on the need for a strong, electorally-minded party leadership to reign in the activists.

Fast forward to Weimar.  As discussed before, Zimblatt sees the true downhill turn for the Weimar Republic, not as the Great Depression, but as the 1928 election in which the DNVP (the successor to the German Conservative Party) lost and seemed to hopelessly fragment.  Always skeptical of the Republic, the DNVP responded to its defeat by radicalizing, by seeking more to enforce ideological purity than to start winning elections again.  The process ultimately led to Germany's conservative parties complete self-destruction and the rise of the Nazis to take their place.

Alfred Hugenberg

Although he never expressly says so, Zimblatt appears to see the single individual most responsible for the failure of the Weimar Republic as neither Hitler nor Hindenburg, but someone most Americans have never heard of -- Alfred Hugenberg.  Hugenberg was a member of the board of directors of Krupp Enterprises, a co-founder of the National Industrial Association, and a media magnate.  Hugenberg worked in cooperation with Heinrich Class, head of the Pan German League.  Hugenberg used his media empire to pressure the DNVP to move right, while Class built grassroots activists to pressure in the same direction. 

Zimblatt contrasts the DNVP as a weak party with the Social Democrats as a strong party.  The Social Democrats were funded mostly by membership dues and had their own party newspaper.  The DNVP lacked either its own base of funding or its own newspaper.  Hugenberg supplied both.  He used his wealth to finance the party and to decide where to channel funds. (Zimblatt estimates he may have provided 30% or more of the DNVP's funds).  He used his newspapers to shape public opinion, particularly against moderation in the party.  He planted his own supporters as local party chairmen to direct local party organizations and used his wealth to decide what candidates to finance.  Following the 1928 defeat, Hugenberg was able to appointed DNVP chairman and used his position to purge the party moderates.  And just as the pre-war German Conservatives ended up to the right even of the Kaiser, Hugenberg's DNVP ended up to the right of Hindenburg.

The result was a disaster for the DNVP -- its share of the vote fell from 14% to 7% in the next election -- but a success for the radical right outside the DNVP.  Zimblatt sees the inability of Germany's leading conservative party to compete as a major factor in the neutering of parliament and the switch to Hindenburg's narrow presidential government.  German conservatives were unwilling to compete in parliamentary government, knowing that there was no way to make a coalition that would exclude the Social Democrats.  (The need on the German right to exclude Social Democrats from any governing coalition is not explored; Zimblatt simply takes it as a given).

As the DNVP shrank, the Nazi Party filled the void on the right that it had left.  Given that Hugenberg was purging the moderates and pushing the party in an ever more radical direction, this is a surprising development.  Zimblatt explains it by saying that Hugenberg made right-wing radicalism respectable and, particularly, by allying himself with the Nazis, he made the Nazis respectable. 

Yet this is a strangely unsatisfying account.  I am quite willing to concede to Zimblatt that the Nazis came to power because Germany had no strong democratic conservative party to block their way.  But he never addresses the obvious question.  Who were the Nazis?  Where did they come from?  It makes sense to say that the Nazis arose because the DNVP was too weak to stop them, and that Hugenberg's attempt to purge the party led to mass defections to the Nazis.  But why, if Hugenberg was purging the moderates, did they go over to the Nazis instead of a more moderate alternative?

And so we see the basic flaw of Zimblatt's theory.  He may well be right that ruling elites will only allow a democratic transition if they have a strong party capable of competing in democratic elections.  He may be right that in the absence of a strong, competitive party, pre-democratic elites will abort the process.  (He is probably right in calling Egypt a recent example). 

But at some point the threat ceases to be from pre-democratic elites and becomes a threat from right-wing activists at the party grass roots.  The role of a strong democratic conservative party stops being to allow the old ruling classes to protect their interest, and becomes to reign in the grassroots activists and channel dissent through democratic channels.  But, once again, that can only raise the question of who these right-wing grassroots activists are.  Where do they come from?***  How numerous are they compared to the general population?  And if the electorally-inclined party leadership is really closer to the general public, how do these activists get enough of a following to be dangerous.  And why is this so strongly a right-wing phenomenon? 

Zimblatt conflates two separate and distinct threats to democracy.  Both threats are on the right, and the remedy for both is a strong, well-disciplined conservative party.  But their origins and the nature of the threat posed are different.  And Zimblatt leaves a major hole in his theory by not addressing the distinction.

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*Mild expression of frustration at the author using "Conservative" and "Unionist" more or less interchangeably without explanation.  
**And, interestingly enough, this issue remains critical to this day and is the chief obstacle to any proposal for the Brexit.
***He gives a reasonably satisfactory answer in Britain -- they were Irish Protestants legitimately fearful of their fate in a Catholic Ireland.  But we are left without a clue in Germany, where such "activists" were vastly more numerous and powerful.

How Does the United States Fit into Zimblatt's Formulation

Zimblatt says little about democratic transition in the United States, other than to say that the South lagged the rest of the country.  Certainly it is true that the United States had regular elective government going back to the earliest colonial times, and had no landed aristocracy outside of the the South.  But true democracy in the form of universal (manhood) suffrage and mass parties did not arrive until the 1830's.*

Furthermore, the United States from the start had a very decentralized government and no single governing elite.  Instead, we had two governing elites -- the landed aristocracy of the South and the commercial/industrial elite of the North. This also meant that the whole right-left spectrum did not exactly apply to U.S. politics.

Treating conservative and right wing to mean upholding the status quo of power (which, for the sake of brevity, I will call the SQP) and liberal or left as challenging the SQP, such labels did not apply well in the US because there was not a single SQP.  Rather, there were two SQP's -- one based on land and slave ownership in the South, and one based on trade, commerce and (later) industrial development in the North.  The United States also had two political parties.  One -- called the Republican Party in Jefferson's time, the Democratic Republican Party in Jackson's time, and finally just the Democrats -- was the party that upheld the SQP South and challenged the SQP North.  Opposed to it were a series of parties -- first the Federalists, then the National Republicans, and then the Whigs -- that upheld the SQP North.  Until the rise of Republican Party in the 1850's, no one challenged the SQP South, and even the Republicans originally did not intend to challenge the Southern SQP, but merely to contain it.

In the earliest years of our Republic, the Federalist Party held power, and did not challenge the SQP North or South.  The election of Thomas Jefferson in 1800 posed a challenge to the SQP North, and Federalists responded with the sort of hysterical overreaction that ruling elites so often show to even a mild challenge to their dominance.  First they attempted to block Jefferson by making Aaron Burr President instead.**  New England contemplated secession.  While the Federalist grudgingly acquiesced for a time, first Jefferson's embargo and then the War of 1812 under Madison led New England to near-revolt and serious discussions of nullification and secession.

The crisis ended with the end of the war, and the Federalist Party largely died out as a party of traitors, while the Republicans adopted the best parts of Federalist platform. An Era of Good Feelings ensued.  That era came to an end with the rise of Andrew Jackson and his challenges to the SQP North.  When Jackson won an electoral and popular plurality but not majority in 1824, Henry Clay and John Quincy Adams were sufficiently alarmed that they jointed forces to choose Adams as President, with Clay as his Secretary of State.  (If no candidate wins a victory in the Electoral College, Congress makes the decision).

In 1828, Jackson swept to power with a strong majority that could not be denied, posing a serious challenge to the SQP North.  And Northern elites grumbled but acquiesced, splitting the Republican Party into Democratic Republicans (Jackson supporters) and National Republicans (Jackson opponents).  The National Republicans soon began calling themselves Whigs, suggesting that Jackson was behaving like a monarch.  And, like British Conservatives, Whigs learned to form a mass party and to compete electorally, accepting defeat so they could live to fight another day.

While I, like many others, have referred to "mature" democracy, I have never been able to define the term, except in age. Zimblatt offers a useful definition of "mature" democracy.  A democracy is "mature" when the party of the SQP has lost an election, accepted its defeat, and learned to compete as democratic party.

By this definition, Athens became a "mature" democracy when the populist Themistocles banished the conservative Aristides, and Aristides submitted without complaint.***  And the Northern United States became a "mature" democracy when it accepted Andrew Jackson as President.

The South was a different matter altogether.  While Jeffersonian and Jacksonian politicians posed as champions of the common man against northern elites, they were themselves champions of the SQP South and were able to cover themselves with democratic glory only because no one challenged the southern SQP.  With the rise of the Republican Party in the 1850's, the South finally saw its SQP challenged and reacted with a hysteria that dwarfed any hysteria over Jefferson.  Secession and civil war ensued, and reconciliation was ultimately based on an agreement that Republicans would no longer challenge the SQP South.  (Democrats went right on challenging the SQP North). This arrangement remained in place until the Civil Rights Movement and the civil rights legislation of the 1960's.  So the South did not become a "mature" democracy until the 1960's -- and maybe not even then.  Many trace the current political crisis to the Democrats' decision to challenge the SQP South over 50 years ago.

So why has the South been so uniquely resistant to allowing any sort of challenge to the SQP?  Some people (I can imagine David Hackett Fischer among them) would argue that the culture of the South is particularly resistant to the sort of challenge to the SQP, compromise, and institutional disagreement that are so vital to a mature democracy.  Others would say that challenges to the SQP North never challenged its racial SQP, and that the issue of race is paramount, everywhere and always.  And I will simply say that it will take a great deal more knowledge and study that I have at hand to reach even a tentative answer on the matter.

Next: My biggest criticism of Zimblatt

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*Although political parties were a British invention, mass parties originated in the United States.
**The Electoral College at the time made the winner President and the runner-up Vice President.  To avoid having political rivals in the two offices, Jefferson and Burr ran in tandem and won equal numbers of votes.  There was no rule at the time to determine which of them we President and which was Vice President, even though everyone knew that Jefferson was at the top of the ticket.   
***Aristides was one of a series of conservative leaders who accepted temporary exile without complaint.  Kimon and Thucydides were also banished and submitted without complaint.  Over time, the Athenians learned to get along without exiling defeated leaders.

Zimblatt Beyond Britain and Germany

Zimblatt focuses on Britain -- strong conservative party, successful democratic transition -- and Germany -- weak conservative party, failed democratic transition.

But, of course, these are only two example.  His final chapter expands his horizons to democratic transition in other countries.  In particular, Zimblatt focuses on the importance of forming a strong conservative party before democratizing. He cites Sweden, Denmark, Belgium and the Netherlands as examples of countries with strong conservative parties that made a smooth, untumultuous, and successful democratic transition.  By contrast, Spain, Portugal and Italy failed in the transition.  France is an intermediate category. 

Spain is a particularly interesting example.  Although Zimblatt seems to support my hypothesis that generally the danger lies on the right, there are exceptions.  Spain is an interesting example.  In Spain, the right wing, lacking a strong, democratic political party, instead rigged the system in such a way as to systematically shut out the left.  The left responded by becoming radicalized and increasingly dangerous and authoritarian, leading the right to have increasingly legitimate fears and resort to ever more extreme methods to exclude the left.  This may be in line with my hypotheses both that out-of-control polarization is a major cause of democratic downfall, and that the left is most dangerous in a government that is really a right-wing oligarchy merely masquerading as a democracy.

Spain's example is in contrast to Britain, where the Conservatives recognized that the Labour Party must be allowed to be competitive in elections or it would become radicalized, and it worked.  The British Labour Party became an eminently respectable party that followed the democratic rules of the game.  This would suggest that what is needed is not just a party of the right that can win in fair elections, but also a party of the left that can win elections, and that systematically shutting anyone out of power is the road to ruin.  On the other hand, Zimblatt makes clear that 19th century German conservatives systematically shut out the left-wing Social Democrat.  And while some of the Social Democrats became radicalized and ultimately formed the Communist Party, it also remained true that the majority continued to respect democratic norms long after everyone else had abandoned them.  That really needs some exploration.

Zimblatt's account of France is maddeningly vague and truncated.  He treats France as a stable democracy from 1879 to 1918.  (No mention of the Dreyfus Affair, which threatened the Third Republic in the 1890's, but ultimately blew over).  In 1919, the right won a parliamentary majority, which it had rarely done since the 1870's.  Again unaddressed, if a conservative party that can win is essential to the survival of democracy, how did the Third Republic survive shutting out the right for so long?  And why did the Third Republic start coming unglued after the right came back to power?  Why did the right endure being shut out of power for so long, only to turn against the Republican when normal alternation of power resumed?  Any serious analysis would require considerably more space than Zimblatt offers.
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Zimblatt also makes some interesting comments about present-day democratic transitions.  In 19th century Europe, the greatest foe of democracy was the landed aristocracy -- the pre-democratic ruling class, reluctant to lose its power.  Landed aristocracies are no longer a serious factor much of anywhere these days.  In their place is military rule one-party states, or patrimonialism.  Zimblatt suggests that democratic transitions were successful in South Korea, Taiwan and Indonesia because the old elite had a political party in place that could make the transition to a competitive democratic party.  Likewise, he suggests that democratic transition failed in Egypt and might succeed in Tunisia because Tunisia allowed the old ruling party to integrate into the new order in ways that Egypt did not.*

But if Zimblatt's discussion of Britain and Germany is mind-numbingly detailed, his accounts of other countries are too brief to be very informative.

Next:  The U.S. in Zimblatt's formulation.

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*He does not discuss democratic transition in the ex-Communist countries of Eastern Europe.  These are an unusual case in that the Communists were essentially a collaborationist government installed by a foreign power, with no domestic base of support.  This may mean that the usual rules of democratic transition do not apply.