This was published on liberal sites on May 4, 2019.
Thursday night, on his MSNBC program, Chris Hayes spoke about the need for the Democrats, in the deploying of their powers, to bring “maximalism” to match the “maximalism” of the Trump gang. Trump and his allies, he said, are obviously willing to go all out to win this battle, and he wondered whether the Democrats were ready to match that determination to win.
Soon after putting forward that idea, he was speaking with Senator Richard Blumenthal who’d done some fine work in interrogating AG Barr the day before. Hayes asked about the Democrats’ readiness to fight this all-out, and the words that came from Senator Blumenthal were hardly reassuring. Chris Hayes gave Senator Blumenthal the feedback that his impression is that the Democrats are “scared” of this fight.
Meanwhile, I’ve been struck by how many respectable, often insightful commentators have been talking as if they see Trump as on the path to victory in his long fight against the Mueller Report, i.e. in his long fight to place himself above the law.
(But one example, Max Boot’s “This nation is at the mercy of a criminal administration,” in the Washington Post.)
All this got me pretty stirred up, as I remain: I can hardly STAND to think that Trump might be able to prevail in this fight, even while breaking laws and norms and violating the constitutional order of “separation of powers” and “checks and balances.”
There’s really a lot at stake here, in this battle to see whether Trump will defeat the rule of law or the rule of law will deal with this lawless President.
(The danger from this president is an order of magnitude greater than was the danger from Richard Nixon with his crimes.)
It was only last Sunday that I published here a piece titled “Hoping this Time the Democrats Can Avoid Their Characteristic Error”– namely that over the past quarter century, as this destructive force has been taking over the Republican Party, the Democrats “have failed to match the intensity the Republicans have brought to the battles that the Republicans have insisted will define the politics of this era.”
After presenting a long list of battles in which, over the past quarter century, the Democrats have failed to meet the challenge, I summed up the pattern in this way:
In every instance, the Republicans showed fierce determination to do everything they could to grab power, unrestrained by respect for the spirit and letter of the constitutional order.
And in every instance, the Democrats shrank from the battle, with the result that the good of the nation — as well as the political interest of the Democrats — suffered.
Now that pattern simply must be broken: it would do irreparable harm to the nation if Trump proves able to put himself above the law, as he is now trying to do. The Mueller Report was the principle tool by which the constitutional order has sought to enforce the rule of law against a lawless President, and that President has not relented in his effort to obstruct and defeat the work of the Mueller Report.
Over the first month, since Mueller submitted his report, Trump largely succeeded in muddying the waters the Mueller Report should have clarified. He did this with the help of his disgraceful, hand-picked Attorney General, who withheld the Mueller Report in order to substitute his own false narrative.
Now that the (redacted) Report is out, the Democrats have been seeking to execute an excellent plan to use public hearings to get the very damning picture of Trump presented by the Mueller Report into the minds of the American people. By that means, it seems reasonable to home, the jury of public opinion would come to support — even to call for — the impeachment process America needs now more than at any time in the nation’s two-plus centuries of history.
However, Trump is having some success in blocking the execution of those fine plans, as he has ordered the executive branch to stonewall on everything, denying the constitutional role of Congress.
Trump has no legal leg to stand on, but he has no need for a winning case on any of his moves. All that matters for Trump’s advantage is that the Democrats cannot effectively move forward to hold the President accountable.
Trump wins to the extent that he runs out the clock– for every day we get away from the delivery of the Mueller Report is a day where the impact of the truth becomes weaker.
It is not clear how deeply the Democrats understand that waiting on protracted legal wrangling is a strategy for defeat. It is not clear how much the path the Democrats are now on can suffice to achieve the necessary purpose.
(It remains to be seen, for example, whether it will be possible to get Robert Mueller’s public testimony to happen any time soon. Nor is it clear whether Trump will be able to prevent his former White House Counsel, Don McGahn, from giving televised testimony any time soon– describing how Trump asked him to commit crimes and to lie in order to obstruct the investigation into Russia’s attack on the 2016 election, and what role the Trump gang played in it.)
Also unclear is whether the Democrats can get Trump’s bogus legal challenges adjudicated on some expedited basis, so that Trump’s losing in Court (assuming five Supremes can be found who care about constitutional fundamentals) is not rendered irrelevant by his success in imposing protracted delays on the process of public education.
Having watched what I’ve watched, I have an uneasy feeling in my stomach.
I do see some good signs. Democratic leaders like Jerry Nadler and Adam Schiff and Elijah Cummings and Elizabeth Warren Joe Biden are all showing a fighting spirit. I truly have hopes that maybe the Democrats are playing a winning hand.
But I worry that the Democrats are still bringing a knife to a gun-fight, like Senator Blumenthal the other night, talking about contempt citations and taking the issue to Court, and what Chris Hayes called “legal niceties.”
(I worry that Jerry Nadler is thinking simply like a lawyer, so that winning a court decision a year from now looks to him like a victory, rather than like a political warrior fighting for public opinion against an utterly unscrupulous demagogue.)
The Need for Democrats to Adapt, and Up Their Game
A more effective approach must build on this insight (which I fear that the Democrats either lack or are failing to act on it effectively): that the present battle is ultimately a battle for public opinion. (Not to get victories in Court a year down the line.)
More particularly, the purpose is to move public opinion to support dealing with Trump the way our founders would have assumed Congress would deal with a President that showed Trump’s utter contempt for the law, for the Constitution, and indeed for anything at all that would constrain his getting what he wants.
Fortunately, moving public opinion was already the Democrats’ agenda as they sought to dramatize the Mueller Report.
But now it’s necessary to think creatively about the most effective ways of moving public opinion despite whatever success Trump might gain in blocking/delaying some of the original lines of the Democrats’ plans.
Fortunately, what Trump is doing now shows the same lawlessness the Mueller Report shows. The Democrats should stick with their understanding that public hearings are essential. And they should devise means of using public hearings to dramatize Trump’s current obstructions.
So, for example, if there are obstacles to having Don McGahn testify about the obstructions to which he was witness, bring in highly respected people of integrity — John Danforth, George Mitchell, Jimmy Carter, David Frum, Lawrence Tribe — to speak at hearings about the significance of Trump’s ongoing attack on the system of checks and balances. Have such respected figures talk to the American people about the dangers of a president who shows such repeated contempt for the law, and who is trampling on the very fundamental principle that the executive branch is answerable to the legislative branch.
A good presentation could be composed, and it could be good television, if properly put together.
(Lawrence Tribe, for example, might speak at such hearings about what the Mueller Report seeks to tell the nation of what Don McGahn reported about Trump’s obstruction of justice, and about what Trump is showing by his determination to prevent the American people from hearing directly from the witness himself.)
The Democrats should use those hearings to teach to the people in the middle — putting the focus not on that 40% who already support impeachment, nor on that 40% that seems willing to stick by Trump regardless (even as he does the equivalent of “Shoot Somebody on 5th Avenue” every day) but on that 20% that is in neither group.
If that 20% can be moved to shift strongly against Trump (while at the same time possibly 5-10% of Trump’s base were to erode away), the Democrats will find a clear path for them to do what the nation needs them to do, without having to pay a potentially steep political price.
That is an important goal — to deal with Trump and at least not be punished for it — because the good of the nation requires BOTH
** that Trump be held accountable in every appropriate way AND
**that the Democrats wrest political power away from this Trump Party that is so morally bankrupt that they’ve made themselves slaves to such a monstrosity as this sociopathic liar and bully and malignantly narcissistic President, Donald Trump.
So with that goal in mind — of moving the 20% in the middle –here are some thoughts about how the Democrats might up their game that can prevent Trump from dictating the terms of battle as a legal struggle whose time-consuming nature already assures Trump a big victory.
In addition to conducting those hearings to bring in first-rate, highly credible witnesses — whose appearance Trump can’t stop — to present the picture of what Trump’s doing now and what’s at stake, the Democrats can also:
1) Find the language about what’s at stake in the battle that will best tap into the motivational springs of those American citizens who don’t yet see the danger that is Trump but might be led to see it. What that they care about depends on the outcome of this battle?
(Find a way to make the movie that gets them to see the evil of the imperial Death Star while showing that the Force is with you.)
Show how dealing rightly with Trump is protecting their future, and that of their children.
Find the language to motivate the American people to want the rule of law to be protected, so that we will not join those unhappy nations where evil could rise to power in a nation — the Hitlers, the Maos, the Stalins, the Duterte, the Putin, the Erdowan — for whom the law is an instrument of their power, not a check on it.
Find ways of kindling that kind of civic attachment that Americans of earlier generations — 4th of July patriots — seemed to have had more than the current generation. Undo that erosion in Americans’ understanding of the blessings we Americans have enjoyed from what our founders created.
To move public opinion, there needs to be the language of passion. (That’s one of the dimensions on which some of these very able lawyers, people of integrity, who lead the Democrats in Congress seem habitually to fall short.)
2) As the Democrats are going after this President, they should convey as effectively as possible that they are not doing so as partisans — i.e. not as Democrats taking on a Republican President, but rather as the pledged defenders of the Constitution doing our duty.
(The Democrats should seize the opportunity to expose how it is the Republicans who are being the partisans, siding with the big power in their own Party — the Trump Party — in complete violation of their oath of office. It is they who are putting Party power over sacred obligation. They should be completely tarred with every evil that is shown about Trump, because they are choosing to protect him.)
It is high time that the Republicans be more consistently excoriated for the role they’re playing now — backing Barr, backing Trump.
(Lindsey Graham’s utter cynicism should not be allowed to succeed– to know what we know he knows, because he said it, and then act like he’s acting, just to protect his political position! An image of the Republicans having completely sold their souls. What holds the Democrats back from shaming such shamefulness?
(It is in this context the Democrats should not hesitate to impeach whenever the time for that is right– just because the Republicans in the Senate will vote to acquit. The Democrats should pre-emptively attack any Republican who would vote to acquit in the face of clear and systematic lawlessness. They should pre-frame such a vote by Republicans as a clear sign to the American people that the Republican Party — if it betrays the nation and their oath of office — must be driven out of power.)
Movies make the audience feel anger toward the villain and demand that the story ends with that villain vanquished.
Composing such a movie — through the public hearings, the presidential campaign, other public statements — is the vital creative task the Democrats should now undertake.
That’s how to see to it that it will be the rule of law — and not sociopathic, dictatorial lawlessness — that will prevail in America.