Remnant Review
My overnight assessment of the impeachment of Donald Trump is more radical than you are likely to read in the aftermath of that decision by all but two Democrats in the House of Representatives.
The decision of the House of Representatives late in the evening on December 18, 2019, has fundamentally reshaped American politics. Furthermore, it has turned upside down the original intent of the framers of the Constitution.
I say this as someone who received a Ph.D. in American history in 1972. My specialty was colonial American history. I am the author of a book on the Constitutional convention. I do not claim to be a specialist in constitutional law or in late 18th-century politics, but I know more about these fields than the average columnist does.
THE CONSTITUTIONAL HOUSE
It is well-known that the framers wanted the greatest amount of political power to be lodged in the House of Representatives. The House was believed to represent Americans more faithfully than the Senate or the Supreme Court. They fully understood that the President would represent the people as a whole, and this is why they wanted to place restraints on the Presidency. They did not want the concentrated power of the Presidency to overcome the decentralized power of the House of Representatives.
To make certain, they believed, that the House would retain greater power than the President, they put into the Constitution the requirement that all spending bills must originate in the House. They understood a basic economic principle: he who controls the purse strings is the senior agent in any system.
In recent decades, the power of the purse has been operationally transferred to the President. The President submits a budget to the House of Representatives, and members of the House have been unable to come to any agreement on the budget for two decades. Instead, they pass what is known as continuing resolutions of the budget. Such a resolution is being debated in the House of Representatives today, now that the issue of impeachment has been settled. Trump signed one on November 21, but it expires today. Functionally, the House of Representatives either accepts or rejects the President’s budget. It can merely tinker with it, and it has to get the Senate to agree to the tinkering. Then, and only then, is the President placed under the restraints of the budget.
Because the House of Representatives has functionally abandoned its sovereignty over the creation of the budget, the bureaucrats inside the executive have been able to establish their position as sovereign agents over this fundamental aspect of American politics. The framers hoped that the provision regarding the budget would lodge power in the House, but events over the last three decades have been accepted as legitimate despite the fact that these events have reversed the original constitutional settlement.
The other area of primary authority that the House of Representatives possesses constitutionally is the right to impeach the President for high crimes and misdemeanors. This was understood to be a last-ditch effort to restrain Presidential power. The framers did not believe that the House of Representatives would use this authority frequently, nor did they believe that the House would use it on a partisan basis. That was because most of the framers were opposed to political parties. They had no idea that American politics would become intensely partisan under John Adams. It has not ceased to be intensely partisan since John Adams except during major wars.
JOHNSON AND CLINTON
Andrew Johnson was impeached by the House in 1868. The Senate failed to convict by one vote. This action was a post-Civil War anomaly. Radical Republicans wanted to remove Johnson, who was correctly perceived as a Democrat who favored the South in Reconstruction. He had been elected to the Senate in 1857 from eastern Tennessee, which had been a Democrat stronghold, but a pro-Union stronghold, in 1861. Three times in 1861, East Tennessee held a convention that demanded the right to secede from the state of Tennessee and join the Union. The Confederate Army invaded in late 1861. The capture of East Tennessee by Union troops in early 1862 moved the region solidly into the Republican Party. Lincoln named him military governor. He understood that Johnson was a mediating figure within the Republican Party. This was why Lincoln chose Johnson to be his Vice President in 1864. The radical Republicans wanted to remove him from office. They almost succeeded.
In 1999, Republicans held the House of Representatives. They impeached Bill Clinton on a close to straight party vote on December 19. The Senate, controlled by the Democrats, refused to convict.
The charges against Clinton were these: perjury and obstruction of justice. Because of Clinton’s famous televised phrase regarding Monica Lewinsky – “I did not have sexual relations with that woman, Miss Lewinsky” – the public confuses that obvious lie, which was not given under oath, with the lie that he gave under oath. He made that TV statement on January 26, 1998. But in a January 17, 1998 sworn deposition, he had made his denial official. That was what constituted perjury.
There was evidence that his lawyer had tried to obstruct justice. Lewinsky in mid-January had been prepared to commit perjury in favor of Clinton. The legal issue then was not about her, but rather about the case that Paula Jones had brought against Clinton. It was only in July that Clinton admitted having had inappropriate relations with Lewinsky.
Clinton was guilty of perjury. By December, everybody in Washington knew he was guilty. But the public didn’t care. The November elections were a disaster for Republicans in the House of Representatives. They were an even bigger disaster for Speaker of the House, Newt Gingrich. He had predicted that the Republicans would pick up 30 seats. But the Democrats picked up five seats. Gingrich announced immediately that he would resign as Speaker the following January, which he did.
Clinton was tried by a lame-duck House. "Lame-duck" barely describes how lame these ducks were. Wikipedia explains:
The Speaker-designate, Representative Bob Livingston, chosen by the Republican Party Conference to replace Gingrich as House Speaker, announced the end of his candidacy for Speaker and his resignation from Congress from the floor of the House after his own marital infidelity came to light. In the same speech, Livingston also encouraged Clinton to resign. Clinton chose to remain in office and urged Livingston to reconsider his resignation. Many other prominent Republican members of Congress had infidelities exposed about this time, all of whom voted for impeachment.
This was the political context of the debate over impeachment. Republicans in the House were trapped. Clinton really had broken the law. But he was increasingly popular, despite (or because of) his infidelity and lying. It was clear in December that some Republicans in the House were not enthusiastic about voting for impeachment for a sin that some of them had personally committed, and most of whom and would have lied through their teeth under similar circumstances. It was a wink-wink crime in the eyes of most members of Congress. But, publicly, they had to take a stand. Clinton really had committed a felony in denying his actions under oath, and then by having his lawyer tamper with a witness – a witness he had tampered with under the desk in the Oval Office. What Clinton had done clearly fell under the high crimes and misdemeanors language.
The vote in the House was not along straight party lines.
Five Democrats voted in favor of three of the four articles of impeachment. Five Republicans voted against the first perjury charge. Eight more Republicans voted against the obstruction charge. Twenty-eight Republicans voted against the second perjury charge, sending it to defeat, and eighty-one voted against the abuse of power charge.
In my memory of the events, most of the country wanted to get on with what the public regarded as more important matters. There was no hue and cry from Republicans in the House of Representatives against the Senate’s vote not to convict on February 12 – Lincoln’s birthday. The House of Representatives that took over in January 1999 was very different from the House that had voted to impeach the month before.
A TURNING POINT IN NATIONAL POLITICS
It is possible to make a judicial case that Trump has violated the Constitution. Libertarian pundit, historian, and constitutional lawyer, Judge Andrew Napolitano, has repeatedly made the case against Trump. I am not qualified as a scholar to argue against him. But if Judge Napolitano were to examine the careers of any President over the last century, he would probably say that every one of them violated the Constitution at least once, and probably many times -- with the possible exception of Calvin Coolidge. But only Clinton was impeached.
The question then is this: “Was Trump singled out for political reasons?” I think it is clear that this was the case. Nancy Pelosi really didn’t want to pursue this. She dragged her feet until quite recently. She understood that there was a potential for negative political repercussions if the House pursued this. Over the last month, the public has shifted from being in favor of impeachment to being opposed. One public opinion poll made this clear in the days immediately before the vote. But by then, the steamroller effect was unstoppable.
The fact that Pelosi is now threatening not to submit the articles of impeachment to be tried in the Senate indicates that this whole charade is at bottom a political lynching, not an attempt to uphold the Constitution. The impeachment has had nothing to do with the Constitution. She says she wants a fair trial. The Constitution doesn't guarantee any such thing. The Constitution also doesn't guarantee that the House must provide a fair trial. The House runs its internal affairs. The Senate runs its internal affairs. That was how the Constitution was written.
I think Pelosi is bluffing. If she sticks to her guns, they really are cap pistols. The Democrats went on record as saying that the impeachment was their way to deal with injustice. Now for her to say that impeachment only applies inside the House of Representatives, and that the Senate has no constitutional role in the matter unless Mitch McConnell agrees to meet her standards, is preposterous. She looks silly. I hope she sticks to her guns.
Most voters don't understand the impeachment process. They don't understand that there are no negative judicial sanctions from the House's declaration of impeachment. When nothing happens to Trump, the whole thing will be exposed as a gigantic public relations campaign. It is a campaign that is likely to lose the Democrats votes next November.
Pelosi is like the kid on the playground who says that she's going to take her marbles and go home if the other kids don't play by her rules. But she doesn't make the rules. If she thinks Independent voters are going to back her on this, she is not a good politician. But she is a very good politician. I think she is trying to contain what is headed towards becoming a public relations disaster for the Democrats. I don't see how this ploy can work. If this is the best that she can come up with, she is no threat to Trump. He will have a field day with the entire charade if she sticks to her guns. He will let her take her marbles and go home. He will taunt her from now until November.
Among those Americans who understand that the Senate has the right to try the President, most of them know that the Senate is not going to uphold the impeachment. They knew this from day one. Republicans control the Senate. There will be lots of posturing on both sides in the Senate. None of it will make much political difference in November 2020. The economy will make a difference. Other issues may make a difference. The unconfirmed impeachment will be very old news at that point. But if Pelosi sticks to her guns and refuses to let the Senate try the case, this will keep the issue alive if Trump wants to keep it alive.
Trump will keep it alive.
Think of Peggy Lee singing "Is that all there is?"
Trump is Muhammed Ali in his 1974 fight with George Foreman. Pelosi is hapless George, pounding away at Ali when Ali had his back on the ropes, which helped absorb the punches. Finally, Foreman ran out of gas. "Is that all you have?" Ali taunted him. It really was all Foreman had. The tactic was later dubbed rope-a-dope by the media. It applies perfectly to the House Democrats. Trump is still standing. They are out of gas.
What we have seen this week represents a significant public transformation of American politics. In the context of increasingly confrontational rhetoric, especially by far-Left Democrats, the genie of political irreconcilability is now out of the bottle. It is highly unlikely that it will be put back into the bottle.
I am speaking here of rhetoric. I don’t think there is any fundamental disagreement in the American electorate, and certainly not in Congress, over the issues that really matter to voters. The issues that really matter to voters are the ones that absorb two-thirds of the federal budget: Social Security, Medicare, Medicaid, and the defense budget. Nobody in November will be running on a platform of cutting Social Security and Medicare payments. Nobody will be running on a platform of cutting the Pentagon’s budget. If anybody does, he is not going to be elected. These issues are what is known as third-rail issues. Touch them, and you die. (Note: the metaphor comes from the New York subway system.)
Rhetoric is unquestionably dividing the nation. Left-wing Democrats think that the House was morally obligated to impeach Trump for something that most of them are unable to articulate: Trump’s supposed deal with a senior politician, whose name almost nobody remembers, of a foreign country that most Americans, including Democrats, cannot locate on a map. The constitutional issue is irrelevant. Left-wing Democrats have never cared about the language of the Constitution, beginning with the Bryan campaign in 1896. Trump is what is relevant. Democrats hate him more intensely than their parents or grandparents hated Richard Nixon. Trump is probably hated more than conservative Republicans hated Franklin Roosevelt in 1935. Daniel Stern’s character in City Slickers summarized this level of hatred in his rage against his wife: “If hate were people, I'd be China!”
TRUMP UNLEASHED
Trump has contempt for the Democrats in the House of Representatives. He has contempt for them in the same way that far-Left Democrats have contempt for him. Theirs is contempt based on ideology coupled with hatred of his personality. His contempt for them is based on his personality. There is no way that this breach can be healed politically. It is permanent.
The Democrats have now shot their constitutional wad. Basically, they fired a cap pistol. Only if a majority of the American electorate turns against Trump, and stays turned until November 2020, will what the Democrats did on December 18 have any significant effect on Trump’s Presidential career. The Democrats this week were playing to an audience 11 months hence. That was a high-risk political gamble.
From now on, Trump can get away with just about anything. Only if the Democrats in the House of Representatives are politically suicidal will they again bring impeachment charges against him. There is no way that he is going to be convicted by the Senate. Having another series of hearings on what else Trump did or did not do, or what else another anonymous whistleblower did or did not see, will result in negative political feedback on a scale that could lose them the House of Representatives in 2020.
Trump has been granted carte blanche by the Democrats in the House until noon on January 20, 2021. He will be able to tweet anything he wants. He will be able to work out any deal he wants with a foreign head of state. He will be able to thumb his nose day after day after day at the Democrats. From this point on, he will be the child on the elementary school playground who shouts: “Sticks and stones can break my bones, but names can never hurt me.” The Democrats' sticks and stones were the equivalent of straw and mud. They are now like the three little pigs facing the big bad wolf.
The public has had enough of the charade. The voters will turn against the Democrats if they put the country through another round of impeachment hearings. The Democrats only came up with two relatively minor infractions, which will fail to persuade 67 Senators to vote to convict Trump. They knew this when they voted to impeach, but they could not stop themselves. What individually the vast majority of them knew will fail in the Senate they did collectively as a mob. This is the problem with mobs. They act irrationally. They do collectively what they would not do individually.
Because Trump knows that they cannot mount another impeachment against them, he can now safely ridicule them. In doing so, he will mobilize his voter base. His supporters will cheer because he has successfully gotten away with whatever it was he got away with. He is going to get away with a great deal more between now and November.
If the economy remains strong, he may be reelected. If he is reelected, he will be immune in his second term. The Democrats can howl to the moon in Daniel Stern-level outrage, but it will do them no good. The likelihood of the Democrats taking 67 seats in the Senate in 2020 is minimal.
They wanted to make a statement on December 18. They made it. They shook their fists at him. But they are impotent to do anything about him. They cannot remove him. Only the voters next November can remove him. In the meantime, he can thumb his nose at them. I feel confident that he will.
IMPEACHMENT: PAST, PRESENT, AND FUTURE
The Democrats in the House of Representatives have moved American politics to a new level of divisiveness. They voted almost as a bloc to impeach Trump, and the Republicans voted as a bloc not to impeach him. Two Democrats voted not to impeach, and one of them had announced the day before that he is going to join the Republican Party, which he did the day after the vote.
From now on, impeachment is going to be regarded as a strictly partisan political tool that can be used by the party in the House of Representatives that does not control the White House. If Trump can be impeached for the ticky-tacky issues on which he was impeached, then there will not be a President from this point on who will not be impeachable. So, the high crimes and misdemeanors mentioned in the Constitution will simply become run-of-the-mill activities by a President that the rival political party in the House of Representatives thinks it can use for publicity. The element of sanctity will be removed. But without the element of sanctity, impeachment is just another political tool.
From now on, political partisanship will define what constitute high crimes and misdemeanors. The President will be fair game politically. The House of Representatives has now set a political precedent. Only if the American electorate throws out the Democrats next November and reelects Trump will this new precedent not be used again. Only if it is clear to both political parties that any attempt to use the bludgeon of impeachment to embarrass the President will lead to devastation in the impeaching party’s control of the House of Representatives at the next election will the crazies in the left wing of the Democratic party be able to be controlled by the moderates in the House.
If the voters reelect Trump, then the political use of impeachment will become the equivalent of a whoopie cushion. It will be too risky for any political party that has a majority in the House of Representatives to use it. If impeachment is used as a run-of-the-mill political tool the way that it was used this year, then impeachment will no longer be regarded as a check on Presidential power. Presidents will be able to ignore the threat. If a majority political party in the House has what the Democrats this year treated as a howitzer, but which is in fact a cap pistol, it will either use the impeachment power as a tool to nip at a President’s heels, or else it will never use it again. In either case, impeachment will be effectively a dead letter -- the equivalent of letters of marque.
If the party out of power in the White House decides to use the impeachment threat again, that party will risk becoming a laughingstock. It will be no threat. Trump thinks that it is no threat today. He is having a field day telling the Democrats where to go and how fast to go there. His adoring supporters cheer him on.
Trump between now and next November can repeatedly issue his famous words: “You’re fired.” If the electorate backs him up next November, he will be able to do this for four more years. He will have a field day doing this.
On both sides, if hate were people, they would be China.
CONCLUSION
The moderates, so called, in the Democratic Party were unable to stop the far Left from taking over the House. Pelosi tried, but one by one, all but two of them publicly climbed on Alexandria Ocasio-Cortez's bandwagon. When push came to shove, she had the votes. Pelosi capitulated. This will not draw Independents to the Democrats in November if the economy is still chugging along.
As you might expect, I am delighted with all of this. I regard national politics in America as an arena of free entertainment.
People vote their pocketbooks. James Carville was correct in 1992: “It’s the economy, stupid.” But a newly elected President never fixes the economy. He just gets elected promising to fix the economy. It is the political equivalent of this promise: "Of course I'll respect you in the morning."
The federal deficit is going to be massive from now on, with or without Trump. The Federal Reserve System is going to inflate, with or without Trump. The economy is going to muddle through or not muddle through, with or without Trump. There is nothing that Trump can do about the economy, or at least very little apart from lowering tariffs. There is nothing that the Democrats can do about the economy, either, as they will learn if they win both houses of Congress and the Presidency next November.
Buckle up. It’s going to be a bumpy ride.
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