The Ford Maneuver

>> Friday, January 13, 2017

The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. 
- Gerald Ford

Gerald Ford's famous line is always the point zero if you want to talk about Presidential impeachment.  It sort of draws a collective gasp from the rule-of-law crowd whenever it comes up, but he's essentially right: Article II, section 4 of the Constitution doesn't say anything more than "treason, bribery, or other high crimes and misdemeanors" without going to much trouble to explain what "high crimes and misdemeanors" might be (or even, for that matter, if the conjunctive in that phrase should be read exclusively--meaning high crimes or misdemeanors," which I think is what most people assume, or as written).  Meaning that, if the House of Representatives wanted, double-dipping into the hummus at a state function might be an impeachable offense.  Or leaving the toilet seat up.  Or nearly anything.

And this is one of the many, many things that makes the pending Trump Presidency surreal.  We might argue about whether allegedly violating the Tenure of Office Act was really an impeachable offense (or merely an exercise of Presidential prerogatives in ignoring a law of debatable constitutionality).  We might disagree about whether making a misleading statement of questionable materiality while under oath is technically perjury and/or obstruction of justice and whether these things are really encompassed by the phrase "high crimes and misdemeanors."  But bribery--the granting of a gift or payment (or under-the-table "emolument," we might even say) for favor--is right there in the wording of the Constitution.  Conferring, directly or through proxy, with representatives of a foreign government about how to swing an election probably isn't technically treason--another term that's right there in the text--but it seems to be tip-toeing right up to the line of it, yeah?  Violating the Emolument Clause of the Constitution within seconds of being sworn in seems like it could be quite reasonably called a "high crime and misdemeanor" in a way that other hypothetically impeachable offenses might not be.  And so on, et cetera, what-have-you, and all that.  Do we need to stray very far into the conflicts-of-interest and rampant nepotism?  Or allegations of assault and deviancy?

The point being, it's not like the House of Representatives, should it come right down to the wire, is going to have to grasp at straws, here, should they ever have any desire to impeach Donald Trump.  They're not going to have to engage in anything that looks like a partisan witch hunt, they're not going to have to do a lot of moralistic (and possibly hypocritical) finger-wagging, they're not going to have to assemble any labyrinthine legal and constitutional theories to excuse themselves.  They're going to have black-letter law they can point at with this guy.1

This is surreal and baffling.

It also led Alex Pareene, earlier this week, to write an interesting and mostly-on piece earlier this week after Trump's midweek publicity stunt, with the self-explanatory title, "Republicans Have No Good Reason Not To Impeach Donald Trump."  Pareene rebuts the main obvious reasons that Republicans might not impeach Trump--fear of political blowback, the misconception he might be a good figurehead for their agenda, his utility as a human autopen--and... well, again, right there in the title.  Does what it says on the tin.  He misses a reason they might want to wait, I think; but we'll get to that in a minute or two.

I have no idea how long Donald Trump will be President for.  Could be four years.  Could be, Fates preserve us, eight.  But Trump's business entanglements, lack of anything resembling moral and/or personal ethics, narcissism, lack of self-restraint, inability to focus, general ignorance, and history of misbehavior all suggest that his hide and head belong to the House and Senate any time Congress wants to take their shot and claim their trophies.  The moment he's too big a political embarrassment, the moment he doesn't do what he's told, he's out, if they want, when they want.  It's just a matter of will.  And the way things are going, that could be as soon as Trump lifts his hand off the Bible during the inauguration ceremony.

And yet, as I was thinking thoughts about all this, it occurred to me that there might be one other reason for waiting.  The Ford Maneuver, call it.  As in, yes, Gerald Ford (not Harrison, sorry, or even Henry), as in, yes, the same Ford we began the essay with.

Pareene writes, in "Republicans Have No Good Reason Not To Impeach Donald Trump":

Impeaching Trump would not go down well with many Republican voters—though it would win them many new fans in the centrist media, probably—but if they did so, Republicans would still have two solid years of complete control of the government, only now with a properly conservative and pliant president, in Mike Pence, who will obviously sign anything Paul Ryan and Mitch McConnell place on his desk. Even if a conservative grassroots backlash leads to Republican members of Congress losing their seats in 2018, most of them will be replaced with equally conservative Republicans, who will then have another two years to continue to implement the full conservative agenda.

...

As soon as Donald Trump picked Pence, and not some more Trumpian figure, like Don King or his own daughter, he practically made this decision for them. It would be crazy not to impeach him.

And this is true, that Mike Pence would be much more cromulent to many Republicans, and would sign bills from Congress without squawking, would make obvious appointments to the Cabinet and courts, would share their ideological agenda in a way that the obviously apolitical Trump doesn't, and would definitely be a known quantity and not a loose cannon.

And yet... why settle for Pence?

Because, you know, one of the problems with taking a job in the Trump Administration, any job that's anywhere near the top, is that the corruption and possible scandal is going to be rampant.  No, that's not even close: it's going to be a howling void of corruption and scandal, a black hole with the power to spaghettify (and that's a real term) anything dipping even a toe past Trump's event horizon.  Merely taking a meeting with the man--and taking meetings is a substantial part of a Presidency--raises the threat that one will become a part of "What was said on that occasion?" or "Who else was in attendance?" or "And when did you become aware of?"

It is completely conceivable that a Trumpian scandal could engulf everybody in proximity who doesn't resign before they get sucked in and mauled.  It might just be a matter of waiting until the Vice-President, for instance, is given a choice between his own impeachment and being forced to resign (perhaps with a shred of honor and integrity still clinging like a fig leaf in a Renaissance painting of Adam and Eve, or perhaps in the dead of night with a note slipped under the door and no forwarding address).

Bringing us to the part where I remind everyone of both the Twenty-Fifth Amendment to the Constitution and of Title 3, Chapter 1, section 19 of the U.S. Code (commonly known as the Presidential Succession Act of 1947), wherein the Speaker of the House becomes acting President in the case of vacancies in the offices of the President and Vice-President, and/or assumes the Vice-Presidency (and subsequently the Presidency) if the holders of those offices fall like dominoes.

You know.  This is how Gerald "Impeachment Is What We Say It Is" Ford became Vice-President in 1973 when Spiro Agnew needed to free up his schedule for court appearances, and ascended to the Presidency less than a year later when Richard Nixon slithered out of the White House.  Sure, Gerald Ford lost the office when he actually had to run for it--but even after pardoning Nixon and having his inability to handle stairs become the defining initiative of his Presidency, he didn't lose by that wide a margin in either the popular vote or the Electoral College, and this was back when electoral districts were more competitive and kids and black people could still vote in most states.

I guess the question to ask yourself when pondering this Machiavellian angle on the subject is whether you think Speaker Paul Ryan has ever shown any interest whatsoever, at all, at any time in the past, in holding Executive Office.

Well.  We'll see how this goes.  It's definitely going to be an interesting ___ [days | months | years] (circle one).






1 I feel like it's obligatory to address the question of whether the Emoluments Clause applies to the President of the United States, or whether engaging in the ordinary course of business during one's Presidency violates the Clause, especially when one's course of business is an international real estate, hotel, and licensing business.  There appears to be a wide consensus that the Clause applies to the President, and that these activities violate the Clause, and that this is why there has been (until now) a long tradition of Presidents divesting themselves of assets or placing them into a blind trust (something the President-Elect announced this week, through a very soporific attorney, he won't be doing because not-really-reasons).  There are, however, a (smaller, I think) number of lawyers and scholars who have advanced arguments that the President-Elect won't be violating the Clause when he enters office because it doesn't apply to Presidents and/or his earnings aren't emoluments and/or other legit-sounding legal and historical reasons that I'm probably not prepared to argue for or against.

None of this matters, is the thing.

The real point is that if anyone in the House of Representatives wants to argue either side of the case, they have the ammunition to do so.  And if the House impeaches, and Trump's attorneys want to argue in their defense what some expert has said about the Clause, they can do so, and the Senate can decide for themselves if that's compelling, and whichever way they go, they can point to something more objective than partisan fury.

It's interesting, and if you want to go back and forth over cocktails, great.  I guess I mostly just would say that until it's actually being heard in Congress, it remains something reasonable minds can differ over, is all.







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