No really. Bear with us for a moment.
|Oct 31||Public post|| 33|
I’m going to apologize in advance. There’s going to be some science fiction in this newsletter. It won’t be rank nerdery (though that can certainly be as enjoyable and informative as my colleague Jonah Goldberg’s famous “rank punditry”), but I will use two key quotes to help make sense of an important political reality of impeachment and of a critical constitutional battle that’s unfolding in the U.S. District Court for the District of Columbia.
That’s how we’ll start, but we’ll end with two rousing endorsements of thoughts from two very different people—Ross Douthat and Barack Obama. Here’s today’s lineup:
How Battlestar Galactica and Bill Clinton explain the GOP’s Trump problem.
What Frank Herbert’s Dune teaches us about the American Constitution.
Ross Douthat is right about the American church.
Barack Obama, a culture warrior for free speech?
“All of this has happened before, and all this will happen again.”
If there exists somewhere a Mount Rushmore of television, one of the four logos carved in the cliff face is that of Battlestar Galactica, Ronald Moore’s masterpiece. Set in the distant past, it traces a “rag-tag fugitive fleet” that is fleeing extinction at the hands of a race of murderous robots called the Cylons. Yes, it’s got a ridiculous name. Some might laugh at the premise. And sadly, it might be better known for this classic moment on The Office than for its own considerable merits:
If you haven’t seen it, shame on you. If you have, you’ll know that a theme that emerged in the latter part of the series was the idea that humanity just kept repeating its errors. People made new creations for their own convenience, the creatures turned on their creators, rinse, and repeat. It’s all more interesting than I make it sound, but you get the concept. Mankind was trapped by its fundamental nature.
And so are politicians. There are many reasons why Hillary Clinton lost the presidency to Donald Trump, but one reason was that America knew what it was getting if the Clintons returned to the White House, and it was inevitably going to be a repeat of the tawdry dramas of the 1990s. Democrats are loathe to admit this, but conservatives had the Clintons pegged nearly from the beginning. Bill and Hillary believed they were above the rules.
Marriage vows? Irrelevant. Shady business dealings? Yes please. And if you think the scandals of Bill’s administration didn’t touch Hillary, you don’t know your history. She wasn’t caught up in the Monica Lewinsky scandal, but the “co-president” had her own problems with Whitewater, cattle futures, and Travelgate.
That’s one reason why the email controversy hurt her so badly. It was serious all on its own—in her cavalier disregard for proper procedure, she mishandled highly classified information—but it was made more serious by the weary realization that this is who she is. It would all happen again.
It’s a popular thing to say that when Republicans turned out to vote for Trump that they “knew who he was.” But is that really true? I’d say they turned out in numbers large enough to put him over the top because they knew who Hillary was. They thought Trump might be different.
He’s not. It turns out that he’s a lot like the Clintons, but less glib and more brazen. Bill and Hillary are so thoroughly dishonest—so comprehensively corrupt—that you knew that the scandals would never end. Even some of their supporters reached a breaking point with Pardongate, Bill’s hoisted middle finger to “norms” and “values” as he walked out the White House door.
Just think for a moment of the impressive—though partial—list of overlapping, disturbing scandals that have dogged Trump and Trump’s team since he launched his campaign. His son, campaign chair, and son-in-law tried and failed to actively collude with the Russians, Trump directed a criminal scheme to pay hush money to cover up an affair with a porn star, his lawyer lied to Congress to cover up months of attempts to establish a lucrative business relationship in Moscow, Trump tried mightily (foiled mainly by insubordinate staff) to obstruct a lawful criminal investigation, and now there’s mounting evidence that his administration conducted months of diplomacy designed in part to strong-arm an ally into investigating one of his chief domestic political opponents.
I know that impeachment is a political process, but consider a criminal law comparison. Criminals with long rap sheets can earn significantly longer sentences than first-time offenders, even for first-time offenders who commit the same crime. Why? Because in part, past performance is seen as a predictor of future results. A man with an extensive criminal history is likely to reoffend.
Trump’s political rap sheet is long. Who wants to bet he won’t reoffend?
If I’m a Republican on Capitol Hill, I’m not only grappling with all the things we know about, I’m wondering what’s next? With the Clintons there was always a next. With Trump there will always be a next. In the coming months, it will likely be up to the Senate to decide whether that “next” happens inside or outside the Oval Office. In the 1990s, the Democrats made their choice, and the consequences of that choice stretched from the 2000 presidential election all the way until 2016. How high a price do Republicans want to pay for loyalty to a man who will never fail to let them down?
“The power to destroy a thing is the absolute control over it.”
I’ll say this for impeachment battles—they never fail to generate fascinating constitutional cases. United States v. Nixon established the principle that presidents aren’t immune to judicial process. Clinton v. Jones held that sitting presidents aren’t entitled to stays protecting them from federal civil litigation. Is the next significant impeachment case Kupperman v. Trump?
Charles Kupperman is the former deputy national security adviser and (for a few days) the acting national security adviser to President Trump, and he’s locked in the horns of a dilemma. The House has subpoenaed him to provide testimony in its impeachment inquiry, and the White House has objected, claiming that close advisers to the president are immune from congressional process. So Kupperman has brought suit against Trump and the House of Representatives asking the courts to resolve the dispute.
First, it’s important to understand that the Trump administration’s legal position is hardly extreme. As Kupperman’s attorney, Charles Cooper, notes in his complaint, presidents of both parties have asserted this immunity for generations:
For nearly a half century, the Office of Legal Counsel of the Department of Justice has consistently opined that “‘the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee’ on matters related to their official duties” . . . OLC has reaffirmed this position more than a dozen times over the course of the last nine administrations of both political parties. (Citations omitted).
As Cooper notes, then-Assistant Attorney General William Rehnquist defined the scope of the asserted immunity in 1971:
The President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis—should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee.
This opinion was reaffirmed by the Clinton administration in 1996 and by the Obama administration in 2014. As the Obama DoJ explained, this asserted immunity “is rooted in the constitutional separation of powers, and in the immunity of the President himself from congressional compulsion to testify.” Since the president is “the head of one of the independent Branches of the federal government,” if Congress could force the president or one of his “immediate advisers” to testify, then the president’s “independence and autonomy from Congress” would be threatened.
There’s a great deal of obvious merit in this argument. If Congress could force the president or his close advisers to testify at will, then the president’s ability to make necessary, sensitive decisions that are within the scope of his core constitutional responsibilities would be seriously compromised. But it’s one thing to assert that a default immunity exists; it’s another thing entirely to assert that this immunity is absolute.
In fact, the one court that’s considered this longstanding presidential position has rejected it. In 2008, Judge John Bates (a Bush appointee) ruled that former White House Counsel Harriet Miers did not enjoy immunity from a House subpoena seeking her testimony regarding the “forced resignation” of a number of multiple U.S. attorneys in 2006. Bates’s opinion is thorough, scholarly, and compelling. He is conclusion was clear:
The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President's personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.
Bates quotes Justice Blackmun, who stated in Youngstown Sheet & Tube Company v. Sawyer that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”
A president’s authority to nominate and terminate U.S. attorneys is an executive function, but it hardly represents the presidency at the apex of its power. When the president is conducting foreign affairs, he is at or near the peak of his constitutional authority. So Trump wins, right? The Ukraine controversy deals directly with the president’s foreign policy decisions. This is the presidency at its peak, and a president is entitled to protect his closest aides.
Not so fast. Remember, presidential powers fluctuate. When Congress waxes, sometimes the presidency wanes.
One of my pet peeves is when I hear people describe our branches as “co-equal.” While they certainly can check and balance each other, they are not—in fact—equal. Congress is supreme. It controls the purse, it can override vetoes, it can regulate the jurisdiction of the courts, and it can—if it chooses—fire the president of the United States.
And that’s where the Dune quote comes in. At a climactic moment in the book, the protagonist, Paul Atreides, asserts decisive control in the central conflict by asserting his ability to destroy the most valuable resource in the universe. That power trumped all other assertions of power in the Dune universe and placed him in the dominant position.
No, of course the Supreme Court doesn’t care about Dune, but it’s a helpful analogy. The power to destroy a presidency in many ways represents the apex power of Congress. Think of it like this—the president as chief diplomat or the president as commander-in-chief represents the presidency at its peak, but Congress still has the authority to remove the president for his conduct even in those areas of maximum authority.
How can Congress fulfill its constitutional obligation to thoroughly investigate potentially impeachable offenses without the ability to compel testimony from the most relevant witnesses? Congress at its peak is more constitutionally potent than the president at his peak, and thus—if push comes to shove—the House should be able to compel Charles Kupperman to testify.
Let’s boil this down to a simple, Twitter-style phrase: Peak congressional power > peak presidential power.
One final note on this topic—because the House is at the apex of its powers during impeachment inquiries, I do think it’s important (though not legally necessary) to formally launch such an inquiry before issuing subpoenas to close presidential advisers. Routine congressional oversight shouldn’t outweigh immunity in matters of national security and foreign affairs, and the launch of a formal impeachment inquiry can represent a bright-line departure from “normal” congressional proceedings.
Is the decline of the faithful greatly exaggerated?
I urge everyone to read Ross Douthat’s insightful piece in Tuesday’s New York Times. He makes a key point about the continuing decline in American Christianity—it’s mainly occurring in the more lukewarm quarters of the faith. Here’s Ross:
The relative stability of the Gallup [church-attendance] data fits with analysis offered by the sociologists Landon Schnabel and Sean Bock in a 2017 paper, “The Persistent and Exceptional Intensity of American Religion.” Drawing on the General Social Survey, they argued that the recent decline of institutional religion is entirely a function of the formerly weakly affiliated ceasing to identify with religious bodies entirely; for the strongly affiliated (just over a third of the American population), the trend between 1990 and the present is a flat line, their numbers neither growing nor collapsing but holding steady across an era of supposedly dramatic religious change.
Put another way, Americans who used to categorize themselves as Christians by default or heritage—those nominal Christians who rarely darkened the doors of a church—are more likely to simply say they don’t belong to any faith.
A verse in the book of Revelation comes to mind: “So, because you are lukewarm, and neither hot nor cold, I will spit you out of my mouth.”
To this point, I still remember an interesting 2015 analysis from Leah Libresco in FiveThirtyEight. She took the numbers from Pew’s immense 2014 religious landscape survey (including rates of conversion between faiths) and ran them forward. According to Libresco, “if conversions went on as they do today and all other factors were held steady,” Evangelicals would maintain or possibly increase their population percentage, while Catholics and Mainline Protestants would shrink. Libresco explains:
Why do evangelicals wind up ahead of other Christian sects in this model? They’re better at holding on to the people born into their tradition (65 percent retention compared to 59 percent for Catholics and 45 percent for Mainline Protestants), and they’re a stronger attractor for people leaving other faiths. According to Pew’s data on conversion rates, 10 percent of people raised Catholic wind up as evangelicals. Just 2 percent of people born as evangelicals wind up Catholic. The flow between mainline and evangelical Protestants is also tilted in evangelicals’ favor. Twelve percent of those raised evangelical wind up in mainline congregations, but 19 percent of mainline Protestants wind up becoming evangelical.
Ross sees a similar dynamic, noting that while Protestant attendance numbers are relatively steady (because the Evangelical church grows as the Mainline shrinks) the Catholic condition is more grim: “after a long period of immigrant-supported stabilization, in the current ‘aftershock’ it’s mostly Catholic mass attendance that’s been falling, even as Protestant church attendance bobs up.”
Thus, it’s not exactly right to say that America is becoming a “post-Christian nation” in the way that Europe is thoroughly secularized. In reality America is becoming a religiously divided nation—divided not between Christian sects, but rather between the faithful and the secular, with the faith community comprised of a critical mass of devout believers with a much smaller number of nominal or traditional hangers-on.
Finally, Ross accurately identifies a fascinating cultural reality. It’s simply wrong to say that the faithful are clustering in one American political party. White Evangelicals have moved decisively to the GOP, yes, but black Democrats are one of the most devout American demographics.
In fact, the Democratic Party contains an interesting alliance of both the most faithful (African-American) and secular (white progressive) communities in the United States. Ross puts it like this: “The tragic racial polarization of American Christianity, in this sense, may have one positive effect: preventing a complete polarization of our politics between Christian and post-Christian coalitions.”
I suppose we finally found the one silver lining in a very dark cloud.
Barack Obama melts the snowflakes.
Longtime readers will know I have a few obsessions. DC movies are better than Marvel movies. The NBA is the greatest sports league on earth. The second and third Matrix movies never happened. The Last Jedi is the greatest cinematic atrocity in history. I could go on. I will go on. Here’s another:
America’s culture of intolerance is destroying our culture of free expression.
Or, to put it another way, Americans are increasingly seeking to silence political, cultural, and religious opponents rather than persuade them. Public shame campaigns, boycotts, efforts to fire dissenters and ruin their reputations—all these things represent the culture of intolerance run amok. It’s one reason why contemporary Americans feel less free to speak even as the law grants them unprecedented freedom from government censorship.
To reverse this trend, we have to actively oppose this culture of intolerance. We have to reject attempts to intimidate and instead seek to answer bad speech with better speech. But here’s the challenge—it’s hard for one side to police the other. Progressives don’t care all that much about conservative critiques, and conservatives don’t care about progressive critiques.
And that’s exactly why I so appreciated Barack Obama’s words in this short clip:
If you don’t want to watch, here are the key excerpts:
This idea of purity and you're never compromised and you're always politically woke, and all that stuff, you should get over that quickly. The world is messy. There are ambiguities. People who do really good stuff have flaws.
Yes indeed. More:
One danger I see among young people, particularly on college campuses, I do get a sense sometimes now among certain young people—and this is accelerated by social media—there is this sense sometimes of the way of me making change is to be as judgmental as possible about other people, and that’s enough. Like, if I tweet or hashtag about how you didn’t do something right or use the wrong verb, then I can feel pretty good about myself, ‘cause man did you see how woke I was? I called you out.
We should applaud him for calling out his own team. (“Woke,” of course, is not a word that’s applied to conservatives). That’s key to getting through this illiberal moment in American politics. We cannot allow our zeal to “own” or “destroy” anyone to overcome our commitment to basic decency and classical liberal values.
I had multiple problems with the Obama administration’s approach to the Constitution. I even sued his administration over its Tea Party targeting scandal, but when he’s right, he’s right. Now, if only some of his biggest fans would heed their hero’s words.
One last thing ...
Speaking of the NBA, James Harden had a monster game last night. He scored 59 points in a thrilling 159-158 win over the Washington Wizards. But I’m not going to share a Harden highlight. Instead, because he apologized to China after his own general manager ever-so-briefly tweeted support for freedom in Hong Kong, I’ll share this. It’s the basketball version of his unforced error—and Josh Hart is all of us when we watched him capitulate to the Communists.