Saturday, September 21, 2019

Denial, Deflection, Diversion, Alliteration

Is this deflection effective or ineffective?

In an exclusive interview with NPR, House Speaker Nancy Pelosi says she has not changed her mind on pursuing impeachment but is ready to change the law to restrain presidential power and make it clear that a sitting president can, in fact, be indicted.

"I do think that we will have to pass some laws that will have clarity for future presidents. [A] president should be indicted, if he's committed a wrongdoing — any president. There is nothing anyplace that says the president should not be indicted," Pelosi told All Things Considered host Ari Shapiro and NPR congressional correspondent Susan Davis on Friday. "That's something cooked up by the president's lawyers. That's what that is. But so that people will feel 'OK, well, if he — if he does something wrong, [he] should be able to be indicted.' "

It is simply too obvious to be effective.  There is merely one remedy the Constitution lays out to punish a lawless president, set out in  Article II, Section 4, which provides that he (as was assumed) "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

As Pelosi notes, there is no constitutional provision or statute which prohibits charging, or even indicting, a sitting President for a criminal offense. 

The Speaker recommends allowing indictment of a future president, thereby giving this president a pass.  As she would happily admit, there is no chance that this United States Senate, controlled by the GOP (and by a Majority Leader whose wife serves in Trump's cabinet), would approve legislation which would include the incumbent. Further, Pelosi's reference to "wrongdoing" minimizes the actions of the current President, which go far beyond mere "wrongdoing."

Pelosi was understandably vague, though she notes there is no constitutional provision or statute which prohibits charging, or even indicting, a sitting President for a criminal offense. Rather, the troika of Attorney General Barr, then-Deputy Attorney General Rosenstein, and Special Counsel Mueller decided law would not apply to this President. Indictment of a sitting President should not imply that it is overturning existing law or in any way plowing new ground. Instead, it should reflect the reasoning laid out in late May by Senator Warren, who argued

Congress should make it clear that it wants the President to be held accountable for violating the law, just like everyone else.

Title 18 of the United States Code, which contains most provisions of federal criminal law, applies to “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission[.]” Congress should clarify that it intends for this provision to apply to all persons — including the President of the United States.

If Congress does so, one of the strongest arguments against indictment disappears: that the Constitution gives Congress the sole authority to decide when to interfere with the President’s duties, and that a criminal indictment would forcibly take that power away from Congress. It’ll also remove any statutory ambiguity that remains.

That recommendation is self-serving in reverse; it was made by someone hoping to become the next president, who thus would be bound by its provisions.  By contrast, Speaker Pelosi's suggestion was a transparent effort to deflect attention from the new, additional support for impeachment proceedings in the wake of the revelation of the President's effort to convince the government of Ukraine to investigate a major rival.

Impeachment of President Trump is a moral, and perhaps strategic, necessity. However, Speaker Pelosi obviously believes that proceedings would jeopardize re-election of House Democrats in swing districts and, thus, the Democratic majority in the chamber. She's making a big bet that in the absence of impeachment, in November 2020 she retains the majority and Donald Russia is defeated.  This is a gamble neither she, the country, nor the world can afford to lose.

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