A warning. This isn’t the most upbeat newsletter I’ve ever written. It’s been a bleak week in many respects. The evidence is accumulating against the president, leading constitutional conservatives are actively misleading Americans about the Constitution to protect Trump, and the Russian bear might be more militarily dangerous than we realize.
Ahhh well, at least we have an exciting young Memphis Grizzlies team to give America hope. The lineup:
A cell phone call builds the case against Trump.
Esteemed conservatives are making America constitutionally illiterate.
Could Russia actually beat NATO in a European fight?
The evidence is not Donald Trump’s friend.
There’s not much to say about the impeachment hearings Wednesday. To the extent that they added anything to our factual understanding of the president’s conduct, they added another splash to the tidal wave of evidence indicating that Trump tried to coerce Ukraine into investigating the Bidens. Bill Taylor testified that a member of his staff overheard a cell phone call Ambassador Gordon Sondland made to President Trump. Trump apparently asked Sondland about “the investigations.” When the staffer asked Sondland “what President Trump thought of Ukraine,” Sondland allegedly responded that Trump “cares more about the investigation of Biden.”
News broke Thursday morning that a second staffer can corroborate this story. None of this is surprising, especially given the quite clear content of Trump’s call with President Zelensky. At this point the only real factual surprise of the impeachment hearings would be if a witness could credibly contradict the now-evident narrative of Trump’s Ukrainian diplomacy.
One thing that is striking: the extent to which Republicans fail to fully grapple with the call transcript. This tweet of Jim Jordan’s examination of Bill Taylor is making the rounds:
Yet in the call transcript itself, Zelensky pledges that “He or she [his next prosecutor general] will look into the situation, specifically to the company that you mentioned in this issue.” This in direct response to Trump’s request that Ukraine investigate the Bidens. “The company” is Burisma, the company that hired Hunter Biden.
In addition, after Trump asked Zelensky to look into the 2016 election—including the mythical Crowdstrike server—Zelensky responded, “Yes it is very important for me and everything that you just mentioned earlier” and then continued later to say, “I also plan to surround myself with great people and in addition to that investigation, I guarantee as the President of Ukraine that all the investigations will be done openly and candidly. That I can assure you.”
Trump asked for investigations, and Zelensky promised to investigate. It’s that simple.
Building the idiocracy, one word salad at a time.
We’ve come a long way from the days when the Tea Party handed out pocket Constitutions. Now, in the interests of defending President Trump, smart people are exploiting civic ignorance to maintain the red wall against impeachment. No, that’s too mild. They’re not just exploiting civic ignorance, they’re affirmatively deceiving the American people about the content and meaning of the Constitution. They’re trying to make people believe things that plainly aren’t true. They’re making the American people less constitutionally literate.
What do I mean? Take this comment, from Rand Paul:
The Sixth Amendment is pretty clear. It’s part of the Constitution, part of the Bill of Rights, and it says that you get to confront your accusers. And so, I think it’s very clear that the only constitutional mandate here is, is that if someone’s going to accuse you of something that might remove the president from office, for goodness’ sake, shouldn’t they come forward and present their accusations in person?
This has become a talking point among the Trumpist right. For another—rather shocking—example, read this from Northwestern University law professor and Federalist Society co-founder Steven Calabresi:
Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to “a speedy and public trial.” House Democrats are trying Trump in secret and are denying him the right to a public proceeding….
The Sixth Amendment also guarantees criminal defendants the right to be “informed” of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press. This, too, violates Trumps rights under the federal Bill of Rights.
Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him,” which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right….”
Now, compare that comment with the actual text of the Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Note the key words—“in all criminal prosecutions.” As the CATO Institute’s David Post notes, Calabresi’s argument is “utter nonsense, completely devoid of any apparent constitutional logic.” The scope and reach of the Sixth Amendment has been extensively litigated, and it most assuredly does not apply to the House’s impeachment inquiry.
One can certainly make a good faith argument that maintaining the whistleblower’s anonymity is unfair, but to argue that it violates the Sixth Amendment is simply and plainly wrong.
But this Sixth Amendment nonsense is only the tip of the iceberg of constitutional confusion. Take these paragraphs from a recent piece by Victor Davis Hanson:
The “inquiry,” supposedly prompted by President Trump’s Ukrainian call, is only the most recent coup seeking to overturn the 2016 election.
Usually, the serial futile attempts—with the exception of the Mueller debacle—were characterized by about a month of media hysteria. We remember the voting-machines-fraud hoax, the Logan Act, the Emoluments Clause, the 25th Amendment, the McCabe-Rosenstein faux coup and various Michael Avenatti-Stormy Daniels-Michael Cohen psychodramas. Ukraine, then, isn’t unique, but simply another mini-coup.
He later argues that “We are witnessing constitutional government dissipating before our eyes.” Words have meaning, and impeachment isn’t a “coup.” A coup is an unlawful (often violent) seizure of power. Impeachment is a constitutional process that can’t succeed without the affirmative votes of, first, a majority of the House, and then, a supermajority of the Senate—and every person voting is a person who won an election, also according to constitutional process. Impeachment isn’t the dissipation of constitutional government, it’s the exercise of constitutional authority.
And no, if Trump is impeached and convicted (highly unlikely), it doesn’t “overturn” the 2016 election. Hillary Clinton won’t be president. Every one of the laws, judicial confirmations, and regulations enacted during the entirety of Trump’s term would remain in place.
If one took literally the complaints of serious senators, law professors, and historians (and why wouldn’t you? They’ve spent a lifetime demonstrating their constitutional knowledge), you’d believe that House Democrats were currently engaged in an illegal, unconstitutional proceeding. If you’re a partisan, you already likely despise Democrats. And now they’re engaged in a “coup”? Outrageous!
Yes, I know that there’s a longstanding tradition of hyperbole in American political rhetoric, but there’s a difference between exaggerations and plainly false constitutional assertions. Moreover, while people expect hyperbole from Sean Hannity or any other screaming Trump defender on talk radio, the same ideas from the pen of a respected historian sends a message that “this really is a coup.” It’s not. It’s not even close.
If you follow social media in the age of Trump, you’ve likely noticed a pattern. When there’s a report of an alleged Trump scandal, there’s often a brief pause on MAGA Twitter and in MAGA Facebook. One set of defenders waits patiently for the media overreaction, ready to pounce on the first blue checkmark who goes too far or misstates the alleged facts. Another set waits for a credentialed or credible person to toss a word salad for Trump—granting them a “well akshually” fig leaf that they can trot out as a talking point online.
“Akshually, the founder of the Federalist Society says Trump has a constitutional right to confront the whistleblower.”
“Akshually, a Hoover Institution senior fellow and esteemed historian recognizes impeachment as a coup.”
This sets up the debate as a battle of experts, and we all know that when there’s a battle of experts, the expert you like tends to win—regardless of whether he’s despoiling his expertise.
I use the word “idiocracy” advisedly. I’m of course calling back to the movie of the same name, set in the fictional, dumbed-down America of the future—where President Dwayne Elizondo Mountain Dew Herbert Camacho rules over a drought-stricken, miserably stupid nation. In Mike Judge’s formulation, America declines due to natural selection. It just happens. But for the sake of defending Trump, smart people are actively trying to build the idiocracy. They manufacture ignorance to save his presidency.
Before I move on, for your bonus watching pleasure, I present to you President Camacho’s most significant public address—made to the “House of Representin’” in the year 2505 (language warning):
Could Russia win a war with NATO?
I’m an old Cold War nerd. Back in my high school days I’d devour books and magazine articles examining the balance of power between NATO and the Warsaw Pact. I’d read about throw-weights. I’d fret about a potential contest between the M1 Abrams and the T-72. I worried about the Soviet Union’s numerical advantages and read Tom Clancy’s Red Storm Rising as if it were a work of prophecy.
I was far from alone. A generation of American warriors and scholars grew up with intimate knowledge of Soviet military capabilities. Then, after the Soviet Union fell, we went through almost 20 years when the Russian military was largely an afterthought. Aging equipment, poor training, and poor morale—combined with absolute American military ascendancy—meant that Americans didn’t have to worry about Russia any longer.
Those days are over. It’s too much to say “Russia is back”—we are still far stronger if we engaged in a true force-on-force confrontation—but Russia is a formidable foe once again. And I’m not just talking about its ability to influence the Middle East (or American elections). In Europe, in certain contexts, it just might be stronger than NATO.
Last week I read from cover-to-cover the Rand Corporation’s latest assessment of Russian military capabilities and talked to one of its authors, Brian Nichiporuk. I don’t want to be alarmist, but I left the conversation concerned. Simply put, we’ve grown accustomed to our own supremacy. We’ve gotten in the habit of thinking that no major military in its right mind would even consider confronting the western alliance. We may need to rethink that assumption.
It’s difficult to summarize a 99-page document in a few sentences, but this part of the preface is helpful:
The study team found that although Russian projections of its future capabilities are often optimistic, since 2008 the Russian military has become much more capable in general, not only of defending Russian territory but also of launching invasions against its neighbors, Georgia and Ukraine. Improvements have been a result of substantial increases in expenditures on military programs and forces, as well as a focus on readiness, organization, fielding modernized weapons, and updating tactics and doctrine.
Yes, the Russian military has gotten better. We got that. But how is it getting better? At first glance, some of the report is reassuring. Many of Russia’s military improvements have been concentrated in defensive systems and “most Russian forces are postured defensively.”
But here’s the problem. Yes, Russia has emphasized a formidable defense, but the “capabilities Russia has pursued [also] gives them substantial offensive capability against states along Russia’s borders. Put another way, Russia is entirely capable of what Nichiporuk called “smash and grab” operation in the Baltic states. It could seize, say, Estonia, immediately incorporate it into Russia’s extremely capable defense umbrella, and then present the western alliance with a “fait accompli” that unless undone could very well break NATO.
None of this is news for anyone who’s paid attention. To deter Russia, NATO has modestly reinforced Estonia, but not at a level sufficient to truly protect the nation—a deployment that large would almost certainly provoke an extreme Russian reaction. But what was interesting to me was Nichiporuk’s concern that if Russia seized one or more Baltic states, that NATO had insufficient force in Europe to reverse Russian aggression. In other words, absent large-scale American reinforcement from home (into what would be a brutal battle space), Russia could fend off NATO.
This is what is meant by the “fait accompli.” Russia is formidable enough to make American politicians (and likely the American public) ask themselves whether intervention is worth the considerable casualties and the potential dreadful setbacks.
So we’re left with a dilemma: Reinforce our Baltic allies enough to defeat a Russian incursion, and you’ll provoke a crisis. Leave them vulnerable, and you provide Russia with a high-risk, high-reward opportunity to disrupt NATO, enhance Russian power, and expand Russian influence across much of Eastern Europe. Right now, the risks are so high that it’s unlikely that the Russians would take such a gamble, but their capabilities have improved to the point where it’s quite possible that they could succeed if they tried—if a divided, polarized America failed to uphold its treaty obligations to nations many millions of Americans don’t even know exist.
One final note, lest you think my concerns are merely my own, not long ago I asked an extremely smart source in the Pentagon if there was anything that truly kept him up at night. His answer was fast. “Russia into the Baltics.” The scenario (and Russian capabilities) he described mirrored Nichiporuk’s assessment almost down to the syllable.
So, we have a choice. Take Russian capabilities seriously, or belittle the Russian military like Tucker Carlson did here:
What did I say about building an idiocracy?
A final note of good news.
You’ll be happy to know that the Memphis Grizzlies drafted a pair of outstanding young rookies. It’s early, but Ja Morant is the leading contender for rookie of the year, and Memphis’s draft steal, Brandon Clarke, has broken into the top five in the NBA’s “Kia Rookie Ladder.” And so I leave you with this, Morant’s game-winning drive last night against the Charlotte Hornets. A star is born: