The Negative Precedent of Trump’s Exoneration

Plus, how our geographic clustering contributes to our polarization.

First, let’s begin with a bit of housekeeping. Earlier today we accidentally sent a piece of rank punditry—my web piece arguing that Bernie Sanders can, in fact, win the Democratic nomination and the general election—to our Dispatch email list. Our apologies for overcrowding your inbox! We’re still in the shakedown cruise of the brand-new S.S. Dispatch, and we’ll make mistakes. But do read the piece. I’m seeing the same kind of confidence from Republicans that they can beat Bernie that I saw from Democrats that they could beat Trump. I explain how pervasive negative polarization means that Bernie can win.

And, in fact, today’s French Press is partly about negative polarization. But first, it’s about negative precedents—namely the negative precedent set by acquitting Donald Trump based on his lawyers’ maximalist legal and political claims:

  1. The president’s defenders are granting him a dangerous degree of discretion.

  1. Is a key aspect of America’s constitutional design now dangerous for national unity?

The wrong kind of exoneration can set a dreadful political precedent.

From the beginning of the impeachment inquiry, I’ve argued that the serious question at the heart of the case is not “did Trump abuse his power?” but whether his abuse is serious enough to require his removal from office during an election year. While I believe his misconduct was severe enough to require his removal, lots of thoughtful people disagree, and I respect their arguments. It’s not an easy call. 

If Trump is acquitted on that basis, I’ll believe it’s the wrong decision, but it will be no worse for the republic than the Democrats’ wrong decision in 1998 to deem Bill Clinton’s perjury and obstruction of justice “bad but not impeachable.” It will sadly solidify the trend of Congress acting not as a superior, independent branch of government but rather as a collection of partisan foot soldiers for the president. 

That’s a problem, no question, but it’s one that’s been developing slowly over decades. If, however, you want to take that problem, pump it full of steroids, and hop it up on meth, then by all means adopt the arguments of the president’s lawyers, his most loyal senators, and his most zealous defenders in the press. They’ve gone well beyond arguing “bad but not impeachable.” They’ve even gone beyond “perfect call.” We’re now approaching the territory of arguing that any non-criminal action taken in the president’s personal political interest cannot be corrupt because the president can rightly view his personal political interests as the equivalent of the national interest

Doubt me? Watch Alan Dershowitz, the president’s most prominent lawyer, in the Senate chamber yesterday:

To be clear, the “public interest” that Dershowitz is referring to is the president’s election. In other words, if I’m president, and I believe it’s better for the nation that I win (as every candidate does), then my abusive actions in pursuit of my election are by definition in the public interest. This is an extraordinary standard. In Twitter effort to clean up his comment, Dershowitz only compounded his error. This tweet is particularly troublesome:

This argument doubles down on the animating, polarizing spirit of our political age. Let’s call it “Flight 93-ism” after the Michael Anton’s infamous influential essay in 2016. If you’ve forgotten that piece, here’s the memorable opening:

2016 is the Flight 93 election: charge the cockpit or you die. You may die anyway. You—or the leader of your party—may make it into the cockpit and not know how to fly or land the plane. There are no guarantees.

Except one: if you don’t try, death is certain. To compound the metaphor: a Hillary Clinton presidency is Russian Roulette with a semi-auto. With Trump, at least you can spin the cylinder and take your chances.

In plain English, Anton argued that Trump had to win for the American republic to survive. It’s a sentiment I heard from conservative voters (especially Christian conservative voters) throughout the 2016 campaign. Nothing less than the fate of the republic was at stake.

When you understand that sentiment, you understand the danger of Dershowitz’s historical analogy. He called back to the Civil War. He called back to a time when hundreds of thousands of men had been slain on American battlefields, when the Union had already fractured, and when a wartime president had taken actions that would never be acceptable except in times of the most grave national crisis, and he imported those principles to this present moment

Combine this with the Wall Street Journal’s continued insistence that a president’s corrupt motives for otherwise lawful acts cannot be grounds for impeachment and removal, and you’re setting the stage for an American politics that is characterized by deception, subterfuge, and abuse of power—including secretive abuses of power designed to influence election outcomes—justified at all times by the omnipresent claim that the alternative to political victory is national catastrophe.

Let’s be clear, this argument is not “let the people decide.” Moreover, as I argued at length in a previous newsletter, it’s exactly contrary to the intent of the Founders. Instead, this argument is more accurately described as the assertion that the success of the politician is too important to be left to a fair election. The president can abuse his power to influence the public so long as he doesn’t clearly commit a crime. 

The argument that improper conduct was bad but not impeachable (or not worth removal) carries with it a rather explicit rebuke. It contains a bipartisan rejection of misconduct. The Dershowitz argument, by contrast, carries with it an explicit grant of permission for abuse of power rationalized by one of the most destructive (and seductive) forms of self-interest—the idea that a president’s personal political success is necessary to protect the republic. That’s a royal impulse, not a republican impulse, and it places the imperial presidency on a whole new plane of impunity.

Does the American Constitution contain the seeds of its own demise?

I’m reading Ezra Klein’s new book, Why We’re Polarized, and I’m finding it truly interesting and thought-provoking. Ezra and I are quite far apart ideologically, but people on both sides of the aisle can see the same cultural and political trends even if we might disagree on the most effective solution. I want to highlight one key trend that Ezra has identified before—America’s population clustering could have a destructive effect on our national politics:

The alternative to democratizing America is scarier than mere polarization: It is, eventually, a legitimacy crisis that could threaten the very foundation of our political system. By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.

This sorting wouldn’t present an insurmountable practical problem if the small states were essentially “Mini-Me” versions of the big states. In other words, if the United States was relatively culturally homogenous, then majority will would rarely be thwarted. Arguments and candidates that win in New York would win in Iowa. Victory in Mississippi would mean victory in Oregon.

But that’s not America, and it doesn’t look like it will be America anytime soon. The United States is in the midst of both a “big sort” and group polarization. Or, to put it another way, we’re clustering in like-minded enclaves, and those like-minded enclaves are growing more extreme (and extremely opposed ) in their politics. As of now, it doesn’t flow neatly into a small state/large state divide (California and Texas are on opposite sides, so are Vermont and Idaho), but it is quite true that America’s large population and economic centers are largely blue, and that trend has no end in sight. 

Ezra’s solution is to blow apart many of the institutions designed to check majority control—like the Electoral College or the Senate filibuster. But preservation of minority rights, including the preservation of state power, was a central aim of the Founders (though imperfectly achieved, obviously) and I believe necessary for national stability. They had a different solution—federalism.

Minority protections against majority rule grow untenable if they begin to block self-governance. In other words, if we’re so centralized that New Yorkers can’t enjoy the economic, environmental, and social policies that they seek without the permission of South Dakotans and Mississippians who punch well above the average New Yorker’s electoral weight—that presents a problem. It also presents a problem if coastal majorities can exploit heartland minorities. They’re denied self-government as well.

These are short paragraphs about an immense problem, and I’ll write much more in the coming weeks and months, but in the meantime, buy Ezra’s book and ponder his arguments, and also consider this question—is increasing political centralization ultimately compatible with increasing American racial, cultural, religious, and geographic diversity?

One last thing ... 

When I started the French Press, you scoffed at my Memphis Grizzlies. You know you did. You thought my enthusiasm was pure homer-ism. But you were wrong! The Grizzlies are officially one of the hottest teams in the league, and Ja Morant is in the driver’s seat for rookie of the year. And you know what that means—more Grizzlies content:

Okay, one other thing ... 

Just as I was wrapping up the newsletter, I saw this—from Natalie Portman. I thought it was interesting and admirable.