A Different Kind Of Coup

Remember Darth Vader–aka Dick Cheney–and his theory of the “unitary executive”? Cheney wasn’t the only devotee of expanded power for the Presidency–it turns out that William Barr is a true believer, and far more dangerous than most of us previously realized.

A recent article in the American Prospect is chilling.

I have Article II, where I have the right to do whatever I want as president,” Donald Trump said in a recent speech to a far-right-wing campus organization. Trump is not a constitutional scholar, and he would not care at all about “constitutional architecture” were he not president. So where did this sweeping claim to executive power come from?….

But for Trump’s attorney general, William Barr, and others on the right, the effort to take power for the president from the courts and especially from Congress has been a 40-year project. Barr and his comrades may find statements like “I have Article II” crass and narcissistic, but in their view Trump is generally correct. Executive power maximalists argue that the “original intent” of the framers of the Constitution was to create a strong president with concentrated power and a largely advisory Congress.

The author notes that the most dangerous presidential power–and one that Trump’s lawyers are currently asserting– is the power to withhold information from Congress and the American people.

Neither Congress nor the courts nor voters can effectively check power abused in secret. And Congress’s power to require information from the president may be the power most difficult to reclaim if Congress yields that power in a tactical retreat in advance of the 2020 election.

Evidently, the expansion of presidential power–and the corresponding evisceration of Congressional authority–has been a 40-year mission for William Barr.

Barr (one of the original founders of the Federalist Society) worked in the Reagan White House with a group of lawyers who argued that the presidency had improperly lost constitutional powers after Watergate. Edwin Meese even asserted that the president could disregard Supreme Court decisions with which he disagreed.

Even very conservative legal scholars consider these assertions unfounded, and there is virtually nothing in the historical record that would support them. (The entire point of  “checks and balances” was to thwart an internal “coup” that would turn the president into either a monarch or a servant of Congress.)

After efforts by Reagan’s lawyers to challenge Congressional oversight failed in the Supreme Court,

Barr wrote and circulated throughout the executive branch a militant memorandum entitled “Common Legislative Encroachments on Executive Branch Authority.” The memo called for aggressive challenges to Congress’s claims to authority: “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”

As the author notes,

The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress’s business.

Throughout his Executive Branch service, Barr–together with Cheney– has insisted that the President can ignore not only Congressional demands for information, but laws with which he disagrees.

The entire article is worth reading, because it gives needed context to the otherwise inexplicable behavior of William Barr today–behavior that is causing significant morale problems among the professionals at DOJ.

The following paragraphs are representative.

BARR WAS OUT OF GOVERNMENT through the Clinton, George W. Bush, and Obama presidencies, but remained a constant presence in rightist legal circles. On June 8, 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general to whom Robert Mueller then reported, and to Steve Engel, who headed the OLC, entitled “Re: Mueller’s ‘Obstruction’ Theory.” Trump’s firing of Jim Comey as director of the FBI could not be obstruction of justice regardless of Trump’s motives, Barr argued, because the president’s power to remove executive branch officials is “illimitable.”….

BARR AND OTHERS ON THE RIGHT have sought relentlessly for four decades to concentrate power in the president and strip power from Congress. Barr’s legal arguments sound haughty and scary to all but the most ardent Trump supporters. But Barr is committed to presidential power with or without legal authority and with or without public support. And he will advance presidential power by any means necessary, which includes frivolous legal arguments and dilatory tactics forbidden by court rules and canons of legal ethics, and false testimony forbidden by criminal law.

I can’t imagine what philosophy of government would lead someone to Barr’s conclusions, but it is abundantly clear that he represents a clear and present danger to the Constitution as it exists, and to the Separation of Powers it clearly requires.

His attacks on separation of church and state are equally dangerous, but that is an issue for another day…

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What Is The Remedy For A McConnell?

An article I read in Vox a month or so ago has continued to bother me. The subject-matter was summed up in the sub-head: “The political system has an answer for a threat like Donald Trump, but none for a threat like Mitch McConnell.”

If Trump often acts like he is above the law, it is only because McConnell lets him. If McConnell decided to lead Senate Republicans in investigating and curbing Trump’s corruption, abuses of power, and obstruction of justice, Trump’s options would be to reform his behavior or be ejected from office.

The article goes on to make a point that is so obvious it is often overlooked. Despite their  differences (McConnell is evil, calculating and smart, Trump is mentally disordered, undisciplined and stupid) they do have one thing in common. They are both utterly shameless.

At the core of this is McConnell’s peculiar form of political shamelessness. This is the way McConnell and Trump are more similar than is often appreciated: they have both proven that the range of political action is disciplined less by external constraint than by a politician’s sense of shame — the degree to which they turn back in the face of public criticism, media opprobrium, elite backlash.

It was shamelessness, for instance, that let McConnell refuse to hold a hearing on Merrick Garland and then, grinning, admit that he’d fill a Supreme Court seat if one came up in 2020. McConnell’s predecessors held the same power he did and none of them attempted that maneuver. They weren’t restrained by laws or rules. They were restrained by temperament and a belief that to break the system was to betray the public.

When political scientists talk about “democratic norms,” it is the restraints of temperament and fidelity to tradition and rules that they are referencing.  McConnell has demonstrated his rejection of political accountability, and the system has no mechanism for dealing with someone who acts as if the rules simply don’t apply to him.

The Founders designed our form of government with demagogues in mind. That’s why the president is checked by Congress, up to and including the threat of removal. But they believed that Congress would consider itself in competition with the president, that ambition would check ambition. They did not foresee the rise of political parties and the way that would bring parts of Congress into cooperation with the president, that ambition would protect ambition.

The political system has an answer for a threat like Donald Trump but none for a threat like Mitch McConnell.

McConnell isn’t simply ignoring duties imposed by the Constitution; he is– as the Vox article says–shameless. His actions defy our expectations of normal human behavior, not because he is breaking the rules in order to benefit himself (lots of people do that), but because he is publicly flaunting his violations and daring observers to do anything about them.

As Rochefoucauld said, hypocrisy is the tribute that vice pays to virtue. McConnell is withholding that tribute. He doesn’t even pretend to behave honorably; his entire, smug demeanor says “I’m demolishing longstanding norms and traditions because I can and there is nothing any of you can do about it.”

The only remedies available are political: McConnell could lose his Senate race in 2020, or Democrats could take the Senate, removing his authority to do significant damage. Given that he represents Kentucky, the first is unlikely. (Possible, but unlikely.)

The second, I submit, is mandatory. Both he and Trump have to go, and only massive turnout will rid us of both of them.

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Why I Harp On Civic Literacy

In yesterday’s post, I listed elements of necessary political reform, beginning with reinvigorated civics instruction in the public schools.

I would understand if regular readers of this blog shrugged and attributed that particular item in the list to my abiding preoccupation with the importance of what I call “civic literacy.” Civic literacy isn’t civic engagement–important as that is. It is knowledge of America’s history, philosophy and basic legal structure.

When civic ignorance is rampant, Donald Trump can dismiss the Constitution’s Emoluments Clause as “phony” without losing the support of his base. He can repeatedly act in ways that are inconsistent with the Constitution and rule of law, and be defended by Congressmen who are confident that their constituents don’t know any better.

But civic ignorance has consequences that go well beyond Trump. I harp on the importance of basic civic knowledge because I believe it is connected to everything else that ails us–especially the growth of “identity politics,” or tribalism. I addressed that relationship in my recent book; the following paragraphs are what I wrote there, and may explain why I continue to be preoccupied with the issue.

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One of the most overlooked connections, and one that makes sensible reforms so difficult, is between low levels of civic literacy and tribalism.  American citizens do not share a political history, a common religion, or a single race or ethnicity. In some precincts, citizens don’t even speak the same language. In the absence of cultural and linguistic ties, societies require what Robert Bellah called a “civil religion” through which to forge a common civic identity. In the United States, that civil religion has centered upon our constituent documents—the Declaration of Independence, the Constitution and the Bill of Rights—and the governing philosophy they embody, what I have elsewhere called “The American Idea.”

The tribalism fed by inequality and social media grows more pronounced in the absence of civic literacy. When Americans are ignorant of the history, philosophy and evolution of their constitutional form of government, they may share a common national geography, but they don’t share a civic identity. The absence of a common “civic religion” translates into widespread neglect of an important civic obligation, the duty to be sufficiently informed to evaluate government’s conduct of the people’s business.

Public accountability requires that those in power be forthright and detailed about laws they have enacted and other actions they have taken; it requires journalists who can adequately and accurately convey that information to the general public; and it requires citizens able to compare those laws and activities to the standards prescribed by the U.S. Constitution and Bill of Rights. The ability to discharge all of these tasks depends upon a basic familiarity with the nation’s history, philosophy and legal framework.

The widespread deficit of civic knowledge is not simply an impediment to personal efficacy and participation in the democratic process; it is evidence of a fundamental failure of public education. Civic ignorance impedes communication between Americans, and between Americans and their policymakers. It facilitates susceptibility to spin and propaganda. The loss of civic literacy is not confined to the voting public; American politicians on all points along the political spectrum constantly genuflect to the Constitution, and just as constantly disclose a lack of genuine (or often, even superficial) familiarity with it, let alone the two hundred plus years of jurisprudence applying its principles to ever-changing “facts on the ground.” The result is a lack of a common frame of reference that makes productive political action impossible.

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Bring In The Clowns..Don’t Bother, They’re Here

If there were any lingering doubts about the lack of seriousness or the intellectual dishonesty of the GOP Representatives who stormed the room in which Impeachment witnesses were being questioned, one fact should put those doubts to rest: the 22 members of the House conducting the interviews is made up of 13 Democrats and 9  Republicans.

As Politico put it: “More than 45 House Republicans — nearly a quarter of the House G.O.P. conference — already have full access to the depositions through their membership on one of the three panels leading the impeachment inquiry.”

Worse still, 13 of the 41 Republican lawmakers who engaged in this bit of theater–who were protesting a supposed lack of transparency in the inquiry–actually sit on committees with the authority to question witnesses and review documents.”

As Huffington Post, among many others, reported,  interviews were being held in the Intelligence Committee’s “secure area.” Because the Republicans who engaged in the stunt brought phones and other forbidden electronics into the (awkwardly named) Sensitive Compartmented Information Facility (SCIF), Democrats said the room would now have to be “sanitized.”

“They not only brought in their unauthorized bodies, they may have brought in the Russians and the Chinese,” said Rep. Eric Swalwell (D-Calif.), a member of the Intelligence Committee.

The interviews are being conducted in accordance with House rules, and in a manner consistent with previous inquiries; furthermore, there are prudential reasons to do initial interviews separately and in confidence: for one thing, it denies witnesses the opportunity to co-ordinate their stories.

Not only do the Republicans have access to the information being provided in these interviews, the Democrats have made it very clear that once the initial round of questioning is over, the proceedings will all be made public.

The hostile takeover of the committee room, which was endorsed by GOP leadership ― the chamber’s No. 2 Republican, Minority Whip Steve Scalise (R-La.), even participated in the charade ― is the latest in a string of attempts to distract from the actual Ukraine scandal. Republicans are trying to get voters to dig into their familiar partisan foxholes and disregard any new information.

But storming through the “Restricted Area” doors of the SCIF, bringing their phones, occupying the committee room for hours — even ordering pizza ― are all charades that unbiased voters should see through.

The problem with that last paragraph is the phrase “unbiased voters.” In our polarized political environment, there aren’t many of those, and it is obvious that the GOP’s theatrics are an effort to distract their own voters from very damaging evidence, much of which has already come out. Unfortunately, rebuttals of that evidence are increasingly hard to come by, so in the absence of any substantive defense, they are screaming about the process–despite the fact that it is a process they considered perfectly appropriate when they used it.

As the Daily Beast reported,

House Republicans have held—and even supported—the use of closed door hearings for past congressional investigations, including the select committee that they spearheaded to investigate the 2011 consulate attack in Benghazi. That larger inconsistency and the timing on Wednesday’s gambit struck some Democrats as telling about the direction that the impeachment proceeding is heading.

“When you don’t have the law or the facts, you attack and disrupt the process,” said Rep. Ted Lieu (D-CA). “And you may wonder why is it happening now? Because Bill Taylor gave a devastating opening statement yesterday. They’re freaked out. They’re trying to stop this investigation.”

What they clearly aren’t doing is honestly evaluating the evidence that is emerging. And they sure aren’t subordinating self-interest and partisanship to justice or the interests of their country.

These clowns aren’t amusing.

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Speaking Of Christianity…

Yesterday’s post was about the ongoing effort of Christian culture-warriors to maintain their privileged position in American society–their insistence that the laws of the land reflect their particular theological perspectives.

That effort is nothing new. What is new is their diminished percentage of the American population. A recent study by Pew was headlined “Decline of Christianity Continues at Rapid Pace.”

In Pew Research Center telephone surveys conducted in 2018 and 2019, 65% of American adults describe themselves as Christians when asked about their religion, down 12 percentage points over the past decade. Meanwhile, the religiously unaffiliated share of the population, consisting of people who describe their religious identity as atheist, agnostic or “nothing in particular,” now stands at 26%, up from 17% in 2009.

Both Protestantism and Catholicism are experiencing losses of population share. Currently, 43% of U.S. adults identify with Protestantism, down from 51% in 2009. And one-in-five adults (20%) are Catholic, down from 23% in 2009. Meanwhile, all subsets of the religiously unaffiliated population – a group also known as religious “nones” – have seen their numbers swell. Self-described atheists now account for 4% of U.S. adults, up modestly but significantly from 2% in 2009; agnostics make up 5% of U.S. adults, up from 3% a decade ago; and 17% of Americans now describe their religion as “nothing in particular,” up from 12% in 2009. Members of non-Christian religions also have grown modestly as a share of the adult population.

The Pew study found that both belief and observance had declined; attendance at religious services is down, especially among younger respondents, reflecting what the report called a “generation gap.” Some forty percent of Millennials are “nones.”

Given the fact that it is evangelical Protestants, rather than members of mainline denominations, who have been most likely to demand prayer in public schools, attempt to post religious texts on public buildings, and protest laws protective of LGBTQ citizens, I was particularly interested in the following:

The share of U.S. adults who are white born-again or evangelical Protestants now stands at 16%, down from 19% a decade ago. The shrinking white evangelical share of the population reflects both demographic changes that have occurred in the United States (where white people constitute a declining share of the population) and broader religious changes in American society (where the share of all adults who identify with Christianity has declined).

The survey reported demographic information only, and didn’t get into motivations, but in addition to the normal historical ebb and flow of religious fervor, it seems likely that the embrace of Donald Trump by evangelicals has repelled people–especially young people. An article by Peter Wehner in the Atlantic makes a point that others have echoed.

The enthusiastic, uncritical embrace of President Trump by white evangelicals is among the most mind-blowing developments of the Trump era. How can a group that for decades—and especially during the Bill Clinton presidency—insisted that character counts and that personal integrity is an essential component of presidential leadership not only turn a blind eye to the ethical and moral transgressions of Donald Trump, but also constantly defend him? Why are those who have been on the vanguard of “family values” so eager to give a man with a sordid personal and sexual history a mulligan?

Wehner worries about the likely consequences of that blatant hypocrisy, a worry that other evangelicals share.

While on the Pacific Coast last week, I had lunch with Karel Coppock, whom I have known for many years and who has played an important role in my Christian pilgrimage. In speaking about the widespread, reflexive evangelical support for the president, Coppock—who is theologically orthodox and generally sympathetic to conservatism—lamented the effect this moral freak show is having, especially on the younger generation. With unusual passion, he told me, “We’re losing an entire generation. They’re just gone. It’s one of the worst things to happen to the Church.”

For years, these “pious” Christians have mounted assaults on separation of church and state. They have insisted that laws should favor their beliefs; they take as a given their right to dominate the culture. They continue to diminish and stigmatize those they label “sinners,” and fight even modest efforts to recognize the equal civic status of those others.

I’m sorry for people like Wehner who truly “walked the walk” and are helplessly watching their co-religionists betray their faith. But I’m not at all sorry that many more Americans have now seen–and rejected– the hypocrisy concealed behind a curtain of false piety.

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