It matters

Today the U.S. House of Representatives impeached the president of the United States.  Even though the chances are vanishingly small that the United States Senate will remove this president from office over these two articles of impeachment, that matters.

Read the Mueller Report.  Read the House Intelligence Committee report.  Read the House Judiciary Committee report.  Read the summaries of any of those documents.  Or just think about all the incredible stories of the goings on of the president ever since Donald Trump was sworn into office.  There is more than enough evidence for a clear-eyed observer to conclude that Trump has committed impeachable offenses…so many, and so blatantly, in fact, that to not impeach him would have been the grossest example of the House ignoring its responsibility to perform checks and balances of the Executive Branch.  Any president who had done what this one has done would deserve to be impeached, too, to be shamed and held up to the ridicule of history, and have the Senate vote to remove him or her from office for the good of the country.

But wait: the place is swarming with Republicans who say there is no proof that Trump did anything illegal, or even improper, or impeachable at all.  Many of them are actually screaming it, and then insisting Trump is the best president ever—not just better than Obama or Clinton or Bush (either one) but better than Washington or any of those other dudes.  It’s fascinating.

I get it that party loyalty is important, if you’re a member of a party, and I get that there are more members of Congress than I would like to admit who actually love what Trump is doing and won’t do anything to get in his way.  That includes so many who were seemingly appalled by Candidate Trump, who saw him as a threat to the country; now they have his back without question.

Why in the world are all these people so servile to Trump?  Why in the hell don’t these men and women, who in most other circumstances behave as though they are the highest expression of God’s own creation, act the part of members of Congress and assert their authority as a co-equal branch of the government?  They may be loyal to a president of their own party, or to the president of our country, but they don’t work for him and they aren’t there to do his bidding.  They may agree with the president’s policies and support his goals, but they have a responsibility to their constituents, and the Constitution, and to the rest of us, too, to be a restraint against a president who oversteps his bounds.  They have taken the art of deluding themselves to the zenith, and achieved a new nadir when it comes to supporting their party at any cost.  Hard to understand how they don’t see that their own reputations and honor and place in history are at risk, each and every one of them.

As troubling as it is…as confusing as it is…to see so many apparently intelligent and well-educated people publicly forsake the evidence of their own senses to support a president who has so clearly demonstrated his utter contempt for the rule of law and the oversight role of the Congress in American government, it’s even worse to see those among them who are abdicating their own part in this government, apparently without a fight.

The Constitution gives the House the responsibility to impeach a president or other government official, and the Senate the role of jury in a trial of the president presided over by the chief justice of the United States.  So how, in the name of all that’s right and moral and legal and American, can the man who leads the majority in the U.S. Senate say he will work with the White House counsel to arrange the details of the trial?  And do it like it’s no big deal?!  We know that the chances of the Senate convicting Trump are microscopic, but what are we supposed to think now about the fairness of this proceeding, or the honesty with which the senators will consider the evidence, when the jury foreman announced in advance that his team will work hand-in-hand with the defense lawyers?

If anything, Mitch McConnell should be coordinating trial details with the Democratic leader in the Senate.  On Monday came the news that Charles Schumer wrote to McConnell proposing a framework for the trial, including the names of a handful of witnesses who never testified to the House investigators, people he would like to hear from in the Senate trial.  McConnell dismissed the idea; he even said there would be no witnesses.  We can, and should, speculate about the reason for that stance; I think he’s worried that his members might not be able to countenance their support of Trump if they heard what Mick Mulvaney and John Bolton would say under oath.

Or is McConnell kidding himself when he thinks he’s going to be in charge? In Slate, Bruce Ackerman argues that the Senate can’t bar any witness, that it’s up to the House and the president—the prosecution and the defense—to decide those things.  And most importantly, that it will be the presiding judge—Chief Justice John Roberts—who will run the court.

Once John Roberts replaces Vice President Mike Pence as the Senate’s presiding officer, McConnell’s attempt to change the rules would generate a constitutional crisis. As I have noted, the rules explicitly give Roberts, and nobody else, the power to “direct all forms of the proceedings.” If McConnell tried to seize control, Roberts could refuse to allow the Senate to vote on his initiative, especially if McConnell proposed rule changes that were inconsistent with Roberts’ pledge “to do impartial justice.”

(snip)

The chief justice is a serious jurist, dedicated to sustaining the Supreme Court’s central position in our system of checks and balances. His impartial conduct of the trial is especially crucial in the aftermath of the blatant partisanship displayed by McConnell and the Senate during the confirmation battle over Brett Kavanaugh. With this episode vividly in the public mind, it is imperative for Roberts to demonstrate, by his actions, that he takes the Constitution seriously and is not merely serving as a pawn in McConnell’s scheme to guarantee an acquittal.

If the majority leader did make an effort to change the rules midstream, this would serve as Roberts’ moment of truth: Will he demonstrate to the tens of millions of viewers that he is determined to put the Constitution above bitter partisan conflict?

Given Roberts’ repeated efforts to sustain the court’s legitimacy in the past, there is every reason to expect him to stand his ground and refuse to allow McConnell’s motion to be considered on the floor. If McConnell continued to defy Roberts and insisted that his colleagues back him up, it seems highly unlikely that his fellow Republicans would provide him with the bare majority needed to provide appropriate window dressing for his attempted constitutional coup.

This week began with news that 750 historians believe Trump should be impeached, and that a Fox News poll found half the country thinks Trump should be impeached.  This poll also finds Trump would lose the popular vote in November to Biden, or Warren, or Sanders, or Buttigieg, or even Bloomberg.  But for me, the best part of that story was seeing the Fox & Friends contingent so thoroughly gobsmacked to have to learn that their own network’s poll had such bad news for their guy…it revealed at least a little of the subconscious understanding on their part that their company’s preferred role is pimping Trump rather than doing journalism.  Another interesting consideration was raised by Charles P. Pierce, who makes the case that the Republican Party is the only organization—anywhere—that has a chance to save the republic.

What if, I think to myself, what if the Republicans have a plan: what if they’ve lulled Trump in with their obsequiousness and shameless praise—the kind of stuff that Trump so clearly loves and encourages—and when it comes right down to a vote, what if they surprise the crap out of all of us and vote to remove him from office?  Can we rely on a sudden tsunami of personal conscience, or love of country, or just plain old fear for how they will be remembered by history, to save the day?  Maybe they will see just one too many examples of Trump’s childish temperament, like his unhinged letter to Nancy Pelosi yesterday, and decide they’ve had enough.

They could just finally get fed up with the president’s obstruction of justice, and obstruction of Congress.  Of them.  No other president I can think of has ever so publicly dissed Congress, and thumbed his nose at the law, as has this one.  (On this point, Trump may accurately claim to be the best in history.)  Congress has a right to ask for, and receive, cooperation from the Executive Branch in its investigations.  Though there are exceptions for withholding some information—executive privilege—the people who get Congressional subpoenas have a duty to honor them.  Maybe they refuse to answer questions when they get there, but they have a duty to answer the call of the Congress.  In ordering the people in his administration not to do so, Trump effectively said to Congress: uh, f*** you losers, make me if you can.  And yet, most of the Republican members of Congress still stand up for him, rather than stand up to him.  Go figure.

Anyhow, the House vote to impeach Trump is important.  It matters that we have members of Congress who are standing up to the bully, reminding him and us that abiding by the rules and laws and traditions of this country is expected.  The oath those members took was to defend the Constitution “against all enemies, foreign and domestic,” and they should be faithful to that promise.  And if Trump is not removed by the Senate, there are still options.  One is that the House could delay sending the impeachment to the Senate until senators agree to conduct a fair trial: this would keep McConnell from fixing the outcome of the trial while the House keeps the focus on Trump’s bad deeds, which could keep pressure on Republicans to abandon Trump as the Republicans of 1974 finally abandoned Richard Nixon.

Another option is pouring everything into defeating Trump at the polls in 2020.  This week a group of Republicans announced the Lincoln Project dedicated to defeating “Trump and Trumpism at the ballot box.”  The organizers wrote about their effort in the New York Times, and didn’t sugarcoat the fact that Trump is not the only name they are targeting for defeat:

Patriotism and the survival of our nation in the face of the crimes, corruption and corrosive nature of Donald Trump are a higher calling than mere politics. As Americans, we must stem the damage he and his followers are doing to the rule of law, the Constitution and the American character.

That’s why we are announcing the Lincoln Project, an effort to highlight our country’s story and values, and its people’s sacrifices and obligations. This effort transcends partisanship and is dedicated to nothing less than preservation of the principles that so many have fought for, on battlefields far from home and within their own communities.

This effort asks all Americans of all places, creeds and ways of life to join in the seminal task of our generation: restoring to this nation leadership and governance that respects the rule of law, recognizes the dignity of all people and defends the Constitution and American values at home and abroad.

(snip)

…national Republicans have done far worse than simply march along to Mr. Trump’s beat. Their defense of him is imbued with an ugliness, a meanness and a willingness to attack and slander those who have shed blood for our country, who have dedicated their lives and careers to its defense and its security, and whose job is to preserve the nation’s status as a beacon of hope.

Congressional Republicans have embraced and copied Mr. Trump’s cruelty and defended and even adopted his corruption. Mr. Trump and his enablers have abandoned conservatism and longstanding Republican principles and replaced it with Trumpism, an empty faith led by a bogus prophet.

(snip)

Mr. Trump and his fellow travelers daily undermine the proposition we as a people have a responsibility and an obligation to continually bend the arc of history toward justice. They mock our belief in America as something more meaningful than lines on a map.

(snip)

We look to [Abraham] Lincoln as our guide and inspiration. He understood the necessity of not just saving the Union, but also of knitting the nation back together spiritually as well as politically. But those wounds can be bound up only once the threat has been defeated. So, too, will our country have to knit itself back together after the scourge of Trumpism has been overcome.

A seemingly well organized effort, with some serious money already committed: Republicans out to convince other Republicans to fight Trump and those of their own party who enable him.  They expect that will mean Republican losses in the next election, but believe that to be preferable to another four years of Trumpism.  The polls indicate that most Americans agree, if not most Republicans.

To accuse is not proof of the truth

The flurry of accusations of sexual assault against Supreme Court nominee Brett Kavanaugh and the attendant surge in the past few days of the #MeToo and #WhyIDidntReport hashtags has resurfaced for me a topic I’ve wanted to discuss, and on this day I’m happy to say that it is a topic which has nothing to do, at least not directly, with the president we cannot shake from the headlines for even one stinking day.  (Today he had to suffer the indignity of having the United Nations General Assembly laugh at him; I admit I enjoyed that very much.)  I’ve had this thought in the past year or so as events have forced the issue of sexual violence against women into public discussion, which is for the good, but now I’m hearing a drumbeat more loudly, more certain and more forcefully stated: the belief that all right-thinking Americans must accept all accusations by women of sexual harassment or sexual assault or rape at face value, without exception and without the need of corroborating evidence.  I’ve got a problem with that.  Let me risk stirring up multiple hornet’s nests all at once.

I have no problem with the protesters who argue Black Lives Matter, because I think I understand what they mean.  They do not mean black lives matter more than white lives (or the lives of any other color), despite the counterargument from some mostly disingenuous people who are trying to diminish the BLM effort.  The protesters are trying to persuade their fellow Americans that despite our country’s clear history of treating black people as less than people—even writing it into our Constitution—an inequitable, ignorant, hateful behavior that continues today, they are appealing to our better angels to persuade us that black lives matter, too.  At least that’s how I understand it.

They’re not saying that white lives don’t matter; they’re not saying that white lives matter less than black lives.  They’re calling attention to the recent string of deaths of black people, mostly young black men, at the hands of law enforcement across the country, in questionable circumstances, to try to make us all see the unfairness which they recognize as part of their daily lives.  The protests grow out of their personal experience, and they’re arguing for a commitment on behalf of all of us to the American ideal of fair treatment for all.  That’s also what the athletes are saying when they demonstrate during the national anthem: they aren’t protesting the song, or the flag, or the military, or the country in general, despite what you hear from the president (listen instead to the many many veterans who acknowledge that the right to this protest is exactly the thing they went to war to protect).  The players are taking advantage of their position in the public eye at that moment to do the thoroughly American thing of exercising their freedom of speech.  We each of us is free to disagree with their methods if we choose.

Now, I’m not saying that women in America have been treated the same way that black people have been treated.  (To any commenters who would criticize me for saying just such a thing, I refer you now to the previous sentence where I say quite plainly that I am not saying that.)  But I think it’s clear that women have been, and still are, treated differently from men in American society—there’s a Constitution thing there, too, of course—and that today they are making another push on behalf of their equality as Americans.  Specifically, they are speaking up on the subject of how, historically and contemporaneously, they have been and still are the victims of sexual violence.

In a society devised primarily by men with laws written primarily by men, in a society in which women were not considered equal citizens to the men, it should not be surprising that the men in charge protected themselves from accusations of sexual assault by women.  We can be ashamed of it, but not surprised.  Women were treated as property, as live-in baby-makers and babysitters and household help, and as “things” to be used by a man for his pleasure.  The men of those times turned a deaf ear to any woman’s protest of mistreatment, knowing that the woman would not be taken seriously and that even if her complaint were believed, well, so what.  The women of the time came to know the likely result of speaking up, and so they didn’t.

In more modern times we like to think that we’ve become enlightened enough not to behave in that way toward women; recent examples abound that prove how wrong we have been to think that.  Even as women became more financially independent of the men in their lives and more able to sustain a public accusation, they knew that the default response of male-dominated society remained to disbelieve and to dismiss accusations, and to find ways to punish the accusers for having accused.

What is changing now—for the good, I believe—is that the public airing of accusations of sexual assault has caused the scales to fall from more men’s eyes, for us all to recognize that this is real and pervasive, and to feel at least a little sick to our stomachs that we’ve closed our eyes to this reality for so long and allowed the women in our lives to suffer.  We’re coming around, as a society, to having our default response to these accusations be to search for the truth rather than to dismiss the charge out of hand.  Yea, America!

What concerns me is those who are filled with the fervor of the rising tide of righteousness who go a step too far and treat any accusation of sexual assault as proof of the truth of the charge.  It’s the right response to take an accusation seriously, and to investigate as we do when any crime is alleged; but it’s not right to assess a guilty verdict and hand out punishment solely on the basis of an unproved accusation.

Some of the accusations of sexual assault against Brett Kavanaugh seem more believable than others; inasmuch as they are being made against a nominee for a seat on the Supreme Court of the United States, who proclaims his innocence of the charges, they deserve to be investigated to try to determine if they are true or false, and to learn what we can about the nominee in the process.  (BTW, Republicans on the Senate Judiciary Committee: that’s exactly what the FBI does; that’s what it’s there for…put it to work).   Let the system work; there is no reason to rush a vote on this nomination…well, no good reason, anyway.  The GOP proved quite clearly, thank you, when refusing to take any action at all on the nomination of Merrick Garland in 2016, that the Supreme Court can get along nicely with one seat vacant.

America’s growing recognition of the ways in which our country has not lived up to the lofty goals of our Founders, and our continuing efforts to make those wrongs right, must continue.  Reaching the ideals of equal treatment under the law and providing a level playing field for all Americans, of being the open and welcoming society of our dreams, will take longer than we would like it to but we’ve got to keep going, keep our eyes on the prize.  But we won’t get there by trashing our belief in innocence until proven otherwise.

America moves one step closer to gay marriage rights, and the silence from opponents speaks volumes

Today a panel of a federal appeals court in California ruled that state’s Proposition 8, an amendment to the state constitution approved by voters in 2008 to outlaw gay marriage, is an unconstitutional violation of the right to equal protection under the law.  The appeals panel agreed with the federal district court decision which found marriage to be a fundamental right protected by the U.S. Constitution, and that there has to be a good reason to limit the exercise of that right to only certain people—in this case, one-man-and-one-woman couples.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.

(snip)

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of “marriage,” which symbolizes state legitimization and societal recognition of their committed relationships.  Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California…

The ruling was limited in scope and does not address whether “same-sex couples may ever be denied the right to marry.”  The court found that since “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents,” the court was able to rule on Proposition 8’s constitutionality without need to address the larger issue.  But that is the grounds where the ultimate appeal will be argued.  Supporters of this discriminatory and downright uncharitable proposition have the choice of appealing the case to either the full U.S. Court of Appeals for the Ninth Circuit or the United States Supreme Court; since that’s where we know the case is going to have to go eventually, I say let’s get on with it.

I’ll continue to argue that there is no good reason for gay people to be treated differently than straight people under the law when it comes to the exercise of the fundamental right to marry, or in fact the exercise of any fundamental civil right.  Various religions may restrict their rites and sacraments among their members according to their beliefs, but civil law protects the rights of all Americans and there’s no room for exceptions that serve only to salve the theological objections of one religion or another.  That’s what the Establishment Clause of the First Amendment is all about: no restrictions on an individual’s religious practice, but no religion’s law takes precedence in civil life.

Many of the voices opposed to gay marriage claim to believe they are protecting “family values” or “conservative values.”  Fine; I take them at their word.  What I’m arguing in favor of are American values: equality; liberty; fairness; tolerance; justice.  The argument was made most persuasively by the plaintiffs’ attorneys in this case, Republican Ted Olson and Democrat David Boies.  In August 2010, when the federal district court overturned Proposition 8, Olson made the case so clearly in a discussion with Chris Wallace on Fox News Sunday.  Click here to look at the clip and read the transcript.

We do not put the Bill of Rights to a vote….We ask judges to make sure that when we vote for something we’re not depriving minorities of their constitutional rights.

(snip)

…we have a 14th Amendment that guarantees equal rights to all citizens. It’s not judicial activism when judges do what the Constitution requires them to do, and they follow the precedent of previous decisions of the Supreme Court.

(snip)

If 7 million Californians were to decide that we should have separate but equal schools, or that we would send some of our citizens to separate drinking fountains, or have them be in the back of the bus, that would be unconstitutional.

(snip)

…we believe that a conservative value is stable relationships and a stable community and loving individuals coming together and forming a basis that is a building block of our society, which includes marriage…We also believe that it’s an important conservative value to sustain the rights of liberty of our citizens and to eliminate discrimination on invidious bases, whether it’s race, or sex or sexual orientation. It should be a liberal and a conservative value. It is a fundamental American value.

As I’ve argued before, the tide has turned.  Homosexuals serve openly in the armed forces; more states have legalized marriage between two people of the same sex, and are giving up efforts to stop gay people from adopting children; and now, when One Million Moms (hardly…it’s the American Family Association) calls on J.C. Penney to drop Ellen DeGeneres as its spokeswoman because she is openly gay, even Bill O’Reilly thinks it’s a McCarthy-esque “witch hunt”!  Surely, the times they are a-changing.

Don’t let the rules of evidence get in the way of a guilty verdict, not when you can change the rules

Did I grow up on another planet?  Was my education about the basics of a criminal trial, or even just the nature of plain old fairness, totally alien?  Apparently so, when I read what the Texas Legislature is up to

We here in the Texas state senate are voting to change a rule of evidence in criminal trials.  Now, this wouldn’t be for every criminal trial, just a special kind of case, one where the defendant is accused of rape or sexual assault.  Y’see, people accused of rape or sexual assault—not convicted or admitted rapists, mind you, but accused rapists—they are so clearly evil (evident by the fact that they have been accused) that we think our good God-fearing prosecutors deserve a little help inflaming the passions of connecting with the jury.

This bill would make it legal in rape and sexual assault cases for the state to present evidence to a jury—after the judge hears the evidence outside the presence of the jury and decides that it is relevant—that at some time in the past there had been similar allegations of rape or sexual assault made against this same defendant.  Now, we’re not talking about telling the jury about a person’s record of criminal convictions during the punishment phase of the trial, after they already found the guy guilty of the new charge; that’s already in the law.  No, we mean telling the jury before they reach a verdict in this case about any time in the past when the same defendant was ever even accused of a similar crime.

Now, just to be clear: we’re not saying the jury should know that this guy was once arrested, or indicted, or tried on a similar charge; that’s OK and all, but we mean we want it to be OK for the jury that hasn’t yet decided if this scumbag’s defendant’s guilty of this crime to be told if he was ever accused of any similar crime—doesn’t matter if he was never arrested, or indicted, or tried on the previous accusation.

You and I both know that there’s some of them whiny types (folks who came here from New York City, probably) who’d say we’re ignoring fundamental rights and revving up some kind of witch hunt, but they just don’t understand how we do things here in Texas, is all.  We’re putting this together to go with a new package of laws we think’ll be good for Texas, stuff like:

Not getting all spun up about $27 billion in state budget “challenges” and starting the session off with having Governor Haircut declare that things like mandatory pre-abortion sonograms and outlawing sanctuary cities and demanding Congress pass a balanced budget amendment are emergencies, and need to go to the head of the legislative line; and

Making sure we get our money’s worth out of our lazy-ass liberal college professors by putting a premium on productivity and emphasizing more time in the classroom, not that egg-headed research they’re so keen on; and

Seeing to it that the long-suffering public servants in the Legislature get the treatment they deserve and can carry their concealed handguns in places like bars and amusement parks, places where we already decided it wouldn’t be safe to have everyone packing.

Any questions?  Well, thanks for your attention.

These are my favorite stories about the Texas Legislature:

There was a “typo” when they wrote the state constitution back in 1876—they didn’t mean to have the legislature in session for 140 days every two years, they meant for it to be two days every 140 years.

In the 1970s the mayor of Austin, who was noted for an irreverent sense of humor, was holding his weekly news conference and a reporter idly mentioned, “Well, the Legislature’s coming back to town soon.”  The mayor’s immediate response: “Lock up the kids and dogs!”