Impeachment, the Constitution and Donald Trump: Scholar William Howell on America after acquittal
Trump got away with it, mostly. But Howell believes trying to hamstring the presidency would be a big mistake
CHAUNCEY DEVEGA
FEBRUARY 6, 2020 12:00PM (UTC)
The impeachment of Donald Trump is both a civics lesson and a civics test for the United States. Unfortunately, it appears our nation paid little attention to the lesson and failed the test.
Donald Trump should clearly have been convicted and and removed from office for his crimes against the Constitution, democracy, and the rule of law surrounding his Ukrainian extortion scheme. Instead, Trump's Republican loyalists in Congress have chosen to support him regardless of the abundant and obvious evidence of his impeachable crimes – crimes which Trump and his defenders have largely admitted to. Republicans and other Trump cultists care more about power than they do the Constitution, democracy or the rule of law. On Wednesday afternoon, Trump was acquitted in the Senate, with only one Republican — Mitt Romney of Utah — voting to convict on one of two counts.
One can reasonably disagree with the timing of impeachment and what charges should have been included in it, but at least the Democrats finally followed through on their responsibilities as public servants acting in the interest of the common good and in defense of the Constitution. They knew full well that Trump's cultists would never convict him. Nonetheless, the cause was righteous. Rep. Adam Schiff, chair of the House Intelligence Committee, proved himself a great statesman. Speaker Nancy Pelosi showed herself once again to be a skilled strategist and tactician. But ultimately, their struggle was a futile one.
On too many occasions, the mainstream news media defaulted to "balance" and "both sides" journalism, presenting Trump's impeachment as a partisan issue instead of one where the facts show that one party is defending a criminal president and another is defending the Constitution.
Writing at the Columbia Journalism Review, Jon Allsop summarizes this, referring to NYU journalism professor and media critic Jay Rosen's claim that "both sides" language is inadequate:
Democrats, for the most part, are engaging with the factual record; Republicans, for the most part, are not. These positions are manifestly not equivalent. Treating them as such does not serve any useful concept of fairness; instead, it rebounds clearly to the advantage of the one side (Republicans) for whom nonsense being taken seriously is a victory in itself. The [New York] Times is far from the only culprit. The structure of some TV news shows, in particular, has bothsidesism hardwired into it: a Democrat and a Republican are given equal time to make their unequal impeachment cases, and both face hard questions, to contrive a sense of balance. The questions lobbed at Democrats are often fair, but often pale into triviality when a Republican follows them on and starts sowing conspiracy theories.
The American people did not take to the streets in protest or otherwise exert great pressure on elected officials to convict and remove Donald Trump from office. While public opinion polls show that the majority of Americans wanted Trump impeached and convicted, they did little to nothing to force that outcome.
What are the future implications of Trump's impeachment for America's political culture? How has Trump impacted the presidency as an institution? Should the Constitution be amended to prevent a future authoritarian demagogue such as Trump from taking power? If Trump is re-elected after being impeached, will that fuel an even stronger and more dangerous right-wing populist insurgency?
In an effort to answer these questions I recently spoke with William G. Howell. He is professor of American politics at the University of Chicago's Harris School of Public Policy and chair of the political science department. He is an expert on the American presidency, the Constitution, the judiciary and questions related to the separation of powers. Howell is also the director of the Center for Effective Government.
He is the author of numerous books including "Relic: How Our Constitution Undermines Effective Government — and Why We Need a More Powerful Presidency" and "Thinking about the Presidency: The Primacy of Power." His writing has also been featured in the Wall Street Journal, Foreign Affairs and Foreign Policy.
A fundamental question: Why do constitutions matter? This is the core question underlying Trump's impeachment.
Yes, that is a basic and fundamental question. But I do not agree that it's simple or straightforward. Constitutions do some basic things. They set the rules of the game. They identify the key players. They allot power. They establish processes for the government to function. But what the Constitution means is a moving target. Whether or not constitutions should be adapted — the answers that we offer for that question are going to vary over time. The answers are going to be a function of who is in power.
From that follows questions about the responsibilities that a given society has to maintaining that constitution, adapting and if need be rejuvenating it.
In different moments we need all three of those things. How do we decide when to be loyal to political traditions and when that document and those traditions must be adapted to present needs? There is not much attention paid to those questions by the breathless coverage of the latest atrocity that's coming from Washington.
What are some lessons from Donald Trump and his presidency relative to impeachment and the U.S. Constitution?
On one hand, you can recognize how much of a threat the presidency can present, and how disruptive presidents can be, and what it means to have a demagogue like Donald Trump in the White House. There is cause for great concern regarding the abuse of power and degradation of constitutional practices and constitutional norms in this moment.
On the other hand, Trump is also a president who is being defeated left and right. He is being thwarted by the courts, by the bureaucracy and even by his own party in many ways. Trump has a long list of very public defeats. He suffered them in no small part because of the constitutional design of our system of separated powers.
The basic thing to recognize about Donald Trump is that he is a populist. Populists thrive off dysfunction. And they thrive off dysfunction amidst government failure.
"Government failure" being where for long periods of time a given government has failed to attend to core needs of the broader public. The premise of Trump's presidency is a deep critique of the existing political order. Trump offers no solution, but in my opinion the response to his presidency shouldn't be one of simply trying to recover an originalist understanding of the Constitution and holding to what the founders had in mind with the hopes of re-establishing some type of normalcy. What we ought to be doing in the United States is thinking anew about the design of our political institutions so they can solve problems with the goal of preventing a populist demagogue such as a Donald Trump-type figure from coming to power again in the years ahead.
What is the role of emotion in the Age of Trump, generally, and his impeachment, specifically?
To conclude that the political cleavages among the American public are purely and exclusively the function of two tribes that simply disagree about what policy ought to look like is to miss the emotional valence, the distress and the anger that permeates American politics.
How does extreme polarization — most of it asymmetrical on the part of the Republicans — complicate how we can locate Trump's impeachment relative to Richard Nixon's?
There were plenty of people who were furious about Nixon, for sure. But the two major parties weren't nearly as polarized then as they are today. There was a healthy supply of ideological overlap between the two parties, just as there was a healthy supply of ideological moderates that allowed for bridging across extremes.
The public conversations in America during the Nixon years were also very different than what we see today. In 1973 there was no Fox News. There wasn't cable news. In total, the media environment in America was radically different. It was less fragmented and it was less extreme. There was not a major cable network in the form of Fox News whose primary purpose was to stand with Richard Nixon by offering one explanation after another about why Nixon was right and the opposition party was filled with a bunch of misguided, unpatriotic, communist liberals. It's hard to draw connections between Watergate and Ukraine in no small part because the larger political environment has shifted so dramatically.
There is much media malpractice in the Age of Trump. This has been especially obvious during his impeachment. There have been all these discussions about Article II of the Constitution and the "unitary executive theory," but few experts are properly defining terms and concepts. Moreover, many commentators who defend Donald Trump are misrepresenting basic facts about the Constitution.
It's a real frustration. What has taken place with Trump's impeachment are nothing but arguments of convenience. Cherry-picked quotes from the founders, or partial readings of Article II, and in some instances the appropriation of some sort of veneer of mainstream constitutional thought in the service of decidedly non-mainstream conclusions.
For example, these discussions of the unitary executive president which are propagated by many lawyers. Arguments in favor of that theory are wholly out of step with mainstream constitutional thought. Those who keep arguing for a unitary executive are using the language of constitutional originalism to advance partisan objectives. In practical terms, arguments for a unitary executive mean that "My guy is in office and I want him to have all the power so he can do whatever he wants."
How do we get to a place where we can have sustained, reasonable but hard-hitting conversations about how to interpret the Constitution? That is hard to maintain in this polarized environment. The escape hatch that the news media regularly deploys is to say, "Well, on one side we hear this, and on the other side, we hear that. And I'm covered because I recognize both sides."
How should we explain to the general public what Article II is and what it is not?
The most consequential provisions of Article II are things such as the Take Care Clause. The president is charged with taking care that laws are faithfully executed, and the president has the executive power. The question then becomes, what does it mean to faithfully take care that the laws are executed? What exactly do we mean when we say the president has the executive power? Those are fraught questions. And the answers to those questions have, in no small part, been answers offered by presidents who are trying to push outwards on the boundaries of their power. Dispassionate law professors and constitutional scholars give a very different answer.
When Donald Trump and William Barr and their political operatives basically say that he's a king and that Article II says he can do whatever he wants, how do you respond?
Jerry Nadler also called Donald Trump a "dictator." Trump and his apologists are wildly off base. Nadler is too. All power in the American political system is contested. It is fragmented, provisional and limited. We can point to all kinds of defeats that the president has experienced since he assumed office. There have been defeats in the courts and in Congress. There have been defeats in trying to oversee the bureaucracy. The impeachment hearings are a type of defeat for Trump too. Trump wanted to do something in Ukraine that he plainly failed to pull off successfully. Trump's Ukraine efforts launched a set of impeachment hearings.
On the other hand, the idea that the president is getting everything that he wants is patently absurd. Yes, Trump is profoundly disruptive to American politics. And to my mind, Trump is doing tremendous damage to our politics. It is possible to not be a king or a dictator, and nonetheless behave in ways that degrade America's politics and democracy. That is what we have with Donald Trump.
What you believe the future fallout from Trumpism will be for America's political institutions?
There are the institutions themselves — the formal powers allotted to them — that govern how institutions interact with one another. There are also the country's politics more broadly, which are informed by norms. These norms are informed by trust or lack thereof. This impacts how citizens vest authority in the government. There are patterns of speech and communication. What should civic discourse look like? It is in that latter area where I believe the most damage is being done right now to the country.
We're going to live with the fallout for some time to come here in the United States. Even if a Democrat, especially a liberal Democrat, were to win the presidency in 2020 and Democrats assume control of both chambers of Congress, we are still going to have a huge portion of the country who supported Trump to the very end. Trump's supporters will see Democratic control as a concerted effort by the opposition party to co-opt the state and run roughshod' over their interests. Trump's supporters will see the Democrats' victories and power as illegitimate. That kind of anti-government fervor and populist anger is going to persist after Trump leaves office.
And that disaffected fervor is something that future populists can tap into. That disaffection is going to be there waiting for another version of Donald Trump down the road. As a country we are going to have to figure out ways, if nothing else, to reach those citizens who feel profoundly disaffected, marginalized and angry.
How do you reconcile Donald Trump's relationship to the presidency as an institution?
The presidency as an institution is being disrupted by Donald Trump because of his unwillingness to properly handle the appointment process. We see this with Trump's reliance on interim appointments. The patterns of behavior that used to govern the White House have been trampled on. There have been a series of chiefs of staff who have been unable to discipline and restrain Donald Trump's behavior.
One can highlight the idiosyncrasies of Trump himself. His manners of speech, his habits of tweeting, his personal animosities, as well as his profound ignorance and inexperience. Trump displays open scorn for expertise.
But again, Trump is having to operate in a highly institutionalized setting where he can say, "Just go ahead and build the wall!" but that doesn't make the wall get built. You see him trying again and again to look for one pathway after another to try to make headway on his core policy objectives. That requires Trump to engage with existing institutional actors, over whom he has only partial control, and to pursue law and policy processes not of his making.
Watching Trump's impeachment, what do you see?
Well, I think the first thing to note is that there are all kinds of performances. There are these scripts that are being played to. It is not the stuff of a seminar on legal rules and procedures about when and whether or not we can get rid of the president in an academic sense. It is a spectacle where the audience is some mix of a handful of moderate Republicans and the broader American public. The broad contours in this impeachment are informed by, on the Democratic side, the need to tell one cogent, hard-hitting, very clear story in order to establish the case for impeachment.
The opposition needs to make sure that doesn't happen.Trump's defenders and the Republican Party do not need to counter with their own cogent, straightforward, hard-hitting story. What they need are a whole mix of counterclaims that have the effect of eroding the basis for the Democrats' charges.
That is what we see with the Republicans. They're talking about everything from complaints about procedure to Hunter Biden to the integrity of the 2016 election and the upcoming 2020 election, to the "rabid Democrats." The Republicans are all over the place. On the other side, the Democrats have been doing the very best that they can to tell a clear story about the abuse of power and obstruction.
As a public ritual, is Trump's impeachment fulfilling its function as intended by the Constitution and the framers?
The reason to have gone through the impeachment process is not because there will be a conviction. But impeachment matters because there needs to be a public accounting. There is something to be gained from going through the ritual wherein one branch of government calls out the abuses of another.
Because of how the White House and the Republicans have behaved, the impeachment process has not served to provide clarity for the public about a core issue of national interest and whether the president did in fact violate his oath of office. Because of that dynamic, the impeachment process is disorienting and can have the effect of fomenting greater anger, confusion and disaffection among many Americans.
The ultimate impact of the impeachment of Donald Trump will depend a great deal on the kind of reckoning the American people are experiencing in terms of the impeachment hearings, but more generally with Trump and with the Republican Party.
If America is at the front end of a populist insurgency where Trump is going to be re-elected and the Republican Party is doubling and tripling down on those politics because it wins them elections, then the impeachment ritual may serve not the purpose of institutional stability or constitutional fidelity, but rather be just more evidence for populist arguments that the whole system is rigged. The Democrats will be portrayed as being illegitimate.
Donald Trump and his agents have systematically denied the oversight power of Congress. We knew all along that Trump would not be convicted and removed from office. This precedent will basically mean that the president can do whatever he wants because he doesn't have to respect any of the oversight powers of Congress. Do you think that analysis is accurate?
There was a lot at stake in these impeachment hearings, not just for the political fortunes of Donald Trump and the Republican Party, but also the meaning of these subpoena powers. We do not have a lot of case law or precedent from the behavior of past presidents to clarify when a president can ignore or when they can only partially accede to a subpoena issued by Congress. But if the lesson from Trump's impeachment is that future presidents are free to ignore requests for subpoenas, witnesses or documents, that would have a huge impact on the country's balance of powers.
I wouldn't say that necessarily translates into presidents getting exactly what they want. I believe, again, that the ways in which power is contested and limited are so deeply embedded into American politics that we are a long way from fundamentally disrupting that arrangement. But we would observe a greater imbalance than we have now.
Some version of the following has been suggested many times in response the the Age of Trump. Trump and the Republicans have exposed the dire need to revisit the United States Constitution and amend it to prevent another such crisis. The Electoral College is obsolete and should be disbanded. Perhaps other changes should be made to how the president is chosen. The power of the presidency should be greatly limited. Your thoughts?
When we think about Constitutional revision, the answer is not one of just shutting down the presidency and making sure that no future harm can occur from a president like Trump. The answer is, how do we more responsibly leverage those things that presidents have to offer while also attending to the very real threat that presidents can be to constitutional traditions and norms?
What are some specific changes to the Constitution that you would like to see enacted?
One is going to be an enhancement of presidential power and the other will be a limit on it.
The enhancement would be to give the president fast-track authority, as a kind of agenda-setting power, in spaces beyond just foreign trade. This is not about expanding the president's unilateral powers. What I'm suggesting is that the president can make a proposal in any number of policy domains, and then members of Congress must consider and then vote on it. If they fail to do so, it will become law. That is a way of trying to jumpstart and energize the legislative process which is all but broken in this period of hyper-partisanship.
On the other side I am really concerned about the gross politicization of the executive branch. Through limits on political appointments and greater insulation of certain agencies — in particular, those having to do with security issues and the Justice Department — we can limit the kind of damage that a demagogue can do when he assumes office.
I am concerned that if we enact reforms to the presidency specifically to restrain a Trump-like figure, those same reforms would also prevent a good and responsible president from boldly addressing the problems facing the United States. I am also concerned that if the powers of the president are unduly restrained, he or she would not be able to respond in an effective way to a sudden crisis or national emergency. I don't want to totally limit a visionary and good president to act in the nation's best interests because of Donald Trump's abuses.
If your short-term anxiety about Trump is mollified by the idea that we can simply tie the presidency up in knots and ensure he does not get anything done, then such efforts are really shortsighted. What happens tomorrow when somebody else is in office and they're actually trying to do something to attend to the very real problems that we as a nation face?
On top of that, if we recognize that it's the government's failure to attend to all kinds of basic problems, such as an incoherent immigration system, the rising inequality between the rich and the poor or a warming planet, then limiting the president's power to address those problems is to ignore the very premise on which Trump ran for office.
What we need to think about is: What are the institutional arrangements that help create effective government? What do they look like? Because there's no greater palliative for a populist than government that can adeptly, nimbly, responsibly attend to challenges that the public recognizes as a legitimate subject of government action. That isn't to say that government should be big or otherwise involved in everything. But we need an effective government if we want to deal with the threat of populism. And you're not going to get an effective government that simply ties the presidency up in knots.
What about civic literacy? What is the responsibility of the American people to understand the Constitution and how government is supposed to function?
It's important, but it's also profoundly challenging. I do not believe that we know how to effectively inform the public writ large about the basic ways in which our government is meant to function and what expectations we ought to have for our elected officials. Even after you've taught the knowledge, how do you then ensure that citizens put that knowledge to use to hold elected officials accountable, so that we don't see the kinds of charades and fatuous arguments that we're observing in this impeachment?
To help the public understand basic questions of civics in the context of public policy is the job of journalists and reporters. Trump's attacks on the news media are attacks on key players in a healthy democracy.
Donald Trump has been acquitted. What comes next?
The 2020 presidential election. We're going to pivot right to it. Trump is getting off and he is going to say, "I've been vindicated!" Trump will then say that the lesson we should draw from these impeachment hearings is just how mendacious and radical the Democrats are. Trump will argue that is why he needs to be voted back into office along with the Republican Party. I know that you believe that Trump wins in 2020. In the 2020 presidential election I will give a slight edge to the Democratic field — but it's only a slight edge.
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