The Negative Precedent of Trump’s Exoneration

Plus, how our geographic clustering contributes to our polarization.

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First, let’s begin with a bit of housekeeping. Earlier today we accidentally sent a piece of rank punditry—my web piece arguing that Bernie Sanders can, in fact, win the Democratic nomination and the general election—to our Dispatch email list. Our apologies for overcrowding your inbox! We’re still in the shakedown cruise of the brand-new S.S. Dispatch, and we’ll make mistakes. But do read the piece. I’m seeing the same kind of confidence from Republicans that they can beat Bernie that I saw from Democrats that they could beat Trump. I explain how pervasive negative polarization means that Bernie can win.

And, in fact, today’s French Press is partly about negative polarization. But first, it’s about negative precedents—namely the negative precedent set by acquitting Donald Trump based on his lawyers’ maximalist legal and political claims:

  1. The president’s defenders are granting him a dangerous degree of discretion.

  1. Is a key aspect of America’s constitutional design now dangerous for national unity?

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  1. Avatar photo
    Ryan Woods

    “That’s a royal impulse, not a republican impulse, and it places the imperial presidency on a whole new plane of impunity.“ Well stated. Dershowitz might as well have referred to 45 as King Donald.

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    Ray Salemi

    Actually, does precedent matter in a world of unapologetic hypocrisy?

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    Ray Salemi

    I think this "Flight 93-ism" comes from the fact that the Republican party has become the party of white guys and their wives desperately clinging to power. They view any lost or compromise as an existential threat because they've incorrectly, and hopefully unconsciously, defined America as "a Protestant country run by white people."

    They view the power sharing that is coming as "the end of America."

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      Spartan

      Bunk

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    JDW

    I don't believe the founders saw the federal government being so involved in domestic policy. The commerce clause for example is very watered down in its interpretation.

    They intended for the states to handle domestic policy and the federals to handle foreign policy. The exceptions, perhaps, would be fundamental rights etc... For example, if our retirement systems and health care options were at the state level then the blue states could go full socialism and the smaller states could choose otherwise. It is the desire to force others that is at the root of our divide. Just live and let live.

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        JohnF

        I think we may have a difference in opinion as to what "Federalism" is all about. I'm sure most people don't think about things this way, but I tend to think about it more in John D. Wright's terms (without necessarily agreeing with him on everything). Think about it as a set of lists (or columns in a spreadsheet). The Column headings would be:

        Things the Federal Government Should Do
        Things State Governments Should Do
        Things Municipal Governments Should Do
        Things the Market Should Do
        Things the Community Should Do
        Things Churches (generic term for Religious communities) Should Do

        There are some things that almost everyone can agree on. For example, most people believe that the Federal Government should provide the Military and conduct Trade and Foreign Policy. Most people would also say that Municipal Governments should pave local streets and sidewalks. However, there are many items where that kind of consensus doesn't exist. The column that people choose to put "provide healthcare" into says a lot about their overall political view. Some will choose to put it into "Things the Market Should Do". Others will put it into the "Things State Governments Should Do" Column, while others believe that it's something "The Federal Government Should Do."

        Perhaps if more discussions focused on core beliefs like this they would be better and more productive. Alternatively, we could just stick with "The Nazis" vs. "The Libtards" approach that seems to be working so well.

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      JohnF

      "It is the desire to force others that is at the root of our divide."

      I think that's a key point, and one that applies to both sides. The consequences of Mitch McConnell's Court-Packing have yet to be felt, but when they are they will be felt for a generation. Judging by the enthusiasm for these appointments coming from social conservatives, I assume that they are hoping that this new crop of judges will make decisions that will enforce socially conservative values. This is unlikely to sit well with the rest of the population. And yet, it is being done through the powers of a President who lost the popular vote and a group of Senators who represent less than half the population.

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        Spartan

        What court-packing? Obama appointed 329 federal judges, including 2 SCOTUS ones and Trump has appointed 187, including 2 SCOTUS. Do you describe Obama’s much higher tally as court-packing too? As for enforcing socially conservative values, you have that wrong too. In general, conservative judges are more apt to enforce the law as written. It is conservative only in the sense that it conserves the status quo until the People’s representatives change the law whereas, in general, liberal judges are more apt to rule in ways that reflect their view of changing times rather than allowing the People to make such changes. If it doesn’t “sit well” with the rest of the population, they retain the ability to lobby current representatives or elect new ones who will change the law. Such redress is much more difficult when judges take the process away from the People and there’s no representative electoral solution to reverse the decision.

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          JohnF

          If we're going to throw out numbers, would it be worthwhile to consider that Obama was in power for 8 years, while Trump is just heading into his fourth? Given that Mitch McConnell is pretty much dedicating Senate time to nothing else (apart from the current 3-week little inconvenience that he's had to deal with), he should be approaching Obama's record by the end of the year.

          Perhaps I'm wrong about Conservative Judges. We'll see.

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            Spartan

            You still didn’t answer the question about whether or not you consider Obama’s 329 judges to be court-packing vs Trump’s 187. If Trump fails to win a second term and continues his current judicial appointment pace, he’ll still have appointed 80 fewer judges than Obama.

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    WKDawson

    This is partly why the wages of sin is death. We never start out with a plan to become corrupt, we cut corners, do little insignificant things. We work from where we are, not what we have become. So we give over a little bit of our integrity, then a little bit more, and so on.

    We've wandered far away from the standards placed on Moses when he hit the rock twice. Leadership in the good book is about setting good examples, leadership in America is now being the example.

    Frankly, on our democracy, whereas there is no excuse for the rationalizations of many leaders from the red states, both parties are far from covered in glory. The red states were severely neglected. So the electoral college may actually still be the best way to remind lawmakers in those comfortable big cities that other people exist in this world. It is very unfortunate that we didn't end up with Abraham Lincoln, but someone more like a Rehoboam, and that was very foolish. However, more important at this point is that politicians repent and come clean on making steps to unify America rather than cast aspersions at each other. All have sinned.



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      Spartan

      Your description of Federalism is not remotely the sort Mr. French is suggesting. The Commerce Clause, among others, easily resolves questions of interstate commerce. There is no reason whatsoever the majority of issues of concern to those on the left or right can’t be managed at the state and local level unless the goal is to force your ideological opponents to live with your preferences. It is the failure to persuade, and then the rejection of the need to do so that is at the heart of our current polarization.

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          Spartan

          Also, “border controls between the states to keep women from leaving to have abortions” would be patently unconstitutional for reasons having nothing whatsoever to do with abortion so your example is utterly irrelevant.

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          Spartan

          We have had *massive* migrations for most of our history with far less in the last few decades. People moved to where there were more opportunities instead of demanding the government bring those opportunities to them where they were or to support them for life if they didn’t want to move. Maybe there’s a correlation between a more mobile populace and less polarization, in which case more interstate migration might be a good thing.

          Regardless, there is simply no inherently good reason to enact national policies for many of the issues that currently divide us. Elected representatives in government entities closer to the people they represent are more responsive to those people. The people who disagree with their representatives have the ultimate power to elect different ones who share their views and to make sufficiently compelling arguments to their fellow citizens to convince them to vote the same.

          Those unable or unwilling to do the civic, and civil, work to change their representatives, and for whom the issue disagreements are sufficiently offensive are indeed free to move to a jurisdiction with more palatable governance. Fundamental rights Issues for which the representatives of the People in a supermajority of the states are in agreement should become part of our Constitution via the amendment process. In the absence of such a national consensus, there is no good reason — and many profoundly bad ones — to force such agreement on the People without their consent.

          There is no example in all of recorded history of a purely majoritarian government surviving for more than a few generations as majorities inevitably run over those who disagree. Our system of shared power between our 3 branches and distributed among local, state, and federal governments with Constitutionally guaranteed rights that protect majority and minority alike is the reason our system has survived for nearly 9 generations. It might be slow to adapt but sometimes the best response to a desired change is to give it more, rather than less, time to infuse through the culture rather than to force it upon those who disagree. If you can’t convince enough of your neighbors to share your views, maybe it’s your views that need to change instead. If you don’t want to change your views, you remain free to change your neighbors by moving somewhere else.

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    David Burnett

    In 2016, I worried that a President Trump might use some Federal agency as his personal vendetta machinery. Thankfully, he hasn't (as far as we know). But in Dershowitz's fantasy world, a sitting President is free to use the IRS to audit, freeze, harass, and otherwise destroy his political rivals. Or he could use the EPA's regulatory powers to destroy the business interests of any political rival, so long as he reasonably believed doing so could help him win election. Or do I misunderstand our nation's (pending) abuse of power precedent?

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    Jerry Benuck

    Dear sir: The prediction that 70 percent of America will be represented by only 30 senators seems suspect. WSJ article from 1/7/20 states that, "New York was the biggest loser as a net 180,000 people left for better climes. Over the last decade New York has lost more of its population to other states (7.2%) than any other save Alaska (8%), followed by Illinois (6.8%), Connecticut (5.6%) and New Jersey (5.5%)." The article https://www.wsj.com/articles/blue-state-redistribution-11578443075?mod=searchresults&page=1&pos=7 suggests migration from high cost states since 2010. True, tax law could change. But if the consolidation does not take place, where does that leave the premise of the argument?

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      cheerio

      On a lighter note... are you sure this isn't some Soros liberal left coordinated conspiracy plan to purple-ize the red states? We are sending our sleepers to vote Blue (cue evil laughter).

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        Jerry Benuck

        Fair question, Pat. I can't answer that question until I read Mr. Klein's book. The WSJ article does identify the 10 high tax states losing population and the 10 low tax states with net gains - and more representatives after the 2020 census.

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    Andrew

    "is increasing political centralization ultimately compatible with increasing American racial, cultural, religious, and geographic diversity?"

    I think it could be, if, to paraphrase both you, David, and if I'm not not mistaken Charlie Cook, California can be California but should also allow Tennessee to be Tennessee and vice versa. At least in respect to the culture wars, which is the real clash underlying many of these policy disagreements, I see federalism as the only workable, non tyrannical solution for a nation this large and diverse. Tall order, I realize.

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    Christopher Clements

    Here's the essential question regarding the Articles of Impeachment - Are they so invariably arbitrary that they can be applied loosely to every president? The answer is a resounding, "Yes!" They are arbitrary and political and using the loose logic of the House Managers, could be applied to nearly every president over the past 50 years. Or more. Your TDS is getting the best of you.

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      td12212

      I don't think they could be used to go after bush for surveillance ( wasn't to help his reelection and didn't get foreign help to do a), or Obama for DACA (pure policy decision). I don't think anything that's being done today could be extended to get them. Neither one of them did anything like Trump.

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