An official reprimand would not be a substitute for impeachment but a possible precursor to it.
Jonathan Alter is an MSNBC analyst and columnist for the Daily Beast.
Sixty-four years ago, the U.S. Senate censured the bullying demagogue Sen. Joseph R. McCarthy of Wisconsin for conductthat “tended to bring the Senate into dishonor and disrepute.” McCarthy lingered in the Senate for another 2 ½ years., but the censure essentially ended his early-1950s “Red Scare” reign of intimidation and character assassination.
Now President Trump, with his craven performance opposite Vladimir Putin in Helsinki, has brought his office into dishonor and disrepute. In doing so, Trump has presented a gift to congressional Democrats who dread campaigning on impeachment for the midterm election in the fall. The promise to censure Trump if Democrats retake the House would likely appeal more to voters than vowing to undo the 2016 election through impeachment.
For all the bipartisan condemnation of what has been called the “Helsinki humiliation,” censure isn’t part of the discussion. It should be.
The Senate will not be a fruitful place to look for it. Timid Senate Republicans remain too frightened of their constituents to sanction their president. Under the most common reading of the rules, censure in the Senate would take 60 votes — a high bar unless special counsel Robert S. Mueller III’s investigation turns up five-alarm evidence involving the president.
The House, by contrast, requires only a simple majority to approve a motion of censure. If Democrats take that chamber this fall, they could censure Trump as early as January. He would obviously use it to try to rally his base. But even if the vote were largely symbolic, a resolution officially condemning Trump on national security and other grounds would be worth the trouble.
Censure would provide at least some measure of accountability for Trump, and it would be a repudiation-by-proxy of Putin. Along with strengthened sanctions against Russia, censure would send a strong message to the world that the U.S. president’s assault on NATO and capitulation to the Kremlin do not reflect the policy of the full U.S. government.
Last year, a small band of House liberals tried, with little notice, to censure Trump for blaming “both sides” after white supremacists sparked violence in Charlottesville. He deserved censure then, but today’s grounds are even stronger.
Censure, by either the Senate or the House, is not specifically mentioned in the Constitution, and it has no legal force. But its rare use — only two dozen or so times in the nation’s history — makes it an especially stinging reprimand. Among presidents, only Andrew Jackson has been censured (for withholding key documents about the Bank of the United States), though his censure was later expunged. In 1998, when President Clinton was embroiled in a sex scandal involving a White House intern, many Senate Democrats favored voting for censure and moving on. But the Republican-controlled House was hellbent on impeaching him, instead. Republicans paid a price for that overreach, as today’s Democrats may well note.
In Trump’s case, censure would not be a substitute for impeachment but a possible precursor to it. At a minimum, advocating censure would be a movement-building effort that would bring tone and focus to the amorphous “Check Trump” themes that Democratic candidates will use before the midterms. It would embed Helsinki in the campaign and help keep that ghastly episode fresh even after attention shifts elsewhere.
Some liberals may insist that impeachment must be part of Democratic campaigns in the fall. But most candidates know that moderate voters in flippable states and districts would prefer to see Mueller’s evidence first. Pushing impeachment now — without rock-solid evidence of the “treason, bribery or high crimes and misdemeanors” necessary to win a two-thirds vote for conviction in the Senate — plays right into Trump’s hands.
Pushing censure doesn’t do that. An official reprimand of the president requires no evidence of collusion — beyond the sickening sight of two heads of state colluding on the world stage. Helsinki might become a useful wedge issue for Democrats. When asked what to do about Trump, they can say they favor censure now on national security grounds and want to wait for Mueller’s findings before considering what to do next. That answer would put Republican opponents on the spot. If GOP candidates oppose censure, they would be essentially saying they think the Helsinki humiliation was no big deal.
As Democrats prepare for possible control of one or both houses of Congress, they must develop their long-atrophied parliamentary muscles. That means planning hearings, investigations and bills to fix a multitude of Trump administration abuses. But they shouldn’t neglect the power of public shame, even for the most shameless man on the planet.
This election will either legitimize Trump’s rule or upend it. There’s no time or money to waste on divisive primaries or contests far removed from competitive House seats.
PRAGMATISM AS MORAL IMPERATIVE
Democrats Are Primed to Win Big, Reclaim the House, and Save Our Democracy. Here’s How They Could Blow It.
This election will either legitimize Trump’s rule or upend it. There’s no time or money to waste on divisive primaries or contests far removed from competitive House seat.
04.23.18 4:57 AM ET
GOP Rep. Charlie Dent of Pennsylvania announced this month that he was resigning from Congress and told Republicans: “Big wave coming—get off the beach.”
Dent is probably right. A little more than six months before the midterms, predictive models point to Democrats winning control of the House of Representatives. A strong history of pick-ups by the party out of the White House, disgust with President Trump, good results in special elections, 46 Republican retirements (compared to 20 Democrats), and an energized Democratic base all augur well.
The question isn’t whether the odds favor flipping the House, but whether Democrats should bank on it. And the answer—for anyone who cares about protecting American democracy—is an obvious no.
Six months is a lifetime in politics. Trump’s popularity won’t recover by fall, but a deal with North Korea and a couple of other breaks could shift the momentum just enough to protect vulnerable Republican seats. And the recent history of midterms strongly favors Republicans, who took the House in 2010. In 2014, turnout fell to 37 percent, the lowest in 70 years, with the steepest falloff among Democrats.
Most Democrats get it; they’re focused and girded for battle, with a bumper crop of young and exciting candidates, including a record number of women. But too many others wring their hands watching cable news without educating themselves about which seats in their states are in play and what they can do to flip them. And a remnant of lefties are still living in Jill Steinland—acting as if the midterms are in the bag and they can indulge in expensive primary fights over minor policy differences that drain resources from the constitutionally critical task at hand.
Are Democrats in danger of once again forming a circular firing squad? The Democratic Congressional Campaign Committee (DCCC) is so worried that it’s pressuring weaker candidates in some districts to drop out in favor of well-funded moderates with a better chance of winning in November. California, where a half dozen seats are flippable (one quarter of those needed to gain control), is a particular concern because the state’s “top two” primary system means a large field of Democrats could split the vote and leave two Republicans running against each other in the general election.
Liberal activists say pressure from the DCCC and other Washington types is exactly what they dislike about the Democratic establishment. It’s the same thinking, they claim, that forced the party to nominate Hillary Clinton over Bernie Sanders. Their message: Don’t ram moderates down our throats!
Read more at the link above…
In Watergate, it was the cover-up, not the crime. But in Russiagate, that stands to be turned on its head. We already know a lot—and we can be sure Mueller knows more.
Recall the Watergate cliché that the cover-up is worse than the crime. That may have been true then. While it was never established that President Nixon knew in advance about the break-in at the Watergate complex, he was forced to resign after proof emerged that he used the CIA to obstruct the FBI investigation.
In the Russia scandal, special counsel Robert Mueller has credible proof of obstruction of justice—i.e., the cover-up. But in a highly politicized climate, where “memos” and insults are weapons of distraction, that won’t likely be enough. Even if Democrats take control of Congress in November, most Republicans—like most juries in run-of-the-mill criminal cases—will demand significant evidence of an underlying crime as a motive for the obstruction before turning on President Trump, much less voting in the Senate to remove him from office.
While Mueller and his team don’t leak, signs that such evidence exists are clear from news reports, which contain only a tiny portion of what the special counsel’s office possesses. The fragmentary and often disconnected nature of those reports obscures the reasonable supposition that Mueller is well on his way to detailing conspiracy, wire fraud, illegal foreign campaign contributions, or all three. During Watergate, the special prosecutor had most of the evidence that doomed Nixon at least nine months before his August 9, 1974 resignation. Mueller, too, likely has the goods already, even without “smoking gun” tapes.
One tip-off was in Michael Flynn’s December 1 “allocution”—his signed submission to the court as part of his guilty plea to making false statements to the FBI on January 24, 2017. It received almost no media attention but suggested the nature of the criminal conspiracy that would likely be at the heart of Mueller’s prosecution.
Flynn didn’t just vaguely admit he lied. The law doesn’t allow that. He admitted in writing that his lie “had a material impact” on the FBI’s probe “into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia’s efforts to intervene in the 2016 election.”
The conspiracy case–the heart of Mueller’s efforts– almost certainly boils down to an old-fashioned quid pro quo. Flynn’s “quid”—the substance of his recorded conversations with Russian Ambassador Sergey Kislyak— was lifting the sanctions that President Obama imposed on Russia in late 2016 and the earlier sanctions related to Russia’s invasion of the Ukraine. The “quo” was collusion (“conspiracy” in legal terms) with Russians to harm Hillary Clinton’s 2016 campaign, which Flynn effectively admitted was “material” to his lies after the election. Anyone associated with this deal is in deep legal trouble.
The conspiracy started with Russians violating the federal computer crime statute, the Computer Fraud and Abuse Act, by hacking into the computers at the Democratic National Committee and stealing emails that were then distributed publicly by Guccifer 2.0 and Wikileaks—both linked to Russians— in ways that hurt Clinton. According to the Department of Homeland Security, Russia also tried to penetrate the voting systems of 21 states.
These actions would also violate the federal criminal statute that bars foreign nationals from offering anything of value in a presidential campaign. Every party to such illegal acts is criminally liable.
There are also potential violations of the federal wire fraud statute. The evidence of a scheme to defraud? We know that Russia’s “active measures” included creating thousands of fictitious Twitter and Facebook accounts to generate fake news targeted to suppress the Clinton vote. Campaign officials are criminally liable if Mueller and his team prove an overlap between the illegal Russian fake news posts and the Trump campaign’s routine micro-targeted negative messages–a painstaking but manageable set of data comparisons.
In addition, the special counsel is examining whether a Russian politician with connections to organized crime, Alexander Torshin, routed an illegal campaign contribution to Trump through the NRA, which is relatively easy to trace. While not his primary assignment, Mueller might also uncover evidence of money laundering or other business-related corruption on the part of the Trump Organization. You can bet he has examined Trump’s tax returns.
Conspiracy is a much broader crime than is generally understood. The guidelines for judges who instruct juries say that the prosecution need only prove that there was “a mutual understanding, either spoken or unspoken, [Emphasis added] between two or more people to cooperate with each other to accomplish an unlawful act.”
It doesn’t matter whether the “mutual understanding” was before, during or after the crime was committed. “It is not necessary that a defendant be fully informed of all the details of the conspiracy, or all of its participants,” the model jury instructions continue. “You need not find that the alleged members of the conspiracy met together and entered into any express or formal agreement.”
Under the so-called “doctrine of willful blindness,” reinforced by Supreme Court Justice Samuel Alito in a majority opinion in 2011, juries are instructed to “consider whether the defendant deliberately closed his eyes to what would otherwise be obvious to him.”
“The key question,” the jury instruction concludes, “is whether the defendant joined the conspiracy with an awareness of at least some of the basic aims and purposes of the unlawful agreement.” Don Jr.’s excitement over receiving Russian dirt on Clinton, Jared Kushner’s interactions with Cambridge Analytica and thus with Wikileaks, and Trump’s knowledge of these or other ties to Russians and his use of that knowledge in the campaign, all suggest such “awareness.”
Two other legal concepts are relevant. Much of the obstruction case—from Trump interfering with the FBI probe to re-writing his son’s statement aboard Air Force One after revelations about Don Jr.’s meeting with the Russians–revolves around the president’s concern that he had something to hide, also known as “consciousness of guilt.” He also might be charged as “an accessory after the fact,” which requires only that the defendant “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension.”
Now consider just a bit of what has emerged about “mutual understanding,” “willful blindness,” “awareness,” “assists” and “consciousness of guilt” in the Trump-Russia case, which is in turn a fraction of what Mueller knows. As in any criminal case, the timeline is critical:
April 26, 2016: George Papadopoulos, whom Trump named as one of his “top five” foreign policy advisers, learns that the Russians had possession of the DNC emails. He passes word of this to others in the campaign. Because of a “mutual understanding,” no one calls the FBI.
Mid-May: Papadopoulos tells an Australian diplomat in London that the Russians have compromising emails on Clinton. The diplomat properly informs his superiors, who–unlike Trump campaign officials–recognizes his legal responsibilities under American law to notify U.S. authorities.
June 9: At a meeting at Trump Tower previewed for the campaign as “part of Russia and its government’s support for Mr. Trump,” Donald Trump Jr. listens as well-connected Russians offer damaging information about Clinton. Jared Kushner and Paul Manafort both say they left early, suggesting “awareness” of, or “willful blindness” to, crimes that were underway. Again, no one contacts the FBI.
Mid-June: Kushner—assuming control of the campaign’s digital operations— hires Cambridge Analytica, which coordinates with Wikileaks, suggesting a possible “mutual understanding” of what Wikileaks will do.
July 14: At the Republican National Convention, the Trump campaign deletes a plank in the party platform that condemns Russia for invading Ukraine, and rejects a proposal for increased sanctions, bolstering the case for the quid pro quo that is the crux of the case.
July 22: On the eve of the Democratic Convention, Wikileaks releases damaging Democratic emails received from the Russians, implicating Wikileaks in the criminal conspiracy.
July 27: In a speech, Trump says, “By the way, if they [Russians] hacked, they probably have her 33,000 emails. I hope they do.” Trump later said he was joking but it reinforces his “awareness” of an unlawful act.
August 21: Roger Stone, a longtime friend and adviser to Trump, shows knowledge of the conspiracy by tweeting, “Trust me, it will soon be Podesta’s time in the barrel. #CrookedHillary,” in reference to Clinton campaign chair John Podesta, and Stone admits having communicated with both Guccifer 2.0 and Wikileaks in July, all elements of the conspiracy.
October 7: Within hours of the release of the Access Hollywood tape, which dealt a serious blow to the Trump campaign, Wikileaks releases the first in a series of 60,000 emails belonging to Podesta. Wikileaks effectively acts as an arm of the Trump campaign in a “mutual understanding” to deflect attention away from the sex scandal.
December 29: Deputy National Security Adviser-designate K.T. McFarland emails a colleague about the aftermath of outgoing President Obama’s implementation of sanctions: “If there is a tit-for-tat escalation, Trump will have difficulty improving relations with Russia, which has just thrown USA election to him.” (emphasis added) The same day, Flynn tells Kislyak not to escalate because Trump is coming into office with a new, much friendlier policy, thereby fulfilling Trump’s end of the corrupt deal.
Even without knowing any of what Mueller has learned from the many witnesses he has secretly brought before the grand jury, this timeline—and the jury instructions that would accompany it at trial— already offer a strong roadmap for prosecutors. The conspiracy charges that arise from it will likely send some of Trump’s friends and relatives to jail. And they won’t look so good for the president, either, if presented next year at his impeachment trial in the Senate.
Jonathan Alter is a best-selling author and a columnist for the Daily Beast. Nick Akerman, a partner at Dorsey and Whitney, is a former Watergate prosecutor.
There is a way to punish President Trump for his ignorant, racist words without resorting to impeachment. He should be censured by Congress.
Jonathan Alter, an author and MSNBC analyst, is at work on a biography of Jimmy Carter.
Even if Congress takes action on the bump stocks or other modifications used by the mass murderer in Las Vegas, Washington will not be the center of change on gun violence. The president and Congress are owned by the NRA, and public attention will soon shift away from the latest massacre, as it always does.
But there’s reason for hope in states that are hungry to keep and attract business, which means every state in the union. Gun safety advocates should take heart from the backlash against bathroom bills and other anti-gay laws in red states. The institutions that stood up in those fights — from Apple to the NCAA — offer a path forward.
Corporations have a moral and fiduciary duty to enhance the safety of their workplaces and other venues they use. When mass shootings were rare, they weren’t as much of a concern. Now that they’re a common occurrence, the calculus for locating businesses, conventions, sporting events and concerts must change. Companies cannot fully guarantee the safety of their employees and customers anywhere, but risks are clearly greater in “gun lax” states.
Those states should now be faced with a choice: They can have assault weapons and gun show loopholes. Or they can have good jobs and events from responsible corporations. But they can’t have both.
Imagine if chief executives looking out for the safety of their employees and conference attendees announced that they would locate new facilities and hold conventions, concerts and other gatherings only in “gun responsible” states (which different companies could define differently). We might see activity overnight in several state legislatures.
Moving the debate over “gun safety” (a preferable term to “gun control”) to the states is not ideal. Gun violence is a national problem and deserves a national remedy. And the Swiss-cheese map caused by differing state laws undermines efforts to protect the public. For example, the guns used by gangs in Chicago largely come from across the state line with Indiana, which has looser gun laws than Illinois.
But efforts to do something have to begin somewhere, and that means focusing on what Supreme Court Justice Louis Brandeis called “the laboratories of democracy.”
State laws can be effective. After the 2012 massacre at Sandy Hook Elementary School in Newtown, Conn., Congress resisted pressure from President Barack Obama and refused to act. But Connecticut passed the strongest state laws in the country — with expanded background checks and magazine capacity restrictions — and gun crimes there are down.
The lobbying group that emerged from that massacre, Everytown for Gun Safety, and its offshoot, Moms Demand Action for Gun Sense, are scoring other important victories in state capitals. Twenty-five states have passed laws designed to keep guns out of the hands of domestic abusers. Voters in three states last year approved referendums containing common-sense gun regulation.
Winning support for other gun safety measures has been tougher. The nine states that require universal background checks are all blue. Same for the seven states that ban the sale of assault weapons. But on other inflammatory social issues, even red-state Republicans will confront the conservative base and bend their personal convictions when jobs are on the line.
Boycotts can carry enormous social power. In 2015, Indiana Gov. Mike Pence signed a bill allowing businesses and individuals to use religious beliefs to discriminate on the basis of sexual orientation. Salesforce CEO Marc Benioff announced that the company was cancelling all programs that would bring employees to Indiana, and Angie’s List aborted an expansion that would have netted 1,000 jobs for the state. Most major employers in Indiana denounced the legislation. Within 10 days, Pence and legislators reversed course with a new bill that protected lesbian, gay, bisexual and transgender rights.
In 2016, North Carolina Gov. Pat McCrory signed a “bathroom bill” that required transgender people to use bathrooms based on the sex they were assigned at birth. The NCAA withdrew all tournaments from the state, and PayPal canceled a large new facility. According to an Associated Press analysis, the state stood to lose $3.76 billion from the law. While surveys showed North Carolina voters supported the bill in principle, they turned strongly against it on economic grounds and elected a Democratic governor, Roy Cooper, who this year signed a partial repeal. It’s no mere coincidence that “bathroom bills” introduced in 10 other red states are going nowhere.
Will major businesses step up on guns? It depends in part on how hard their employees, customers and shareholders push executives. But with more gun-toting nuts on the way, it’s important that all companies make a hard assessment of what legislation they need to protect their workers and other stakeholders from bodily harm.
Insurance considerations might also be relevant. Premiums for concerts and sports events within rifle range of tall buildings should logically go higher in gun-lax states that allow the sale of easily modified semiautomatic weapons that can spray bullets on crowds. If premiums rose, they would represent another cost that would dampen business and thus help advance common-sense gun safety legislation.
The NRA and its toadies say that no law could have definitively prevented this or any other massacre. This is a dodge: Traffic laws don’t prevent all car crashes or air bags all deaths in those accidents. But they help. If the carnage in Las Vegas prompts even a few more state experiments, something good may yet come from this evil.
If the Democrats are smart (a big ‘if’), they will seize this opportunity to partner with America’s sports stars and tip the 2018 elections.
President Trump might be more properly called President Troll. He’s the kind of smirking adolescent whose inane but nasty comments persuade sites to close their comments sections. This is both a challenge and an opportunity for those of us who believe the safety of the world depends on his removal from office.
The challenge is that Trump’s instinctive demagoguery—the product of his reptilian brain and many years of experience manipulating the media—is an effective base strategy. The louder the mainstream media roars in indignation, the more old, white reactionaries love it. And when base voters respond, Trump throws them another heaping portion of rancid red meat. Then the process begins all over again.
The opportunity is that now Trump isn’t just going after elitists, immigrants, judges, and other politicians but trashing the most revered individuals in our popular culture—professional athletes. It’s reminiscent of Sen. Joe McCarthy’s move in 1954 from attacking wimpy-looking college professors to calling the Army a bunch of communists.
The Army had a big weapon against McCarthy—enormous popular backing—and so do the gods of sport. LeBron James has 38.6 million followers, nearly as many as the president, and he’d have more if he tried. His “U bum” description of Trump’s racially tinged divisiveness was retweeted 633,000 times, with 1.5 million likes. If the Democrats are smart (a big “if”), they will seize this opportunity and get King James, Steph Curry, and other ticked-off superstars to lend their names to a huge voter-registration and get-out-the vote drive in 2018.
In the 2014 midterms, turnout was 36.3 percent, the lowest in seven decades. Even a small increase would mean the end of GOP control of the House and the likely beginning of impeachment proceedings. Imagine anti-Trump activists uniting with local athletes across the country under the message: “Throw U Bums Out!”
In the meantime, we need to better understand the patterns of Trump’s tweeting—the way he rips the scabs off our body politic.
These tactical tweets are often described as distractions, but that is incomplete. They do distract from news that hurts his popularity—the demise of the Graham-Cassidy Obamacare repeal; the way his reckless rhetoric about North Korea negates diplomacy and increases the likelihood of war. But their more important function may be to draw attention away from anything that might cause Trump problems with his base. Notice how we’re no longer talking about Trump playing footsie with Chuck Schumer and Nancy Pelosi on DACA, or backing away from his commitment to build a wall across the southern border, or withdrawing from the Paris climate accord, and the Iran nuclear deal. It’s like covering a military retreat with a withering volley of fire. And it works.
Trump said the football players who protested police brutality were “sons of bitches” only a month (seems like a year) after saying the neo-Nazis and white supremacists who protested in Charlottesville were “fine people.” He got away with the latter by changing the narrative to statues. This re-fashioning of a toxic issue took genuine skill. Trump knew that millions of older white Americans don’t appreciate being called racists just because they don’t want Robert E. Lee and his horse Traveler toppled from the town square. It plays right into their rejection of political correctness, a powerful theme for Trump during the campaign and one he still expertly exploits.
Now he is fuzzing up his racism with patriotism. By next Sunday or the Sunday after that, taking a knee or staying in the clubhouse during the national anthem will get old—for fans (many of whom already object), owners and even some of the dissenting players themselves, who will no longer receive the same support from their teammates that they enjoyed last weekend. After we get over the shock of Patriots owner Robert Kraft and Cowboys owner Jerry Jones siding with their players over their buddy Trump, the value of standing up to honor the troops will surge back into the public debate.
The challenge for Trump-loathing sports fans who don’t have room to kneel in the stands is to integrate the resistance more seamlessly into “The Star Spangled Banner,” thereby making it harder for Trump to wrap himself in the flag. One way to achieve this would be for the linking of arms during the anthem that began on Sunday to become a widely used symbol of unity over divisiveness. Trump has said linking arms doesn’t concern him, but if it’s done by hundreds of thousands of spectators at a wide variety of sports and entertainment events, it will be viewed as a potent rebuke to his conduct in office. Think of it as “the wave” for our times.
If we’re going to connect with other people—important in the Trump era—we need to be willing to touch them once in a while, too. Linking arms avoids the churchy, sometimes clammy prospect of holding hands with strangers. It expresses solidarity while building the resistance wordlessly.
Trump will be beaten next year not with rage but a quiet King Jamesian determination to rid our politics of anyone in federal, state, or local office who still backs him. These Republicans must go, for they are enabling the endangerment of the world and failing the greatest character test of our generation.