From David French: The President’s Authority Over Foreign Policy Does Not Enable or Excuse Lawlessness

The dissent over what happened in Ukraine is not a 'policy difference.'

There are both high and low defenses of President Trump in the Ukraine scandal. Today, I’ll deal with one of each. Let’s also ponder for a moment why even some high-profile voices on the right have provided cover for racists and Holocaust deniers. Finally, I’ll answer some thoughtful subscriber mail about children and marriage. Today’s lineup:

  1. So, what is the president’s constitutional authority over foreign policy?

  1. Is right-wing political correctness increasing the right’s receptivity to racism?

  1. More choice, fewer children

The president’s authority over foreign policy is subject to substantial congressional oversight.

In his impeachment testimony Wednesday, Ambassador Gordon Sondland dropped a Brinks truck full of dimes on the Trump administration. Here’s the New York Times:

Gordon D. Sondland, the Republican megadonor turned ambassador to the European Union, told the House Intelligence Committee on Wednesday that he and other advisers to President Trump pressured Ukraine to investigate Democrats “because the president directed us to do so.”

And:

Mr. Sondland confirmed what has already been known, that there was a clear “quid pro quo” linking a coveted White House meeting for Ukraine’s president to the investigations Mr. Trump wanted. And he said he was concerned about “a potential quid pro quo” linking $391 million in security aid that Mr. Trump suspended to the investigations he desired.

It’s not only increasingly untenable to argue that there was no quid pro quo, it’s increasingly untenable to argue that the quid pro quo dominated months of American foreign policy in a strategically vital region. But that doesn’t mean that Trump is without arguments in his defense. There remain multiple, potentially effective high-level defenses of Donald Trump in the impeachment inquiry. 

I use the term “high-level” to distinguish them from the kind of low smears and deceptive misdirections that all too often dominate political discourse. For examples of high-level defenses, my friend Andrew McCarthy argues that Trump’s conduct is bad, but not impeachable. My friend Jim Geraghty makes a similar argument, but emphasizes the proximity to the election as a dispositive consideration. 

Then there’s the argument that goes to the heart of the constitutional component of impeachment itself—the president sets foreign policy, and we should not impeach presidents over policy differences. Under this formulation, the present impeachment inquiry is a battle between a president who sets policy, and a bureaucracy that is resisting the president’s constitutional authority. 

This exchange yesterday between Rep. Elise Stefanik and Lt. Col. Alexander Vindman is illustrative of that view (as is Rep. Steve Scalise’s tweeted comment):

There’s an important element of truth here. Yes, as a general matter, the president does set American foreign policy priorities, and it is the role of staff to execute those priorities. That’s business as usual in the executive branch, but with two important qualifications: Congress has its own constitutional role in foreign affairs, and—crucially—Congress has ultimate authority to impeach a president for misconduct even in those areas where he is granted a degree of constitutional discretion.

For a brief primer on the built-in constitutional tension between the Congress and the presidency, you can do worse than read this primer from the Council on Foreign Relations. It’s quite clear from the text of the Constitution that Congress, for example, has the power to “regulate commerce with foreign nations,” Congress declares war, and the Senate ratifies treaties. 

Congress has the legislative authority to impose sanctions, to fund (or reject) aid requests, and to investigate foreign policy incidents and concerns. As the Council for Foreign Relations points out, in recent years Congress has conducted “high profile inquiries” that focused on “the 9/11 attacks, the Central Intelligence Agency’s detention and interrogation programs, and the 2012 attack on U.S. diplomatic facilities in Benghazi, Libya.”

Why are these powers relevant here? Because Congress not only specifically authorized and funded lethal military aid to Ukraine, it did so after receiving a (statutorily required) letter certifying that Ukraine had taken “substantial actions” to decrease corruption. As a consequence, Trump’s discretion to dispense Ukrainian aid was substantially limited. Dispensing aid was no longer “his” policy but rather American law

Consequently, when the whistleblower and other members of the executive branch raised internal alarms about Trump’s remarks to President Zelensky and Trump’s decision to place a hold on aid, they weren’t simply engaged in a “policy dispute” with the commander in chief, they were resisting presidential lawlessness. In fact, if one takes a close look at the Ukraine scandal timeline, you’ll see that Trump released the aid two days after Intelligence Community Inspector General Michael Atkinson notified the House and Senate intelligence committees that a whistleblower had filed a complaint. 

But let’s suppose for a moment that Congress left the decision to dispense aid entirely in Trump’s hands. Or let’s suppose that Trump’s “quid pro quo” was limited to matters that rest more completely within the president’s authority, such as a decision to meet with a foreign leader. That does not mean that Trump’s discretion is unlimited, Congress’s oversight role disappears, or that bureaucrats should merely salute and carry out orders if they are alarmed by the commander in chief’s actions or motivations. 

The Constitution imposes three forms of ultimate political accountability for the chief executive—elections, impeachment and removal under Article I of the Constitution, and removal under the 25th Amendment. Unlike the other forms of accountability, the power to impeach and remove is exclusively legislative. That means that the legislature doesn’t just impeach and try the president, it does so under an interpretation of “treason, bribery, or other high crimes and misdemeanors” that it exclusively defines.  

(Incidentally, this expansive power is one reason why it’s wrong to say that America has “co-equal” branches of government. Congress is supreme.)

One does not have to stretch the definition of “high crimes and misdemeanors” to encompass a presidential effort to extort or coerce a desperate and dependent ally to help investigate an American presidential rival. Indeed, the Founders were deeply concerned about foreign interference in American domestic politics.

Applied to the Ukraine controversy, Rep. Scalise’s tweet isn’t quite right. The president and Congress set the applicable policy. It was staff’s ultimate responsibility to follow the law, and the law said that the United States would provide lethal aid to Ukraine. If the president appears to block that policy—especially when he does so in service of a conspiracy theory or to induce an ally to investigate a domestic political opponent—the duty to salute and follow orders ends, and the duty to object begins. 

Now, on to a low defense of the president. Ordinarily I try to avoid quoting the dregs of the internet, but this pair of tweets—from Dinesh D’Souza, one of the president’s most prominent public defenders, and Dan Scavino, President Trump’s director of social media—is particularly reprehensible:

The man bled for his country. That doesn’t make him right on policy, and it certainly doesn’t make him perfect. But it provides strong evidence of where his true loyalties lie—evidence, by the way, that many of his most virulent critics don’t possess. 

There are moments when I hate what partisanship can expose. This is one of those moments.

Does right-wing political correctness increase the right’s receptivity to racism?

On Monday, my colleagues at The Morning Dispatch reported on the battle between Michelle Malkin and Young America’s Foundation (full disclosure, like Malkin I’ve given paid speeches at YAF events). I don’t want to repeat their summary, but after comments like this:

And tweets like this:

It’s worth asking how this happens. Why have we seen mainstream right-wing figures with substantial followings defend (and sometimes even promote) the work of vile racists and Holocaust deniers? We’re not far removed from 2016, when Steve Bannon declared that Breitbart was the “platform for the alt-right.” Before his star fell, Milo Yiannopoulos enjoyed an immense following. 

In a National Review piece I published a year ago, I detailed a troubling number of contacts between alt-right figures, the GOP, and conservative media more broadly, and since publishing that piece, the list of contacts has only grown. Now we can add Michelle Malkin (and her many, many defenders) to the list of those who are refusing to disavow the worst of the worst of the American right. 

As I wrote last year, some on the left have an easy, simple explanation for this phenomenon. Under Donald Trump, they say, the subtext is becoming text. In other words, the “dog whistle” racism that they claim is the foundation of GOP appeal to much of white America is now out in the open.

I certainly acknowledge that there is more racism in Republican populism than I believed even five years ago, but I think this leftist explanation misses some important nuance. There is something very particular about the culture of right-wing online activism that’s actively nurturing if not outright racism, then sympathy for racist arguments and excuse-making for actual racists. 

Make no mistake, right-wing political correctness exists, and without exhaustively describing its nature and tenets, a few of its imperatives are precisely relevant to the war on the right over Malkin and the alt-right. Right-wing PC warriors refuse to give one inch to the left. Never apologize. Never retreat. They actively seek to irritate and infuriate the left. They reflexively disbelieve and scorn accusations of racism. And they’re angry. They’re so very angry. It’s as if they view Twitter as Omaha Beach, and every single day is June 6, 1944.  

Racists thrive in this environment. Because online right-wing warriors reflexively disbelieve any accusation of racism, they’ll grant top cover to speech that consistently dances across the line. And while every now and then the mask slips, and the racism is outright and overt, racists more frequently mask their malice behind the façade of “just asking questions,” or they disguise themselves as “free speech” advocates and adopt exaggerated victim poses when mainstream conservatives denounce their trolling, their anti-Semitism, and their racist hate. 

The conflict between mainstream conservatives and the alt-right places the right-wing Normandy Beach Twitter warrior in an awkward position. Can he or she, ever, side with so-called “Conservative, Inc.”? 

The answer is all too often no. So they either stay silent, or they respond like Malkin responded, and train their guns once again on their truly hated enemies—like Newsmax TV host John Cardillo did, in the tweet below:

One final note on this topic—I’d be remiss not to give credit where credit is due. My friend Ben Shapiro is the single-most post potent conservative voice combatting the re-emerging alt-right. No one can reasonably accuse him of being soft on the left, and he has an immense platform with exactly the young conservatives the alt-right is most effective at targeting online. Ben has used that platform to systematically dismantle the alt-right, expose its absurdities, and ridicule its pretension. Good for him. 

Answering subscriber mail on marriage.

I’ve not been at The Dispatch for long—so the sample size is small—but nothing I’ve written has generated a subscriber response quite like yesterday’s observations about marriage. One reader writes that we need to emphasize a different aspect of economics—that we no longer need large families: 

In a welfare state with great individual prosperity and a cultural and employment bias toward higher education, Children become less of a family asset and more of a liability. Instead of working in the fields and contributing to the generation of food, they consume resources for far longer than children did before contributing to the family economy even 100 years ago. 

In our time, children leave home but may ask their parents for money for years. When the parents retire or quit working, they depend on Social Security, pensions, savings, Medicare, and other programs to support them after their working years are done rather than depending on their children. 

It is a given in realistic economics that people en masse make economic decisions that are most advantageous to them. hen children become more of a an economic liability than an asset, the advantageous choice is to have fewer children.

Another cautions me against advocating that others follow my daughter’s example:

I am glad that you are supportive of your 19 year old daughter's marriage.  I see that the marriage has the support of both families.  I have two married daughters and it is a gift to have them in strong marriages after more than 10 years. The Western world and culture, though, seems to be extending adolescence into the mid-twenties. For young women, this has increased the need to secure education (not just college, but certification in any career-supporting endeavor) as a hedge against the three Ds: death, divorce, disaster. I would only remark that, for most teen women, their life experience and their preparation for the future are not yet strong enough in the face of any of those 3 Ds.

And I appreciated these words, reminding us that millennials aren’t responsible for denigrating the marriage culture:

I admit, I get a little prickly whenever older people tell me how millennials are screwing up the economy and country this week. We're delaying marriage, we're delaying having kids, we're not buying houses, etc. You already know all of this. But one bit of information I'm not sure you've come into contact with is how much negativity we were exposed to as children (and adults now) about how many boomers hate married life. Perhaps my generation recognizes this because we're on the outside looking in, but so many boomers speak incredibly poorly of marriage. Take language like "ball and chain" or men joking with their single friends about how "free" they are and how they have to "lay down the law" when the wife (who works a 9-5 and takes care of the kids) doesn't have dinner ready on the table when we gets home. I see many jokes from boomers on FB about avoiding or even hitting your wife, having to "deal" with them when she's pregnant, and just generally talking down about them and it's so disheartening. A lot of older women will literally say they hate their husband, talk about how useless he is, how he never helps with the children or housework and how he drinks a lot, but then she still insists upon how happy she is.

Each thoughtful message could trigger a separate, newsletter length response, but let me offer three quick thoughts. 

First, regarding economics, one of the enduring realities of international fertility is that across nations and cultures, when economies develop (and women gain more control over their own lives) that fertility drops. The fact that children aren’t as needed to sustain family economics and to care for aging parents could well be a factor in this calculus. 

I don’t think declining fertility is always a problem—indeed, we want people to have economic and cultural options!—but when fertility declines below replacement level, a nation faces immense long-term challenges. Those challenges are magnified when cultural currents against, for example, early marriage grow so strong that even healthy, stable, faithful young people are urged to wait.

Second, I definitely take the point regarding my daughter’s marriage. No one should arbitrarily rush into marriage, and many people aren’t nearly mature enough to marry that young. I recognize that her situation is unusual, but I was a bit taken aback by the vehemence of the opposition to her wedding. The cultural pressure to move true adulthood to an ever-later age is strong indeed.

Finally, I completely agree that previous generations treated marriage poorly. In fact, it was my daughter’s Gen Z peers who were most accepting of her choice. It was my older Gen X peers who were least accepting. But of course my generation perfected the art of helicopter parenting. We all too often seek not just to guide our children as we raise them but to guarantee positive outcomes. We can’t. 

One final thing ... 

Some days you’ll get Grizzlies highlights. Some days you’ll get GOAT highlights. And some days, you’ll get . . . James Corden and Gronk as Lakers cheerleaders. You’re welcome: