If Treason Swung An Election, What Do We Do About It?

Ever since the news started trickling out that Trump and seemingly all of his associates have or had incredibly suspect ties to Moscow, I’ve been wondering … if Trump’s campaign committed treason, what the hell are we going to do about it?  Now that it appears Michael Flynn may have flipped on Trump, we should ask what the fallout would look like. Let’s assume, for purposes of argument, that 1) Donald Trump and his campaign coordinated with a foreign power to swing a US election, and 2) that action qualifies as treason. (I think it would, and you can read more about the current law of treason here.) There are two solutions to the problem that have been widely discussed in the Press and on social media. The first is to nullification of the election and the second is impeachment. I have already written on this blog that nullifcation is not warranted, and that rationale stands. Impeachment as a sole solution is also problematic. If Donald Trump committed treason by colluding with Russia as a means to assume power, every decision he has made as President could have been taken to serve the Kremlin’s interest in undermining American democracy. His entire Administration would be illegitimate, and must be expunged. If impeachment won’t solve all of the problems posed by a treasonous Trump, it’s up to us to figure out – is there a remedy?

He’ll have to be impeached, but that may not fix the problem

The trouble with impeachment is that it is a remedy for a personal criminal act, not a remedy to nullify the actions of a compromised President. Treason is explicitly mentioned as a basis for impeachment in Article 2 of the Constitution, so if Trump committed treason, he’ll get impeached. The problem is that impeachment would only remove Trump from office. That leaves all of his Executive Orders and federal appointments in place. If his appointees do not immediately resign, it would be hard to use impeachment to expunge Trump’s, and Russia’s, influence and decisions from the enormous executive bureaucracy.

Assuming Trump’s appointees do not immediately resign, in order to get the worst apples out of the executive, you would have to impeach not only Trump, but Pence, Sessions, Tillerson, and anyone else who may have participated in the conspiracy with Russia. Impeachment is a lengthy process. First, the House of Representatives, which acts like a Grand Jury, decides, on presentation of evidence, whether to impeach – or indict – the President or other executive officer for a criminal act. Second, the Senate conducts a trial. This process takes a while; Bill Clinton’s impeachment and trial took almost two months from beginning to end. Trying to impeach so many executive officers would take many months in which the legislature is not concentrated on the business of the public. That wouldn’t just be a scandal factory, it would impair the government’s ability to function.

No one anticipated this, so we don’t have an existing remedy

As importantly, even if Congress were able to impeach every conspirator, the problem remains: Trump set out to deconstruct the Administrative State and deliberately nominated departmental heads who will destroy their agencies (just look at the EPA). As with all of Trump’s decisions, we cannot know if he did so to serve Vladimir Putin’s ends. If I were Vladimir Putin, I would definitely want the US President to cripple all the institutions of American government. If Trump is proven to have colluded with Putin, there’s no reason to think he’d object to undermining our democracy. He’s been undermining it with his lies and conspiracy theories since he became the Birther in Chief. As the law currently stands, we cannot undo Trump’s actions unless the subsequent President chooses to do so. If Trump’s appointees did not commit a crime, and they will not resign, and the subsequent President does not fire them, we can’t get rid of them.

Clearly the drafters of the Constitution contemplated Presidential treason – it is the only crime mentioned in the Constitution, and it is a stated basis for impeachment. After all, these are the people who had to contend with Benedict Arnold. However, a situation in which a candidate for President could collude with a foreign power to disseminate propaganda, hack opposing political parties, and swing an election, thereby raising a specter of a foreign agent running the US government, could not have entered their minds. The technology did not exist to facilitate the type of treason Donald Trump and his associates could have committed. Impeachment isn’t enough; it could leave in place decisions and appointments designed to undermine American democracy and serve the interests of a power and a man – Vladimir Putin – who has declared his opposition to our system and values.

We need a mechanism for purging a Presidency acting on behalf of a hostile power

Should it emerge that Trump has committed treason, we need to purge his stench from the Executive. Congress will almost certainly impeach him and, if necessary, Mike Pence, and his appointees will probably resign, if they are not fired by the new President Ryan (who would be the strangest accidental President ever). However, I don’t think relying on the next guy’s discretion to reverse Executive Orders and fire cabinet appointees is an appropriate institutional protection for electing a real life Manchurian Candidate. One of the beauties of our system is its checks and balances, and we need a check for this situation. We can’t just rely on the next guy to do the right thing.

To restore faith in the Presidency as an institution, we need a mechanism to purge the acts of a President who assumed power through collusion with a hostile nation. As Director Comey said last Monday, this form of political warfare isn’t going away.  He expects the Russians to be back in 2018 and 2020. Currently, the 25th Amendment sets out quite clearly what happens when a President dies or is removed from office, and doesn’t provide for the invalidation of an Administration’s actions. I think it would promote confidence in the integrity of American government to establish a remedy for these circumstances, either through Congress, if it has that power, or through a Constitutional Amendment. We are in uncharted territory, and even if Trump has not colluded with Russia to the degree this argument supposes, if Russia remains determined to use non-military means to take down western democracies, we have to assume that someone else might. Trump is not the only rich, amoral narcissist in the country, and if Vladimir Putin dangles the Presidency in front of another one, who’s to say one of them wouldn’t take the bait?



Should the Supreme Court nullify the Election?

With every day that Donald Trump drags the federal government further into chaos, his opposition tries to think of ways to remove him without relying on Congress.  As Democrats, liberals, and progressives, it has become second nature for us to turn to the Court to protect our rights, so it is not surprising that some petitioners have asked the Court to solve this problem. Some less than reputable “news” organizations on the Left , like Occupy Democrats and Politicususa (yes, we resisters have our own fake news),  have recently reported that the Supreme Court has “advanced” a petition to nullify the results of the election.  Now, the Supreme Court hasn’t “advanced” anything, and the petitioners’ legal argument is pretty meritless, but it is still worth asking: should we be looking to the Court to save us from Trump?

The answer is: absolutely not. For one thing, the Court lost a hell of a lot of credibility when it installed George W. Bush as President in Bush v. Gore, and a repeat won’t improve anything. For another thing, the ongoing Russia investigations involve the Trump campaign’s collusion with Russia to influence voters and spread disinformation, not hack the actual mechanics of an election. The remedy for criminal conspiracy to hack the DNC is to kick the criminals out of office, not nullify an election that was properly conducted. We can’t expect the Court to repeat its Bush v. Gore mistake and nullify an election when it was the American people, not the electoral process, that were hacked by Russia.

In the interest of self-preservation, the Court can’t touch this

The Court really screwed the pooch the last time it helped picked a President, and it behooves us all to avoid asking the Justices to do it again. To recap Bush v. Gore, there were manifold voting irregularities in the State of Florida during the 2000 election, and the Gore campaign, behind by about 500 votes, asked for recounts in several parts of the state. The George W. Bush campaign tried to stop the recounts, and there were conflicts between the Republican Secretary of State for Florida, who worked for Jeb Bush, and the Democratic Supreme Court of Florida, sending the suit up and down the state courts and to the US Supreme Court.  Ultimately, the case ended in the Supreme Court for a second time, and the Court stopped all recounts, in one of the most controversial decisions in recent history. This decision was widely seen as an example of unelected judges imposing their personal political opinions on the electoral process. Justice Sandra Day O’Connor, the swing vote on the case, has said the Court shouldn’t have taken the case.  Justice Stephen Breyer has said that it damaged the Court’s credibility, though not permanently. Preserving Court credibility is crucial for anyone interested in resisting Trump. It is against our interests as opponents of the Administration to ask the Court to compromise itself.

Even if the Court would hear it, there isn’t a good case for nullification

There are two major problems with the idea of judicial nullification of Trump’s election based on Russian hacking.  The first problem is that the Russians didn’t hack the electoral process; they hacked the people voting in the electoral process. The second problem is that voters don’t elect the President of the United States, Electors do. Those Electors are supposed to be the stopgap against demagogues hoodwinking the people into bad decisions.

The Russian government did not hack the hardware or processes of the election in the states, like voting machines, computers, or other data management tools.  The legal process of counting votes appears to have proceeded properly in all fifty states and the District of Columbia. By hacking the DNC and John Podesta’s e-mail account, Russia attacked a private political organization and a private citizen’s personal e-mail account, and disseminated controversial information that targeted the decisionmaking of individual voters.  Russia hacked us, the American public, not the legal process.

The Court can’t nullify an election based on the fact that voters believed Russian propaganda.  The Founders did predict that voters might be influenced by demagogues, or even by disinformation. Fake news and airing dirty secrets ain’t new, and Tom Jefferson would swear to you those Election 1800 broadsheets about Sally Hemmings were libel! James Madison et. al. created the much maligned Electoral College to act as a check on uninformed democracy. Despite wide-ranging discussion of so-called faithless electors turning the election for Hillary Clinton, the Electors cast their votes largely as expected, and we got Donald Trump. Unless someone produces evidence that Russia actually interfered with the mechanics of voting -changing the tallies, inventing voters, or stuffing ballot boxes – the Court can’t nullify anything.

Trust the Constitution, support the Press, and impeach Trump for his lies

The Justices don’t need me to tell them not to take this case – I’d bet my bottom dollar they will not. However, I do think it’s important to think about why the rest of us shouldn’t be asking them to in the first place. The Constitution lays out one remedy for removing criminals from executive office: impeachment. Currently, the Press is digging for every connection Trump has to Russia, every lie, every dirty trick, and hopefully his tax returns. There is a profusion of leakers in the intelligence community and the Executive. The path is clear – we need to amass as much information as possible, help the legitimate Press expose Trump and his cronies, and take back Congress in 2018. We, as Americans of both political parties, have done enormous damage to our Republic in the past by pushing one branch of government to impinge on the authority of another to achieve our ends. The Court is the only branch of government consistently acting as a check against Trump. We should not ask it to compromise itself because we are scared of Paul Ryan and the Turtle.

Trump’s Russian Roulette: we’ve got the cover-up, but where’s the crime?

The circumstantial evidence that Donald Trump, his campaign, his family, and his businesses have unsavory ties to Russia has grown to near-undeniable levels. Still, criminal offenses have yet to be uncovered. Currently, the Trump Administration’s only crime is lying by Michael Flynn and Jeff Sessions about non-criminal communications with Russian Ambassador Sergei Kislyak. Now, the news that Jared Kushner and disgraced former National Security Adviser Michael Flynn met with Kislyak together suggests Flynn’s interactions with Russia were undertaken with Trump’s knowledge.  When a leader runs Play #7 in the Dictator’s Playbook: Let a Henchman Take the Fall, the involvement of multiple close advisers almost always means that the leader was involved in the relevant high jinks. The problem with calls for impeachment and consistent comparisons to Watergate is that Watergate started with an actual crime committed by Nixon’s associates; when it comes to Trump and Russia, his henchmen are behaving as if he is covering something up, but we don’t know what it is, or how we could possibly prosecute it.

Watergate and Russiagate have a lot of similarities . . .

Both scandals started with attacks on the DNC. The DNC has got to get its act together on the security front. In 1972, Tricky Dick and his (apparently quite poorly trained) henchmen kicked off the Watergate scandal by getting caught in flagrante delicto bugging the DNC offices in the Watergate hotel. In 2016, the Democratic primary and general election were thrown into turmoil, much to the detriment of the ultimate democratic nominee, by the hacking and leaking of private DNC e-mails. Its offices were apparently bugged again as well.

The immediate culprit indicated a larger conspiracy. While it took much longer to link the President and his men to the burglary and its perpetrators, it was quickly discovered that one of those men was a security consultant for the Republican Party. Likewise, in 2016, three days after the first DNC e-mails were released by Wikileaks, analysts had already discovered the DNC servers were hacked by individuals using a Cyrillic keyboard in Moscow.

The sabotage was undertaken in favor of the Republican candidate. In October 1972, the Washington Post reported the FBI’s conclusion that the Watergate break-in was part of a widespread campaign of political sabotage undertaken on behalf of the Committee for the Reelection of President Nixon. Mr. Trump has received a similar assist, if from a different actor. In December 2016, 17 US intelligence agencies concluded that Vladimir Putin ordered Russian operatives to hack the DNC in order to get Donald Trump elected.

Henchmen have lied about their contact with conspirators. In the Watergate scandal, the first lying henchman to be unmasked was John Mitchell, former US Attorney General and the Director of Nixon’s reelection campaign. Mitchell initially denied that the campaign had anything to do with the Watergate break-in, and was contradicted by evidence found by the FBI and Washington Post (See above link to the Post’s chronology of Watergate). Obviously the dominos fell from there. Dominos seem to be teetering among Trump’s cronies. Michael Flynn had to resign for lying about his communications with Kislyak, and now Jeff Sessions has had to recuse himself from future investigations as penance for his fibbing.  The problem is, both mens’ actions, while somewhat irregular, weren’t illegal. We only see a cover up because they are acting like they are conducting a cover up (which makes them pretty terrible conspirators).

But it’s the differences that count . . .

Russia changes the ballgame. The involvement of a hostile foreign power makes Russiagate a whole different animal from Watergate or any other Presidential scandal. Watergate started with a petty, prosecutable crime committed within the jurisdiction of the United States. Within a couple of months the authorities had hard evidence linking Richard Nixon’s reelection campaign to the burglary.  After that, reporters and the FBI just had to prove the intuitively obvious notion that someone in the White House knew about the crime. Nixon’s henchmen went to jail for obstructing justice in association with a burglary.  They were covering up a simple crime. Russiagate is not going to be that simple.

Russian hacking won’t take Trump down. Starting at square one, to do anything about Trump’s ties to Russia, we would need to impeach, and for impeachment, we need a “high crime or misdemeanor.” The impeachment of Bill Clinton for perjury and obstruction of justice actually sets the bar for what constitutes a “high crime or misdemeanor” pretty low. However, we only know about one crime so far: the hacking of the DNC, and we know that was committed in Moscow by the Russian government or agents thereof. In order to prosecute Trump or any of his advisers on that charge, we would have to prove that they knew about it and conspired to enable it in some fashion, or covered it up afterward. This seems improbable.  Vladimir Putin does not need the Trump campaign to figure out how to hack a server, nor does Wikileaks need help leaking it. On top of that, in order to prosecute Trump and his henchmen for a crime committed by a foreign government, a prosecutor would pretty much have to prove treason, and that seems like a stretch, given that the hack was against the DNC, a private political organization, not the US government.

How do we get a conviction for Russiagate? We may not. This may just be a seedy association that looms over the administration like a bad smell.  For all the strange praise of Putin and lying henchmen, the very diligent Press has yet to find any concrete favoritism or quid pro quo granted to Russia (though with time, Trump may be foolish enough to supply one). The Steele dossier (the one with the peeing prostitutes) alleged that a Trump adviser was bribed with 19% of the Russian Rosneft corporation in exchange for the US lifting sanctions on Russia and its oligarchs, but there has been no quid pro quo, so no one has done anything provably wrong – yet. We know the Trump Organization has extensive financial ties to Russia, but can’t prove it. However, I think financial misconduct is where to look for a cover up. A group of legal scholars has filed a suit demanding that Trump open his books.  If and when that lawsuit succeeds, we will be able to follow the money, and if there is anything we know, it’s that Trump has been extremely shady with money his entire career. Like Al Capone, I think Trump’s horrible financial practices are most likely to bring him down, whether he is conspiring treacherously with Russia or not.



Calling People Nazis: walk softly and carry a big example

I think at this point everyone is familiar with Godwin’s law, or the idea that “as an online discussion grows longer, the probability of a comparison involving Hitler approaches.” Lots of people love comparing their opposition to Hitler. We certainly saw plenty of Obama posters with tiny mustaches during the rise of the Tea Party, and the Left definitely called George W. Bush a fascist on more than one occasion. The problem is, the comparison is now incredibly commonplace, and has therefore lost a lot of its potential impact.  Up until now, when people called each other Nazis, what they really meant was “your guy is the most evil guy to run a country ever.”Now that we have an Administration that is actually acting like Nazis, everyone who thinks Trump is a genuine threat to our Republic needs to be selective about comparisons and use real examples.

Obviously I do not personally have a problem with calling, for instance, Steve Bannon a Nazi.  I am writing a Dictator’s Playbook almost exclusively based on Nazi tactics because I think the Trump Administration has been running some of those plays.  However, I think it’s important to explain why we are making these comparisons.  When people hear “Nazi” or “Hitler” they think of the murder of 13 million people.  I don’t think anyone is saying Trump is going to murder 13 million people (although it’s worth noting that the Final Solution was actually a “solution” to a failed deportation program – chew on that for a second).  The important comparison here is to the Nazi Party’s tactics from 1932-1935.  That is when they destroyed a constitutional republic.  Even if Hitler had lost power in ’34 or ’35, Germans still would have had to go back to the drawing board and create a new system of government.  That is the concern with the Trump Administration.  That it will so undermine our constitutional regime that we will lose the institutions we have valued for over 200 years.

So, when you call someone a Nazi, talk about how they intentionally scapegoated marginalized groups, undermined their political opposition, played the victim, discredited the press, co-opted or removed judges, created an extrajudicial  prison system to undermine courts and lawyers, used violence to intimidate political opponents and keep the people afraid, and lied to justify administration objectives (all of which are soon to be added to the Dictator’s Playbook).  Explain that the significance of the Nazis isn’t just the horror they inflicted on the Jews or the rest of Europe; it’s that they produced a template for how to turn a literate, informed, democratic society into the enablers and supporters of a deranged dictatorship.  Fake news isn’t new people – between 1933 and 1944 Germany went from 4,700 newspapers to 1,100 newspapers.  The Nazis shut down opposition papers, and everyone else stopped talking about politics or fell in line.  So walk softly unless you have a big example, because we can’t let that happen to us.

Trumping the Courts: the Judicial Voodoo of Court Authority

This weekend, the 9th Circuit Court of Appeals (one step below the Supreme Court) refused to lift the stay, issued by a judge in Seattle, of Donald Trump’s Executive Order banning citizens of seven Muslim countries from entering the US. If the Trump Administration does not accept the 9th Circuit’s decision, we could be in real trouble.  The problem is, since the first federal court order came down on January 28th, the Trump Administration has not always obeyed, and Trump himself tweeted “the opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” This indicates the President does not respect court authority, and that is very concerning.

You may be asking yourself why Trump ignoring federal courts is such a problem.  Here’s why: like voodoo, the federal courts only have power if we think they do. Sounds funny, right?  Courts have the right (and duty) to say what the law is if someone brings a case in front of them.  However, federal courts have no ability to force the other branches of government to follow their ruling. They can knock down an act of congress or a Presidential Executive Order, but their decision is only as powerful as the President or the States’ willingness to follow it.

Barring one temper tantrum by Andrew Jackson and a dispute by Abraham Lincoln in the middle of the Civil War, the Presidents have been pretty faithful about following court rulings, so we can’t look there to get an idea what might happen if federal courts get Trumped. However, to understand how big a deal this would be, we can look back a little over 60 years to see what kind of havoc ensued when the Supreme Court struck down racial segregation throughout the US  and the segregated states refused to implement its decision. (As an aside, it is not my intention to trash the South.  I love the South. It’s just really hard to write about constitutional crises and pretend y’all haven’t created some whoppers.)

Here’s what should have happened if each branch of government had done its job: the Court issued a ruling, so each state legislature would have taken every segregation or “Jim Crow” law off the books, integrated the schools and other public institutions, and gone on with its normal business.

Here’s what actually happened: the South rebelled against the ruling.  President Eisenhower had to send in 101st Airborne to let 9 kids go to school; President Kennedy had to federalize the Alabama National Guard to let two kids register for classes at the University of Alabama; and the federal courts, including the Supreme Court, issued order after specific order telling the States how to desegregate. This was a real constitutional crisis that threw the balance of power among government institutions completely out of whack.

Kind of like an injured brain, when one part of government stops working, the other parts adjust to compensate. In the case of desegregation, the Court was in an impossible bind:  the fact that the South was refusing to end segregation was a constitutional crisis in and of itself. Remember, federal court authority is like voodoo, and if the Court did nothing, no part of government would follow future decisions. So the federal courts did the only thing they could do- they started issuing specific desegregation orders to cities and towns and school districts, forcing school districts to use busing, for instance. Figuring out how to desegregate wasn’t really the courts’ job, but no one else was doing it. So to sum up, by ignoring the Court’s authority, the relevant States caused the federal government to send in the military to get kids to go to school, caused massive social upheaval, threw off the entire balance of power in government, and weakened States’ rights, which they have, of course, been complaining about ever since.

That was what happened when a few States ignored the Supreme Court. In that scenario, the President, the Congress, and the federal courts were all working together to force the States to cave.  If Donald Trump ignores the Supreme Court, I’m not sure the American Republic can recover, because no one will stop him fast enough to prevent permanent damage to the balance of power. The scary thing about the President of the United States is that the power of his office has expanded to reach almost every part of American life. Unlike the States, if the President ignores the Court, we can’t send in the 101st Airborne. We have only one last line of defense: Congress. Yup, we are relying on Paul “Von Papen” Ryan to put country over party and impeach Trump. Anyone wanna take bets on that happening?