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.

Easy Comey Easy Goey

What’s really going to tangle up the opposition is that the stated reason for firing Comey is a perfectly good reason to fire Comey, except that it happens not to be why they’re firing Comey.  He praised the damn letter to high heaven at the time.  It would strain even the credulity of the estimable Dr Pangloss to believe that he has suddenly done a 180 and come round to believe that the violations of due process that contributed so much to his victory are in fact violations of due process.  This is the platonic ideal of tail wags dog: he wanted to fire Comey, and so they found the only remotely plausible justification.  As in the case of all of the intemperate CIA hyperventilation about Assange, however, many Democrats agree that Comey deserves the boot– it may not be not nearly so unpopular as it looks from here in the Tidal Marsh.

Do not delude yourself: there won’t be a special prosecutor.  The commentariat has got to quit pretending that there might be.  There won’t be a special prosecutor because the AG (or deputy AG) has to appoint one, and they’re the ones who recommended Comey’s dismissal in the first place.  Failing the AG’s office, Congress could technically have one appointed by passing a law that moved the appointment process out of the AG’s office, but it would have to get past a veto.  The story is not that Ben Sasse got out there like a real person and threw a fit.  The story is that aside from those few people who have not had their spines surgically removed, Republicans are circling the wagons, no doubt a difficult feat for the boneless.  Mitch McConnell is already whoring himself out to the White House.  That 2/3rds vote doesn’t exist.

The firing of Comey is a political crisis, not a constitutional one, but it’s still an existential threat to the separation of powers and the rule of law.  The regime will survive it.  Jack Shafer is funny and also right: Trump is the Teflon Man, and this can get off the front pages fast if he does something sufficiently spectacular elsewhere as a chaser.  I dare not speculate what that might be.  In Congress, this is going to degenerate into partisan warfare that will make the Benghazi hearings look like the Year of Jubilee.  Elsewhere, the Beltway Buzz, or rather the Beltway My-Phone-Is-On-Vibrate-Because-I’m-In-Class-Stop-Texting-Me-Oh-My-God, informs me that the rank-and-file FBI are not amused.  There may be leaks on the scale of a major hull breach impending.  Not that that helps: it’ll just degrade the rule of law faster.

And fuck you, Lavrov.

Leave Assange Alone

Listen.  I, too, think Julian Assange is a self-righteous posturing phony, a rapist, an abetter of tyrants, and a witting KGB cutout.  He’s a sniveling manchild who only publishes on countries with laws preventing them from pursuing him or without the resources to spike his coffee with polonium.  As a private citizen, I would love nothing more than to throw him out the embassy window into the waiting arms of the British constabulary.  I hate his stunted, vestigial guts; I hate the gut flora that inhabit them; and if I should be so lucky as to outlive him I fully intend to dance the hopak on his grave.  But that’s not what this is about.  As usual, this is about liberal democracy.

According to the Washington Post, it is not yet clear what charges DoJ wants to bring.  There may be evidence that Wikileaks was involved in more than receipt and publication of classified documents, or they may want to go for him under the Espionage Act of 1917.  The relevant clause seems to be this:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…  shall be fined under this title or imprisoned not more than ten years, or both.

Hitherto the US government, aware of the bad precedent it would set and the SCOTUS smackdown that would likely follow, has not prosecuted anyone under the Espionage Act for publishing leaked material.  The Obama administration, otherwise godawful on transparency and press freedom, was at least in this one case well aware of the ancient principle according to which What Is Good For The Goose Is Good For The Gander.  Assange’s lawyer, while no doubt an even bigger human trash midden than his client, is right: Wikileaks is a publisher, and journalistic activities are protected even when the journalists in question are unethical dickweasels.  Especially when the journalists in question are unethical dickweasels.

A prosecution of Assange is the foot in the door.  There is classified information in every national newspaper every day, especially lately.  If DoJ succeeds in prosecuting him under the Espionage Act, it will be open season for the White House on all of our national outlets.  They’ll send Junior out there with an elephant gun.  Marty Baron’s head will end up stuffed on a wall.

There is no law of unintended consequences at work here.  From a White House that’s been frothing constantly at the mouth about all non-wiki leaks, the message is quite clear: it stops printing classified material, or it gets the Espionage Act.  After a successful Assange prosecution, journalists would be catching hell from all sides.  Besides having to worry about ending up in the camps for talking to whistleblowers, those bold enough to carry on regardless would find themselves dealing with editors reluctant to have the FBI in rummaging through the archives and making off with files and computers.

Of course much as it may seem like a contradiction, it was inevitable that the regime would turn on Assange sooner or later.  After 8 November, he became a threat, and he is the ideal vector for getting at the press.  Now that at long bloody last Assange is widely hated on the center-left, the political fallout from a prosecution under the Espionage Act would unfortunately not be particularly bad.  Critics on the left are already more likely to focus on the hypocrisy angle, and on the right, a prosecution of Assange might actually bring surveillance hawks, neocons, and Manning-haters round to il Douche’s side.  It might even be popular.

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.

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.

An Opinion on the Opinion

It’s apparently a great temptation to the opposition to view the 9th Circuit ruling on the immigration EO as a great victory, a sign that everything is going to be normal: a judge blocked an order, the block was challenged, it’s moving up the courts, and eventually the Supremes will rule, all as one would expect.  In fact last night, in a piece then headlined “Rule of Law: 1, Trump: 0”, the Daily Beast made this very argument, while breaking the ruling down into the White House’s four major arguments, which were as follows:

  1. National security trumps judicial review (it doesn’t).
  2. We don’t need no stinkin’ evidence (they do).
  3. Aliens have no due process rights (depends on the alien).
  4. Washington lacks standing (they don’t).

The Daily Beast correspondent finds reassurance in the ruling’s unassuming, regrettably un-Scalia-ish affirmation of the separation of powers.  We are supposed, he says, to be cheered by the mildness and boring reasonableness of the court’s opinion.

No.

That’s backwards.

Even the authoritarian crank John Yoo.

What has actually happened is that il Presidente has for the last two weeks kept up a sustained attack on the very notion of judicial review and on the ideal of an independent court. The White House’s case here was “We do what we want.” We will not know the full extent of their determination to do what they want until SCOTUS has ruled. The Breitbartian commentariat has been busily producing justifications for the Jacksonian you-and-whose-army option, but even if the White House doesn’t take this nuclear, we should find the content of their argument alarming of itself. In better times a court would be handing down a ruling on the substance of a law or an EO, not on the once-established fact of separation of powers or judicial review. Not rolling over is the least we could expect from the 9th Circuit, and they should at least have tried to out-Scalia Scalia.

Furthermore, the regime (can I call it a regime yet?) is likely to succeed in framing the ruling as entirely political, even though the court very conspicuously declined to address the question of a Muslim ban and the implied religious tests. Of course, this has little to do with either the content of the court order or public opinion: the regime clearly does not believe in the ideal of an independent judiciary, as is evident from the immediate insistence than any legal pushback was either partisan or outright disloyal. Only sad wonks like you, dear reader, look at these things anyway, so it will probably be enough to politicize any rulings retroactively by sending out the clowns to loudly announce that the rulings were political. The climate of division is such that the press and the public will do the rest of the work themselves. The cumulative effect of this debate will play nicely into his tiny, tiny hands: support for judicial review may, in the next months, become a partisan matter.

Lastly, there has been a troubling attempt to push the courts over into the public enemy category along with the press. The White House has insisted repeatedly both on Twitter and at press conferences that they will consider the courts responsible for terrorist attacks, for instance:

It remains unclear whether the equation of the institutional dissent with malicious disloyalty to our glorious leader and, by Louis Quatorzish extension, the republic is meant as a matter of calculated policy or if it’s simply a necessary consequence of the way his mind works. It makes little practical difference. Even if he himself is not smart enough to do it on purpose, Steve Bannon is certainly smart enough to put it to use.

If he does decide to try the nuclear option, we the people are left to the tender mercies of the bureaucrats and to whatever we can accomplish with demonstrations and other forms of targeted Congress-bothering.  This isn’t over.