Wednesday, November 13

We’ve come a long way from the days when the Tea Party handed out pocket Constitutions. Now, in the interests of defending President Trump, smart people are exploiting civic ignorance to maintain the red wall against impeachment. No, that’s too mild. They’re not just exploiting civic ignorance, they’re affirmatively deceiving the American people about the content and meaning of the Constitution. They’re trying to make people believe things that plainly aren’t true. They’re making the American people less constitutionally literate.

What do I mean? Take this comment, from Rand Paul:

The Sixth Amendment is pretty clear. It’s part of the Constitution, part of the Bill of Rights, and it says that you get to confront your accusers. And so, I think it’s very clear that the only constitutional mandate here is, is that if someone’s going to accuse you of something that might remove the president from office, for goodness’ sake, shouldn’t they come forward and present their accusations in person?

This has become a talking point among the Trumpist right. For another—rather shocking—example, read this from Northwestern University law professor and Federalist Society co-founder Steven Calabresi:

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to “a speedy and public trial.” House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be “informed” of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him,” which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right….”

Now, compare that comment with the actual text of the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Note the key words—“in all criminal prosecutions.” As the CATO Institute’s David Post notes, Calabresi’s argument is “utter nonsense, completely devoid of any apparent constitutional logic.” The scope and reach of the Sixth Amendment has been extensively litigated, and it most assuredly does not apply to the House’s impeachment inquiry.

One can certainly make a good faith argument that maintaining the whistleblower’s anonymity is unfair, but to argue that it violates the Sixth Amendment is simply and plainly wrong.

But this Sixth Amendment nonsense is only the tip of the iceberg of constitutional confusion. Take these paragraphs from a recent piece by Victor Davis Hanson:

The “inquiry,” supposedly prompted by President Trump’s Ukrainian call, is only the most recent coup seeking to overturn the 2016 election.

Usually, the serial futile attempts—with the exception of the Mueller debacle—were characterized by about a month of media hysteria. We remember the voting-machines-fraud hoax, the Logan Act, the Emoluments Clause, the 25th Amendment, the McCabe-Rosenstein faux coup and various Michael Avenatti-Stormy Daniels-Michael Cohen psychodramas. Ukraine, then, isn’t unique, but simply another mini-coup.

He later argues that “We are witnessing constitutional government dissipating before our eyes.” Words have meaning, and impeachment isn’t a “coup.” A coup is an unlawful (often violent) seizure of power. Impeachment is a constitutional process that can’t succeed without the affirmative votes of, first, a majority of the House, and then, a supermajority of the Senate—and every person voting is a person who won an election, also according to constitutional process. Impeachment isn’t the dissipation of constitutional government, it’s the exercise of constitutional authority.

And no, if Trump is impeached and convicted (highly unlikely), it doesn’t “overturn” the 2016 election. Hillary Clinton won’t be president. Every one of the laws, judicial confirmations, and regulations enacted during the entirety of Trump’s term would remain in place.

If one took literally the complaints of serious senators, law professors, and historians (and why wouldn’t you? They’ve spent a lifetime demonstrating their constitutional knowledge), you’d believe that House Democrats were currently engaged in an illegal, unconstitutional proceeding. If you’re a partisan, you already likely despise Democrats. And now they’re engaged in a “coup”? Outrageous!

Yes, I know that there’s a longstanding tradition of hyperbole in American political rhetoric, but there’s a difference between exaggerations and plainly false constitutional assertions. Moreover, while people expect hyperbole from Sean Hannity or any other screaming Trump defender on talk radio, the same ideas from the pen of a respected historian sends a message that “this really is a coup.” It’s not. It’s not even close.

If you follow social media in the age of Trump, you’ve likely noticed a pattern. When there’s a report of an alleged Trump scandal, there’s often a brief pause on MAGA Twitter and in MAGA Facebook. One set of defenders waits patiently for the media overreaction, ready to pounce on the first blue checkmark who goes too far or misstates the alleged facts. Another set waits for a credentialed or credible person to toss a word salad for Trump—granting them a “well akshually” fig leaf that they can trot out as a talking point online.

“Akshually, the founder of the Federalist Society says Trump has a constitutional right to confront the whistleblower.”

“Akshually, a Hoover Institution senior fellow and esteemed historian recognizes impeachment as a coup.”

This sets up the debate as a battle of experts, and we all know that when there’s a battle of experts, the expert you like tends to win—regardless of whether he’s despoiling his expertise.


David French.

Every Republican who makes “plainly false constitutional assertions” to defend Donald Trump is a traitor to his oath to uphold the Constitution.

Such was the status of Weimar America at the end of Wednesday. It got worse Friday, with the President Tweeting out witness-intimidating lies (“exercising my freedom of speech”) about a career diplomat who was on the witness stand at that very moment.

* * * * *

The Lord is King, be the peoples never so impatient; He that sitteth upon the Cherubim, be the earth never so unquiet.

(Psalm 98:1, Adapted from the Miles Coverdale Translation, from A Psalter for Prayer)

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