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?



Killing the New Deal, Or Who Doesn’t Love a Hooverville?

Last month, Steve Bannon told an audience at the Conservative Political Action Committee that the Trump Administration’s objective is to deconstruct the Administrative State. That sounded pretty terrifying at the time, but it was unclear how exactly they intended to do that, other than appointing patently incompetent leaders at federal agencies. Now that Paul Ryan’s healthcare plan and Donald Trump’s budget have been unveiled, it’s clear that the real target of the Trump Presidency is the idea that government should play a role in citizens’ welfare. They want to kill Franklin Roosevelt’s New Deal, and we should all be ready to fight them, because even if the New Deal ain’t perfect, we definitely do not want the old one.

The old deal made America pretty great for business, but pretty bad for people

FDR was not the first President to try to pass laws to protect public safety – his cousin Theodore, leader of the Republican Progressive movement, holds that distinction. However, prior to the Great Depression, the Republican Party was heavily dominated by an extreme brand of economic conservatism that rejected all regulation of the economy, even to preserve public safety. The Conservative Supreme Court led the way, ensuring that Progressives were unable to make many of the real reforms they wanted. The Court read a “right to contract” into the Constitution, and from 1897 to 1937, it knocked down efforts to establish workers’ rights. A few things they found unconstitutional include: limiting work hours to 60 a week, ensuring the right to join a labor union, regulating child labor, taxing employers who hire children, mandating a minimum wage, and regulating the coal industry. By the 1920s, the activism of the Court was supported by the election of Calvin Coolidge, who believed that government should deregulate industries and stay out of the economy, while instituting low taxes for the wealthy.  Although Coolidge presided over a period of prosperity (partially fueled by Woodrow Wilson’s wartime spending) wealth inequality was so extreme that half of Americans lived below the subsistence level. Sound familiar? It should. And just as our deregulation efforts from 1980 to 2008 unleashed the worst parts of Wall Street and crashed the economy, Coolidge’s policies helped cause the Black Monday crash of 1929 and bring on the Great Depression.

The New Deal wasn’t just new programs, it was a new concept of government

Franklin Delano Roosevelt inherited a demoralized, dysfunctional country, and he had a clear plan to fix it. Building on the Progressive movement led by his cousin Theodore, he set out to establish a regulatory structure that could protect citizens from the economic, environmental, and personal consequences of capitalism. When we talk about liberalism today, we are talking about New Deal liberalism, which is the idea that capitalism is the right system, but only if it is properly regulated to curb its excesses. This notion of regulating business to promote public safety and equalize opportunity is really the core of the New Deal. It passed the Fair Labor Standards Act, which established a national minimum wage and national labor standards, as administered by the already existing Department of Labor. It established agencies like the FDA (in its modern iteration), the Federal Housing Administration, or FHA, which grew into the Department of Housing and Urban Development, the Securities and Exchange Commission, which regulates Wall Street, the National Labor Relations Board, to protect union activity, and the Social Security Administration. It is these agencies, along with the EPA and structures of Lyndon Johnson’s Great Society, which built on the New Deal, that Donald Trump has targeted with his budget.

You may wonder how, when faced with the same Supreme Court philosophies that hampered the Progressives, FDR managed to pass all of these laws. Well, he threatened to pack the Court with three additional liberal Justices. Somehow, the Court reconsidered the whole right to contract idea, and started playing ball. Many Republicans accused FDR of being a dictator, and that accusation wasn’t out of left field. These changes were radical, and FDR did not pussy foot around – he imposed his will on everyone. His core Conservative opposition opposed both his tactics and his theory of how government should work, but they had virtually no power to block his initiatives, because after the Court-packing plan, all three branches of government belonged to the Democrats.

Conservatives have been waiting to unmake the New Deal for 85 years*

The Calvin Coolidge adherents didn’t evaporate because FDR got elected four times. Instead, they became a dedicated group of ideological purists hiding in a corner of the Republican Party. Conservative opponents of the New Deal formed a large part of the  America First Committee, and the eventual leader of the wartime and post-war Conservative movement, Senator Robert A. Taft of Ohio, opposed American intervention in WWII. As a result, they were disfavored by many Republicans after the war.  The Truman and Eisenhower years saw an emphasis on moderation and a relative lack of distinction between the parties (indeed, in 1952 both parties asked Eisenhower to run). However, in the tumult of the 1960s, with the rise of the civil rights movement, movement Conservatism made a comeback. In order to take over the Republican party, Conservatives made an alliance with segregationist Dixiecrats and, in the 1970s, socially conservative evangelical Christians to create the coalition that elected Ronald Reagan in 1980. Reagan certainly began deregulation and tax cuts for the wealthy, but he did not give the Conservative movement the extreme change it wanted. In the end, he was willing to compromise. Now the Conservative movement has its chance; Trump, who does not appear to care about any sort of ideology, seems willing to sign anything Congress sends him. It’s going to be a challenge. To return us to pre-New Deal America, Conservatives are going to have to remove all of the checks on corporate power designed to protect us… and then convince us we like it.

There are still moderate Republicans, and only they can stop this

Conservatives in the Calvin Coolidge mold have only gained dominance in the Republican Party in the last 8 years. It is really the Tea Party movement that brought them to power. That isn’t long enough to wipe out the moderate Republicans who still think regulations for public welfare are a good thing, and, more importantly, that swift and radical change is a bad thing. Disliking radical change is pretty much the definition of a moderate. In order to combat this disaster, it isn’t enough to rely on Congressional Democrats, who have relatively little power at the moment. If you really want to stop the deconstruction of the Administrative State, write to Lisa Murkowski of Alaska, and Susan Collins of Maine, and Rob Portman of Ohio, and Lindsey Graham of South Carolina, and John McCain of Arizona. With the election of Trump and a Congress led by Ayn Rand devotee Paul Ryan, the Conservative movement has finally gained enough power in the Republican Party to get its wish list. If we do not stop them, they will undo 85 years of American progress, and we can’t just look to our own “team” to get in their way. If you want to save the New Deal, call a Republican.


* The summary in this section is taken from the excellent Rule and Ruin by Geoffrey Kabaservice.  Kabaservice, Geoffrey M. Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party, from Eisenhower to the Tea Party. New York: Oxford University Press, 2012.