The Negative Precedent of Trump’s Exoneration

Plus, how our geographic clustering contributes to our polarization.

By
72

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?

Keep reading with a free account
Create a free Dispatch account to keep reading Get Started ALREADY HAVE AN ACCOUNT? SIGN IN
72
By
Comments (72)
Join The Dispatch to participate in the comments.
 
  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.

    Collapse
  2. Avatar photo
    Ray Salemi

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

    Collapse
  3. Avatar photo
    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."

    Collapse
    1. Avatar photo
      Spartan

      Bunk

      Collapse
  4. Avatar photo
    John D. Wright

    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.

    Collapse
    1. Avatar photo
      Pat Riot

      I'm repeating myself here, but I really wish people would think through the *details* of what they are proposing when they talk about Federalism this way. Virtually every single product you buy at the store is for sale in all 50 states. Almost every contract you sign is enforceable or mostly so in every State. Etc. etc. times a million. This notion that we can just brush aside our polarization by huddling up in divided states is a non-starter in any practical reality to can come up with.

      Collapse
      1. Avatar photo
        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.

        Collapse
    2. Avatar photo
      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.

      Collapse
      1. Avatar photo
        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.

        Collapse
        1. Avatar photo
          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.

          Collapse
          1. Avatar photo
            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.

            Collapse
  5. Avatar photo
    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.



    Collapse
  6. Avatar photo
    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?

    Collapse
    1. Avatar photo
      Pat Riot

      It's not just Dersh's fantasy world now, it's the one every president from now gets to live in.

      This is the Reichstag Dissolution vote right here. The US Congress just voted itself out of power.

      Collapse
  7. Avatar photo
    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?

    Collapse
    1. Avatar photo
      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).

      Collapse
    2. Avatar photo
      Pat Riot

      What about the other big states? Have you looked at their growth paths and done the math? That sounds like an interesting task for somebody to find out the truth of those projections Mr. French mentioned.

      Collapse
      1. Avatar photo
        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.

        Collapse
  8. Avatar photo
    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.

    Collapse
  9. Avatar photo
    Pat Riot

    Calling for more "Federalism" as the answer might as well be a call for the Rapture. It's a silly fantasy held by people who have not thought the matter through.

    In our global economy we have billions of dollars worth of goods going across states every single day, 24 hours a day. We have millions moving from state to state every year. We have millions of individual contracts between companies that cross state lines. Virtually every company with more than a few dozen employees does business on a national basis, not a state basis. Virtually every single good you purchase that is not a bit of raw produce came at least in part from at least one other State.

    We have no border control across any state lines, and no legal precedent to deny US citizens entry into any particular State.

    Etc. etc. times a billion billions. This idea that we can just solve our polarization problems with "Federalism" is pure fantasy. It's like saying the solution is Galt's Gulch or Seasteading.

    And the enemies of the United States more most decidedly *not* "Federalizing", which means that our foreign policy absolutely *must* remain unified across the States if we are to survive even another nanosecond.

    In short, you can invoke America at the time of the Colonies, and (correctly) recall the sentiments of our Founders who certainly envisioned a country much more Federalized than it is today. But that's not even remotely realistic politically, technologically, economically, legally, or militarily. It's a non-starter of a conversation in the year 2020.

    I get that *realist* solutions to our mess are scarily scant right now, but I feel like as a country we're truly up against a wall and it's time for solutions that *work* in the *real world* or the one that actually *does* work is going to take over: dictatorship.

    Collapse
    1. Avatar photo
      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.

      Collapse
      1. Avatar photo
        Pat Riot

        I wasn't responding to what Mr. French suggested--I actually didn't see any details, so I wouldn't know *exactly* what he has in mind.

        I was responding to what you are essentially proposing: that Federalism can get us out of this mess and save the country.

        Do we envision *massive* migrations of Americans moving to their desired State? Millions of Democrats living in Texas moving to California, taking the place of the millions of Republicans living there?

        Once you start getting specific about the details, this idea gets very crazy--and it starts solving fewer and fewer problems, and would even make some of them worse (viz. border controls between states to keep women from leaving to have abortions).

        Collapse
        1. Avatar photo
          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.

          Collapse
          1. Avatar photo
            Pat Riot

            There you go. That alone is a reason why "Federalism" is not the answer.

            And far from being irrelevant, abortion is the single-most divisive issue in our country with the opposing sides positioning their opponents as monsters. A State that facilitated abortions from its neighboring state that outlawed them, for instance, would put the issue right back before the Federal government.

            And that's one issue, and one example.

            Collapse
        2. Avatar photo
          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.

          Collapse
          1. Avatar photo
            Pat Riot

            Regardless of the rationale for nationalization that took place in the last two centuries, we are where we are. This is no different than saying, "We should have never started trading with China so let's outlaw that now.". It's a practical impossibility regardless of how right you might be.

            Here's another example: our borders with other countries e.g. Mexico. What if California wants to have a different immigration policy than say Idaho? Then what? We don't let Californians move about the country freely? Or Idaho doesn't let Californians in?

            (To be clear, I'm generally defending the status quo here, not calling for more centralization than we already have).

            Collapse
  10. Avatar photo
    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.

    Collapse
    1. Avatar photo
      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.

      Collapse
Load More