Corruption, Democracy, Elections, Intelligence, Neo-liberalism, Populism

Designing Better Impeachments

Feb 5 2020

Aziz Huq, Tom Ginsburg, David Landau (*) – Boston Review

How other countries’ constitutions protect against political free-for-alls.

As dramas go, this one was devoid of suspense. The Senate trial of President Donald Trump always had a foregone conclusion. This inevitability did not hinge on the strength of the evidence against the president, nor did it turn on his political allies’ successful prevention of formal consideration of evidence. Certainty was, rather, hardwired.

Nonetheless the trial raises difficult—and pressing—questions. Is it possible to do better? Do impeachment proceedings inevitably collapse into exercises in raw politics? And who is to blame this time?

Do impeachment proceedings inevitably collapse into exercises in raw politics? Is it possible to do better?

If, like us, you are reasonably confident in the damning evidence against the president and agree that the Constitution does not require a statutory criminal act for impeachment, there is a facile answer to this last question: Senate Republicans are at fault for derailing a credible process. One might also look past their particular voting behavior and blame the “all-time record” support for Trump among the Republican rank and file.

Either way, though, this diagnosis misses an important part of the story: the political legitimacy of impeachment trials can prevail only when the institutional design allows it. The failure of a meaningful probe of the president’s actions reflects not so much the unusual circumstances of the Trump presidency as a more profound deficiency in our institutions.

The problem crystallized in the Trump impeachment process is not the intrusion of politics into a proceeding characterized by “due process” or defined by the Bill of Rights. Rather, the problem is our lack of non-democratic institutions that can mediate inevitable conflicts between partisan motives and legal protections in investigations of presidential wrongdoing. Partisan rancor rules. As Gerald Ford famously quipped, an impeachable offense is “whatever a majority of the House of Representatives considers it to be at a given moment.”

The political legitimacy of impeachment trials can prevail only when the institutional design allows it.

Impeachment is globally understood as a necessary safeguard against the abuse of presidential power, and many constitutions understand the importance of getting this right. Some 90 percent of democratic constitutions contain provisions—beyond electoral defeat or term limits—for removing a chief executive. Our recent study of almost 200 other democratic constitutions, moreover, shows that other countries recognize a basic tension between law and politics in impeachment efforts and assign institutional roles to balance those pressures.

n the United States, such checks are almost wholly missing. We believe American democracy can do better.

Last October Senators Lindsay Graham and Mitch McConnell proffered a Senate resolution to condemn the House impeachment as “undemocratic.” Beyond the fact that the articles of impeachment allege a serious presidential effort to derail democratic choice, the Graham-McConnell claim reflects a deeper problem. To say that a polity is democratic only when all its component parts are democratic is a fallacy of composition. Indeed, a democracy needs non-democratic components. It needs police and security forces that don’t selectively enforce the law against a president’s opponents. It needs a bureaucracy that doesn’t squeeze those opponents through unexpected tax assessments or regulatory attention. It needs courts that apply the law without prejudice in ordinary and political cases. And it needs neutral and apolitical agencies to manage elections and other elements of the democratic process.

Unelected actors such as election commissioners, generals, and Supreme Court judges have historically played critical roles in democracy’s defense. 

As two of us have shown in recent empirical work, when the quality of democracy ebbs and threatens to collapse into autocracy, it is usually not the people who rise up, Dead Poets Society style, to vindicate la volonté générale. Rather, unelected actors such as election commissioners, generals, and Supreme Court judges have historically played critical roles in democracy’s defense. 

Despite Graham and McConnell’s argument, the U.S. Constitution turns out to fit comfortably within the mainstream of international constitutional design in ensuring that the “people” have a say when removing a president. In most democratic constitutions, the choice of decision-maker and voting rule mediate the tension between impeachment and electoral choice. A majority of democratic constitutions entrust the decision to begin impeachment to an elected body—the legislative branch. They also use a supermajority voting rule for removal as a guardrail against partisan legislative disagreement with the people’s choice for president.

Like some 99 other democratic constitutions, the U.S. Constitution allows only the lower house to initiate impeachment proceedings. And like some 53 other constitutions, it employs a two-thirds majority voting rule for removal. Ten other constitutions go further by requiring a three-quarters majority.   

It is typically a good idea to put legislators at the helm during an impeachment. It forecloses any argument that some elusive “deep state” is to blame for a president’s downfall. And, at a minimum, most of those asked to deliberate on an impeachment are likely to face their voters again after the fact.

A global perspective suggests that there are solutions to highly partisan outcomes when law and politics collide in impeachment proceedings.

But the pivotal role of legislators creates a difficult problem. How is the process to reconcile partisan motives, which inevitably seep or surge into impeachment proceedings, with the demands of regularity, legality, and rigor associated with the rule of law? How can we prevent the process from falling prey to the short-term, electoral interests of legislators? How can we balance law and politics?

Impeachment proceedings are best served by substantive standards that guide judgment as well as apolitical guardrail institutions. Together they help establish the facts of a case and ensure a reasonably fair-minded application of the law to facts. They thus inject a much-needed dose of unpredictability into the process. Hard facts can emerge in ways that the president’s co-partisans cannot easily dodge. Where an impeachment fails to meet the constitution’s legal standard, these institutions can say so. Uncertainty turns out to be a critical component of the rule of law.

On these measures, the U.S. legal system does not do well. Many other democracies engage different actors in the impeachment process precisely to mitigate partisan interests. Most importantly, this means using courts as safeguards. Constitutions in 9 democracies give a court—often the country’s constitutional court—the power to begin an impeachment; another 61 constitutions place the court at the end of the process. We focus on the second approach.

Under South Korea’s constitution, the constitutional court must approve all impeachments after their passage in the National Assembly. Twice in the past two decades it has supported a president’s impeachment. But in 2004, the court declined to remove President Roh Moo-hyun, clarifying that removal would occur only if there was a “grave violation” of law and if “necessary to rehabilitate the damaged constitutional order.” It superseded the Assembly’s political and fact-finding role while preserving the bench as ultimate arbiter of the law. Thirteen years later it approved President Park Geun-Hye’s removal, applying the legal test it had set forth in the Roh case, and carefully screening the various charges brought by the Assembly. Park was then convicted in criminal court for related charges and is currently serving a twenty-four-year prison term.

The recent case of Brazil’s President Dilma Rousseff provides another example of a judicial role in impeachment proceedings. The court didn’t stand in final judgment. Rather, it served to clarify questions of procedure to improve the integrity of the process, making it responsive to law as well as politics. For instance, in December 2015, at the beginning of the impeachment process, the court ruled that the committee investigating Rousseff was in violation of the relevant laws and regulations. It needed to be reconstituted, said the court, because it was stacked with proponents of impeachment.

The U.S. Constitution was drafted long before we had any evidence of what might be necessary to uphold the rule of law in presidential impeachments.

Other constitutions dispense with the need of a court as an independent arbiter. South Africa’s 1996 constitution—in many respects an exemplary—creates a set of “Chapter IX” institutions outside of politics and oriented toward “supporting constitutional democracy.” Among these is the Public Protector, a seemingly weak financial ombudsman. But in 2012, during the tenure of President Jacob Zuma, the Public Protector Thuli Madonsela begin publishing searing reports on the endemic financial corruption of the Zuma regime, including details of Zuma’s lavish spending on a country retreat in Nklanda. When presidential allies in South Africa’s parliament blocked any action on these reports, opposition political parties obtained an order from the Constitutional Court requiring action. Madonsela’s intervention, abetted by the justices, is widely understood as seeding an erosion of political support for Zuma, ultimately leading to his resignation on the eve of an impeachment vote.

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To be clear, not every country of the seventy we cite as having safeguards to the integrity of the process has an independent body to uphold the legality of impeachments. There are many constitutions hewing to the U.S. model, which excludes independent refereeing of the presidential impeachments. We see South Korea, Brazil, and South Africa as offering models of “best practices” for reconciling the competing pulls of law and politics in this context.

The United States have much to learn from these examples. The U.S. Constitution was drafted long before we had any evidence of what might be necessary to uphold the rule of law in presidential impeachments. It does not expressly recognize a role for other institutions, except for the chief justice’s (so far) largely ceremonial role presiding over the trial. Indeed, the Supreme Court has labeled challenges to the fairness of an impeachment as “political questions” that fall categorically beyond their purview. In the United States the court might not even be the best institution to play a safeguarding role, considering how polarized it has become in the last decade.

With reform, the Justice Department might play that role one day. In the Trump administration, and arguable before then, it has failed to maintain a reputation for neutrality or upholding the rule of law. Attorney General William Barr’s highly selective perspective on the Mueller report is generally understood as a partisan effort to protect the president. Still, the possibility of the Justice Department as an independent voice on both questions of fact and law is politically feasible.

A global perspective suggests that there are solutions to highly partisan outcomes when law and politics collide in impeachment proceedings. But we should not expect any quick or easy fixes in our own polarized landscape. To the contrary, vigorous resistance will meet any effort to redeem U.S. politics from its own worst impulses. But American democracy must find a solution to this critical challenge.

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(*) Aziz Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago.  Tom Ginsburg is Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago. David Landau is Mason Ladd Professor and Associate Dean for International Programs at the Florida State University College of Law.

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Annex:

Noam Chomsky: Sanders Threatens the Establishment by Inspiring Popular Movements

C.J. Polychroniou* – Truthout

The impeachment trial of Donald Trump for power abuses is winding down, with his acquittal all but ensured when the Senate reconvenes on Wednesday to vote on the articles of impeachment. Yet, his real crimes continue to receive scant attention, and it is Sen. Bernie Sanders who is regarded by the political establishment as the most dangerous politician because of his commitment to a just and equitable social order and a sustainable future. Meanwhile, the conclusion of the Davos meeting in January demonstrated the global elites’ ongoing commitment to unimpeded planetary destruction.

This is indeed the state of the contemporary U.S. political environment, as the great public intellectual Noam Chomsky points out in this exclusive interview for Truthout.

C.J. Polychroniou: The impeachment trial of Donald Trump isnearly over, and what a farce it has been — something you had predicted from the start, which is also the reason why you thought that an impeachment inquiry was a rather foolish move on the part of the Democrats. With that in mind, what does this farcical episode tell us about the contemporary state of U.S. politics, and do you anticipate any political fallout in the 2020 election?

Noam Chomsky: It seemed clear from the outset that the impeachment effort could not be serious, and would end up being another gift by the Democrats to Trump, much as the Mueller affair was. Any doubts about its farcical nature were put to rest by its opening spectacle: Supreme Court Chief Justice John Roberts struggling to keep a straight face while swearing in senators who solemnly pledged that they would be unmoved by partisan concerns, and at once proceeded — as everyone know they would — to behave and vote along strictly party lines. Could there be a clearer exhibition of pure farce?

Are the crimes discussed a basis for impeachment? Seems so to me. Has Trump committed vastly more serious crimes? That is hardly debatable. What might be debatable is whether he is indeed the most dangerous criminal in human history (which happens to be my personal view). Hitler had been perhaps the leading candidate for this honor. His goal was to rid the German-run world of Jews, Roma, homosexuals and other “deviants,” along with tens of millions of Slav “Untermenschen.” But Hitler was not dedicated with fervor to destroying the prospects of organized human life on Earth in the not-distant future (along with millions of other species).

Trump is. And those who think he doesn’t know what he’s doing haven’t been looking closely.

Is that a wild and ludicrous exaggeration? Or the very simple and apparent truth? It’s not difficult to figure out the answer. We’ve discussed it often before. There is no need to review what is happening on Trump’s watch while he devotes every effort to accelerating the race to catastrophe, trailed by such lesser lights as Brazil’s Jair Bolsonaro and Australia’s Scott Morrison.

Every day brings new forebodings. We have just learned, for example, that the gigantic Thwaites Glacier in West Antarctica has been eroding from warm water below. The Washington Post describes this as “a troubling finding that could speed its melt in a region with the potential to eventually unleash more than?10 feet?of sea-level rise,” adding, “Scientists already knew that Thwaites was losing massive amounts of ice — more than?600 billion tons?over the past several decades, and most recently as much as 50 billion tons per year.” It has now been confirmed, as suspected, that “this was occurring because a layer of relatively warmer ocean water, which circles Antarctica below the colder surface layer, had moved closer to shore and begun to eat away at the glaciers themselves, affecting West Antarctica in particular.” The chief scientist involved in the study warns that this may signal “an unstoppable retreat that has huge implications for global sea-level rise.

That’s today. Tomorrow will be something worse.

What’s causing the warmer water? No secret. This is only one of the likely irreversible tipping points that may be reached if “the Chosen One,” as he modestly describes himself, is granted another four years to carry out his project of global destruction.

We have just witnessed an extraordinary event at the January Davos meeting of the Masters of the Universe, as they are called; for Adam Smith, they were only “the masters of mankind,” but 250 years ago it was just British merchants and manufacturers.

The conference opened with Trump’s oration about what a fabulous creature he is. The encomium was interrupted only by a comment that we should not be “alarmist” about the climate. His Magnificence was followed by the quiet and informed comments of a 17-year old girl instructing the heads of state, CEOs, media leaders and grand intellectuals about what it means to be a responsible adult.

Quite a spectacle.

Trump’s war on organized life on Earth is only the barest beginning. More narrowly, in recent days, the Chosen One has issued executive orders ridding the country of the plague of regulations that protect children from mercury poisoning and preserve the country’s water supplies and lands, along with other impediments to further enrichment of Trump’s primary constituency, extreme wealth and corporate power.

On the side, he has been casually proceeding to dismantle the last vestiges of the arms control regime that has provided some limited degree of security from terminal nuclear war, eliciting cheers from the military industry. And as we have just learned, the great pacifist who is committed to end interventions “dropped more bombs and other munitions in Afghanistan last year than any other year since documentation began in 2006, Air Force data shows.”

He is also ramping up his acts of war — which is what they are — against Iran. I won’t even go into his giving Israel what the Israeli press calls “a gift to the right,” formally giving the back of his imperial hand to international law, the World Court, the UN Security Council and overwhelming international opinion, while shoring up the Evangelical vote for the 2020 election. The prerogative of supreme power.

In brief, the list of Trump’s crimes is immense, not least the worst crime in human history. But none merit a nod in the impeachment proceedings. This is hardly a novelty; rather the norm. The current proceedings are often compared with Watergate. Nixon’s hideous crimes were eliminated from the charges against him despite the efforts of Rep. Robert Frederick Drinan and a few others. The Nixon impeachment charges focused on his illegal acts to harm Democrats.

Any resemblance to the farce that is now winding up? Does it suggest some insight into what motivates the powerful?

Speaking of the 2020 election, the corporate Democratic establishment and the liberal media are once again mobilizing to undermine Bernie Sanders, even though he may very well be the most electable Democrat. First, can you summarize for us what you perceive to be the core of Sanders’s politico-ideological gestalt, and then explain what scares both conservatives and liberals — the possibility of someone like Sanders leading the country?

The core of Sanders’s “politico-ideological gestalt” is his long-standing commitment to the interests of the large majority of the population, not the top 0.1 percent (not 1 percent, 0.1 percent) who hold more than 20 percent of the country’s wealth, not the very rich who were the prime beneficiaries of the slow recovery from the 2008 disaster caused by financial capital. The U.S. achievement in this regard far surpasses that of other developed countries, so we learn from recently released studies, which show that in the U.S., 65 percent of the growth of the past decade went to the very rich; next in line was Germany, at 51 percent, then declining sharply. The same studies show that if current trends persist, in the next decade all growth in the U.S. will go to the rich.

The welfare of these sectors has never been Sanders’s concern.

The Democratic establishment and liberal media are hardly likely to look kindly on someone who forthrightly proclaims, “I have no use for those — regardless of their political party — who hold some foolish dream of spinning the clock back to days when unorganized labor was a huddled, almost helpless mass…. Only a handful of unreconstructed reactionaries harbor the ugly thought of breaking unions. Only a fool would try to deprive working men and women of the right to join the union of their choice.” By “right to work” laws, for example, or by hiring scabs, or by threatening to ship jobs to Mexico to undermine organizing efforts, to sample the bipartisan political leadership.

That’s surely the kind of socialist wild man whom the country is not ready to tolerate.

The wild man in this case is President Dwight Eisenhower, the last conservative president. His remarks are a good illustration of how far the political class has shifted to the right under Clintonite “New Democrats” and the Reagan-Gingrich Republicans. The latter have drifted so far off the political spectrum that they are ranked near neo-fascist parties in the international spectrum, well to the right of “conservatives.”

Even more threatening than Sanders’s proposals to carry forward New Deal-style policies, I think, is his inspiring a popular movement that is steadily engaged in political action and direct activism to change the social order — a movement of people, mostly young, who have not internalized the norms of liberal democracy: that the public are “ignorant and meddlesome outsiders” who are to be “spectators, not participants in action,” entitled to push a lever every four years but are then to return to their TV sets and video games while the “responsible men” look after serious matters.

This is a fundamental principle of democracy as expounded by prominent and influential liberal 20th–century American intellectuals, who took cognizance of “the stupidity of the average man” and recognized that we should not be deluded by “democratic dogmatisms about men being the best judges of their own interests.” They are not; we are — the “responsible men,” the “intelligent minority.” The “bewildered herd” must therefore be “put in their place” by “necessary illusions” and “emotionally potent simplifications.” These are among the pronouncements of the most influential 20th–century public intellectual, Walter Lippmann, in his “progressive essays on democracy”; Harold Lasswell, one of the founders of modern political science; and Reinhold Niebuhr, the admired “theologian of the (liberal) establishment.” All highly respected Wilson-FDR-Kennedy liberals.

Inspiring a popular movement that violates these norms is a serious attack on democracy, so conceived, an intolerable assault against good order.

I believe we witnessed something similar in the last U.K. elections in the case of Jeremy Corbyn. Do you agree? And, if so, what does this tell us about liberal democracy, which is nowadays in serious trouble itself on account of the rise and spread of authoritarianism and the far right in many parts of the world?

There are definite similarities. Corbyn, a decent and honorable man, was subjected to an extraordinary flood of vilification and defamation, which he was unable to confront. At the same time, polls indicated that the policies that he put forth — and that had led to a remarkable victory for Labour in 2017 — remained popular. A special feature in the U.K. was Brexit, a matter I won’t go into here (my personal opinion, for what it’s worth, is that it is a serious blow to both Britain and the EU, and is likely to cause Britain — or what remains of it — to become even more of a vassal of the U.S. than it has been under Blair’s New Labour and the Tories, whose social and economic policies have caused the country great harm). Corbyn’s vacillation on the Brexit issue, which became a toxic one, surely contributed to the negative feelings about him that seem to have been a major factor in the electoral disaster for Labour, but it was only one.

As in the case of Sanders, I suspect that the prime reason for the bitter hatred of Corbyn on the part of a very wide spectrum of the British establishment is his effort to turn the Labour Party into a participatory organization that would not leave electoral politics in the hands of the Labour bureaucracy and would proceed beyond the narrow realm of electoral politics to far broader and constant activism and engagement in public affairs.

More generally, much of the world is aflame. As the men of Davos recognized with trepidation at their January meeting, the peasants are coming with their pitchforks: The neoliberal order they have imposed for the past 40 years, while ultra-generous to them and their class, has had a bitter impact on the general population. A leading theme at Davos was that the Masters must declare that they are changing their stance from service to the rich to attending to the concerns of “stakeholders” — working people and communities. Another theme was that while not “alarmists,” they acknowledge the threat of global warming.

The unstated implication is that there is no need for regulations and other actions about climate change: We Big Boys will take care of it. Greta Thunberg and the other children demonstrating out there can go back to school. And now that we see the flaws in our neoliberal model of capitalism, you can put aside all those disruptive political programs calling for health care, rights of workers, women, the poor. We’re taking care of it, so just go back to your private pursuits, keeping to democratic norms.

As the neoliberal order is visibly collapsing, it is giving rise to “morbid symptoms” (to borrow Gramsci’s famous phrase when the fascist plague was looming). Among these are the spread of authoritarianism and the far right that you mention. More generally, what we are witnessing is quite understandable anger, resentment and contempt for the political institutions that have implemented the neoliberal assault — but also the rise of activist movements that seek to overcome the ills of global society and to stem and reverse the race to destruction.

The confrontation could hardly have been exhibited more dramatically than by the appearance of Greta Thunberg immediately after the most powerful man in the world — the leader in the race to destruction — had admonished the Masters to disdain the “heirs of yesterday’s foolish fortune tellers” (virtually 100 percent of climate scientists) and to take up his wrecking ball.

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*C.J. Polychroniou is a political economist/political scientist who has taught and worked in universities and research centers in Europe and the United States.

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