Congress now in impeachment spotlight, but its powers fade

Gordon L. Weil

A funny thing happened to the House on its way to impeachment. It got lost.

It happened a long time ago. Despite the unusual focus of impeachment on the role of Congress, it highlights just how irrelevant the national legislature has otherwise become.

In the congressional conflict with President Trump, its leaders stress that the House and Senate were placed in Article I of the Constitution for a reason. In a government with "three co-equal" branches, the legislative branch is really most important.

The House majority disputes Trump's objections to impeachment, reminding him that the Constitution gives the House "the sole power of impeachment." This congressional power provides no role for the president.

In reality, among the three branches of government – legislative, executive and judicial – Congress may have the least power. Compared with the executive, it obviously comes in second.

Shedding oppression by the British king, the drafters of the Constitution sought to ensure control of the federal government would not be exercised by one person but by legislators representing the states and the people. Hence, Article I.

But they were overly optimistic. Three of the country's greatest presidents would deal with challenges that increased their powers. Washington was empowered to create the federal executive. Lincoln led the country to save the Union. F.D. Roosevelt rallied the nation to reform the failing economy and win a world war.

Even without those events, central control of the military and foreign affairs in the world's major power made a strong executive inevitable.

The country spread across a continent. At the same time, managing public affairs became more complex as government dealt with matters ranging from race relations to railroads.

From the outset, Congress delegated to the president powers that were meant to be under its control. The task of governing became so complex that authority came to be exercised by executive branch officials and regulators.

Gradually, Congress accepted that the president should be granted broad authority because either the chief executive could respond rapidly to new problems or members of Congress could avoid responsibility for necessary but unpopular policies. As impeachment reveals, Congress is left with little ability to control presidential action.

In recent decades, Congress has also allowed the Supreme Court to make legislative decisions that were its responsibility. Because the legislative body either passes unclear and conditional laws or doesn't pass them at all, the Court often fills the gap.

Take the abortion issue as an example. While federal law bans spending for abortions, it fails to define rights or limits, if any, for the procedure. In filling this gap, the Supreme Court issued its decision in Roe v. Wade. The matter was settled, perhaps tentatively, by nine justices, not by the elected Congress.

Strict party allegiance and the resulting partisanship promote executive power. Parties in Congress back, almost blindly, presidents of their own party.

Senate Majority Leader McConnell won't allow votes on major bills unless he is assured of White House support. Ceding all power to the president, the Senate has given up the role of an independent legislature.

What about Maine? Gov. Paul LePage set the record for vetoes, even rejecting bills passed with huge majorities or even unanimously. After the Legislature received a LePage veto, Republicans would often reverse their previous support for the bill and sustain their governor's position to kill it.

Public opinion rates Congress even less favorably than the president. Compared with the president, members of Congress, whose prime focus is gaining re-election, seem to take little action. In part, that appearance results from the media focus on the president, easier to cover than Congress.

During the unusual House exercise of its unique power of impeachment, the favorability rating of Congress has increased. While that rating gain may be heavily partisan, it recognizes a rare moment of congressional action. The people probably want more.

To recover power, Congress could pass simple and unconditional legislative directives, not leaving it to the executive branch to fill in the blanks. It should decide tough issues and not leave them to the courts. Both take hard work and the courage to resist special interests.

By stripping power from congressional leaders, members would be less straitjacketed by party discipline. Beginning in 1994, party discipline became a major cause of extreme partisanship. And, by giving leaders complete power to set the agenda, members allow them, like the president, to weaken the legislative branch.

Voters elect legislators, not political robots. Members should focus more on exercising their legislative powers and worry less about their permanent campaigning for re-election.

Trump, Sanders seek to reform 'liberal world order'

Gordon L. Weil

Is the presidential campaign already boring or confusing?

The pundits endlessly ponder, "Who won the last debate? Who's ahead in the Democratic caucus in Iowa? Can Trump win again?"

As usual, people following politics are being treated to a campaign covered like a sports event.

But this may be a landmark election. Despite appearances, it won't simply be about keeping or rejecting Donald Trump as president. It will offer a stark choice about the country's future. There are three options.

The choice starts, not with Trump, but with the "liberal world order." That's the system that emerged following the end of the Second World War in 1945. It is not "liberal" in the narrow political meaning. In this case, liberal means freedom and democracy for all.

Under this system, American-style democracy was supposed to take root in many countries. Governments would be chosen by the people. Their main task would be improving the quality of life of citizens. Average people would gain a greater share of national wealth through new jobs and prosperity.

Military conflict among countries would be reduced, because nations would agree on rules for settling their differences. The United Nations would allow the winners of the Second World War to ensure the rules were followed, so that peace could be promoted.

In Europe and elsewhere, this new world order succeeded under American leadership, but it also experienced obvious failures, which became more apparent over time.

National democracy produced disappointing results for many people. Instead of promoting prosperity, it could cause a growing gap between the wealthiest people and the rest of the population. Woman and minorities did not gain equality with dominant groups.

In world affairs, the Soviet Union rose, broke the rules, and eventually declined, leading to hopes that Russia, its successor, would join the new order. Instead, Russia rose and broke the rules. So did China. Non-government terrorists attacked. The U.S. engaged in endless wars based on questionable assumptions. The U.N. was helpless.

In the U.S. and other countries, the new order was challenged for its shortcomings. A new generation of leaders offered a second option.

Trump would "make America great again," going back to a time before the new order. Taxes would be cut. The growing political power of minorities would be reduced. Environmental controls on business would be slashed, because they are obstacles to wealth creation.

The U.S. would reject allies and alliances as having failed to produce results. The only international rules worth following are homemade.

Trump is no great theorist. His focus is self-promotion. To gain support, he chose to serve as the conduit for the political views of those who reject the post-war order.

He is not alone. The U.K. move to leave the EU and Turkey's move to reduce its NATO ties depart from the "liberal" view. Dictators, or at least authoritarians, displace democracy. The ruler of Hungary openly proclaims he is "illiberal."

If you were unhappy with the results of the "liberal world order," you wanted change. Whatever else Trump offered, it surely was change.

The third option is a different kind of change. Bernie Sanders in the U.S. and Jeremy Corbyn in the U.K. believe people reject a "liberal world order" that has produced inadequate public services, economic discrimination and unnecessary wars. Unlike Trump, their vision does not look back.

They believe the post-war order did not go far enough. If the "liberal order" gave freedom to corporations and left society under the control of the wealthy few, then they say it is time to give power to a truly democratic government in which each person counts the same.

The three choices lie just below the surface of the 2020 campaign.

Trump offers a continuation of the modern Republican program to reduce "political correctness" in favor of a more authoritarian government, less emphasis on minority rights, and less environmental regulation.

The Democrats are divided on the alternative to offer voters. Some want to erase the Trump presidency just as he has tried to erase the Obama presidency. They would return to the liberal order, while improving health care and fighting global warming.

Other Democrats respond to the demand for change and would repair the failures of the old order through greater common action led by government and financed by higher taxes on the wealthy. Though exaggerated, some label this "socialism."

This is not a routine election about who wins the impossible job of president. It is about making a major decision on where the country wants to go.

The impeachment and trial of Trump – in three acts; Search for the 'smoking gun'

Gordon L. Weil

Americans are not great theater-goers. But the theater is now coming to us.

It is a major national show: "The impeachment and trial of Donald J. Trump – in three acts."

We already have a pretty good idea of the plot, but we remain fascinated by the leading character.

Act 1 is the impeachment inquiry. Democrats seek to build a case that President Trump improperly asked a foreign leader, the Ukraine president, to announce a review of the false claim that former Vice President Joe Biden undermined a Ukraine investigation of his son Hunter. An earlier investigation there had turned up nothing.

The Democrats also want to show that Trump withheld vital military aid to Ukraine to force an announcement about the Biden case and the discredited claim that it had meddled in the 2016 campaign to help Hillary Clinton. This trade-off would be the famous "quid pro quo."

In the now famous July 25 call, Ukraine President Volodymyr Zelensky thanked Trump for military aid and promised even more military purchases from the U.S.

Trump immediately responded, "I would like you to do us a favor though...." Does the use of "though" mean that aid depended on that favor?

Republicans claim there's no direct evidence that Trump took any such improper actions, though Trump tries to block his staff from testifying and withholds documents. And nothing really happened, because the aid flowed, though only after a whistleblower revealed the call, and there were no new Ukraine investigations.

Democrats on the House Intelligence Committee are drafting a list of charges and will recommend impeaching Trump. The House Judiciary Committee could add obstruction of justice and other charges.

Act 2 will be the House debate. A united GOP will argue that Trump's requested "favor" and efforts to block the investigation fall short of impeachable offenses. The Democrats, without Republican votes or hope of removal by the Senate, will vote to impeach.

Why would they impeach Trump, if they can't win?

Though impeachment will look partisan, Democratic leaders believe it is important to act if they find Trump abused his powers.

This case will be only the fourth time the House has considered impeachment. If a president is ever again charged, House action now would help define the broad offenses in the Constitution that could one day influence that case. Of course, it would also strike a political blow at Trump in an election year.

Act 3 will be the trial in the Senate. It would take 67 senators to remove Trump from office. At least 20 Republicans would have to decide Trump is guilty. That seems virtually impossible.

Why won't Republican senators vote against Trump? The GOP has become Trump's party and is now so closely tied to him that his defeat could threaten Republican senators in the 2020 elections and the future of the party itself.

Presidents Andrew Johnson, Richard Nixon and Bill Clinton all left obvious fingerprints on their offenses, so the charges were easily pinned on them. Republicans stress that proof of Trump's responsibility comes mainly from others, even though some reports come from multiple witnesses.

The Republicans charge witnesses are biased. For the GOP, not only must there be a "smoking gun," but there must be a picture of it in Trump's hand. The Democrats keep looking for it.

The only remaining question is if Trump's actions rose to a sufficiently high level that he should be removed. The two previously impeached presidents were not removed. Nixon would have been forced from office, so he became the only president to resign.

The GOP will continue to argue that, even if Trump had threatened a "quid pro quo," he caused no harm. His mere attempt is not an impeachable offense. The Democrats will say lives were lost because of the aid freeze.

The Republican position is bolstered by Zelensky's failure to claim that he felt any pressure from Trump. Obviously, he is mindful of his country's dependence on the U.S., which may influence his attitude. He wants to stay out of American politics.

Though the plot of this drama seems easy to forecast, the show will go on. We want to see the actors perform, and we hope for surprises.

There is at least a slight possibility that, even though not removed from office, Trump would fail to gain the majority support of the Senate. That might take the opposition of only three Republicans. And that could influence the 2020 elections.

Whatever happens, this play won't be a comedy; it could well be a tragedy.

Supreme Court "umpires" face historic challenge in Trump cases

Gordon L. Weil

"Judges are like umpires," said John Roberts, the Chief Justice of the U.S. Supreme Court.

"Umpires don't make the rules; they apply them," he continued. "It's my job to call balls and strikes and not to pitch or bat."

An academic study showed that home plate umpires make an average of 14 bad calls in each game. The best umpires miss more than seven percent of calls. Supposed to simply apply the rules, they determine just what the rules mean.

Members of the Court express their opinions of what the law is and make some bad calls. A Supreme Court decision is officially called an "opinion," a reminder there's no objective method of determining the law, just as umpires' calls are a matter of their judgment.

Roberts and the rest of the Court are now taking the playing field in one of the most important "games" ever played in American history. They will be faced with deciding how much power the Constitution gives to the president. The opposing teams are the Democrats and the Republicans.

The Democrats believe President Trump has gone beyond the bounds of his office. The Republicans, who might share that view if the president were a Democrat, somewhat nervously defend their president and his use of power.

Roberts tries to convince people that the Court is neither Republican nor Democratic. He points to unanimous decisions or ones in which party lines don't matter. That's true, but it ignores cases where the Court has the last word on what the Constitution means.

Recent GOP presidents have asserted they have virtually unlimited power to meet the challenging needs of the times. The courts, not Congress, are the only check on the president. By trying to stack federal courts with his appointees, the president may hope for supportive rulings.

The country is now about to see if the judges are good umpires or if they reveal bias one way or the other. They proceed carefully, but sometimes delay to help one side, taking months to decide. Unlike umpires, who must make snap decisions, the judges set their own rules on how long to take.

There are at least the types of cases on presidential power that may force the Supreme Court to show if they are big league umpires.

While they hold office, are presidents immune from the law on matters outside of the government? Previously, the Court concluded unanimously that Presidents Nixon and Clinton did not have such immunity.

A few cases concern whether Trump must turn his income tax returns over to legitimate investigations at the state and federal levels. In one such case, Trump's lawyer claimed in court that the president could not even be investigated for murder as long as he was in office.

Does the president have a privilege allowing him to prevent people in his administration from testifying or turning documents over to a legitimate investigation? While courts have ruled that communications directly with him may enjoy "executive privilege" is there a "presidential privilege" that goes further?

Courts will have to determine if "checks and balances" applies or if the president can completely block executive branch officials from testifying in a congressional proceeding.

Are presidential powers unlimited? This year, Trump said: "I have an Article 2 [of the Constitution] where I have the right to do whatever I want as president." Is that true? If so, there would be no basis for impeaching any president ever.

The Court will have to decide the extent of the power given to the president by the Constitution or acts of Congress. Definitely, this is more than calling balls and strikes.

The American people are about to get a current events lesson on checks and balances among the three branches of the federal government. Roberts and his Court will teach it.

Beyond all that, Roberts will really get to be something of an umpire. It's almost assured that Trump will be impeached and there would be a trial in the Senate. The sole judge will be Roberts, while the Senate will be the jury, rendering its verdict.

This is not a criminal trial, but only to decide if Trump should be removed from office. The decision will be mostly political, not legal. The Republicans say the Democrats seek to reverse the 2016 election at any price. The GOP obviously wants to preserve it, apparently at any price.

The trial will work only if Roberts can ensure it's fair. He'll be like an umpire, surrounded by angry players, in the last inning of the World Series.

Trump created current GOP; impeachment forces it to fight for survival

Gordon L. Weil

There's more at stake in the Trump impeachment process than the fate of the president.

For the Republicans, saving Trump, like him or not, is a matter of saving today's Republican Party, the party that Trump has made.

Contrast President George H.W. Bush with President Trump. Contrast Maine Gov. John McKernan with Gov. Paul LePage.

All of them ran as Republicans. But the second in each pair would likely label the first a RINO, a Republican in Name Only. And, considering today's Trump Republicans, they would be right.

The GOP has historically been the party of business, using government to promote free enterprise in the belief that growth would benefit the entire population. It paid attention to broader social problems, creating the EPA and supporting aid to the poor.

It sought compromises with the Democrats. Differences focused more on the extent and timing of federal policies than on the need for some sort of action. A so-called moderate Republican, if any survives, is a vestige of that party.

Republican voters were generally conservative and fought new spending that led to government deficits. After President Johnson's civil rights laws passed, the party's base came to include anti-civil rights, former Democrats.

Extreme right-wing people had rejected politics on the grounds that the parties cared too much about being "politically correct" on issues of equality among Americans.

Uninhibited by the belief that he would actually win the 2016 election, Donald Trump appealed to untapped extreme anti-government voters that rejected not only the Democrats but also the traditional Republican Party.

The GOP was ripe for a Trumpian takeover. His supporters took control of state parties. Well-organized and sharply focused, they challenged long-term GOP office holders in party primaries. If successful, they might lose to Democrats, but they could flip seats to pure Trump policies.

In a party that was already becoming more conservative, Trump loyalists moved it to the right further and faster. Susan Collins' decision not to run for governor of Maine in 2018 was likely influenced by the possibility that, as a moderate, she could lose in the new GOP's primary.

Even in her Senate re-election, she may be caught in the middle. Not a Trump supporter, she voted to confirm Kavanaugh to the Supreme Court, blunting possible GOP opposition. But that same vote cost her support among independents and Democrats on whom she has relied.

To continue on its course, the Trump Republican Party needs Trump. Admittedly that's a short-term view, but each two-year election cycle is a world unto itself.

The Republican Party is the party of Trump. Susan Collins' party is just a memory. If Trump were removed from office, the party could lose all control over the federal government and probably some state governments. In gambling terms, they have put all their chips on Trump.

The Democratic House may impeach Trump, but that may be passed off as mere partisanship. The votes of at least 20 GOP senators would be needed to remove him from office and, unless the "smoking gun" is found right in the president's hand, those votes will be lacking.

If Trump cannot win in 2020, the last GOP bastion is the Senate. To keep his control and the ability to block a Democratic president, Majority Leader Mitch McConnell may be ready to accept a possible dissenter like Collins, if she can hold onto her seat.

The GOP leadership believes they can win even if they lose. The rural-state weighted electoral vote and Senate representation plus their gerrymandering of congressional districts could allow them run the government with only minority support.

Democratic Speaker Nancy Pelosi seeks a big Democratic margin to overcome the possibility of a minority winner. She also wants to counter any GOP attempt to claim that the Democrats only won because of election tampering.

The Republican reluctance to oust Trump has everything to do with their political survival and, more importantly, with the survival of the Republican Party.

The Democrats seem to ignore this situation and are slipping back into their 2016 attitude: people couldn't possibly take Trump seriously, so they will win simply by not being Trump.

Since any Democrat can win, they think, they mistakenly waste their advantage by attacking or outbidding one another. Trump is politically vulnerable, but not eliminated. The Democrats all oppose Trump policies, but they need to build big-tent unity, not simply assume it. 

Just like the Republicans, the Democrats should grasp the real meaning of the impeachment process. It's not only about who wins the impeachment battle, but who wins in November 2020.