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Fri Sep 7, 2018, 08:30 PM

Friday Talking Points (499) -- The Constitutional Crisis Is Already Here

As we are occasionally wont to do, today's column will be nothing short of a rant. It just seemed like it was time for one, to us. There were two enormous stories in the world of politics this week: the Supreme Court confirmation hearings in the Senate, and the two bombshells about Trump revealed by Bob Woodward and an anonymous senior member of the Trump administration. All other political stories paled in significance.

So, for once, we are not even going to bother running down the political news of the week here in the introduction. We've addressed the Senate hearings in the awards section, and we will focus on the Trump revelations in the talking points, which (as we said) will consist of one long rant rather than discrete talking points for Democrats.

It's been that kind of a week, so without further ado, let's get on with it.

For once, we have a plethora to choose from for the Most Impressive Democrat Of The Week award. We're going to hand out Honorable Mentions to all of these candidates, and we have to admit it was a tough choice to decide who rose to the level of the MIDOTW this week.

First up, we have Senator Elizabeth Warren, but we're not going to say why until mid-rant, below in the talking points segment of our program. So you've got that to look forward to. Warren stated what a lot of people have been thinking this week, and she did not mince words in doing so.

Next, some election news. Progressives won one upset this week, and lost another. Ayanna Pressley won the nomination for a House seat in Massachusetts, although the political or ideological differences between her and Michael Capuano, whom she beat, were pretty miniscule. Capuano has been a solid vote for progressive values, so it was impossible to paint him as some sort of establishment or corporate Democrat. Nevertheless, he is a white man representing a district where minorities are the majority, so the voters decided it was time to let an African-American woman represent them. The outcome, we should mention, is not in question -- this is such a deep-blue district that there is no Republican candidate running, all but assuring Pressley of winning in November. Pressley becomes the second Progressive challenger to successfully "primary" a Democratic House member this election cycle (Alexandria Ocasio-Cortez being the other).

Down in Delaware, however, Senator Tom Carper won his nomination, handily defeating Progressive challenger Kerri Evelyn Harris. Delaware is a very corporate-friendly state, having the most generous laws for banking and for corporate formation in the country. So it's really not a big surprise that Carper won the nomination again, even though he is indeed a rather moderate Democrat.

In campaign news, former president Barack Obama finally hit the hustings and gave a speech which -- a first for Obama -- criticized Donald Trump by name. Obama has been critical before, but never directly named Trump (even though it was obvious who he was talking about). Getting Obama out in front of Democratic crowds is an excellent idea, right about now, because he can help fire up an already-enthusiastic Democratic voter base before the midterm elections. Democratic candidates for office should be begging Obama to appear in their state or district, in fact, if they're smart. Obama re-entering the world of politics is good news for Democrats everywhere, to put it another way.

Senator Bernie Sanders and Representative Ro Khanna launched a bill this week called the "Stop Bad Employers by Zeroing Out Subsidies Act" (or the "Stop BEZOS Act" ). He is directly attacking Amazon and its founder Jeff Bezos, for the fact that many Amazon employees are on food stamps (SNAP) or Medicaid. Bernie's bill would impose a tax of 100 percent on any public assistance payments the government made to any Amazon employees, meaning the government would get paid back for the money it had to spend to support workers of what became a trillion-dollar business this week.

Now, even liberal economists pointed out that the bill could have all kinds of unforeseen and unintended consequences, but that's not really the point. Bernie knows his bill is never going to pass in its current form, but he is making an incredibly effective political point -- working for one of the two richest companies on the face of the Earth means that you should make enough money to survive without government benefits. Workers should not qualify for public assistance, because they really should be paid enough money that their income is above the limit. That's a pretty easy concept for people to understand, and it points out the problems of inequality that still exist for millions of workers. Why should the government have to subsidize workers of the wealthiest companies? They should be paid a living wage, instead. Of course, the real way to solve this problem would be to raise the minimum wage for all workers, but as the bill points out, in the meantime the system is being abused by some of the richest men on the planet.

But the Most Impressive Democrat Of The Week award goes to two Democratic senators who stood out among the Democrats on the committee questioning Judge Brett Kavanaugh during the Supreme Court confirmation hearings. Senators Cory Booker and Mazie Hirono were both impressive, for different reasons.

Booker was the first (but not the last) Democratic senator to risk expulsion by publicly releasing non-confidential documents that Republicans on the committee had ruled should be kept secret. This was a brave stance to take, and the outcome of his action is still unknown. He likely won't be expelled from the Senate, but he is now technically in danger of this fate. The secrecy surrounding Kavanaugh's document trail was a blatant political move to hide embarrassing documents from public scrutiny, and Booker showed how fed up he was with this state of affairs. By doing so, he put his own job at risk, which is a rather impressive thing to do.

Senator Mazie Hirono, on the other hand, deserves the MIDOTW award for her relentless questioning of Kavanaugh. While other Democrats attempted to knock Kavanaugh down a peg, none were really very effective in doing so. But Hirono was, even though the issue at hand was a pretty obscure one for people living outside of Hawai'i (it involved the status of Native Hawai'ians). Hirono attacked Kavanaugh for using the reasoning in an infamous Supreme Court case (Korematsu, which upheld the Japanese internment program in World War II) in his decision on the Hawai'ian case. Even though the issue was obscure, Hirono more than any other Democrat managed to lay bare the real thinking behind one of Kavanaugh's opinions, which was the goal for Democrats in the whole Kabuki-theater atmosphere of the hearings.

Of course, this is a subjective assessment, and we have to admit we didn't watch every hour of the two days of hearings (we watched as much as we could). So perhaps we missed another Democratic senator who did a better job, but from what we saw, Senator Hirono did a better job holding Kavanaugh's feet to the fire than presidential hopefuls Cory Booker and Kamala Harris. Hirono also backed up Booker by releasing a supposedly-secret letter herself, which technically puts her in the same boat as Booker, risking expulsion from the Senate for doing so. Hirono has also recently been calling the president an "unindicted co-conspirator," which is entirely accurate and should be used by all Democrats from now on.

We did write, earlier in the week, that the confirmation of Brett Kavanaugh is most probably already a done deal. The hearings were nothing short of political theater, in other words. But measuring by that yardstick, we have to say that Senators Cory Booker and Mazie Hirono stood out among the pack. Which is why we're awarding both of them the Most Impressive Democrat Of The Week this week.

{Congratulate Senator Cory Booker on his Senate contact page, and Senator Mazie Hirono on her Senate contact page, to let them know you appreciate their efforts.}


We could have awarded (on strictly literal interpretation grounds) Kerri Evelyn Harris the Most Disappointing Democrat Of The Week, for disappointing so many Progressives across the country by failing to unseat Senator Tom Carper in the Delaware primary race this week. Two upsets in House races are one thing, but successfully "primarying" a sitting senator would have taken things to a new level for Progressive candidates. But we just couldn't bring ourselves to do so, first because it would be rubbing salt in the wound, and second because she actually did have some "coattails" and boosted some down-ballot Delaware Progressives to victory in their primary races.

Instead, we're going to award the MDDOTW this week to Senator Dianne Feinstein, who took it upon herself to actually apologize to Brett Kavanaugh for the presence of protesters at his hearing. Feinstein, incredibly, said during one of these protests: "I'm sorry for the circumstances, but we'll get through it."

This remark was instantly condemned by Kevin De León, the Democrat in California who is challenging Feinstein's Senate seat. Due to the wacky "top-two jungle primary" system in California, two Democrats (and no Republican) will appear on the ballot for Senator in November. A recent poll showed that De León has now moved within single digits of Feinstein in this race, but there were a large amount of "undecideds" in the poll as well, to be fair.

This is why Feinstein richly deserves a challenge from the left, though. She is about as far from a "lefty" Democrat on just about every issue other than assault weapons and women's right to choose an abortion. Feinstein is also 85 years old, meaning she will be 91 at the end of her next term, should she win.

In the midst of the resistance against Trump, Feinstein is the ultimate bad example of a Democrat who refuses to fight back. Feinstein has already shown her true colors earlier, by stating (to gasps, in the audience) that she thought Trump could be a good president, if we'd all just give him the benefit of the doubt. This is not who should be representing California in the Senate in such dire times, plain and simple.

By apologizing for people who felt so strongly about keeping Kavanaugh off the Supreme Court that they risked arrest and prosecution to protest, Feinstein showed other Democrats precisely how not to behave. For doing so (once again), Dianne Feinstein is our Most Disappointing Democrat Of The Week this week.

{Contact Senator Dianne Feinstein on her Senate contact page, to let her know what you think of her actions.}


Volume 499 (9/7/18)

As previously promised, today we are pre-empting the talking points section for a rant. We feel this is necessary, this week, and hope you'll agree. Without further ado, let's get started, shall we?

The Constitutional Crisis Is Already Here

Ninety-nine years ago this month, the president of the United States suffered a stroke. In September of 1919, President Woodrow Wilson became incapacitated. He was neither physically nor mentally able to perform his constitutional duties.

Others at first hid the president's condition from the public. His wife and his cabinet maintained the pretense that Wilson was still in charge and still doing his job. He wasn't. In fact, his wife was more in charge of the United States government than anyone else, as she dealt with routine matters and handed off more serious matters to the cabinet members to deal with. She even brought in a complicit journalist who wrote a "fake news" story (in the original meaning of the term) to convince the public that all was well, when in reality all was decidedly not well with the president.

Wilson had over a year left in his second term when this happened. At the time, there simply was no existing mechanism to remove a sitting president who had become incapable of performing his duties. The Twenty-Fifth Amendment was still decades in the future (at the time, the Nineteenth Amendment had just been ratified, which started Prohibition). It was a serious constitutional crisis, but there simply was no remedy that spelled out how to handle such a situation.

After World War II and the dawning of the Atomic Age, it became even more critical to always have a functioning president at the helm, because at any time the Cold War could have turned hot. When President Kennedy was assassinated in 1963, this became a pressing problem. Not because Kennedy had been killed and L.B.J. sworn in to replace him almost immediately, but because of what could have happened instead. If the assassin's bullet hadn't outright killed Kennedy, but instead left him in a vegetative state, what would have happened? The only real constitutional answer, at the time, was to impeach him. This was a square-peg-in-a-round-hole solution to the problem, however, because merely being in a coma (or worse) wasn't exactly a "high crime or misdemeanor" in any sense of the term. Even ignoring that misapplication of the constitution's intent, impeachment would have taken some time to actually accomplish. While the process played out, there would still be a gap in the chain of command -- at the very top.

Most people have an inaccurate image of the vice presidency. Most people assume that the veep is number two in the chain of command in the White House. This is not even remotely true. The vice president has absolutely no constitutional power whatsoever, outside of officially being in charge of the Senate. None. He cannot order the military to do anything. He cannot order anyone in the White House to do anything. These would be constitutionally invalid orders. Like a second-born prince, the vice president is in essence no more than a human "spare part" -- but a spare part that cannot be used while the president is still alive. And the First Lady has even less of a constitutional leg to stand on -- even though Edith Wilson singlehandedly assumed this power almost 100 years ago, with over a year left in her husband's term in office.

Because Kennedy's death caused people to start thinking about such things in depth, a remedy was proposed and adopted as the Twenty-Fifth Amendment to the United States Constitution. This amendment solved several problems not originally anticipated by the framers of the Constitution. The first and foremost was the fact that when a vice president assumed office (after the death of a president), there was no mechanism for replacing the vice president. This led, several times (after the death of a sitting president), to the country having a president but no vice president. The second problem was the succession of the presidency, which became a more acute problem with the fear of nuclear weapons. If Washington erupted in nuclear fire, who would become president? The original document only listed one replacement: the vice president. Various acts of Congress had established a more extensive list, including the speaker of the House, the president pro-tempore of the Senate, and the members of the cabinet. But what if they all died together suddenly? The Constitution had no answer to that one. So a much longer list was drawn up, and even to this day when the cabinet and president (and Congress and most of the Supreme Court) gather under one roof for the State Of The Union speech, one cabinet member becomes the "designated survivor" and is sequestered far away from Washington, likely in an underground bunker somewhere in the mountains. This assures continuity of government, even in the worst-case scenario.

But the Twenty-Fifth Amendment also had a fourth section, which dealt with a president who had become incapacitated, but was not actually dead. For the first time, during Donald Trump's presidency, politicians and the media are starting to seriously discuss invoking this clause. We've written before about exactly how this would happen, which is worth reading for anyone interested in the details of the process. The short version: it is nowhere near as cut-and-dried as it first sounds. A majority of the cabinet would have to sign a letter stating they felt the president was incapable of holding office, but that wouldn't mean Mike Pence was immediately sworn in as president (or even as "acting president" ). Trump could write his own letter objecting to their conclusion. Then Congress would have three weeks to make up its mind. When the vote came, it would require a higher bar than even impeachment, because both houses of Congress would have to vote to remove the president by a two-thirds margin. In other words, no matter which party was in charge of the two chambers, a whole lot of Republicans would have to vote to remove Trump.

Thus endeth the history lesson for today. Instead, let's take a look at why such a history lesson was needed after the past week's bombshell revelations.

The first of these was the release of excerpts from Bob Woodward's upcoming book Fear (which will be released to the public next Tuesday), which painted a pretty damning picture of the Trump presidency. His aides have been either completely ignoring his direct orders or actively subverting them, for (as they believed) the good of the country. Woodward calls this an "administrative coup d'état," which is as good a label as any. Trump is seen as erratic, incapable of learning, and highly unstable both emotionally and mentally. Woodward's book, in fact, echoes exactly what has been said about Trump in two previous books (Omarosa's Unhinged and Michael Wolff's Fire And Fury). When they came out, both of these books were disparaged over the believability of the authors. This was not possible for the inside-the-Beltway crowd to do for Bob Woodward's book, though, because Woodward is truly in a class by himself when it comes to writing about sitting presidents. He's no Omarosa, in other words. And yet his book paints an identical picture as that revealed in the other two books.

Then, just to add icing on the cake, an anonymous "senior Trump administration official" penned an astonishing opinion piece for the New York Times. In it, he told exactly the same story as Woodward and the other tell-all authors. Trump was dangerously unstable. His aides actively worked to thwart his worst impulses. And Trump was so out of touch that he didn't even notice.

The Washington Post has a continuing series about our "Toddler-in-Chief," where they document every instance -- mostly from White House personnel -- of people around Trump speaking of him as if he is an unruly toddler. This column series has been going on for over a year now. That right there says something profound. Here's a recent example, from the middle of last month (quoted from a New York Magazine article), addressing how the White House staff feels when Trump is physically absent from the building (at one of his golf courses, for instance):

One former White House official told me that the difference is both physical and mental. "You totally feel a sense of relief, because it means he's gonna be out of contact at least part of the time," one former White House official told me. "When he's actually in the building and sees something or wants something done, it has to be done immediately because he just throws a fit. You have to go off and do whatever dumb task he wants done. But when he's on Air Force One or at his golf course, he can't really do that because of logistical issues. There's enough time between him and the people doing the work to slow that stuff down."

Which, coincidentally enough, is exactly the same story Woodward and the anonymous author in the Times told this week. When everybody -- including people who directly work for him -- is saying that the president is mentally unfit for office, the time of predicting a constitutional crisis is over, because the constitutional crisis is already here. Swearing to uphold the Constitution means swearing to uphold all of it -- including the Twenty-Fifth Amendment.

Senator Elizabeth Warren just pointed this out, saying this week:

If senior administration officials think the President of the United States is not able to do his job, then they should invoke the Twenty-Fifth Amendment. The Constitution provides for a procedure whenever the Vice President and senior officials think the President can't do his job. It does not provide that senior officials go around the President -- take documents off his desk, write anonymous op-eds.... Every one of these officials have sworn to uphold the Constitution of the United States. It's time for them to do their job.

We would have used the word "duty" there, at the end, rather than "job," but (semantic quibbles aside) Warren is entirely correct. And she's not the only one bringing up the Twenty-Fifth Amendment this week. Because, as we've already pointed out, invoking the Twenty-Fifth doesn't precipitate the constitutional crisis, the constitutional crisis is already here and ongoing -- we have a sitting president who is mentally unfit for office. Whether the Twenty-Fifth is actually invoked or not, the constitutional crisis still exists. After all, he does have the nuclear launch codes.

Republicans, both cabinet members and those in Congress, have so far been content to sit back and respond by echoing the name of an old Supertramp album: "Crisis? What crisis?" But this week it became almost impossible to continue pretending that the emperor isn't actually naked. Trump's reaction only confirmed the picture of him as flying off the handle, as he demanded the Justice Department begin an investigation into who wrote the anonymous Times article, because (somehow, according to him) it threatened "national security." That is patently insane. No national security secrets were revealed within the article. No classified information was disclosed. It is impossible for any sane lawyer to see such an article as some sort of federal crime, in fact. And yet, Trump's reaction was to sic the Justice Department on the New York Times, because that's the way he thinks things should work. Insulting the president, according to him, means committing treason (spoiler alert: it doesn't).

Trump also threatened to sue the paper, but nobody believes he will actually follow through on this (Trump threatens to sue media organizations all the time, but he rarely actually does; and when he has previously, he has lost in court). Trump also apparently instructed Sarah Huckabee Sanders to use her official Twitter feed to incite Trump's followers to phone up the paper and rant and rave. Is this presidential behavior? As we said, it's getting harder and harder for Republicans to continue making the case that it is. "But he's got no clothes on!" seems to be echoing through the halls of the White House and the Capitol.

There was another historical milestone a little over a week ago, one outside the world of politics. Forty-five years ago (at the end of August), a hostage situation developed during a bank robbery in Stockholm, Sweden. The hostages eventually began sympathizing with their captors, and the term "Stockholm Syndrome" entered the lexicon as a direct result. So far, congressional Republicans (and the Republican Party writ large) have followed a very similar path. They know their party is being held hostage by Donald Trump, but they see themselves as powerless to do anything about it. Actually, that's not quite true. They see themselves as powerless to do anything about it and still have a viable political career within the Republican Party. So far, the only Republicans who have been willing to say anything negative about Trump have been those who also announced they wouldn't be running for re-election. They know full well that being an anti-Trump Republican means they will not be able to win their party's nomination in the primaries. Just take a good look at Jeff Flake, as he's the prime example of this.

Any Republican who values his own continuance in office -- almost all of them, in other words -- has been pretending (along with the rest of the GOP crowd) that Donald Trump is wearing gorgeous clothes and is doing just fine as the leader of the country. They know if they say any differently, they'll soon be out of a job. So it's not exactly Stockholm Syndrome, but it sure is close. In their abject terror, they have decided to become complicit, plain and simple. That is getting harder and harder to do, obviously.

Hopefully, after the midterm elections, it will become impossible to ignore for very much longer. If Democrats take back the House, then they will also take back all the committee chairmanships. Congress will begin to exercise its constitutional oversight authority once again, as a direct result. Rather than having all the "Don't the Emperor's clothes look wonderful?" people in charge, Democrats will begin scrutinizing Trump's actions, as Congress should have been doing all along. White House officials (current and former) will be called upon to testify as to exactly what they've seen while doing their job.

People hoping for Trump's quick removal from office are going to be disappointed, we should point out in all fairness. Both the Twenty-Fifth Amendment and impeachment are very high bars to achieve. As they should be -- it should not be easy to remove a sitting president from office. If it were, it would happen all the time. If Trump is impeached, it will require a majority vote in the House and a two-thirds vote in the Senate to remove him from office. If the Twenty-Fifth Amendment is invoked, it would require over half of Trump's own cabinet as well as two-thirds majorities in both houses of Congress to depose him. Either way would require a whole lot of Republicans to publicly turn on the president.

We are, obviously, not there yet. And it must also be said, we may never get there. Turning on a president from your own party is an incredibly tough thing for politicians to do. There has to be clear and convincing evidence that the president either broke serious laws or is so mentally off the rails that he has become a danger to the American government. Those, again, are very high bars to clear for Republicans in Congress.

But the only way any Republicans' minds are going to be changed is to examine the available evidence. That's where a midterm takeover of the House would come in. If Democrats can prove the case to the public that Donald Trump is mentally incapable of being president, then the tide could turn even among Republicans. So far, Trump has been the ultimate Teflon president -- nothing has really stuck to him at all. But if witness after witness told the same story under oath that Bob Woodward and the anonymous Times author just told, it could actually begin to change some minds.

Of course, Republicans aren't going to turn on Trump until his job approval rating among Republican voters sinks to below 50 percent. Politically, that's the only way it will happen, because at that point supporting Trump becomes a political liability for Republican officeholders, and not a political asset. We're a long way from being there -- Trump posts job approval ratings of 70, 80, even 90 percent of Republican voters in the polls. That would have to go through a serious decline before any Republicans became brave enough to buck their party's leader. It has happened (see: Nixon, Richard), but it is pretty rare, because if his approval ratings stay high enough, then his party will continue to rally around the president (see: Clinton, Bill).

Nevertheless, we are not "on the brink" or "heading towards" a constitutional crisis, folks. We are already there. It really doesn't matter whether the cabinet invokes the Twenty-Fifth Amendment or not, because if history proves that they should have, then they'll bear the blame for whatever Trump winds up doing. Elizabeth Warren is right. If there is a conspiracy to hide the fact that Donald Trump cannot control himself and requires "adults in the room" who will ignore or actively subvert his wild orders, then the president of the United States might just be unfit to hold office. If this is true, then the cabinet members have a sworn duty to act. Failure to do so doesn't mean a constitutional crisis will be averted, but instead that it will merely be prolonged. Because the crisis is already here.


Chris Weigant blogs at: ChrisWeigant.com
Follow Chris on Twitter: ChrisWeigant
Full archives of FTP columns: FridayTalkingPoints.com
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