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by John Holbo on December 2, 2018

‘Norm erosion’ has been a debated thing for a while. Good norms have been undermined by Trump. But does it make sense to push back against that by defending norms, rather than, say, the good?

It’s useful to narrow it down. This President, in this era of hyper-partisanship, is a peculiarly unconstrained beast, legally. (Not just in the old, familiar imperial presidency sense.) There isn’t much Trump could do to get Republicans to impeach him. So impeachment is off the table as a check on Presidential abuse of power. In a narrow, legal sense, the immunity of a sitting President from prosecution, plus arguable exemption from conflict of interest laws, plus theoretically unconstrained pardon power, means on paper, a lot of ‘get out of jail free’ cards. No one would have aimed for this result. It’s obviously bad to have no check on Presidential corruption. (Maybe the emoluments clause is going to save us. We’ll see.)

So you get what Matthew Yglesias calls ‘abusive legalism‘, which is a bit narrower than ‘norm erosion’.

Andrew McCarthy is a good example. In his latest piece he objects to Mueller’s investigation – as he always does – on the grounds that there is no clear, overarching, blackletter ‘collusion’ crime in the prosecutor’s cross-hairs.

Note that word: crime. There are many wrongs that are not crimes, activities that are immoral, mendacious, unseemly. If we are talking about cosmic justice, all these wrongs should be made right. But prosecutors do not operate in a cosmic-justice system. They are in the criminal-justice system. The only wrongs they are authorized to address — the only wrongs it is appropriate for them to address — are crimes.

Note the attractive, exculpatory impersonalism of ‘cosmic injustice’. If awful stuff comes to light in l’affaire Russe, but it can be made out that there wasn’t a technical law against it; or if there is some law, but still some last ‘get out of jail free’ pardon card to be played – then Trump isn’t guilty – nor can Republicans be said to be at fault for turning a blind-eye. It’s the universe. Ergo, anyone who is upset about corruption is just some kooky, wild-eyed cosmic justice warrior.

The position is self-undermining within the scope of the piece itself. McCarthy is indignant that Mueller is violating prosecutorial norms – not breaking laws. But McCarthy doesn’t, therefore, chalk Mueller’s wrongdoing up to the cosmos’ injustice tab and shrug it off. But there’s an attractive pseudo-purity to such legalism. Adhering to the letter of the law is a good thing. ‘There’s no norms, dude’ is not the winning way to spin bad behavior. ‘We ONLY uphold the rule of law’ is how to spin norm erosion positively.

I think probably the most effective tack, rhetorically, is to force the likes of McCarthy to own the apparent perversity of the allegedly principled result. Namely, the right thing to do is to not expose serious Presidential corruption, since, weirdly enough, it isn’t illegal.

{ 60 comments }

1

jsrtheta 12.02.18 at 7:10 am

The obvious error here (and I realize it is not your point) is the near-irrelevancy of McCarthy’s objection: The arena is not the courtroom, it is Congress. And the inquiry is not whether the president committed a crime. It is whether he is deserving of impeachment. That is a political process and decision, not a judicial one. (Though it is far from clear that a sitting president is immune from criminal prosecution. And the ultimate conclusion of even considering a president so immune is untenable. If a president were to commit murder, would he be immune from arrest, let alone prosecution? That is a question that answers itself, and clearly, no matter how many Dershowitzes are jitterbugging on the pinhead.)

None of this is surprising. Few “conservative” arguments stand up to simple common sense, let alone logical scrutiny. This is why TV conservatives argue by talking over their opponents, hoping that doing so will spare them exposure of the reality of their positions. This is why their posturing is so blatantly insincere. This is why they don’t want anyone to look under the hood – there’s nothing there.

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Adam Roberts 12.02.18 at 9:12 am

Isn’t it the case that there are two ‘courts’, as it were, in play and that their jurisdictions don’t mesh well? One is the traditional legal structure we call a court, about which Andrew McCarthy’s piece is talking (“sorry, it’s corrupt but not illegal in a court-of-law sense”). Two, though, is popular opinion. Repubs can say: “everyone knew Trump was like this, but voted him into the office anyway. The people have spoken and they’re OK with the kinds of corruption he represents.” So long as the manifold ghastlinesses of Trump are all continuities with his lifelong and highly public ghastlinesses, there’s going to be a kind-of argument there. Some law is handed down from on high, but some law is precedential, is common law, and the commons are the electorate, and they are the people who more-or-less think Trump fine and dandy. If Trump were to do something both wicked and out of character from the kind of manifold wickednesses that we all know define him, like actual murder (to pick up on your example John: “if a president were to commit murder, would he be immune from arrest, let alone prosecution? That is a question that answers itself”) we could say: this second kinds sorta court The Commons hasn’t had a chance to adjudicate this new transgression. But the odds are he’s not going to do this, that he’s going to go on Trumping: being financially corrupt, peddling influence, being sleazy and incompetent and so on, just as he’s been, in plain sight, all along.

3

reason 12.02.18 at 10:21 am

With regard to the lack of crime because the president is exempt, this surely doesn’t apply when the president was just a candidate.

4

Layman 12.02.18 at 11:24 am

Given that McCarthy has written a string of columns on the subject of Clinton’s email server which basically claim that any proper investigative process would have resulted in her indictment, need we take anything he says about prosecutorial indiscretion seriously?

5

Dave Maier 12.02.18 at 2:07 pm

Adam, doesn’t your point require an example that’s not a crime? Murder is indeed “both wicked and out of character,” but that’s a court #1 example, where if I’m reading you right we want a court #2 example.

6

Dave Maier 12.02.18 at 2:13 pm

Also, supplementing jsrtheta @1 (contra McCarthy), haven’t there been a whole bunch of criminal indictments and a handful of plea deals already? How is that not “law-breaking” rather than “norm-violating”? Or doesn’t that count b/c none of them were the President?

7

Donald Pruden, Jr. a/k/a The Enemy Combatant 12.02.18 at 3:08 pm

@ Layman, (#4)…

Dammit, you beat me to it!

8

Birdie 12.02.18 at 3:10 pm

@jsrtheta “the inquiry … is whether he is deserving of impeachment.”

The inquiry is whether we can run a functioning country this way, spoiler no, and what should we do about it. Basically a practical question. We sent Idi Amin into luxurious exile in Saudi Arabia, Bokassa to a chateau in France; who ever gets what they “deserve”?

9

Layman 12.02.18 at 3:42 pm

reason: “With regard to the lack of crime because the president is exempt, this surely doesn’t apply when the president was just a candidate.”

Unfortunately, the position of the DOJ since the Nixon era has been that a sitting President can’t be indicted by the Federal government. The argument for that view has no basis in the text of the Constitution and is derived through a series of tortured rationalizations about the potential negative effect which could result from prosecutorial abuse. And it makes no distinctions about when the putative crime occurred. I think it’s nonsense, and I doubt it would hold up to careful scrutiny by a neutral court, but 1) you’d have to have an indictment to get it before a court, and since it is the DOJ’s view, there won’t be any such test indictment; and 2) our courts aren’t exactly neutral.

10

Anarcissie 12.02.18 at 5:55 pm

But does it make sense to push back against that by defending norms, rather than, say, the good?

In politics, yes, because if you start talking about such abstractions as The Good you risk drawing attention to the many things political actors you may favor do that are Not Good by most people’s everyday standards, for example killing, maiming, torturing, imprisoning, and starving a lot of people to obtain political or commercial advantage, but which may adhere to Norms, going back for generations. For instance, how does the Trump count of civilian deaths from military operations compare morally to those of recent past presidents? That’s a unanswered question about the Good, but for Norms, I think we know it’s not very striking.

11

jsrtheta 12.02.18 at 7:27 pm

@Adam Roberts: “[E]veryone knew Trump was like this, but voted him into the office anyway. The people have spoken and they’re OK with the kinds of corruption he represents.”

This has been the phony Republican chorus since Day One. It’s false. Trump won the Electoral College, but lost the popular vote by a substantial margin. And in the midterms, Democrats won overwhelmingly. The only fully national election was the race for the House of Representatives, and the Democrats took a convincing majority.

To the extent that the “commons” are “the electorate,” Republicans lost. Twice. They should be called on the lie every time they utter it.

12

jsrtheta 12.02.18 at 7:32 pm

@Layman: The supposed immunity of the president from indictment is a mere legal opinion, with no precedential or Constitutional support. And it can change.

When Roosevelt tried his court-packing plan, it went down to defeat. But you’ll notice, the Supreme Court nonetheless, and quickly, started changing the direction of their opinions to comport with FDR’s programs. If the pressure to indict becomes politically acceptable, the DOJ can change its mind, too.

13

J-D 12.02.18 at 9:03 pm

Layman

Unfortunately, the position of the DOJ since the Nixon era has been that a sitting President can’t be indicted by the Federal government. … I doubt it would hold up to careful scrutiny by a neutral court, but 1) you’d have to have an indictment to get it before a court, and since it is the DOJ’s view, there won’t be any such test indictment; and 2) our courts aren’t exactly neutral.

I get how that means no Federal indictments, but does it also rule out State indictments? (Aren’t most crimes State crimes and most indictments State indictments?)

14

Chetan Murthy 12.02.18 at 11:01 pm

Anarcisse@10: you’re absolutely right, that when one talks about “The Good”, one is dragging in politics, and conflicting interests: social, racial, ethnic, class, economic. But one would -think- that there is one interest that rises above all of these: the “national interest”. As opposed to “nationalism”. To wit, Cheryl Rofer wrote:

Results of CIA investigations continue to be leaked. Concern was expressed at this norm-breaking. The norms exist for a reason, though. The CIA’s reason for existence is national security.

The President of the United States is acting in conflict with the recommendations of his national security agencies and in conflict with national security.

Cheryl is writing about a larger point, but it’s still informative to read the whole thing: https://www.balloon-juice.com/2018/12/02/secrecy-isnt-what-it-used-to-be/#more-249809

She’s right about something: these (IC) norms exist to preserve national security. When national security is in danger from an entire wing of the political establishment, those norms need to go.

It is a sign of our degraded times, that we can’t even agree on what the national interest is. That we can’t even agree that allowing a great-power geopolitical adversary to control our executive branch, is A Bad Thing.

And last: McCarthy is a sophist. Harry Frankfurt would recognize his type as a bullshitter, and we should all sneer at this sad excuse for an American. Norms exist to preserve our country while political ideas are debated, sometimes hotly, sometimes over decades. The preservation[1] of America’s power in the world, shouldn’t be one of those political ideas — not to anyone who aspires to power in American government. Sigh.

[1] yes yes yes I vehemently agree that the -uses- of American power, the -methods- by which American power is maintained in the world, *are* suitable for vigorous debate. “He’s our bastard” is A Bad Idea. There, I said it. It seems pretty clear that the divestment movement had a positive role in ending apartheid. And BDS is a good thing. There, I said it. Still doesn’t change that us destabilizing NATO, or fucking with South Korea’s security, is …. insane.

15

Chetan Murthy 12.02.18 at 11:07 pm

To the OP: There’s something McCarthy omits, and it’s an unacceptably *traitor-adjacent* omission: The Mueller investigation has been -airtight-. How does McCarthy or anybody else have any idea what Mueller knows or doesn’t know? I can see an argument that, regardless of “protect sources and methods”, Mueller and the IC should be compelled to divulge everything (heedless of what it would do to our allies’ and partners’ IC and assets). I can see it (though not agree with it). So the American people can decide for themselves.

But I -cannot- see an argument that “what is being reported is all there is”. That’s completely bullshit. If McCarthy really believes this, then he’s a traitor.

A. Fucking. Traitor.[1]

[1] Because Mueller’s investigation is first and foremost a counterintelligence investigation. It’s an investigation to preserve our way of government and repel attacks upon us by our enemies. If McCarthy thinks such a thing is beyond the pale, it is HE who is beyond the pale.

16

Mitchell Freedman 12.02.18 at 11:28 pm

Funny how Andrew McCarthy does not mention how his right wing forebears during the Red Scare period cared about cosmic justice or injustice. Alger Hiss was tried twice (the first time resulted in a hung jury) for perjury because they could not even come close to finding anything he did or did not do as espionage. And it never stopped his forebears from riding high on the formulation “liberal equals socialist equals communist equals traitor.” Or using phrases from Lenin like “dupe,” “stooge,” etc.

I think conservatives and right wingers have to live the nomenclature they so perfected for so many decades. “Traitor Trump and his enablers like Andrew McCarthy.” Oh, the irony of Andrew having the last name of “McCarthy,” too.

17

Displaced Person 12.02.18 at 11:39 pm

I am mildly concerned that the writer and the commenters so far have missed the substantive point. You all should closely read and follow Marcy Wheeler on her blog “Empty Wheel” [note, the other writers on the blog are not nearly so good]. She is the best analyst of all that I follow – more careful and cautious are the writers are Lawfare and Just Security]. Very briefly, just because Trump and the conservative writer criticized are denying “collusion” is irrelevant. The crimes that Mueller can get everyone around Trump and Trump himself on are: conspiracy to defraud the United States, money laundering, lying to the FBI, lying to Congress in some cases, etc. Mueller has thoughtfully and carefully transferred inquiries and cases to other offices (SDNY) where Trump cannot prevent prosecution or the New York Attorney General’s office, which is beyond his purview. Marcy recently made an excellent point that Trump’s ‘natural person’ and his ‘corporate person’ are both liable. The President cannot do anything about corporate liability [the Trump Foundation and Trump Corporation]

18

Dr. Hilarius 12.03.18 at 1:41 am

There is a remarkable amount of nonsense in McCarthy’s piece ,including his magisterial view that no prosecutor would build a case as Mueller has been doing, or that prosecutors don’t get involved other than to prosecute an already identified crime (we want Capone for murder so why would we look at his taxes?).

Anyone familiar with the US legal system knows there is a vast divide between theoretical prosecutorial norms and everyday practice. Marginal cases are brought for political reasons (“I’m not taking heat for dismissing, we’ll let a jury decide”), minor slights against the connected are investigated while major crimes against the lowly go to the bottom of the pile. Normative high standards are paraded about only when politically useful. McCarthy is just another partisan crank undeserving of serious consideration.

19

J-D 12.03.18 at 2:34 am

Chetan Murthy

Norms exist to preserve our country while political ideas are debated, sometimes hotly, sometimes over decades. The preservation[1] of America’s power in the world, shouldn’t be one of those political ideas — not to anyone who aspires to power in American government.

Even if it were true that the preservation of America’s power in the world should not be treated as debatable for anybody who aspires to power in American government, that would still be of no clear relevance to all the people here who do not aspire to power in American government. Just for example, I don’t aspire to power in American government, and you’ve given me no reason not to treat the preservation of America’s power in the world as debatable.

20

faustusnotes 12.03.18 at 2:48 am

Displaced Person’s point is important. Even if Trump isn’t found guilty of straight-up conspiracy with Putin (an “even if” that is looking less and less likely by the day) he is already clearly and obviously a gangster, who has been laundering money for foreign powers and gangsters, breaking electoral laws to protect himself from the consequences of his own sex crimes, committing perjury, threatening people, committing all manner of fraud and financial crimes. He should be in prison. It’s also looking likely that he will be entangled in the Epstein child sex ring if that ever gets busted open again. Even if he can’t be indicted while in office because of the stupidity of the American system, as soon as he’s out he should be charged and imprisoned, and the voters deserve to know about this. All of his associates who helped him with these crimes – including Mike Pence, the NRA and all their nutjob buddies – need to go down with him. And even if the senate prevents him from being impeached – possibly because it’s stacked with people who are in on his crimes – the people still need to know what he should be charged with, what he did, and who is protecting him, so that they can vote the entire corrupt crew out. Then justice will be served.

21

J-D 12.03.18 at 4:17 am

In his latest piece he objects to Mueller’s investigation – as he always does – on the grounds that there is no clear, overarching, blackletter ‘collusion’ crime in the prosecutor’s cross-hairs.

If, for the sake of argument, this is a valid objection; if, for the sake of argument, it is only appropriate to appoint a special prosecutor for the investigation of something which is definitely a crime; then it’s not the special prosecutor who is at fault, or at least it’s not primarily the special prosecutor–it might be argued that it was, in the circumstances wrong to accept the appointment, but it could never have been accepted if it had not been offered in the first place. If Andrew McCarthy’s theory of special prosecutors is correct, what he should be arguing is that the response of the Department of Justice, in these circumstances, should not have been to appoint a special prosecutor; and the question that suggests, and which Andrew McCarthy does not discuss, is what the appropriate response of the Department of Justice to circumstances such as these should be. It seems probable to me that he finds that question embarrassing and is deliberately avoiding discussing it by focussing his objection on the wrong target.

22

Douglas Levene 12.03.18 at 5:45 am

” The arena is not the courtroom, it is Congress.” I was under the impression that Mr. Mueller was a prosecutor charged with investigating crimes. If Congress wants to investigate grounds for impeachment, it can conduct its own investigation.

23

Chetan Murthy 12.03.18 at 5:57 am

J-D@19: Three thoughts:

(1) Two ways in which you’re absolutely right:

(a) non-American-citizens may rightly have no good reason to preserve American power, and I fully accept and understand this.

(b) even “civilian” American citizens, may have a different understanding of “the national interest” from me, and might feel that the preservation of American power is not a good thing.

But (2) Amdrew McCarthy writes for the National Review. His -career- is about influencing our government, and historically his publication has been a madly enthusiastic proponent of American power (and all its ugliest forms). For HIM to NOW argue against American power, America’s place in the world, and the longest-standing norms of American justice, is a MOCKERY. For him to argue in his [maybe nowadays less than ;-] influential publication that the obvious evidence of Putinfelcher and his feculent hordes’ treason (in the common usage, the Constitutional usage) is to give aid and support to treason.

Also: he’s saying that no counterintelligence investigation can EVER be conducted. EVER. The Russian “illegals”? Can’t even investigate, much less prosecute. Aldrich Ames? Robert Hansen? Can’t do a -thing-. Because all the evidence was secret. From what I’ve read, most of it never saw the light of day.

24

jsrtheta 12.03.18 at 6:02 am

@Dr. Hilarius Having worked in the criminal justice system for 30 years, I think I am familiar with it. And it doesn’t work the way you think. Are there cases such as you describe? Sure, but very, very few.

And as one who prosecuted “major crimes against the lowly,” I can tell you those cases didn’t go to “the bottom of the pile.” We prosecuted, and won, those cases every damned day.

25

J-D 12.03.18 at 7:55 am

faustusnotes

And even if the senate prevents him from being impeached …

The Senate has the sole power to try all impeachments, but the House has the sole power of impeachment. So the Senate determines what happens to somebody who is impeached, but it cannot prevent anybody from being impeached.

26

Stephen 12.03.18 at 8:40 am

Mitchell Freedman@16: minor point, but surely the reason Alger Hiss was never tried for espionage was that, under the statute of limitations, espionage committed in the mid 1930s could not be the grounds for an indictment in the late 1940s. Recent perjury about events in the 1930s. however, was indictable. To say that Hiss was never convicted of espionage is very true, and irrelevant.

But you are right in despising the argument “liberal equals socialist equals communist equals traitor”. It’s no better than the argument “conservative equals bigot equals fascist equals tyrant”.

And you are right in hoping that if Trump is guilty of criminal offences, he should be legally convicted. I wouldn’t bet on it, though: law and justice only partly overlap.

27

MFB 12.03.18 at 9:09 am

I am not sure that I like this post.
This is based on an article in a Republican magazine, written by an anti-Trump Republican. As far as I can see, this person has no actual power to implement anything which he writes. So the accusation that he is “abusive” is stretching things a little. What it actually seems to mean is that you don’t agree with the author’s interpretation of the situation and therefore you are going to accuse him of abuse. This is very problematioc, even if his interpretation is hilariously mistaken.

Actually, as far as I (no lawyer and no expert on American politics) can tell, his interpretation, while doubtless wrong in many details, is far from absurd. Essentially, he is arguing that the Mueller investigation amounts to a fishing expedition — rather like the Whitewater investigation into the Clintons — and he doesn’t approve of this. (I suspect he probably supported the Whitewater investigation, in which case he is a hypocrite, but that’s something else.) He then argues that such fishing expeditions are probably not good things and that an investigation without actual evidence of a crime being committed is problematic.

I think you can find good grounds for disagreeing with this argument. However, in principle it is not abusive. Of course his main desire is to try to protect the Republican party — that goes without saying — but it seems to me to be easy to see that it would be easy to concoct pretexts for investigating almost anyone in public office and discourage them from getting anything done. We have certainly seen a lot of this in South Africa, and although sometimes it reveals criminal or objectionable behaviour, it does seem to degrade the principles on which the separation of powers system is built; if you can systematically use the legal system to harass the executive then you are surely playing with fire.
Come to think of it, consider the name of the person who wrote the article. McCarthy — the name of the person most famous for harassing people on spurious fishing expeditions and, usually, getting them humiliated or jailed for no actual crimes committed. I wonder if he has a guilty conscience. Probably not — he’s an American political journalist.

Anyway, I think this line is unhealthy. Support the Mueller investigation by all means. But I think trying to suppress criticism of the investigation is rather problematic.

28

Adam Roberts 12.03.18 at 10:52 am

@jsrtheta #11 I’m sure you understand that my comment was not intended as an endorsement of the Repub attitude. I’d love to see Trump face the consequences of his lifetime of lies, sexual assault, huge corruption and (so far as I can judge, being an outsider) treason. But we know he won’t. He’ll no more do jail time than did Nixon (or, as people noted, upthread, than did Idi Amin etc). Law is rules, but law is also precedent and convention and there’s a deep-set convention that political leaders above a certain threshold avoid punishment. It’s in the interests of the next iteration of political rulers to maintain this convention, and it avoids overly antagonising the 30% or so of the population who think Trump is Christ in a suit.

29

Layman 12.03.18 at 11:32 am

J-D: “I get how that means no Federal indictments, but does it also rule out State indictments?“

I think the rationale for the policy, bad as it is, could apply to state indictments, but as a practical matter, the DOJ can’t prevent a state prosecutor from indicting a sitting President in the same way the DOJ can prevent a federal prosecutor from so doing. Mueller e.g. needs the approval of a senior DOJ official in order to issue any indictment, and he will not get that approval in the case of Trump because of the policy (assuming he were to seek such an indictment).

If there were a state indictment, I suspect the DOJ would sue on behalf of the President to quash the indictment.

jsrtheta: “The supposed immunity of the president from indictment is a mere legal opinion, with no precedential or Constitutional support.“

Yes, I know. I think that’s what I said.

30

Lee A. Arnold 12.03.18 at 2:02 pm

The U.S. law is clear. A “Special Counsel” can be appointed to investigate or prosecute crimes when there is probable cause. The order establishing the Mueller probe is entitled, “Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters”. It is an investigation, before the possible prosecution thereof. If Mueller uncovers evidence of any other crime, one that doesn’t deal with Russia, then he can refer it, or request the Attorney General to widen the scope of the special investigation. According to the news some requests have already been granted.

Mueller’s got the FBI intel going back decades on international plutocratic crooks, and among whom Trump is only one of many peripheral U.S. characters. Any crime the special counsel comes across, in pursuance of investigating another crime, is then fair game for investigation or referral. The Mueller team could be nailing crooks for years after Trump’s gone.

I disagree with the opinion that the Senate Republicans won’t vote to convict Trump on impeachment. It looks like the Republicans are just waiting to see what Mueller finds. In the meantime they still get tax cuts, conservative judges, etc. But almost all of the Senate Republicans would throw Trump overboard in a New York minute. They didn’t even want the guy to be nominated. They could be secretly rooting for Democratic House investigations to find more items for the bill of impeachment. Now he is politically toxic, the election last month shows he won’t win in 2020, and even without Trump the Senate map already disfavors the GOP in 2020. Much better odds in reconstituting the tattered Republican brand under the pecksniffian Reverend Pence! Then knock Pence off, in the primaries. The worse problem for them would be if they did NOT have Mueller on the case — then they themselves would have to do the legwork to call Trump to account. And what an even bigger mess that would be for them.

Trump can dig himself out of the hole, but probably only if Mueller finds no criminal charge against him directly; if the public believes he didn’t know nuthin’ about the doings of his shady underlings as they all lie or fall on their swords; if China throws him a bone in the trade talks; and if Jesus Christ descends on a cloud for a laying of hands on his dyed coiffure.

You can kvetch at the Republicans holding still until Mueller’s report, but the Republicans might find it laughable to think that they could withhold their votes to make Trump “conduct himself in a more proper manner”. The experience so far is that he cannot control himself. If anything it may get worse as the investigation closes in.

31

EB 12.03.18 at 2:48 pm

@jsrtheta:

Yes, Trump voters (many of them, at least) knew how awful he is and voted for him anyway. But the reason why many voted for him was not that they approved of his awfulness, but that they could see that he liked and wanted them, while Democratic candidates (and particularly Clinton) did not like and did not want them. There have been similar candidacies in the past: Huey Long, Marion Barry, the Boston mayor who was elected while imprisoned, Buddy Cianci of Rhode Island, etc.

32

Orange Watch 12.03.18 at 5:23 pm

Layman@29:
I think the rationale for the policy, bad as it is, could apply to state indictments, but as a practical matter, the DOJ can’t prevent a state prosecutor from indicting a sitting President in the same way the DOJ can prevent a federal prosecutor from so doing.

There’s also matters of jurisdiction and applicable legal codes; a lot of what could be turned up is against federal laws but beyond the scope of state laws.

Re: the dubious theory, the imperial executive theorists have tried to argue that NO actions can proceed against a seated president, regardless of venue, but they haven’t had much luck in court with that. OTOH, it’s never been argued before SCOTUS. And that’s a big reason why Justice O’Kavanaugh was not as interchangeable with any other random Federalist Society hack, despite superficial appearances to the contrary: Bart has not been shy about his (post-Starr, ofc) opinion that the president can’t be troubled with such frivolity.

33

Anarcissie 12.03.18 at 5:36 pm

Chetan Murthy 12.03.18 at 5:57 am @ 23 —
If the Norm we are discussing is ‘Might for me and mine is right, period’, as I suspect it is for devoted servants of the CIA, ‘Deep State’, permanent government, etc., and for Republican Party factions including the Trumpoids as well, then Mr. McCarthy’s shilling for one of the factions seems unexceptionable. It may be inconsistent, but consistency is not the hobgoblin of the National Review for sure.

‘What’s good for General Motors is good for the country.’

34

Hidari 12.03.18 at 5:55 pm

Not that it matters (and hey! He writes for this blog and I don’t, so he has the choice to do this and I have the choice to read or not read! I know that. That’s not the point I’m making)…..but John Holbo’s description of the piece linked to is, IMHO, very misleading.

The point is not that this McCarthy guy thinks that Trump is guilty but will be found innocent (or not prosecuted) on some technicality (because massive corruption, isn’t technically illegal or something). It’s that Trump won’t be found guilty, or charged, because he isn’t guilty of the crimes that people think he is guilty of, and which the Mueller inquiry was, apparently, set up to investigate. He is quite clear about this.

‘First, Mueller is not going to indict the president, which would precipitate a trial at some point….Second, with the media as his biggest cheerleader (other than Jeff Flake), the false-statements pleas create the illusion of a collusion crime, and thus appear to vindicate Mueller’s sprawling investigation. As I’ve previously explained, the game works this way: The media reports that Mueller is investigating Trump–Russia collusion and that dozens of people have been charged or convicted; but the media omits that no one has been charged, much less convicted, of any crime involving collusion between Trump and Russia. ‘

In other words, his point is, simply: Trump is not going down. He will not be impeached. There will be no trial of any sort about collusion with Russian (there may, of course, be trials or other investigations about other things, though that’s unlikely, for a lot of other reasons).

Now you might disagree with that, or agree, or partially agree, or whatever. But that’s the key point of the his argument. It’s not to do with ‘norms’.

35

politicalfootball 12.03.18 at 8:43 pm

Also: he’s saying that no counterintelligence investigation can EVER be conducted. EVER. The Russian “illegals”? Can’t even investigate, much less prosecute. Aldrich Ames? Robert Hansen? Can’t do a -thing-. Because all the evidence was secret.

Right. His argument also negates the possibility of examining the illegal behavior of anyone associated with the president, because the DOJ doesn’t allow the indictment of the president.

McCarthy ignores the crimes uncovered by Mueller by simply asserting that none exist — except the lying thing, which McCarthy seems to think is only technically a crime. Of course, there are plenty of apparent crimes besides the lying. Interestingly, the word “Manafort” never appears in McCarthy’s piece.

36

politicalfootball 12.03.18 at 8:46 pm

Correction: Manafort is mentioned. His crimes are not.

37

Mitchell Freedman 12.03.18 at 9:10 pm

Stephen #26: Just what did Hiss, who worked in the Agriculture Department in the 1930s, actually do? Give the Russians more information to help implement the Lysenko method of agriculture? And I wish there was an equivalent to the Red Scare after WWII to help you with your point that conservative equals bigot equals fascist equals tyrant. Because, as we all know, national health insurance is just like being against same sex marriage.

38

J-D 12.03.18 at 9:47 pm

Lee A. Arnold

The U.S. law is clear. A “Special Counsel” can be appointed to investigate or prosecute crimes when there is probable cause. The order establishing the Mueller probe is entitled, “Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters”.

The full text of it can be found here:
https://en.wikisource.org/wiki/Appointment_of_Special_Counsel_to_Investigate_Russian_Interference_with_the_2016_Presidential_Election_and_Related_Matters

The central part of it says: ‘The Special Counsel is authorized to conduct the investigation … including:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump …’

So, do ‘links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump’ (or, I guess, links and/or coordination between a generic foreign government and a generic presidential campaign) constitute a crime? Maybe I have misunderstood, but my impression is that Andrew McCarthy is arguing that this is not the definition of a crime. If I am right about what he is arguing, I think (as I explained above) that he is deliberately obfuscating, so if I am wrong about what he is arguing it may also be because he is deliberately obfuscating. In any event, whatever my misunderstandings may have been, the question ‘What is the crime (or what are the crimes) that the Special Counsel was appointed to investigate?’ is a relevant question, and if the answer is simply in the words in the order, ‘links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump’, then it’s also relevant to ask ‘How does that count as a crime?’ I’m no expert on US law; maybe it does count as a crime. (If it is a crime, and if I have understood correctly what the main line of Andrew McCarthy’s argument is, then that argument falls apart.) Anyway, now that the point has been raised, even if only by my misunderstanding, I am curious about it.

39

Heliopause 12.03.18 at 10:14 pm

“the apparent perversity of the allegedly principled result. Namely, the right thing to do is to not expose serious Presidential corruption, since, weirdly enough, it isn’t illegal.”

The Constitution takes care of your little problem here. It provides that you articulate a crime or misdemeanor to impeach and a supermajority of senators to convict. The reason for this setup seem obvious, it discourages the removal of a duly elected President simply because some portion of the population doesn’t like his policies or the color of his wife’s Christmas trees. It also must be observed that if your high government officials are corrupt but legally so then you’ve got much deeper problems than a single individual.

So, now that you’ve got a POTUS that is corrupt in some unspecified way but, admittedly, legally so, what’s to be done? The Constitution has your back; it provides for a free press and speech. So this hypothetical President can face a hypothetical tsunami of bad press on a daily basis (and when I say hypothetical I mean, this is what’s in fact happening). So if you’ve got a free press that is almost unanimous in its unremitting hostility to the POTUS and you’re still not getting the results you want then, again, you have much deeper problems than a single individual.

40

Layman 12.03.18 at 10:18 pm

Lee A. Arnold: “I disagree with the opinion that the Senate Republicans won’t vote to convict Trump on impeachment. It looks like the Republicans are just waiting to see what Mueller finds. In the meantime they still get tax cuts, conservative judges, etc. But almost all of the Senate Republicans would throw Trump overboard in a New York minute.”

Perhaps, but the difficulty with this view is exposed by asking the question: Who are the 20 Republican Senators in 2019/2020 who will vote to convict Trump in the Senate? I can’t find them. You might get as many as 5 or 10 because they’re holding seats vulnerable to attacks from the left. The rest are far more worried about the Trump base backlash and a primary opponent from the right.

41

John Quiggin 12.04.18 at 2:13 am

Echoing Layman @4, McCarthy is a troll and responding seriously to his ‘arguments’ is feeding trolls. Not that he is unusual – virtually all of the right wing intelligentsia has been reduced to trollery, and those that haven’t (for example, the Niskanen group) are leaving or being pushed out of the right.

The real problem is not to knock down people like McCarthy but to find any advocates of standard rightwing positions whose arguments are worth debating. If you start by ruling out everyone but confirmed never-Trumpers, which I think you must, you are down to a very small set before you even look at individual merits.

42

Lee A. Arnold 12.04.18 at 2:49 am

J-D #38: “do ‘links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump’ (or, I guess, links and/or coordination between a generic foreign government and a generic presidential campaign) constitute a crime?”

It could be composed of several crimes, such as violation of the sanctions against Russia, conspiracy to aid felony hacking, conspiracy to defraud the United States, violation of federal election laws, money laundering, wire fraud, other instances of obstruction of justice, etc. The special counsel statute does not require that crimes be spelled out.

McCarthy should know all of this, and if he does, then his column is blowing smoke by telling only half a story. The unspoken premise of his column is, that what we already know about the Mueller case, is all there is going to be. Now of course we don’t really know that, there could be more — but McCarthy continues: the investigation has culminated in star witnesses all of whom are liars, which isn’t good evidence in a criminal case, and therefore, according to McCarthy, Mueller as prosecutor is building a political case to be tried in the public sphere, as opposed to a criminal case that can be tried in court.

But 1. McCarthy doesn’t know that this is all there is, and 2. in any event an impeachment is a political case, not a criminal one.

43

jsrtheta 12.04.18 at 2:59 am

@EB First, they could not see that Trump liked them and wanted them, because he manifestly didn’t. In fact, today, a Trumpalo will cheerfully tell you that Trump doesn’t like him and, further, that that is even more proof of Trump’s brilliance. There is no horrible Trump trait that a Trumpalo can’t rationalize and turn into a virtue.

Second, none of those candidacies you refer to (the Boston mayor was James Michael Curley, btw) were in any way like Trump’s. For one thing, all of those you mentioned were actual politicians, unlike the Infant King. For another, each and every one of them could laugh at himself. That is not, never has been, and never will be true of Trump. Also, each of those politicians actually understood the system they sought to control and how to work it. Trump is stunningly clueless about government and without any desire to learn. And finally, the other politicians had some skill at their jobs. Trump doesn’t now, and never will.

44

Lee A. Arnold 12.04.18 at 3:11 am

Layman #40: “The rest are far more worried about the Trump base backlash and a primary opponent from the right.”

I think it’s going to depend on what Mueller finds, and what that does to Trump’s popularity. If you look at the charts, his disapproval/approval rating diverged an extra 4 points in only one week, the week Manafort was convicted and Cohen flipped. Then it returned slowly to trend — the Trump base is trying to hang on, but (in my neighborhood at least) they’ve already had just about enough of him. If Mueller’s report is damning, it will diverge to a Nixonian nadir and may stay there as the election approaches. At that point, the Republican caucus has to make a team decision.

45

Orange Watch 12.04.18 at 3:51 am

Heliopause@39:

The Constitution takes care of your little problem here. It provides that you articulate a crime or misdemeanor to impeach and a supermajority of senators to convict.

This is very inaccurate, though you may or may not realize it. It does not stipulate “crimes and misdemeanors”, it stipulates “high crimes and misdemeanors”. That’s an extremely venerable legal term of art with a specific meaning that’s both broader in scope and narrower in range than “crimes and misdemeanors”. The scenario you outline above most certainly falls within the scope of high crimes and misdemeanors.

46

J-D 12.04.18 at 4:35 am

Heliopause

… It also must be observed that if your high government officials are corrupt but legally so then you’ve got much deeper problems than a single individual.
… So if you’ve got a free press that is almost unanimous in its unremitting hostility to the POTUS and you’re still not getting the results you want then, again, you have much deeper problems than a single individual.

Well, guess what? You do have much deeper problems than a single individual.

47

Kiwanda 12.04.18 at 5:08 am

Heliopause:

The Constitution takes care of your little problem here. It provides that you articulate a crime or misdemeanor to impeach….

As e.g. the wikipedia article notes, the expression “high crimes and misdemeanors” in the Constitution refers to an offense by “high persons”, that is, violations of the public trust, not necessarily to violations of criminal law.

So there’s many choices of such violations for Trump: his violation of the Emoluments Clause, for example, at his hotels, at Mar-a-lago, and in his dealings with foreign powers; or in his violation of his oath of office by failing to “faithfully execute the Office of President of the United States” by, say, refusing to appoint officials, and by nepotistic hiring of incompetents, and by declaring he will not carry out the law of the land (the ACA); or by his obstruction of justice by firing his FBI director, and encouraging lack of cooperation with an investigation of Russian interference in U.S. elections, and appointing a plainly unqualified Attorney General with the clear intent of squashing that investigation.

None of these may be crimes and misdemeanors, but they are all “high crimes and misdemeanors”

48

Hidari 12.04.18 at 9:39 am

@47
There seems to be a mysterious misconception, ubiquitous amongst liberals: one might term it Legal Platonism. This is the idea (rarely enunciated, but assumed) that above and beyond the actual laws that exist on the statute book there is some kind of abstract metaphysical Law or Laws which ‘our’ extant laws only approximate. And that by this abstract system of metaphysical laws, Trump is, so to speak, objectively guilty of something.

There is/are no such Laws.

All laws are texts, and texts are interpreted by human beings in specific socio-cultural contexts. This is the key insight of hermeneutics and it is correct. And there is no such thing as the ‘correct’ interpretation of a law (i.e. in some, abstract, metaphysical sense). Any attempt to do so merely relies upon other laws, and other interpretations of laws (this is like, as Wittgenstein pointed out, buying a newspaper to check the date, and then buying another newspaper to check that the date on the first one was correct).

As Wittgenstein also pointed out: ‘This was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule. The answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it’.

Rule of course, can also be interpreted as ‘law’.

So for any course of action, one can always think of a reason why it either does, or does not conflict with that law.

All of your examples ‘are’ not crimes and misdemeanors. What is the case is that certain people may (or may not) interpret them as being crimes and misdemeanors, in certain context. Which people? Why, the relevant people. And the relevant people here are American politicians in the American Senate, now, in 2018. And this is because all legal questions, (ALL) are ultimately political questions. There is no such thing as an ‘autonomous’ realm of law, nor could there be such a thing.

So: Trump will be impeached if the political will is there (or to put it another way, he will be impeached if the Republican elite decide he is no longer of use to them). If the political will is not there, he will not be impeached, and the question of whether or not he is ‘guilty’ in some abstract sense is meaningless.

Needless to say it is vanishingly unlikely that he will be impeached before the next election, assuming he still looks likely to win it (which is the case at present, although, of course, that could change).

49

mpowell 12.04.18 at 5:25 pm

Honestly, I don’t see any reason to mix this with the norm erosion debate (which I think is actually pretty important, but quite different!). Sure, the conservative hacks will complain about judicial norms as a pretense to defend the Trump administration, but let’s keep in mind that the chief investigator in this case is a career Republican. Most of these arguments are completely wrong on the facts and merits throughout and I won’t bother to read McCarthy’s article because it is most likely a waste of my time, but it is useful for others to do so and offer rebuttal so I am glad that they have done so. But I think the easiest way to do that, instead of getting into a debate about whether this is an appropriate situation for norm erosion, is just to point out that there is no norm erosion happening. And as others have pointed out, there is more than enough (and certainly was at the time of Mueller’s appointment) probable cause to suspect that Russian agents acted in contradiction to US law to influence the 2016 election and coordinated with agents from the Trump campaign to do so. As part of this investigation, Mueller will encounter overwhelming evidence for many of the large number of felonies committed by Trump’s various associates and will use this evidence both to bring much needed justice to various illegal acts and also to put pressure on those being investigated to provide more evidence of the central crimes being investigated. And, of course, he should also refer for prosecution the various additional illegal acts that Trump’s associates commit in an attempt to stymie his investigation. You can, at any moment, question whether Mueller is placing the exact right emphasis on which referrals and leads he is pursuing as being optimal for the stated purpose of his specially created task force, but it would be absurd to characterize this as in conflict with general prosecutorial norms as Mueller uncovers all the various dealings of this crime syndicate. The unusual part of this case is that the head of the whole operation is likely immune to effective prosecution, but Mueller’s instruction is to investigate Russian interference, it is not to explicitly provide a case against Trump. Whether Trump ultimately pardons many of these criminals I don’t see how that can possibly be relevant to whether Mueller is faithfully pursuing is congressionally ordered mandate with the scope of normal prosecutorial norms.

50

Stephen 12.04.18 at 6:59 pm

Mitchell Freedman@37: look, you’re doing it again: trying to exculpate Hiss by an argument that is true but completely irrelevant.

(Apologies: I realise that this is not entirely relevant to the culpability of the egregious Trump; give me a little space and I’ll bring this back on topic.)

You are right in saying that Hiss, as a member of a covert Communist cell in the Agriculture Department, could do little to help the Russians immediately, and could not help them to do the impossible by implementing the Lysenko method of agriculture (but persuading them that Lysenko was a charlatan, and that the Russians should not have killed those who opposed him, could have helped, though given Russia at the time it was not even remotely possible, and if tried would have ended Hiss’s Communist career).

On the other hand, the actual evidence produced against Hiss, too late for him to be indicted for espionage but in time to catch him for perjury, was that there were documents or photographs of documents, produced by a repentant ex-Communist concerned in the conspiracy, made on Hiss’s own typewriter, that were excerpts from State Department or Navy sources that were of considerable help to the Russians. That was something Hiss actually did to help Stalinist Russia.

Minor confusion from you: my point is not that “conservative equals bigot equals fascist equals tyrant”. It is that such an equation is as contemptible as the one that goes from liberal to communist traitor. Which is not to deny that there were, in fact, communist traitors (and fascist tyrants).

Coming back at last to the main topic: when it was claimed that the purpose of Hiss’s Communist group in the Agriculture Department “was not primarily espionage. Its original purpose was the Communist infiltration of the American government”, Hiss’s defenders claim that “This was a crucial point. Infiltration and invisible political influence were immoral, but arguably not illegal”.

Now apply that to claims of Russian influence on the deplorable Trump.

51

Ogden Wernstrom 12.04.18 at 7:41 pm

It appears to me that McCarthy either (1)has not read the order, “Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters”, or (2)is not arguing in good faith. I think that McCarthy is performing the very sort of deceptive groundwork of which he accuses Mueller. As a former US Attorney, his description of deceptive prosecutorial techniques may be autobiographical.

The order does not contain the word “collusion”, and the name “Trump” appears only in the compound noun, “individuals associated with the campaign of President Donald Trump”.

Trump is not explicitly targeted, and no evidence against Trump is required for this investigation to be a success. I suspect that Mueller may not find sufficient evidence to indict The President. (Aside from that, I have the impression that the impeachment process in The Constitution is the only method of Federal indictment of a sitting President. But I am not trained in the law, and I am not going to waste time arguing that issue.) Convictions of a cluster of people who surround President Trump sounds somewhat satisfying.

The Federal Election laws that prohibit contributions from foreign nationals to election campaigns or political parties, and prohibit soliciting, accepting or receiving such contributions seem the most-likely target of the investigation. As an attorney, McCarthy should have found that law with ease. I begin to wonder if he was at all effective at prosecuting Federal law during his tenure as a US Attorney.

Don’t think “TL:DR”. The order which authorizes the Special Counsel is a single page. I expect that former US Attorney McCarthy would have read it, eliminating my theory #1, above.

52

faustusnotes 12.05.18 at 2:16 am

No Hidari, Trump is objectively guilty of sexual assault, he admitted to it himself. Case closed. The only detail the laws need concern themselves with is his sentence.

53

Kiwanda 12.05.18 at 2:41 am

Hidari:

There is a mysterious misconception, among hermeneuticists, that there is such a a thing as “mysterious misconceptions”. There is no “hermeneutic analysis”: there are only noises and texts, full of sound and fury, but signifying nothing, and contingent on the exercise of power for any significance at all. Nothing is true or false, but social construction makes it so. This key insight, that there are no “key insights that are correct”, is correct.

54

Orange Watch 12.05.18 at 6:07 am

Hidari@48:
Your world-weary invocation of naive belief in Platonic abstractions of laws and hermeneutics might be a bit more relevant if we’d not been replying to Heliopause’s semantically-significant misquoting of the text of the law in the Constitution. He, as you, describe the relevant legal category as being “crimes and misdemeanors”. In the actual text, it is not; it is “high crimes and misdemeanors”. Observing the meaning is changed by this does not require any lofty abstraction. It is simply a different term, and it refers to something with a conventional meaning and long precedent in common law. In context, your first six paragraphs have as much meaning as an observation that there is no such thing as an American Senate, only what the US agrees is the US Senate at any given moment. It’s technically true, but only in such a banal and unhelpful manner that it has no particular relevance to this conversation that it does not to every other conversation in history.

Having said all that, your last two paragraphs are absolutely pertinent: a hypothetical impeachment of Trump is a question of political will – and I personally agree it looks unlikely to be there any time in the next 2-6 years. However, again, this is not relevant to the comment you responded to; Heliopause was making an argument that impeachment could not occur because of specific legal impossibility, not because of a lack of will. Within the interpretive framework deployed in Heliopause’s comment (and various similar common party lines), that is false, as “high crimes and misdemeanors” is not as narrow nor specific as “crimes and misdemeanors”. It’s singularly uninteresting to observe that if we chose not to operate under the set of assumptions we have collectively chosen to operate under, we would not be operating under that same set of assumptions.

55

jsrtheta 12.05.18 at 6:42 am

@fuastasnotes: I don’t know what you mean by “objectively guilty,” but in court, his statement alone would not be sufficient to declare him legally guilty.

56

faustusnotes 12.05.18 at 7:13 am

In the Flynn document today there was a completely redacted part about a third investigation Flynn is helping the FBI with. Anyone want to place any bets on what it is? I’m going to go out on a limb and suggest that it is connected to Jeffrey Epstein.

57

David Duffy 12.05.18 at 7:58 am

Not quite the same level of foreign interference, but people may not have noticed how the Australian Labor Party was pinged earlier in the year

https://www.theguardian.com/australia-news/2018/jan/31/australian-labor-fined-14500-over-campaign-push-to-stop-trump

58

Dave Maier 12.05.18 at 4:28 pm

Orange Watch @54: ” It’s singularly uninteresting to observe that if we chose not to operate under the set of assumptions we have collectively chosen to operate under, we would not be operating under that same set of assumptions.”

Yes, and if we transpose that thought back into the context of Wittgenstein interpretation, it can help us understand why (or *that*) Wittgenstein isn’t rejecting (i.e. as irredeemably Platonist) the very idea of a rule; he is simply urging us not to construe them Platonistically. (I think the context shows this, but I won’t subject the thread to a barrage of quotations.) In any case, thanks to O.W. for saying pithily what I would have no doubt failed to say as well.

59

J-D 12.06.18 at 11:42 pm

I thought that the way things now work, no comment could appear without first being approved by a moderator. If so, why is spam appearing?
Incompetence, on my part, I expect. One spam comment now deleted, please point to any others – JQ

60

Chetan Murthy 12.07.18 at 2:57 am

Uh, I think comment 59 (Elena Smith ) is spam? Thanks for alert-deleted

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