Pounding and Flip-Flopping


Reading time – 4:51; Viewing time – 7:30  .  .  .

It’s a fundamental courtroom practice:

If the facts are on your side, pound on the facts.

If they aren’t on your side, pound on the law.

If the law isn’t on your side, pound on the table.

The House Judiciary Committee met last week to debate issuing a citation of contempt of Congress to Attorney General William Barr for his failure to produce an unredacted version of the Mueller Report and the underlying evidentiary materials, as well as for his failure to appear before the committee. Of course, the debate was bifurcated along party lines and what I found most interesting is what the Republicans did to make their case against contempt citations.

They brought up all manner of what they decried are unfair or unethical issues, including Hillary Clinton’s emails, FBI leadership, FBI spying and investigating (isn’t that what they’re supposed to do?), Barr’s courage to obey a law that actually doesn’t apply to the contempt of Congress issue, the Steele Dossier (none of which has been disproven), Christopher Steele’s having talked with Russians, various officials lying under oath, James Comey’s perfidy and other real or fantasy offenses.

NONE OF THAT HAS ANYTHING TO DO WITH WILLIAM BARR FAILING TO RESPOND TO CONGRESSIONAL SUBPOENAS. IT’S ALL WHATABOUTISM.

That’s what people do when they don’t have a leg to stand on.

Don’t let their passion or the intensity of their fatuous bloviating or the panoply of unrelated issues distract you. This is solely about obeying the law. That sounds very conservative, don’t you think? How come the Republicans don’t like it? Try this.

The Republican members of the House Judiciary Committee likely feel duty bound to protect the Republican administration, regardless of what some individuals in that administration have done. That’s one of the more odious parts of party politics and it’s one of the things that causes voters’ blood to boil or drives them to simply tune out, believing, “They’re all crooks.”

Here’s what’s at stake in this subpoena/contempt citation case:

The important thing: The oversight function of Congress is impossible to conduct without the necessary information. The purpose of a subpoena is to elicit that information from reluctant witnesses. Which is to say, it doesn’t matter whether the president or his lapdog attorney general like it; Barr has to obey the subpoena and the law in order for our system to work.

The critical thing: What is at stake is the rule of law itself! If Barr and Trump get away with refusing subpoenas, then our rule of law is finished. So is justice in America, because it will be clear that obeying the law no longer matters. Say hello to tyranny.

Here’s the current reality:

Those Republican committee members don’t have the facts on their side. Barr has plainly and obviously stonewalled his subpoenas. That’s a punishable no-no. So they can’t pound on the facts.

Those committee members also don’t have the law on their side. The law is clear that citizens must obey a subpoena. So, those representatives can’t pound on the law.

All they have left is pounding on the table. And that’s what they did during the House Judiciary Committee contempt citation hearings and what they’re doing still.

You can expect the same behavior from Republican senators if a resolution of impeachment arrives in their chamber. That’s pretty much what we saw during the blizzard of filibusters the Republicans mounted to fight anything Obama promoted. They didn’t have the facts and they didn’t have the law, so they pounded on the table.

Critical note to Democrats: if positions were reversed, we’d see the same behavior from Congressional Democrats, although they’d probably smile more and be ever-so empathetic. Nevertheless, forget about feeling smug and disdainful about the other guys. This is party politics S.O.P.

Impeachment update  .  .  .

In 2017 I had the simple clarity that Trump should be impeached because he is a criminal, that he’s obviously guilty of violating the Emoluments Clause, obstruction of justice and possibly of treason for conspiracy with the Russians and for his refusal to take any action to prevent ongoing attacks by Russia. Then I considered what a President Pence might do and I wasn’t so sure that impeachment was best.

The first thing Pence would do is pull a Gerald Ford and pardon Trump and his entire crime family for felonies they have or may have committed. It’s unthinkable that they might get away with their self-aggrandizing criminality, so I changed my mind on impeachment. Now, though, there’s another worry.

Trump has started a march to war with Iran. Separating out his wag-the-dog gambit, starting that war will result in a lot of people dying and suffering and it likely will be a war that will last for many years, just like those in Iraq and Afghanistan, because there’s no way out. It appears that the only way to prevent that is to remove Trump from office before he can fire the first shot. That calls for impeachment, so back we go.

One price of doing that, though, is the probability of angering a lot of Americans who will see Trump as a victim and will vote in a Congress that might continue to dismantle the things we care about, a Congress which will deny climate warming. They will continue the assault on Roe v. Wade, on voting rights and will enact yet more wealth inequality measures. All of that and more are existential threats to liberal democracy and to our entire planet. That price is so large that it augers for leaving Trump in office until the end of his term in order to prevent a backlash Congress, even knowing that he will issue anticipatory pardons to all his co-conspirators.

Yes, I realize that I’m flip-flopping on the issue of impeachment and I don’t like it any more than you do.

This impeachment business is more complicated and has more consequences than I want it to have. I believe in the rule of law and apologize not one bit for being a Boy Scout about my horror over the assault on our moral character that we continue to endure.  But frustrating as it would be to refrain from stopping the subversive criminal in the Oval Office, preempting Trump with impeachment might do more harm than good. Clearly, this is a hold your nose moment in American history.

Click the pic for the report in The Onion

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4 Responses to Pounding and Flip-Flopping
  1. Anna Reply

    Jack, there is another way to go at this nightmare we are facing. Please read this article “When is Enough Enought?” posted on the Refuse Fascism website: https://refusefascism.org/2019/05/13/when-is-enough-enough/

    It might make you uncomfortable but it is telling the truth.

    • Jack Altschuler Reply

      Anna, thanks for your comment.

      Even if we were to agree with everything in the linked essay, removing Trump through impeachment leaves Pence as president. That’s not okay. Removing Pence through impeachment is an impossibility, since other than saying stupid, self-righteous things, he hasn’t committed known offenses. Complete regime change isn’t in the cards. And I shudder to think of the long term unintended consequences of such an attempt.

      Further, as listed in my post, Pence would pardon all of the Trump crime family.

      Enough surely is enough – more than enough.

      However, I don’t see mass demonstrations as a path to quick reform. And while Democrats are far from pure, they remain the best hope for the short term.

      If there are to be demonstrations, they need to be in support of removal of spineless Republicans in favor of reformers. At present I don’t see a path for a third party.

  2. JOHN E CALIA Reply

    Seems to me Democrats are as guilty of fatuous bloviating as are Republicans. They trusted in Mueller’s integrity for two years and now want to second guess him. All I know about their 2020 platform is Green New Deal, free tuition and other extreme Left ideas. They’ll need to come up with something better to win my vote. Let’s move on.

    • Jack Altschuler Reply

      John, re Dems and fatuous bloviating, I agree. See the last paragraph in the first section of this post, “Critical note to Democrats.”

      As for Dems second guessing Mueller, I don’t see it. He laid the groundwork for impeachment for obstruction of justice and later criminal prosecution. Dems are working on that, or trying to in the face of illegal refusals to honor subpoenas (more obstruction of justice). What am I missing?

      Big picture: Protecting our democracy is job one.