Politics is not like the nursery.

Foremost among the larger issues at stake in the Eichmann trial was the assumption current in all modern legal systems that intent to do wrong is necessary for the commission of a crime. On nothing, perhaps, has civilized jurisprudence prided itself more than on this taking into account of the subjective factor. Where this intent is absent, where, for whatever reasons, even reasons of moral insanity, the ability to distinguish between right and wrong is impaired, we feel no crime has been committed. We refuse, and consider as barbaric, the propositions “that a great crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal” (Yosal Rogat). And yet I think it is undeniable that it was precisely on the ground of these long-forgotten propositions that Eichmann was brought to justice to begin with, and that they were, in fact, the supreme justification for the death penalty. Because he had been implicated and had played a central role in an enterprise whose open purpose was to eliminate forever certain “races” from the surface of the earth, he had to be eliminated. And if it is true that “justice must not only be done but must be seen to be done,” then the justice of what was done in Jerusalem would have emerged to be seen by all if the judges had dared to address their defendant in something like the following terms:

“You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it. But you said you had never acted from base motives, that you had never had any inclination to kill anybody, that you had never hated Jews, and still that you could not have acted otherwise and that you did not feel guilty. We find this difficult, though not altogether impossible, to believe; there is some, though not very much, evidence against you in this matter of motivation and conscience that could be proved beyond reasonable doubt. You also said that your role in the Final Solution was an accident and that almost anybody could have taken your place, so that potentially almost all Germans are equally guilty. What you meant to say was that where all, or most all, are guilty, nobody is. This is an indeed quite common conclusion, but one we are not willing to grant you. And if you don’t understand our objection, we would recommend to your attention the story of Sodom and Gomorrah, two neighboring cities in the Bible, which were destroyed by fire from Heaven because all the people in them had become equally guilty. This, incidentally, has nothing to do with the newfangled notion of `collective guilt,’ according to which people supposedly are guilty of, or feel guilty about, things done in their name but not by them – things in which they did not participate and from which they did not profit. In other words, guilt and innocence before the law are of an objective nature, and even if eighty million Germans had done as you did, this would not have been an excuse for you.

“Luckily, we don’t have to go that far. You yourself claimed not the actuality but only the potentiality of equal guilt on the part of all who lived in a state whose main political purpose had become the commission of unheard-of crimes. And no matter through what accidents of exterior or interior circumstances you were pushed onto the road of becoming a criminal, there is an abyss between the actuality of what you did and the potentiality of what others might have done. We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives or with the criminal potentialities of those around you. You told your story in terms of a hard-luck story, and, knowing the circumstances, we are, up to a point, willing to grant you that under more favorable circumstances it is highly unlikely that you would ever have come before us or before any other criminal court. Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations – as though you and your superiors had any right to determine who should and who should not inhabit the world – we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.”

— Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, 1963

Auribus teneo lumpum.

DISCLAIMER: All predictions should be viewed through the lens of how wrong I was when that I said there would never be a special prosecutor.

Since Douthat’s now-infamous Amendment XXV op-ed brought the constitutional shenanigans out of the depths of the Blawgs into the mainstream discourse, I’ve found myself asking yet again what we the opposition are expecting to accomplish.  Not-Trump is, in the abstract, a worthy goal, especially with no one worse looming on the horizon yet.  In practice, achieving not-Trump by not-electoral means is likely to bring with it a host of other, more interesting problems.  As a connoisseur I find these fascinating, but as a citizen I’m not so enthusiastic.  There are three constitutionally legitimate ways of achieving not-Trump before 2020: resignation, impeachment, or Amendment XXV. Resignation is boring and I’ll eat my hat if it happens. The other two options have a common obstacle: neither of them would have any popular legitimacy.

The advantage of impeachment is that it’s hard to call it undemocratic: it’s right there in the constitution and only elected officials are involved. However, the absence of consensus makes it unlikely that Congress will risk the process in the first place. Impeachment has to follow public opinion. Most likely we will only see action from Congress if a critical mass of Republican voters are demanding Trump gets the hook, otherwise it’ll just be Clinton Redux.  Then, I’m not persuaded by the argument that Amendment XXVing him is inherently undemocratic: it’s initiated by the cabinet, but it still requires the consent of 2/3rds of Congress if you’re going to make it stick. It doesn’t seem to be within the original intent of the amendment, which was to provide a mechanism for replacing the president if he was incapacitated but not killed in an assassination attempt, but creatively literalist legal interpretation is a noble American tradition.  Of course, that doesn’t matter: when the average member of the People can’t name their own senator, we shouldn’t expect them to grasp, let alone get behind, this sort of casuistic constitutional contortion.

The practical objection to Amendment XXVing him out is that the now-infamous groveling meeting where everyone except Mattis pledged their eternal love for Our Glorious Leader suggests that the cabinet would not be interested in doing any such thing. The speculative objection to Amendment XXVing him is that, if successful, it does nothing to solve any crisis of legitimacy—  it makes it far worse.  Theoretically it puts him where he can’t trash institutions or start a war on Twitter, but as soon as the process is started, we’ve got ourselves a Type II constitutional crisis. It begins with the most spectacular Twitter hissy fit ever seen in this mortal vale of tears and probably the firing of the entire cabinet. Next comes exhausting quarrels over the meaning of “unable to discharge the powers and duties of his office” both on the floor of Congress and in the public discourse. No consensus will ever be reached.  We’re stuck with a Mexican standoff in DC.  The conflict totally consumes Congress. Trump and Pence are both insisting on their authority, and the rest of the executive is trying to function with even less leadership than usual, since there’s neither the time nor the inclination to confirm replacements.  SCOTUS is trying to referee a situation that has no precedent except perhaps the Western Schism. At least half, and likely more, of the People won’t be having it.  The National Mall could fill with dueling protest camps. After that it’s probably not safe to make predictions.

In a piece called “The Guardrails Cannot Contain Trump”, Krauthammer vagueblogs at Douthat and despite the title goes on about how when guardrails are failing we must strengthen the guardrails. Krauthammer and all the other Very Serious People are correct insofar when you’re trying to keep a constitution together, tricks tend to be an own-goal, but we cannot say in advance that Trump will be worse than some kind of strange state of exception any more than we can say that such a state of exception will be worse than Trump.  The problem is that the Very Serious People don’t offer any serious suggestions on how we’re supposed to shore up the norms and institutions.  Our legislative deadlock is not new, and it’s not improving.  “Congress should redouble oversight” is just screaming into the void: the failure of the system is largely due to the longstanding unwillingness of Congress to properly perform its oversight role, or to exercise a number of other powers it constitutionally possesses over the executive.  The bureaucracy will fall: when the principled resign in protest, their positions get filled by weasels or go unfilled altogether.  Douthat’s idea is crazy, but at least he’s aware that we’ve run out of good choices.

When I started this post, I was convinced that neither impeachment nor Amendment XXV would happen.  After tonight’s Russia-Thing-related stories, I’m not so sure.   We’re out of good choices, but we have to choose anyway.

The Palestine Principles

I used to live in Jerusalem, for my sins, and when we finally got out of there, my friends and I set to work finding the general cases for the lessons we’d learned about surviving as politically questionable expats in an occupied city.  If you’re a middle-class young person from a G8 country, living at the mercy of what is often referred to merely as the Situation or somewhat more theologically as the Inshallah Factor has a bit of a learning curve to it.  While we were on the spot, the Moscow Rules had been bandied about a lot, so we tried to get our list down to ten, for symmetry.  Our rules were these:

  1. Everything is political, including this rule.
  2. The true partisan can rationalize anything.
  3. Assume nothing.
  4. Keep a low profile.
  5. It never goes smooth.
  6. Never go against your gut.
  7. Have an exit strategy.
  8. Technology is your enemy.
  9. Don’t try to disrupt known surveillance.
  10. Whatever you did, you’ll hear about it at the border.

When we wrote them, we meant these for the unaffiliated foreign bystander in places like the West Bank or Ukraine, but someone had proposed a general theory that once 1 and 2 held good in a society, it was only a matter of time before the rest would start to apply as well.  It’s starting to look like we’re going to find out.

Why do we even HAVE that lever?

We are six state legislatures away from triggering an Article V constitutional convention, and hardly anybody is paying attention.

For anyone who needs a refresher, Article V is as follows:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Congress must call a convention if the threshhold is met.  Once the convention is assembled, the delegates themselves have to establish procedures.  The convention is not constitutionally required to stay on topic and there is no higher authority than can intervene to mediate disputes.  The proponents of the convention, a rogues’ gallery of omnicidally insane budget hawks lead by ALEC and The Convention Of States, are currently trying to introduce legislation in Congress that will bring the proposals out of congressional records and into Archives’ jurisdiction where they can be catalogued, so that the convention will be triggered promptly if or perhaps when they pass the threshhold.

The convention provision has so far never been triggered because legal scholars agree that there’s no way to control an Article V convention.  This may well be what Gödel saw.  The constitution is the highest authority right up until a convention is called: after that, the Framers did not see fit to give us instructions, no precedent exists, and nothing can be assumed.  The last one turned out happily in the end, but we must remember that in 1787 the delegates ignored both their instructions from the state legislatures and the ratification procedures laid out in the Articles of Confederation, and we ended up with a totally new system of government.  This time Hamilton, Madison, and Jay are not coming to save us.

And, of course, our present situation doesn’t resemble 1787: the early republic was only six years out from complete regime change, and the convention was called to reform an ad-hoc system that everyone knew wasn’t working, even when they didn’t agree on what should be done about it.  We, on the other hand, have enjoyed a hundred and fifty-two years of a continuously functioning constitutional system, the only amendment in the national discourse is the abolition of the electoral college, and the last thing standing between us and the authoritarian populist maniac in the White House is those four pieces of parchment in a glass case down the street.  The state legislatures won’t send judges and political scientists and constitutional scholars: they will send politicians.  There are no rules to rein in the influence of moneyed interests.  This will not go well for us.

The lack of national news coverage is troubling.  It is a general truth of the internet that when people demand to know why the media aren’t talking about Thing, the media are, in fact, talking about Thing, which is why the morons demanding discussion of Thing know about Thing in the first place.  That isn’t the case here.  I consume a frankly unhealthy amount of news.  I found out about this while following up on a debate going on at Balkinization, and went looking for reporting afterward.  There’s some coverage in state-capital papers, and a single Washington Post editorial from a few weeks ago.  That’s all.  This advance has been going on unnoticed since 2010.  If the initiative reaches the threshhold, it will blindside the American people.

Between the regime and growing polarization, I don’t think we would survive this.

Everyone needs to take several deep breaths and read a book about the Spanish Civil War.

Swear to God this is how you get masked centrists storming a building and threatening to shoot a hostage an hour until everyone sits down and has a civilized cross-factional dialogue.

I did my civic duty and went to Tax March DC yesterday, because lord knows il Douche needs to see yelling hordes demanding to see his taxes.  I went to Tax March DC expecting to march about the tax returns.  I had a flag and a sign and a snarky t-shirt and everything.  In retrospect this was foolish of me and I never should have allowed myself to be taken in.

There are many more people angry about the lack of tax returns than there are people who happen to share the specific economic agenda of some of the organizers of the event.  If the priority here is getting Congress and OGE to do something about creeping kleptocracy, the best tactic is to make the march as non-ideological and broadly appealing as possible.  This is not what they did.  Instead, they mixed in a menu of progressive economic policy items which alienated a lot of people who despise corruption but hold different policy positions.  There were also a series of identity-based non-sequiturs: there’s a prize for anyone who can tell me what his tax returns have to do with intersectional feminism.

We need to get back to a place where we can have a normal policy debate.  That is not possible right now.  The authoritarian populist thrives on polarization: he needs an internal enemy to demonize, or everyone will notice that he has no clothes.  When progressives rightly demand that Republicans denounce and oppose Trump, and then shut them out of the resistance on other policy grounds when they do, they are playing directly into his tiny tiny hands.  A resistance that apparently goes out of its way to alienate opponents of the populist who do not share their policy goals will drive those potential allies back towards the populist in the end.  Take alliances where you can get them.  An opposition party adequately alarmed by the threat that the populist poses in himself should try to build as broad a coalition as possible, rather than attempting to hitch their own economic wagon to the fortunes of the opposition.  This is going to end in the failure of both of their goals.  There are many people with substantial policy disagreements who share a determination to stand up against authoritarian populist horseshit.  Americans hate corruption and tax cheaters: we threw the British out and bonded into a nation over our shared hatred of unfair taxation.  It’s sort of our hat.  If you seek alliances, they will join you.  If you demand ideological purity, you might still get Evan McMullin and Country Over Party to show up, but you won’t get a coalition.

Instead I’m left with the impression that certain progressive factions are trying to use warranted alarm over the regime to mobilize the base, when they should be panicking about democracy and seeking alliances wherever they can find them.  Certainly economic solutions are part of the strategy to crowbar some support away from the populist, but that’s for the campaign trail, not for an anti-corruption demonstration.  The insistence on ideological purity suggests that either progressive organizers aren’t aware of the scope of the threat or even that in some cases they don’t believe their own rhetoric.  Perhaps they’ve managed to cry wolf on themselves: when you’ve been telling yourself and your supporters for years that your opponent is a wannabe tyrant and an existential threat, you find you’ve lost your sense of urgency when that turns out to finally be true.  Or perhaps it’s cynical political calculus combined with failure of imagination.  Or maybe they’re just short-sighted and strategically illiterate.

No one ever got into a position of authority by gleefully celebrating ideological impurity, however, so I’ll probably have to content myself with grumbling in cheap kabob restaurants after protests and yelling on the internet.  We’re all fucked.

Anyway Happy Easter.

Generalized Anxiety

Apropos of Not Talking About Coups, there is a second, related category of Pentagon-White House relations article that needs to cease immediately.  This specimen at Politico by Patrick Granfield is textbook.  To write one of these articles, one looks at the generals who infest il Presidente’s cabinet, thinks to oneself “These men are not criminally insane/are against torture/know that the State Department performs a number of necessary functions” according to one’s inclinations, decides that the military is one’s best hope for a check on the Annoying Orange’s worst impulses, and finally one winds it all up with a vague invocation of the clause in the oath about defending the constitution from enemies foreign and domestic.

Now correct me if I’m wrong, but I believe Mustafa Kemal Atatürk is not in fact one of the Framers.

This is not to say that the Pentagon doesn’t have a responsibility to refuse or otherwise push back on illegal and unconstitutional orders.  They do.  But all that means practically speaking is that if il Presidente orders you to invade California in blatant violation of Posse Comitatus or to blow up al-Baghdadi’s grandma’s house just to show we mean business, you tell him with all due respect to shove it up his ass.  If he tries to take some sort of military action that’s insane but technically legal, you can resign.  If he Caligulates around solely in the domestic sphere, you can go vote like everyone else.  The oath says nothing whatever about “democracy,” thank god: it’s much more concrete.

Admittedly one expects this sort of thing from the neocon-infested right wing of the opposition— they’re prone to Pentagon-worship at the best of times, which these are certainly not— but as is clear from the above Mr Granfield, it is rapidly creeping across the aisle.  Quit it.  As has been observed elsewhere and at length, if some bastard is chipping away at the customs underpinning liberal democracy, do not help him.

As the most pessimistic person in any given room, I’m still expecting either scrambled-egg-encrusted MAGA hats, or, if Mr Granfield gets his way, a bizarre push to change the blue ground of the flag’s canton to a slightly darker shade.  In the meantime, stop writing these damn fool articles.  It might not help, but it at least won’t hurt.

What noise does a pigeon make?

In the last week or so there has been a lot of loose— if mostly somewhat deniable— talk about coups flying around in both the blogosphere and parts of the mainstream press.  Some of it has been Kremlinological divination of the worst sort, as in the case of this post from Yonatan Zunger on Medium, which later was justly mocked by Politico.  The rest of it has been apparently neutral speculation: for example, the textbook example of apophasis at the end of this piece by David A. Graham at the Atlantic, a throat-clearing Morsi analogy from Ross Douthat (who should certainly know better), and this here bit of pseudonymous blatancy at the Daily Kos.  There are certainly other examples out there for the finding.

First off, not only is this sort of talk almost cartoonishly antidemocratic, but a coup is invariably at least as bad as the disease, and a failed coup is always worse.  However, I’m not particularly interested in the chances of actual tanks rolling any time soon when no one should even be talking about this in the first place.

Not that it hasn’t been making the rounds: in fact I’ve been waiting for coup talk to jump the air gap between the infrasonic Beltway buzz and the press for about two months now.  Up until this point it’s mostly been confined to the realm of whispered conversations between panicking political scientists in the darker corners of the more dimly-lit U Street bars on Thursday nights, where it tends to be brought up in the course of a worst case risk-assessment exercise, alongside the much more plausible horrors of il Douche and Bannon with technically-constitutional emergency powers (the only person I’ve heard speak of the idea favorably was my Uber driver on New Years Eve, who suggested it as a solution to the emergency powers problem, clearly under the impression that I was much drunker than I actually was).

But troubled wonks may say things in private that no responsible citizen committed to the Constitution or even, at bare minimum, representative democracy should ever release into the national discourse.  If we’re worried about the regime’s erosion of the rule of law, we shouldn’t indulge anti-democratic fantasies about throwing the bums out at helicopterpoint.  This sort of preposterous chatter serves nothing but democratic deconsolidation.  Knock it off.