Appropriate Response

It may be that the essence of strategy is choosing what not to do. That was Obama’s strategy and his foreign policy – “Don’t do stupid shit.” Informally that was “leading from behind” – which worked just fine and drove everyone crazy. That wasn’t leading. That was just staying out of trouble. To which Obama would probably say, yes, it is, and what’s the problem with that? That is a strategy. Or perhaps Napoleon was right – never interrupt your enemy when he is making a mistake. That might be strategy enough, but both approaches seem far too passive. Do something. Have a goal. Choose a strategy to reach that goal. Develop specific tactics to support that strategy. And then do something. But of course sometimes doing nothing is the best strategy. It drives people crazy, but it works.

This seems to be Nancy Pelosi’s dilemma, as William Saletan discusses here:

Is Nancy Pelosi a sellout? This week, a chorus of progressives chastised the House speaker for a New York Times interview, published on Saturday, in which she counseled against impeachment proceedings and distanced herself from the “exuberances” of her party’s left flank.

The criticism, which Pelosi was forced to address at subsequent forums – one on Tuesday at Cornell University and a second on Wednesday with the Washington Post – is overwrought. Pelosi is a disciplined leader who understands basic rules of political strategy. She’s applying them shrewdly to impeachment and 2020.

That’s what drives some Democrats crazy, but shouldn’t:

Some critics on the left bristle at Pelosi’s language in the interview about staying in the “mainstream,” along with her refusal to support big ideas like the Green New Deal. But at the level of policy, there’s little daylight between the speaker and the left. The issues she talked about in the Times are the same ones she acts on in the House and brings up in press conferences: health care, “bigger paychecks,” infrastructure, and the environment. The list goes on: education, equal pay, gun safety, immigration reform, Social Security, violence against women.

Many progressives think the best way to attract and mobilize voters is to push big ideas like “Medicare for All” and the Green New Deal. Pelosi disagrees. Big ideas often alarm the other side’s voters more than they inspire yours. Instead, she focuses on specific policies that affect people’s lives. She knows such policies are easier to explain and harder to caricature. And she emphasizes tangible benefits. “The climate issue is a jobs issue,” she says.

And she’s willing to be Napoleon here:

The smarter play, in Pelosi’s view, is to defend policies that are well understood and supported. Let your enemy be the aggressor, and rally your base against his attack. Instead of pushing Medicare for All, the speaker targets President Donald Trump’s assault on the Affordable Care Act. She specifies elements of the ACA that score well in polls: “protections against pre-existing conditions, bans on lifetime limits and annual limits, the Medicare-Medicaid expansion, savings for seniors on their prescription drugs, [and] premium assistance that makes health coverage affordable.”

So let Trump bluster and rage:

Pelosi understands that Trump is just a foil. The real goal is to build a relationship with voters. Contrary to perception, she hasn’t ruled out impeachment. But she does think Democrats should talk less about Trump and more about connecting with the public. She sidesteps questions about the president’s tweets, insisting that Democrats are focusing on helping ordinary people. When the speaker is asked about Attorney General Bill Barr’s testimony to Congress on the Russia investigation, she talks instead about the Justice Department’s effort to gut the ACA. She believes that persuadable 2020 voters – those who aren’t sure which way they’ll vote or whether they’ll show up at all – care less about the fight between the parties than about which party is paying attention to their needs.

And that’s a national strategy too:

In Pelosi’s view, a politician’s job is to produce results. In the House, that requires 218 votes. The peril of the moment – an executive branch controlled by the most dangerous president in living memory – makes it even more crucial that Democrats maintain control of a chamber of Congress. The speaker calls herself “a liberal from San Francisco,” but she reminds colleagues that there aren’t enough deep blue districts to elect a majority. She focuses on issues that, while important to progressives, will also help Democrats in more vulnerable districts. On Tuesday, at the Cornell forum, Pelosi acknowledged that this “coldblooded” battle plan could cause “unease for some people who may want to go way in one direction.” But she warned that if Democrats were to lose the purple districts, the left would lose power altogether.

So it’s time to do the grunt work and take back the language from the Trump crew:

Some critics see Pelosi’s centrist language as weak and uninspiring. But she cares about policies, not ideologies, so she’s ruthless about embracing or shedding labels. She believes, for instance, that fairness is a more popular and less incendiary term than socialism. At a press conference last month, a reporter asked her about Senate Majority Leader Mitch McConnell’s pledge to make 2020 a referendum on socialism. Pelosi replied that McConnell had engineered tax cuts for the rich, and she asked what he was doing to help ordinary people. At Cornell, Pelosi accused Republicans of using the word socialism to hide their attacks on popular programs. “They’re saying that Medicare and Medicaid and raising the minimum wage are acts of socialism,” the speaker scoffed. “No, they’re not. They’re about fairness.”

And then it might be time to remind them of Ronald Reagan:

Unlike younger progressives, some of whom have grown up with the idea that all Republicans are callous or evil, Pelosi remembers when the parties worked together. She believes that some voters who lean Republican can be turned against the party of Trump. To that end, she exalts former Republican presidents, pitting their words or deeds against what she portrays as Trump’s heresies. At the forums on Tuesday and Wednesday, Pelosi cited President Ronald Reagan fifteen times, contrasting his embrace of immigration with Trump’s xenophobia. Rather than condemn the whole GOP, she hopes to pry away some of its voters.

That is the goal here, and her tactics have been carefully thought out even if a bit maddening:

She praises current Republican lawmakers, which complicates her pitch to vote Democratic. She also advises candidates not to talk about Trump, because telling voters that “they made a mistake” by electing Trump in 2016 might “antagonize” them. That advice might be prudent in deep red districts, but it’s hard to make an honest case against Trump’s party without addressing Trump’s misconduct. She says she’s intent on locking up her House majority this November, a year early, by positioning her party so firmly in the center that strong Republican challengers will be scared off. That might be playing it too safe… she seems excessively worried that Trump won’t accept the 2020 election results if Democrats don’t win big. I suspect she’s using that scenario as a scare tactic to motivate her troops.

But on the whole, the speaker has it right. “Public sentiment is everything,” she likes to say, paraphrasing Abraham Lincoln. “With it, you can accomplish almost anything. Without it, practically nothing.”

Pelosi schooled Trump in the fight over the government shutdown, and she’s patiently waiting him out in the standoff over who will propose taxes to pay for an infrastructure plan. The liberals of San Francisco should be proud.

That’s fine, but there are bigger issues here. This is a constitutional crisis. Or it isn’t. Slate’s Dahlia Lithwick frames that this way:

On Wednesday morning, New York Rep. Jerrold Nadler described the battle unfolding between the Trump White House and Congress thusly: “The ongoing clash between congressional Democrats and President Trump over the Mueller report has turned into a full-blown constitutional crisis.” On Thursday morning, House Speaker Nancy Pelosi used the same turn of phrase, warning that the nation is now in a “constitutional crisis.”

The House Judiciary Committee seeks to interview William Barr, the attorney general of the United States, on the subject of the Mueller report. When he refused to show up, they voted to hold him in contempt of Congress for doing so. Meanwhile, the president has opted to assert seemingly boundless executive privilege in an attempt to shield the unredacted Mueller report from congressional scrutiny.

The question at hand is basically this. What happens in this standoff between Congress and the president? The stalemate, and immovable positioning, is certainly making it feel as though we are hurtling at high speeds toward a new precipice.

That is what she has been reading:

As Adam Liptak concluded in the New York Times Tuesday, we are clearly facing an impending threat to our established constitutional order. (As a refresher, that order, as laid out in the Constitution, is that Congress is tasked with overseeing the executive branch, but the executive branch can keep designated things secret.) Even John Yoo, architect of the infamous Bush-era torture memos, seemed to agree that the constitutional impasse we’ve reached is without precedent. As former federal prosecutor Mimi Rocah explains, the White House’s sweeping refusal to cooperate with Congress on any investigation has the makings of a constitutional crisis, because “the head of the Justice Department” is now helping block congressional investigations into the president “regardless of law or merit.”

That’s serious, but Lithwick asks around and finds other views:

Jed Shugerman, Fordham Law professor notes that there is a formal definition and we aren’t there yet: “This current episode is not a constitutional crisis because the Constitution is still functioning as designed, in terms of separation of powers. The key question to me is whether either party bypasses the courts or defies the courts. The House subpoenas documents, the executive branch makes legal arguments against those subpoenas, and the courts will hear this dispute. These are checks and balances by design. A constitutional crisis would be the House trying to arrest [Treasury Secretary Steve] Mnuchin or Barr without a court order – the hypocritical ‘lock him up.’ And a constitutional crisis would be Trump or his administration ignoring a court order to turn over documents.”

Right now, Trump and his administration are just ignoring a congressional order, not a court order, so there’s no need to worry just yet:

Walter Dellinger, former acting solicitor general in the Clinton administration, agrees: “We are not in a constitutional crisis. We will be when a final court order is defied.” He adds that the administration isn’t helping its case: “The White House is seriously weakening its position in court by claiming executive privilege against all document and testimony requests. Such an extravagant claim gives the lie to the argument that it has a particularized need for confidentiality. The House should be careful not to give up the high ground by making demands that are more sweeping than are strongly defensible.”

In short, everyone calm down. Don’t make things worse. And watch your language, because things are very bad:

Carolyn Shapiro, former Illinois solicitor general and faculty member at the Chicago-Kent College of Law, agrees that the formal definition of “constitutional crisis” may not be upon us – but that we’re on the brink of something even more complicated: “Sadly, I think we have several interrelated constitutional and democratic crises. First, we have aggressive partisan gerrymandering, voter suppression, and lame duck lawmaking designed to remove power from incoming officials (as in Wisconsin and North Carolina after recent GOP losses in statewide elections), all of which undermine representative democracy. Second, we know that a foreign adversary has tried and intends to try again to disrupt our elections, but Republican leaders appear unconcerned at best. And third, we have President Trump’s myriad misdeeds, which – at a minimum– demand a thorough and public investigation if not impeachment. I see these all as related because they all involve contempt for representative democracy, an unwillingness to tolerate the possibility of losing or sharing power with one’s political rivals, and an utter disdain for the Constitution.”

That’s bigger than any constitution crisis, if there is one yet. That’s the end of the country, but yes, we are in a constitutional crisis:

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, was emphatic: “Yes. We are. My line in the sand was Barr’s confirmation without a commitment to recuse, given the letter he wrote last summer. It turned out exactly as it would obviously turn out once he was confirmed. But seriously, the invocation of executive privilege to bar a congressional committee from investigation or oversight is fully over the line.”

Neal Katyal, who served as acting solicitor general in the Obama administration, feels the same way: “We were in a constitutional crisis from the moment of the election, having a leader who has contempt for his constitutional duty to take care that the law be faithfully executed. Everything – from the Muslim ban to the defiance of Congress’ oversight responsibilities – stems from that initial attitude. And that’s just the stuff that we know about. The presidency for all sorts of legitimate reasons acts with secrecy and dispatch, so while we are now learning about more and more instances of wrongdoing, it’s a mistake to think a lot of constitutional transgressions are only now taking place all of a sudden. Past presidents have had an attitude of constitutional compliance, not this one.”

Professor Dawn Johnsen, of the Maurer School of Law at Indiana University, makes the same point: “The Mueller report and reaction to it confirm that we are deep into a constitutional crisis, deeper than we collectively seem to appreciate. Unlike the proverbial frog who boils to death rather than leap from a gradually warming pot of water, we had strong reason to jump from the start. Impeachment proceedings would be a constitutionally appropriate response, but whether they would advance the vital goal of addressing the crisis and ending the Trump presidency in 2020 is unclear.”

But all of this may miss the point:

Harvard Law School professor Laurence Tribe argues that this probably isn’t the time to parse legal language: “Crisis schmisis – what’s in a word? We’re under an ongoing cyberattack from a hostile foreign power that helped install an imbecilic self-seeking con man as our leader, who committed numerous felonies to avoid being held accountable for his illegitimate election, who is encouraging ongoing attacks by that same foreign power and others, who violates his oath of office daily, and who seems secure from removal by virtue of a spineless Senate abetted by a cowardly House. Our constitutional norms are in meltdown as we watch in helpless stupor waiting for the monster to steal or cancel the next election. If this doesn’t qualify as a crisis, the word should be retired forthwith.”

So what is the appropriate response that that? Heidi Li Feldman offers this:

On Wednesday, the constitutional battle between Congress and the executive branch escalated in a new and profound way, as President Donald Trump declared executive privilege over special counsel Robert Mueller’s probe and the House Judiciary Committee voted to recommend contempt charges against Attorney General William Barr for failing to comply with a congressional subpoena seeking complete materials from that investigation.

The apparent goal of the president and Barr’s moves – aside from avoiding short-term accountability – is a long-term game to put this president and the presidency itself largely beyond the reach of congressional checks. Congress must now assert itself as a coequal branch of our federal government.

That’s the core problem here, and Feldman suggests going to the core:

One not yet examined but crucial way for the House of Representatives to do that would be to hold hearings with independent constitutional scholars – who, across the ideological spectrum, have spoken out against the president’s power grab – explaining why Congress’ checks are essential to our system and how Barr’s extreme, inadvisable, and extraconstitutional vision of executive authority – known as unitary executive theory – could be devastating to it.

That is, do not focus on “what” they are doing. Ask them how they can justify what they are doing. Ask them what the hell they’re thinking. Everyone needs to know that:

The House should educate itself and the public about the theory of executive power Trump and Barr are pushing and thereby elevate the issue of executive accountability to the legislature. Either through standing committees now stymied by the Trump administration’s assertions of executive privilege or by a select committee appointed by the speaker to investigate and consider the reach of congressional subpoenas, the House should hold hearings on the very question the Trump administration is treating as settled. Just what, if any, right does a president have to withhold evidence, witnesses, and information from congressional committees pursuing legitimate legislative, oversight, and constitutional concerns?

Specifically, Congress should hear from experts on law, history, political science, and political theory to air, examine, and assess the merits of the unitary executive theory, Congress’ historic subpoena power, and executive privilege. Hearings on these subjects would make plain the executive branch overreach sought by the Trump administration’s conception of presidential power. Alternatively, it would force proponents of unitary executive authority as construed by the Trump administration to clearly defend a view of the U.S. Constitution that allows the executive branch virtually unfettered scope without any obligation to comply with congressional oversight and fact-finding.

That would cut through all the maddening details of everything and get to the basic questions in the air at the moment. What is allowed? What is not allowed? And that might settle matters:

Ultimately, one likely agenda behind the Trump administration’s sweeping assertion of executive privilege is to force House Democrats to either risk the Supreme Court adopting an extreme version of executive branch power or to concede that impeachment is the only meaningful congressional check on myriad executive branch activities. This is a false dilemma, one that Congress should expose and reject. Hearings elucidating the true danger of Trump and Barr’s extreme views would be a meaningful and constructive step.

That’s an interesting strategy, but it’s risky. What if everyone likes the idea of Trump deciding everything? There’s no strategy for that. That really is the end. And some people will cheer.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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