The 2020 Election Was a Rebuke of Socialism

topicspolitics

Two days after the 2020 election, which saw Democrats capture the White House while losing ground in Congress, House Democrats held a conference call to discuss what went wrong. Rep. Abigail Spanberger (D–Va.) was unequivocal: “We need to not ever use the words socialist or socialism ever again,” she said.

Indeed, socialism was something of a political loser this election cycle. The specter of it likely cost Joe Biden his chance at winning Florida. It appears President Donald Trump won over many Latinos in the state with targeted ads tying the Democratic Party to left-wing authoritarianism in Latin America. And while voters reelected all four members of the socialism-friendly “squad”—Reps. Ayanna Pressley (D–Mass.), Ilhan Omar (D–Minn.), Rashida Tlaib (D–Mich.), and Alexandria Ocasio-Cortez (D–N.Y.)—the consensus among the party’s leadership seems to be that the s-word is toxic outside of heavily left-leaning districts.

Rep. James Clyburn (D–S.C.), the House’s third-ranking Democrat, urged members not to run on “Medicare for All or socialized medicine” in the future. Even some progressive Democrats echoed these concerns. “I think Republicans did get some traction trying to scare people on this socialist narrative,” said Rep. Jared Huffman (D–Calif.), a member of the Congressional Progressive Caucus. “What’s the point of embracing a phrase like that?”

Flirting with socialism may have cost Democrats dearly. If Republicans win either of the two runoff Senate races in Georgia, President-elect Joe Biden will face a GOP-controlled Senate. That would mean Republicans could block virtually all of the structural changes that progressives were counting on in order to consolidate power, such as D.C. statehood, an expansion of the Supreme Court, and nuking the filibuster. The Senate can also kill off lofty legislative proposals, vote down Biden’s judicial picks, and thwart liberal Cabinet nominees. “The Biden presidency will be doomed to failure before it starts,” fretted New York magazine’s Eric Levitz.

For democratic socialists, the 2020 election cycle began with great promise: The hard left had not one but two progressive primary candidates, Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.). But neither Warren nor Sanders could overcome Biden, the Democratic candidate who worked hardest during the primaries to put serious distance between himself and socialism.

Democratic socialists thought they were riding a blue wave. Instead they gave us divided government. That’s not what they intended, but it might be the best possible outcome.

from Latest – Reason.com https://ift.tt/3oPSN5T
via IFTTT

The 2020 Election Was a Rebuke of Socialism

topicspolitics

Two days after the 2020 election, which saw Democrats capture the White House while losing ground in Congress, House Democrats held a conference call to discuss what went wrong. Rep. Abigail Spanberger (D–Va.) was unequivocal: “We need to not ever use the words socialist or socialism ever again,” she said.

Indeed, socialism was something of a political loser this election cycle. The specter of it likely cost Joe Biden his chance at winning Florida. It appears President Donald Trump won over many Latinos in the state with targeted ads tying the Democratic Party to left-wing authoritarianism in Latin America. And while voters reelected all four members of the socialism-friendly “squad”—Reps. Ayanna Pressley (D–Mass.), Ilhan Omar (D–Minn.), Rashida Tlaib (D–Mich.), and Alexandria Ocasio-Cortez (D–N.Y.)—the consensus among the party’s leadership seems to be that the s-word is toxic outside of heavily left-leaning districts.

Rep. James Clyburn (D–S.C.), the House’s third-ranking Democrat, urged members not to run on “Medicare for All or socialized medicine” in the future. Even some progressive Democrats echoed these concerns. “I think Republicans did get some traction trying to scare people on this socialist narrative,” said Rep. Jared Huffman (D–Calif.), a member of the Congressional Progressive Caucus. “What’s the point of embracing a phrase like that?”

Flirting with socialism may have cost Democrats dearly. If Republicans win either of the two runoff Senate races in Georgia, President-elect Joe Biden will face a GOP-controlled Senate. That would mean Republicans could block virtually all of the structural changes that progressives were counting on in order to consolidate power, such as D.C. statehood, an expansion of the Supreme Court, and nuking the filibuster. The Senate can also kill off lofty legislative proposals, vote down Biden’s judicial picks, and thwart liberal Cabinet nominees. “The Biden presidency will be doomed to failure before it starts,” fretted New York magazine’s Eric Levitz.

For democratic socialists, the 2020 election cycle began with great promise: The hard left had not one but two progressive primary candidates, Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.). But neither Warren nor Sanders could overcome Biden, the Democratic candidate who worked hardest during the primaries to put serious distance between himself and socialism.

Democratic socialists thought they were riding a blue wave. Instead they gave us divided government. That’s not what they intended, but it might be the best possible outcome.

from Latest – Reason.com https://ift.tt/3oPSN5T
via IFTTT

Brickbat: A Real Caste System

crossindia_1161x653

Police in Uttar Pradesh, India, have charged four people, including a Korean Christian and three Indian citizens, with blasphemy and violating a law banning people from attempting to convert others. The four say they were merely delivering food aid to the poor. But police say a woman told them they told her she could get free food by coming to church and was offered money to convert to Christianity. The man organizing the food effort says the charges are trumped up and that two of the Indians who were arrested aren’t even Christian but just helping to deliver the aid.

from Latest – Reason.com https://ift.tt/3oYvhDG
via IFTTT

Brickbat: A Real Caste System

crossindia_1161x653

Police in Uttar Pradesh, India, have charged four people, including a Korean Christian and three Indian citizens, with blasphemy and violating a law banning people from attempting to convert others. The four say they were merely delivering food aid to the poor. But police say a woman told them they told her she could get free food by coming to church and was offered money to convert to Christianity. The man organizing the food effort says the charges are trumped up and that two of the Indians who were arrested aren’t even Christian but just helping to deliver the aid.

from Latest – Reason.com https://ift.tt/3oYvhDG
via IFTTT

An Abject Apology Highlights the Legal Exposure for Promoters of Trump’s Election Fraud Fantasies

american-thinker-logo

American Thinker has unreservedly apologized to Dominion Voting Systems for publishing “completely false” statements about the company’s involvement in an imaginary anti-Trump plot that supposedly delivered a phony victory to President-elect Joe Biden. The conservative website, one of several right-wing outlets that promoted the wacky conspiracy theory, was responding to a letter in which Dominion demanded a retraction and threatened to sue for defamation if one was not forthcoming.

American Thinker and contributors Andrea Widburg, R.D. Wedge, Brian Tomlinson, and Peggy Ryan have published pieces…that falsely accuse [Dominion] of conspiring to steal the November 2020 election from Donald Trump,” says a statement that Thomas Lifson, the website’s editor and publisher, posted on Friday. It continues:

These pieces rely on discredited sources who have peddled debunked theories about Dominion’s supposed ties to Venezuela, fraud on Dominion’s machines that resulted in massive vote switching or weighted votes, and other claims falsely stating that there is credible evidence that Dominion acted fraudulently.

These statements are completely false and have no basis in fact. Industry experts and public officials alike have confirmed that Dominion conducted itself appropriately and that there is simply no evidence to support these claims.

It was wrong for us to publish these false statements. We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.

Lifson notes that “we received a lengthy letter from Dominion’s defamation lawyers explaining why they believe that their client has been the victim of defamatory statements.” Former Trump campaign lawyer Sidney Powell, a conspicuous promoter of the “completely false” story about fraud-facilitating software that supposedly changed Trump votes to Biden votes, received a similar letter from Dominion on December 16. Four days later, Powell tweeted that she was “retracting nothing,” because “we have #evidence” that the people running the company are “#fraud masters.” On January 8, Dominion sued Powell for defamation in the U.S. District Court for the District of Columbia, seeking $1.3 billion in compensatory and punitive damages.

Powell also has been sued by Dominion executive Eric Coomer, who figures prominently in her conspiracy theory, which alleges that he participated in “an antifa conference call” in late September or early October, during which he supposedly bragged that “Trump is not gonna win” because “I made fucking sure of that.” The defendants in Coomer’s lawsuit, which he filed in Denver County District Court on December 22, also include conservative activist Joseph Oltmann (who claimed to have “infiltrated” that alleged conference call), Trump attorney Rudy Giuliani, Conservative Daily, The Gateway Pundit, Newsmax, One America News Network, OANN White House correspondent Chanel Rion, Gateway Pundit owner Jim Hoft, blogger Michelle Malkin, and radio host Eric Metaxas.

The most prominent promoter of conspiracy theories involving Dominion, of course, is President Donald Trump, whom the company has not yet sued for defamation. In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that presidents have “absolute immunity” from civil (but not criminal) liability based on their “official acts.” Trump’s liability for damage to Dominion’s reputation therefore would seem to hinge on whether his wild claims about Dominion count as “official acts.”

In 2019, Elle magazine columnist E. Jean Carroll, who has publicly accused Trump of raping her in the mid-1990s, sued him for defamation because he falsely denied knowing her and implied that she had invented the incident. A federal judge in Manhattan last year ruled that Trump’s statements about Carroll, which he made while he was president, “were not within the scope of his employment,” which implies that he is not entitled to immunity from her lawsuit under Nixon or the Federal Tort Claims Act. The Justice Department recently asked the U.S. Court of Appeals for the 2nd Circuit to reverse that decision.

Pro-Trump attorneys like Powell, Giuliani, and Lin Wood are shielded from liability for defamation based on statements they have made in court on behalf of their clients. But “the litigation privilege doesn’t cover all out-of-court statements,” says UCLA law professor Eugene Volokh, a First Amendment specialist, although “in many states the fair report privilege does cover lawyers’ public discussion of claims made in their lawsuits.” The extent of that privilege varies from state to state, Volokh says, and it is not yet clear which state’s standard would apply to the lawsuits filed by Dominion and Coomer, since “this whole ‘choice of law’ question is itself quite complicated.”

The legal exposure for media outlets and journalists is not complicated by the litigation privilege. Assuming that Dominion and its executives qualify as “public figures,” the plaintiffs would have to show that the non-lawyer defendants acted with “actual malice,” meaning they knew their defamatory statements were false or published them with “reckless disregard” for their accuracy. That standard, Dominion and Coomer argue, is easily met in this case, since the defendants made highly implausible claims that were not supported by credible evidence and were contradicted by multiple authoritative sources, such as the “industry experts and public officials” cited in American Thinker‘s retraction.

Newsmax and Fox News have aired corrective reports debunking election conspiracy theories amplified by some of their employees. Both outlets have received demand letters from Dominion and Smartmatic, another company that figures in the fantasy peddled by Trump, Powell, Giuliani, and Wood.

from Latest – Reason.com https://ift.tt/2XOG5Zh
via IFTTT

An Abject Apology Highlights the Legal Exposure for Promoters of Trump’s Election Fraud Fantasies

american-thinker-logo

American Thinker has unreservedly apologized to Dominion Voting Systems for publishing “completely false” statements about the company’s involvement in an imaginary anti-Trump plot that supposedly delivered a phony victory to President-elect Joe Biden. The conservative website, one of several right-wing outlets that promoted the wacky conspiracy theory, was responding to a letter in which Dominion demanded a retraction and threatened to sue for defamation if one was not forthcoming.

American Thinker and contributors Andrea Widburg, R.D. Wedge, Brian Tomlinson, and Peggy Ryan have published pieces…that falsely accuse [Dominion] of conspiring to steal the November 2020 election from Donald Trump,” says a statement that Thomas Lifson, the website’s editor and publisher, posted on Friday. It continues:

These pieces rely on discredited sources who have peddled debunked theories about Dominion’s supposed ties to Venezuela, fraud on Dominion’s machines that resulted in massive vote switching or weighted votes, and other claims falsely stating that there is credible evidence that Dominion acted fraudulently.

These statements are completely false and have no basis in fact. Industry experts and public officials alike have confirmed that Dominion conducted itself appropriately and that there is simply no evidence to support these claims.

It was wrong for us to publish these false statements. We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.

Lifson notes that “we received a lengthy letter from Dominion’s defamation lawyers explaining why they believe that their client has been the victim of defamatory statements.” Former Trump campaign lawyer Sidney Powell, a conspicuous promoter of the “completely false” story about fraud-facilitating software that supposedly changed Trump votes to Biden votes, received a similar letter from Dominion on December 16. Four days later, Powell tweeted that she was “retracting nothing,” because “we have #evidence” that the people running the company are “#fraud masters.” On January 8, Dominion sued Powell for defamation in the U.S. District Court for the District of Columbia, seeking $1.3 billion in compensatory and punitive damages.

Powell also has been sued by Dominion executive Eric Coomer, who figures prominently in her conspiracy theory, which alleges that he participated in “an antifa conference call” in late September or early October, during which he supposedly bragged that “Trump is not gonna win” because “I made fucking sure of that.” The defendants in Coomer’s lawsuit, which he filed in Denver County District Court on December 22, also include conservative activist Joseph Oltmann (who claimed to have “infiltrated” that alleged conference call), Trump attorney Rudy Giuliani, Conservative Daily, The Gateway Pundit, Newsmax, One America News Network, OANN White House correspondent Chanel Rion, Gateway Pundit owner Jim Hoft, blogger Michelle Malkin, and radio host Eric Metaxas.

The most prominent promoter of conspiracy theories involving Dominion, of course, is President Donald Trump, whom the company has not yet sued for defamation. In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that presidents have “absolute immunity” from civil (but not criminal) liability based on their “official acts.” Trump’s liability for damage to Dominion’s reputation therefore would seem to hinge on whether his wild claims about Dominion count as “official acts.”

In 2019, Elle magazine columnist E. Jean Carroll, who has publicly accused Trump of raping her in the mid-1990s, sued him for defamation because he falsely denied knowing her and implied that she had invented the incident. A federal judge in Manhattan last year ruled that Trump’s statements about Carroll, which he made while he was president, “were not within the scope of his employment,” which implies that he is not entitled to immunity from her lawsuit under Nixon or the Federal Tort Claims Act. The Justice Department recently asked the U.S. Court of Appeals for the 2nd Circuit to reverse that decision.

Pro-Trump attorneys like Powell, Giuliani, and Lin Wood are shielded from liability for defamation based on statements they have made in court on behalf of their clients. But “the litigation privilege doesn’t cover all out-of-court statements,” says UCLA law professor Eugene Volokh, a First Amendment specialist, although “in many states the fair report privilege does cover lawyers’ public discussion of claims made in their lawsuits.” The extent of that privilege varies from state to state, Volokh says, and it is not yet clear which state’s standard would apply to the lawsuits filed by Dominion and Coomer, since “this whole ‘choice of law’ question is itself quite complicated.”

The legal exposure for media outlets and journalists is not complicated by the litigation privilege. Assuming that Dominion and its executives qualify as “public figures,” the plaintiffs would have to show that the non-lawyer defendants acted with “actual malice,” meaning they knew their defamatory statements were false or published them with “reckless disregard” for their accuracy. That standard, Dominion and Coomer argue, is easily met in this case, since the defendants made highly implausible claims that were not supported by credible evidence and were contradicted by multiple authoritative sources, such as the “industry experts and public officials” cited in American Thinker‘s retraction.

Newsmax and Fox News have aired corrective reports debunking election conspiracy theories amplified by some of their employees. Both outlets have received demand letters from Dominion and Smartmatic, another company that figures in the fantasy peddled by Trump, Powell, Giuliani, and Wood.

from Latest – Reason.com https://ift.tt/2XOG5Zh
via IFTTT

Further Rejoinder on Why the First Amendment Does not Constrain Impeachment and Removal of Presidents

First Amendment

In their latest post on the subject of impeachment and the First Amendment, Josh Blackman and Seth Tillman somewhat belatedly acknowledge the Supreme Court’s longstanding jurisprudence on the free speech rights of government employees. As numerous critics of their earlier posts have pointed out (e.g.—Jonathan Adler, Andrew Koppelman, and myself), the First Amendment  does not protect senior government employees in policy-making positions from being removed from their positions. Indeed, such officials get fired because of their speech on a regular basis—including by Donald Trump himself!

To their credit, Blackman and Tillman acknowledge this, and do not claim that high-level government officials have any general constitutional right against being removed for their speech. But they claim that presidents are different from appointed officials because the latter are subordinates of the president, while the president himself has no superiors, except for the voters during an election year:

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will….

The President’s relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will….

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President’s ability to act like a politician and party leader.

Blackmand Tillman go on to argue that Congress is not the president’s “superior” and therefore doesn’t have the power to remove presidents for their speech, in the way that the president himself can remove his own high-ranking executive branch subordinates.

The problem with the Blackman-Tillman theory is that they overlook the reality that one branch of government can remove members of another even if they are not otherwise the superiors of the latter. The whole point of impeachment is to give Congress the power to remove legislative and judicial officials who abuse their power, commit crimes, or otherwise create a menace to the political system. Congress can also, if it wishes, bar such officials from holding office in the future.

While, as Blackman and Tillman note, “the people” are the ultimate superiors of the president, they also cannot remove the president between elections, even if he severely abuses his power, and they also cannot sanction him for crimes and abuses perpetrated during the “lame duck” period after an election (as in the case of Trump). Impeachment is intended to fill this gap in the constitutional structure. To put it in Blackman and Tillman’s terms, Congress is indeed the president’s superior for the limited purpose of removing him and barring him from future office-holding in response to certain types of illegal or abusive activity on his part. That is perfectly consistent with their not being his superior in various other ways.

As I pointed out in my first post in this exchange, exempting the president from impeachment for speech acts that are protected from criminal and civil sanctions under the First Amendment would have absurd and dangerous consequences. Nothing in the text, original meaning, and history of the clauses of the Constitution governing impeachment creates such an exception to the impeachment power.

The Blackman-Tillman approach would also have the dubious consequence of enabling Congress to impeach lower-level officials for various kinds of speech, but barring them from impeaching the president when he engages in the exact same conduct; this, despite the fact that the impeachment standard for both is actually the same: they can all be impeached, removed, and barred from office-holding in the future if they commit “high crimes and misdemeanors.”

As for the argument that impeachment for speech acts would create a dangerous slippery slope preventing the president from functioning as a politician and party leader, I preemptively addressed it here:

[S]lippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president’s own party vote to convict him….

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified.  But the threat of impeachment for abuse of power can at least help at the margin.

 

Finally, Blackman and Tillman again cite the president of some senators raising the First Amendment as a defense for President Andrew Johnson during his impeachment trial in 1868. I am happy to rest on the points I made against that argument in my previous post in this exchange. For those interested, that post also contains links to the earlier posts in our debate, as well as commentary by others.

from Latest – Reason.com https://ift.tt/2LGs8Ku
via IFTTT

The Armed March That Wasn’t

megaphoneman

I was standing outside the state capitol in Harrisburg, Pennsylvania, where gun-toting defenders of President Donald Trump were supposedly going to start marching at noon. I could see cops, I could see National Guardsmen, and I could see dozens and dozens of reporters, but actual protesters were scarce. I did spot a fellow in a Gadsden Flag facemask and a woman whose shirt displayed a slogan about rebellion against tyranny, and as they passed behind me I heard him crack a joke: “I should walk up to the photographers here and say, ‘Excuse me, can you direct me to the armed insurrection?'”

In the wake of the recent riot at the U.S. Capitol, a widely circulated flier had called for armed marches at every state capitol on January 17. That sounded pretty dubious—all 50 states? even the most solidly blue ones?—but it seemed plausible that someone would show up somewhere, and of the capitol cities that I can reach within 90 minutes I figured Harrisburg was the most likely to attract a crowd. The day before, working from a list of upcoming protests that a security firm had been circulating, I had gone to a demo in Westminster, Maryland; it had turned out to be a liberal protest, and not a particularly big or rowdy one. Now I was in Harrisburg, and the first actual protesters to show up were, again, some liberals: A local activist named Gene Stilp and one or two assistants had shown up with a cardboard statue of Donald Trump, which they make a show of toppling for a crowd of photographers.

I did, before that, run into a guy named Eddie with a bunch of “Biden Is Not My President” t-shirts that he’d been hoping to hawk to the marchers. Another t-shirt salesman, who had driven down from Pittsburgh, said he’d been under the impression that this was going to be a Second Amendment march, not a stop-the-steal march. (He might do better tomorrow in Richmond, Virginia, where he plans to set up shop among the gun-rights activists in town for Lobby Day.) A bona fide pro-Trump protester did eventually show up, with a “Fraud 2020” sweatshirt and a megaphone. The general sentiment in his circles, he said, was that the military was going to be out on the street today and that the area was therefore best avoided. But he had decided to head over anyway and represent the That-election-was-probably-stolen-and-did-you-know-that-antifa-infiltrated-the-crowd-at-the-U.S.-Capitol? perspective.

This sparseness did not seem to be unusual: From Salem, Oregon, to Nashville, Tennessee, reports were rolling in of not-quite-demonstrations where the journalists outnumbered the demonstrators. Even the larger protests—like the one in Columbus, Ohio, which the Statehouse News Bureau described as “odd but peaceful”—didn’t see to have drawn more than a few dozen marchers. And the protesters weren’t all playing to type either: In Salem, where a handful of folks from the anti-government boogaloo movement had showed up, one brought a sign that said “Fuck Trump” as well as “Fuck Biden.”

In Harrisburg, the biggest story was all the reporters looking for a story. If you had opinions you wanted to get into the news, this was your golden opportunity. The man in the Fraud 2020 sweatshirt held court for a while, answering reporters’ questions through his megaphone. A black guy berated the cops guarding the capitol building, then announced to everyone present that the real white supremacists were those officers on the other side of the barricade. And the dude in the Gadsden Flag mask wound up holding a little press conference on the Capitol steps. This gradually revealed that—as is often the case at protests, left or right—his politics weren’t as predictable as you might have guessed: He thought Trump on balance had been a good president, but he had also supported impreachment over the Ukraine scandal.

While he was talking, the wind nearly blew the barricade over, to the crowd’s amusement. “Can you arrest God?” someone asked. I’m not completely sure, but I think even one of the cops might have laughed.

from Latest – Reason.com https://ift.tt/3sziji5
via IFTTT

Further Rejoinder on Why the First Amendment Does not Constrain Impeachment and Removal of Presidents

First Amendment

In their latest post on the subject of impeachment and the First Amendment, Josh Blackman and Seth Tillman somewhat belatedly acknowledge the Supreme Court’s longstanding jurisprudence on the free speech rights of government employees. As numerous critics of their earlier posts have pointed out (e.g.—Jonathan Adler, Andrew Koppelman, and myself), the First Amendment  does not protect senior government employees in policy-making positions from being removed from their positions. Indeed, such officials get fired because of their speech on a regular basis—including by Donald Trump himself!

To their credit, Blackman and Tillman acknowledge this, and do not claim that high-level government officials have any general constitutional right against being removed for their speech. But they claim that presidents are different from appointed officials because the latter are subordinates of the president, while the president himself has no superiors, except for the voters during an election year:

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will….

The President’s relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will….

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President’s ability to act like a politician and party leader.

Blackmand Tillman go on to argue that Congress is not the president’s “superior” and therefore doesn’t have the power to remove presidents for their speech, in the way that the president himself can remove his own high-ranking executive branch subordinates.

The problem with the Blackman-Tillman theory is that they overlook the reality that one branch of government can remove members of another even if they are not otherwise the superiors of the latter. The whole point of impeachment is to give Congress the power to remove legislative and judicial officials who abuse their power, commit crimes, or otherwise create a menace to the political system. Congress can also, if it wishes, bar such officials from holding office in the future.

While, as Blackman and Tillman note, “the people” are the ultimate superiors of the president, they also cannot remove the president between elections, even if he severely abuses his power, and they also cannot sanction him for crimes and abuses perpetrated during the “lame duck” period after an election (as in the case of Trump). Impeachment is intended to fill this gap in the constitutional structure. To put it in Blackman and Tillman’s terms, Congress is indeed the president’s superior for the limited purpose of removing him and barring him from future office-holding in response to certain types of illegal or abusive activity on his part. That is perfectly consistent with their not being his superior in various other ways.

As I pointed out in my first post in this exchange, exempting the president from impeachment for speech acts that are protected from criminal and civil sanctions under the First Amendment would have absurd and dangerous consequences. Nothing in the text, original meaning, and history of the clauses of the Constitution governing impeachment creates such an exception to the impeachment power.

The Blackman-Tillman approach would also have the dubious consequence of enabling Congress to impeach lower-level officials for various kinds of speech, but barring them from impeaching the president when he engages in the exact same conduct; this, despite the fact that the impeachment standard for both is actually the same: they can all be impeached, removed, and barred from office-holding in the future if they commit “high crimes and misdemeanors.”

As for the argument that impeachment for speech acts would create a dangerous slippery slope preventing the president from functioning as a politician and party leader, I preemptively addressed it here:

[S]lippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president’s own party vote to convict him….

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified.  But the threat of impeachment for abuse of power can at least help at the margin.

 

Finally, Blackman and Tillman again cite the president of some senators raising the First Amendment as a defense for President Andrew Johnson during his impeachment trial in 1868. I am happy to rest on the points I made against that argument in my previous post in this exchange. For those interested, that post also contains links to the earlier posts in our debate, as well as commentary by others.

from Latest – Reason.com https://ift.tt/2LGs8Ku
via IFTTT

The Armed March That Wasn’t

megaphoneman

I was standing outside the state capitol in Harrisburg, Pennsylvania, where gun-toting defenders of President Donald Trump were supposedly going to start marching at noon. I could see cops, I could see National Guardsmen, and I could see dozens and dozens of reporters, but actual protesters were scarce. I did spot a fellow in a Gadsden Flag facemask and a woman whose shirt displayed a slogan about rebellion against tyranny, and as they passed behind me I heard him crack a joke: “I should walk up to the photographers here and say, ‘Excuse me, can you direct me to the armed insurrection?'”

In the wake of the recent riot at the U.S. Capitol, a widely circulated flier had called for armed marches at every state capitol on January 17. That sounded pretty dubious—all 50 states? even the most solidly blue ones?—but it seemed plausible that someone would show up somewhere, and of the capitol cities that I can reach within 90 minutes I figured Harrisburg was the most likely to attract a crowd. The day before, working from a list of upcoming protests that a security firm had been circulating, I had gone to a demo in Westminster, Maryland; it had turned out to be a liberal protest, and not a particularly big or rowdy one. Now I was in Harrisburg, and the first actual protesters to show up were, again, some liberals: A local activist named Gene Stilp and one or two assistants had shown up with a cardboard statue of Donald Trump, which they make a show of toppling for a crowd of photographers.

I did, before that, run into a guy named Eddie with a bunch of “Biden Is Not My President” t-shirts that he’d been hoping to hawk to the marchers. Another t-shirt salesman, who had driven down from Pittsburgh, said he’d been under the impression that this was going to be a Second Amendment march, not a stop-the-steal march. (He might do better tomorrow in Richmond, Virginia, where he plans to set up shop among the gun-rights activists in town for Lobby Day.) A bona fide pro-Trump protester did eventually show up, with a “Fraud 2020” sweatshirt and a megaphone. The general sentiment in his circles, he said, was that the military was going to be out on the street today and that the area was therefore best avoided. But he had decided to head over anyway and represent the That-election-was-probably-stolen-and-did-you-know-that-antifa-infiltrated-the-crowd-at-the-U.S.-Capitol? perspective.

This sparseness did not seem to be unusual: From Salem, Oregon, to Nashville, Tennessee, reports were rolling in of not-quite-demonstrations where the journalists outnumbered the demonstrators. Even the larger protests—like the one in Columbus, Ohio, which the Statehouse News Bureau described as “odd but peaceful”—didn’t see to have drawn more than a few dozen marchers. And the protesters weren’t all playing to type either: In Salem, where a handful of folks from the anti-government boogaloo movement had showed up, one brought a sign that said “Fuck Trump” as well as “Fuck Biden.”

In Harrisburg, the biggest story was all the reporters looking for a story. If you had opinions you wanted to get into the news, this was your golden opportunity. The man in the Fraud 2020 sweatshirt held court for a while, answering reporters’ questions through his megaphone. A black guy berated the cops guarding the capitol building, then announced to everyone present that the real white supremacists were those officers on the other side of the barricade. And the dude in the Gadsden Flag mask wound up holding a little press conference on the Capitol steps. This gradually revealed that—as is often the case at protests, left or right—his politics weren’t as predictable as you might have guessed: He thought Trump on balance had been a good president, but he had also supported impreachment over the Ukraine scandal.

While he was talking, the wind nearly blew the barricade over, to the crowd’s amusement. “Can you arrest God?” someone asked. I’m not completely sure, but I think even one of the cops might have laughed.

from Latest – Reason.com https://ift.tt/3sziji5
via IFTTT