Trump’s Terrible, Horrible, No Good, Very Bad Impeachment Defenses

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S1: The following podcast contains a bit of explicit material, but much, much more that is not explicit.

S2: Just as a percentage, it’s Wednesday, February 3rd, 2021, from Slate.

S1: It’s the gist. I’m Mike Pesca. Yesterday, we brought you the news of the arrest of Aung San Suu Kyi in a coup in her country of Myanmar. But I failed to relay the exact charge. Of course, if I related over, say, a system of closed radio handsets, I might be, if not insensitive, even possibly compounding the offense because and San Suu Kyi was charged with here.

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S3: Bloomberg has the news in Myanmar.

S4: The military has charged former civilian leader Aung San Suu Kyi with breaking an import export law. She could end up with a three year prison term illegally imported walkie talkies were found in her home.

S3: Yes, walkie talkies and not a huge cache of walkie talkies, reportedly 10. Or to break this down for the layman, five walkie talkies. This is obviously a ruse. I mean, she probably did have the walkie talkies and it doesn’t seem like an outlandish thing to have. The ruse is that it’s a trumped up charge to get her off the chessboard of Myanmar politics. This is how coups go. It’s a ruse and then a coup. The ruse coup connection is a strong one. It is a sad story when a political activist can be detained under a law that quite pathetically frets over people’s access to technology. Oh, by the way, in America, Rebecca Jones, the Florida state statistician, former state statistician who went rogue out of concern that Florida was putting its thumb on the coronavirus statistics and downplaying the severity of the data. Rebecca Jones has been officially charged with a crime. I will now read to you the official charge. One count of offences against users of computers, computer systems, computer networks and electronic devices or computer. Have I offended the are you saying a simple control all delete is not going to get me out of this one this time? Come on. What do you say? Just for old time’s sake. Rebecca Jones voluntarily turned herself in after a nearly nearly cross-country road trip, she took them down with coronavirus along the way as far as Aung San Suu Kyi and her two way radios, which carry a three way sentence given the ban on serving in government upon conviction of a crime, we can say her political career at the end of this sentence will be very much like the end of a sentence on a walkie talkie over on the show today. Stand if not the criminal realm. The World of Crime and Consequence is a deep dive into the exculpatory arguments attending to the impeachment trial of Trump. But first, so what I like to do, and I’ve trained myself into this habit, is not to get obsessed with the day to day machinations of political infighting. I always zoom out. There is the basic level analysis. Ask yourself, as I do, who stands to gain, what are their motivations? And then I like to get a bit more nuanced than that to ask yourself why are the players acting in the way they’re acting? You begin to see conflicts in a new light. Take, for instance, the Republican Party, a one day analysis. Oh, they’re beholden to the Trump faction within their base. That’s true. Zoom out a little. Well, let’s consider the incentives for the individuals within the party. They worry much more about threats from primary challenges as opposed to general elections. True, true, true. But if we go out more, a lot more, we get to the realm of a political thinker and legal thinker who I’ve been reading Jack Balkin. And what Boeken has done is he’s looked at history as a cycle and he notes that we are right now. It would seem quite likely at the end of a cycle and that cycle being one of Republican dominance. There have only been fewer than half a dozen cycles. We may be getting a new one and it all depends on if Democrats can show themselves to be capable legislators. So this is an idea that has intrigued me. The possible end of Republican dominance, a time with historical echoes and a period which comports well with the idea of cycles of constitutional time. The author of that book of that name, Jack Balkin, is up next.

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S1: A few months before the election, I was listening to a podcast hosted by a friend of mine, Julian Zelizer and Sam Wang, politics and polls, I recommend you to it. And Jack Balkan, the Yale professor, was on talking about his books, The Cycles of Constitutional Time. And I thought to myself, this could all be happening. Everything the Professor Balkan is predicting might well come true. Now, this interview is in September and it put it in the back of my mind to November. And from then November to now, I’ve gone through my own cycles of time. I’ve said it is happening. It’s not happening. We’ve regressed. We’ve progressed. So here. Joining me now is Jack Balkin, the night professor of constitutional law and the First Amendment at Yale Law School. We’re going to talk about where he thinks we are in this constitutional cycle, how to think about the moment in terms of Republican politics. And then I want to pivot on another area of expertise which is related, which is platforming and platforming in the First Amendment. Professor Balkan, welcome. It’s nice to be here. So your book talks about many cycles, but I think we’re focused as we are in our current cycle. And you point out that the Republican Party might be at a precipice that has resonance with the past. Can you get into that a little bit?

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S5: Well, there are three cycles relevant here. One is in American politics, there are long periods when one of the parties tends to dominate politics and set the agenda for politics, doesn’t win all the elections, but it basically structures what’s possible in politics. And when I when I was growing up, we were under what I call the New Deal. Civil rights regime goes from about 19th 1930s to just about the end of the 70s. And then in 1980s, in the 1980s, you’d begin a new regime in which the Republican Party is dominant in the conservative movement calls the tune in American politics. I call that the Reagan regime. And that’s been going on now really since the 80s. So about 40 or so years. And now it looks like it’s coming to a close. By the way, this idea about regimes is not original. With me, my colleague at Yale, Steve Skowronek, has written very important books about these ideas. But I thought it was very important to pay attention to what’s Chronixx was saying and to combine that with two different other ideas. One is that there’s actually a very, very long cycle of polarization and polarization, American politics, that is, we live in a very polarized time, but it always hasn’t been that way in the middle of the 20th century. Politics very polarized. And then the third cycle is a cycle sort of episodes, if you will, of robt constitutional rot in which Republican and Democratic features of our government sort of break down. And they’re followed by periods of renewal. Where we are now is very simple. We seem to be at the end of a long dominance of the Republican Party and the Reagan era in which the conservative movement sets the basic tone for politics that seems to be going away slowly. We’re at a hugely powerful cycle of polarization, which we haven’t seen like since the Civil War, really. I mean, it’s just that bad. And we’re in the depths of a terrible episode of Rot in which our institutions are basically decaying and in which the kind of trust and cooperation necessary for a republic to keep going. It’s really been eaten away.

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S6: So I’ll concede those last two points rot and polarization. But let’s talk about Republican dominance. What is it? Five of the last seven presidential elections, at least by popular vote, has gone to Democrats. And I understand we have a constitution and how the rules work. But if the popular sentiment isn’t necessarily behind Republicans, you know, to the degree that the popular sentiment was Jacksonian from twenty eight to sixty or was with FDR New Deal way of thinking from when he was elected until Reagan. So if the popular sentiment isn’t there, can we really be said to be in a period of Republicanism full stop?

S5: Oh yeah, absolutely. Because remember, it doesn’t matter what popular sentiment is, what matters is how the electoral structures work. And so even though, in fact, the Democrats have repeatedly won popular electoral majorities in presidential elections since really since Bill Clinton, very often they don’t get the White House. That’s because the Electoral College is twice in the last six years or so I’m sorry, last 20 years or so. The Electoral College winner is not in the popular vote winner each time the Republicans won. Republicans have had strong advantages in the Senate and in the House. They’ve had enormous advantages in control of states and state governments. And that also affects legislative redistricting. They’ve had enormous dominance in the federal judiciary. So if you think about all the different levers of power, I think it’s pretty clear to say that the Republican Party has been the dominant party in the United States until very recently. I think things are starting to change. We won’t be sure for a while. But there are obvious signs that the Republican Party has lost its dominance. First of all, you mentioned they’re having real problems with. Together, national electoral majorities at the presidential level, the party is in the midst of a civil war, that civil war was was papered over during Trump’s presidency. But now that he’s gone, it’s it’s broken out again, that weakens the party and it makes it very difficult for her to succeed. But the thing to understand, the thing to understand thing to look for in the future, if you want to know if we’ve really made a break, is this Biden won a substantial victory, but he didn’t have much in the way of coattails. Democrats kept the House barely got control of the Senate. But the real question is this will they be able to translate their momentary political power into long term dominance? And in order to do that, they have to get their arms around the federal government. In order to do that, they have to change the rules of the filibuster. There’s just no way around it. If they don’t do that, then they will be unable to do many of the things they need to basically create a new regime in politics. So what happens to the Republican Party from here? There are any number of possibilities. One possibility is they regroup, they become a trump his party. So this is a sort of a party that’s organized around whiteners, conservative Christianity, bareknuckle, capitalism, authoritarianism. And that becomes what the Republican Party is and it runs candidates. It continues to be very strong in the South and parts of of the Mountain West, and occasionally it wins the presidency.

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S7: Second possibility is that the Republican Party is in a protracted civil war, which we consider makes it very difficult for it to win very many elections. The third possibility is that you get breakaway movements within the party who field candidates in certain parts of the country. But third parties don’t tend to last in the United States because of our representational system.

S6: So it seems that under all those scenarios, either regional party or fractionalized party, the Democrats are ascendant.

S7: They are if they are able to pass legislation. So remember, if the Democrats fail to solve the problem of the pandemic, if they fail to solve the problem of the economic contraction, then in fact, they’ll lose the next several elections because they will have been demonstrated to be failures. They’ll have blown their chance, but they can’t really do that. And they can’t actually reform our representational systems. Pass a new Voting Rights Act to clean up politics, you know, deal with various ways of restricting the franchise. They can’t do that unless they get rid of the filibuster. They don’t have enough power in the Senate to pass that kind of legislation. It’s true. They can deal with the pandemic through reconciliation, doesn’t require getting around the filibuster. But there are so many more things they have to do to clean up politics. And for that, they really have to get rid of the filibuster.

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S6: Is it in the interest of the sort of Republican who is dismayed by Trump ism, didn’t participate in the in the House in the mass vote to question election results? I’m not necessarily saying Adam Kinzinger or one of those 10, but people close to that, maybe Rob Portman, if he had decided to stay, what’s in their interest to block Democratic legislation? I think that seems to be what’s worked for them in the past. Or is it more in their interest to let Democrats have wins?

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S8: No, I think their current interest is to show to the public the Democrats can’t effectively govern. Can’t cannot. I mean, that’s why you’re going to get Republican opposition both from the trumpet’s and the traditional Republicans, because they realize that if the Democrats were able to successfully govern and remake representational systems, pass a new Voting Rights Act, pass H.R. one, it would tilt the playing field in the favor of the Democrats and it would be even more difficult for Republicans to gain power once again. So the trumpet’s and the traditional Republicans are kind of thrown together because of these problems. And but this just shows you how important it is for the Democratic Party to realize that it’s been handed an opportunity that does not come around very often to forge a new political regime in which their agenda is the dominant agenda of politics. They could easily blow this.

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S6: Have you changed your mind from Election Day to the period afterwards where maybe it didn’t look like there would be a mass rebellion and Trump ism would be abating till now, where it does seem that Trump ism is on the rise? Have you gone on a little roller coaster ride at all?

S9: I think the thing that’s that’s that I’ve had to recalibrate is how deeply, deeply we’ve fallen into a period of constitutional right. In other words, you know, I compared this the first Gilded Age, which is a very cynical and corrupt time. It’s worse than the first Gilded Age. And our institutions are in much more danger than they have been in most. Parts of our country’s history, things really are on a knife’s edge. It’s really, really important for people to step up now and and preserve their democracy. I think the events of the last month and a half demonstrated how seriously damaged our institutions have become and how important it is to repair them.

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S6: Well, I had known about your thoughts and read your book, but I thought that with a large repudiation of Trump and that project, that we might be seeing a different result. I know you think, in cycles, but cycles are marked by and defined by bits of information and inflection points. So what I’m saying is I thought the election might have been an inflection point here.

S9: I’m going to disagree with you. If you look at periods of transition like our own, what you discover is you don’t just flip a switch and then everybody basically comes over to the to the new regime. In fact, what you have is a protracted struggle. So here are my examples. Reconstruction during the reconstruction period, the South does not just give up. It does not just simply say, OK, you will do it your name, your way. Now, Republicans, quite the contrary. It’s a period of violence and terrorism. It’s a period of of destruction and lynching. It’s what leads to a protracted war between France and parts of the United States, even after the civil war is over, takes a very, very long time for this to die down. And indeed, one of the ways it dies down is that the South gets a lot of what it wanted. Reconstruction is only partially successful or take the New Deal. It’s not that what we wake up one day in 1933 and Roosevelt’s president and everybody says, oh, guess we’re going to follow FDR. No, quite the contrary. You have the rise of the Liberty League, which is a kind of ancestor of the Tea Party. You have all sorts of attacks and mobilizations against Roosevelt and what he’s trying to do. And indeed, Roosevelt himself is not completely successful at what he tries to do. And he miscalculates in 1938 and he basically wrecks his chances for further domestic reforms. So it’s really important to understand that even if the Democrats become the dominant party and are able to create a new regime, they’ll be bitter, bitter resistance from the other side for a fairly long time to come.

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S6: So while I have you for a second, could you just lay out your insight about this? I think maybe thornier than people are realizing conundrum of how to regulate free speech and what to do with the tensions between what we’re seeing, that there are many people using our using platforms to destabilize the country. And yet, on the other hand, we have a strong First Amendment tradition in America. So what’s your triangle based insight?

S9: The important thing about the digital age is that the owners of private infrastructure, Amazon Web hosting services and the search engines and social media, they’re the basic infrastructure for expression. It’s all privately owned. And the governance of free expression through this infrastructure is done by private parties. That’s the most important thing to understand about our world. And so the state is only one of the regulators of speech. The infrastructure is the other major regulator of speech. And so if the way in which the 20th century imagine the problem was if there’s a problem, it has to do with the government’s relation to speakers. That’s not how it works anymore. It’s the government’s relation to infrastructure and both of their relationship to speakers. So it’s a more complicated model of how it works. So let’s take the platform which you mentioned. The federal government is not does not the platform people states don’t you platform people. The platforming occurs when you’re kicked off a social media companies facilities according to their rules. And so that’s an action by a private party which doesn’t raise issues of the First Amendment at all. It raises free speech issues, but not First Amendment issues. There are a lot of free speech issues that have nothing to do with the First Amendment. The First Amendment is about the government. Regulating your speech to platforming is a problem to the extent that people are shut out from communicating to other folks, if they have no other alternatives for communication, it’s a serious problem. And if platforms get very, very large and essentially dominate public discussion, then it’s very important to worry about the rules they use to regulate speech because in a sense, they’re the the central player in town, if you will. But it’s also important to understand that the solutions to any problems you might see don’t consist necessarily in the government passing laws to ban certain forms of speech. That’s not the best way of understanding what’s going on. Rather, you have to ask, how do you want to organize the private infrastructure of communications so that lots of people get to speak, the people who run the infrastructure, a response. They act in a professional manner and they basically look out for the public interest, that’s the central thing you want to get to. Our basic problem today is that at least at the layer of the social media companies, social media companies are there’s one very, very large social media company called Facebook. It’s too large. It’s not adequately able to handle all of the responsibilities to the public that it has taken on by being the world’s largest social media company. And its business model basically is at war with the public interest. Let me put it this way. There are two sides of Facebook, one side of Facebook content, moderation, people. I’ve met these people, they’re wonderful people. They’re very nice. They’re very professional. They think deeply about what the public interest is. And what they do is they put out fires. They look for terrorist recruitment, they look for child pornography. They look for disinformation about elections, about covid, about all these things. These are wonderful people. They’re very nice people. They get a lot of flak. They’re trying to do their best. OK, beneath them are armies and armies of content moderators who basically have three seconds to make decisions and they can’t possibly do their jobs. And also artificial intelligence agents that are imperfect. And we’ll never be perfect and we’ll never do what they are supposed to do. So that’s the content moderation side of Facebook. They put out fires. The other side of Facebook is what actually makes money for Facebook, which is the advertising system and the algorithmic system that basically drives the advertising, makes the advertising system pay money. That side of Facebook starts fires. So you have a company what happened, which is devoted to putting out fires and the other half is devoted to starting fires. Now, that is no way to basically run a social media system, but that’s what we have.

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S6: Jack Balkin is a knight professor of constitutional law and the First Amendment at Yale, and he has written a book called The Cycles of Constitutional Time. You know, a great benefit of talking to smart people is not always solutions, but just new frameworks to look at it. And I think you’ve given us a couple of those today. So thank you very much. My pleasure.

S3: And now the spiel to be fair to Trump’s lawyers, they were hired only a couple of days ago, also they spell United States correctly more often than they misspell it. Their filing begins to the honourable members of the Unites States Senate. And really nothing unites state Senates more than baseless claims of election fraud and the possibility of maybe an insurrection right there in their buildings. Also, you know, that’s the funny thing about the United States of America, Unites West we stand and biped, we tall also. And to be very, very fair to them, to bend over backwards, let’s acknowledge that if they totally blow this case and can’t sway such unbiased jurors as Josh Hawley, Ted Cruz, Rand Paul and even jury foreman Mitch McConnell, it won’t be their worst screw up ever because one of them, Bruce Castor, was the D.A. of Montgomery County, Pennsylvania, and he declined to charge Bill Cosby in 2005. Cosby would go on not only to evade prosecution for more than a decade, but also be accused by other women of further sexual assaults. Great job there. His cocounsel, David Shewn, was meeting with Jeffrey Epstein up until the time of Epstein’s death, a death which shewn says probably wasn’t suicide. You know what I got to say? That theory is more plausible than the one that he and his co counsel have advanced on the part of their client, the president, which is according to a rather brief brief, that Donald Trump wasn’t inciting anything. And to admonish him for his words is to weaken the First Amendment in any way. It’s not constitutional to have a trial for someone who is no longer in office. Now, that last point, they have agreement, it would seem, from 45 Republican senators, which really, really lessens the pressure on them to bring it with all the other stuff. And I got to say, the other stuff is quite weak. It really does reflect a lack of urgency to be logical or compelling. Here’s one phrase. Under the convenient guise of the covid-19 pandemic safeguards, state election laws and procedures were changed by local politicians or judges. I don’t win hearts and minds. And then they quote one of the charges Trump is facing this from the impeachment articles. Shortly before the joint session commends, President Trump addressed a crowd at the capital Ellipse in Washington, D.C. There he reiterated false claims that, quote, We won this election and we won it by a landslide. Here’s their answer to that. That clause from the articles of impeachment. To the extent that a Vermont five, that’s what it is. It’s in a Vermont alleges his opinion is factually in error. And I believe it does allege that. Let’s go back to what it says. He repeated the false claims. So, yes, I would say the extent that it alleges the statement was an error was the full extent. Anyway, they go on. That’s, by the way, call to tell when when someone calls it a false claim, they go on to the extent that it alleges his opinion is factually in error. The 41st president denies the allegation. Boom. Good night, nurse. Yeah, nailed it. I also enjoyed this gem, should this body, the Senate, not act in favor of the 47th president, the precedent set by the House of Representatives would become that such persons as the 47th president similarly situated, no longer enjoy the rights of all American citizens guaranteed by the Bill of Rights. Yes, such persons as the forty fifth president. What such persons is the five president exist? Maybe one day the forty six president will stumble into inspiring a coup against his own government two weeks before he leaves office. I guess that could happen. Not even Trump’s children, be they Eric Ivonka or forty fifth President Jr., by whom I mean Donald Trump Jr., or as I call him, the Valiante. None of them would even fall into this category. So the substance of the defense is legal term, quite crappy. However, however, I do disagree with a lot of conservative thinkers who have noted the crappiness and say, I don’t understand that. I don’t understand why it’s so crappy. Here’s Charles Cook of the National Review and the Editors podcast.

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S10: Reaching that conclusion, he finds it difficult to advance the best arguments in his own defense. He was never good at making the case for. Donald Trump, he never allowed space to highlight his achievements. And what he is asking of his lawyers shows us that not that I believed he would have.

S3: But he hasn’t changed, and this was reminiscent of a general argument put forth by Kellyanne Conway who broke with Trump, I think it was like an hour and a half before the administration ended and the whole thing came crashing down here. She was on the Bill Maher show.

S11: I think the real disappointment for people like me is that the last two months, let’s just say from November six to January 6th, weren’t spend mostly talking about the accomplishments, reviewing the accomplishments he built, the greatest economy we’ve had and pre covid he built it. It was pretty much built. OK, come on, Bill. Well, it was doing very well when he took over. Would you agree with him that it did even better and you know it?

S3: Yes, although it’s real and true accomplishments, which, as Mark noted, aren’t actually real, Trump should be emphasizing those two. Why make Kellyanne Conway seem perhaps palatable or hireable, if not lovable, to her own family? But Trump does not make these arguments, these so-called good arguments, the arguments right there, that would have been killer arguments like Charlie Cook says. I guess he seems incapable of making those good real arguments before the Senate. I disagree. I think Donald Trump knows what he’s doing. He’s not smart, but he is cunning. And he realizes good arguments that might convince a Rob Portman type, do nothing for him, do nothing for his standing among the people he cares about. He fired his first legal team because they wouldn’t go before the Senate and flat out argue the election was stolen. They perceive some reputational risk, maybe even they perceived a legal risk. So we’ve got these new guys and these new guys are all but arguing that they’re not arguing the election was flat out stolen. They’re saying it’s OK if the president said the election was stolen. And if you say those are false claims, I have a counterargument for that. We disagree. Donald Trump knows this will be a rare moment of national attention. He’s been denied that attention. He won’t have to rely on the old news network. And he wants to say what he wants to say. And what he wants to say is that whacked out crap that he’s been saying that inspires nay, that incites his followers. And the blame for this goes to, well, obviously the Mar a Lago based miscreants himself, but also those 45 Republican senators who took the time to signal to him, we’re not going to convict you. So absent any risk of consequence, Trump can go pretty much whole hog with the reality denial that put their colleagues lives in danger in the first place. So congratulations, you lot. Well played. Donald Trump knows what he’s doing. As always, the answer is nothing good, but he’s going to do it and he’s being allowed to do it because Rand Paul thought it was extremely important to dispel any question of should we create consequence for the kryten from Queens? Well played, guys. And what’s worse, I made you all listen to Kellyanne Conway for another twenty four seconds of your life. But that’s what you get in the good ol USA.

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S12: And that’s it for today’s show, just producer Shayna Roth, like Aung San Suu Kyi, has been charged with Section eight of the export import law. Now she’s going to argue that it at worst is a violation of Section nine, an import export crime. She hopes to nail them on this technicality, the them being the ruthless military junta. Margaret Kelly, just producer, just thinks it’s weird whenever we say Huta about the Burmese to say nothing of the mean Americans. Lisa Montgomery, executive producer of Slate podcasts, Check the Dominion and it’s Myanmar’s people from Myanmar. Are Myanmar’s ME and Myanmar down by the schoolyard? You know the gist. You know, normally I wouldn’t even poke fun at a people’s names or their country’s names, though I might have a childish instinct to do so. But Myanmar as a name is actually seen as oppressive and an imposition to the freedom loving Burmese. So what am I doing here? I am engaging in an act of subtle international solidarity and subversion. Hero. It’s a cloak I wear loosely yet comfortably super duper. And thanks for listening.