The Nightmare is Over But Can We Survive the Cleanup

The Republican Party has been dominated by Donald Trump and it still appears that his followers continue to dominate its ranks. A Trump dominated Republican Party is dangerous because it’s not dedicated to democratic government, norms or rules. We survived Trump, barely, but would we survive another term with someone like Trump intent on becoming dictator and tearing down all the democratic structures, restrictions and barriers to dictatorship and despotism? Political scientists like Kim Scheppele see a path to a nondemocratic takeover after the ground has been broken by an unsuccessful first try. Therefore it’s crucial that the Republican Party emerge from the Trump nightmare. It’s not enough that the rest of the country rejected him. We all have a stake in a loyal opposition – not one dedicated to pulling down the pillars of the temple.

How. It’s critical to change the election laws so that a party loyal to a would-be dictator like Trump cannot emerge. His victories have depended on strengthening the extreme wings of the Republican party by gerrymandering legislative seats and excluding voters from the polls who would vote for more moderate candidates at all levels – federal, state and local.

The Supreme Court could have solved those problems, much like the Warren Court did with its decisions on reapportionment, the Voting Rights Act and poll taxes. But the Rehnquist and Roberts Courts have refused to support structural supports for fair elections, supporting instead the exclusion of legitimate voters from the polls, gerrymandering at all levels of government, and emasculating the Voting Rights Act so that states have a clear path to excluding opposing voters from the polls.

That means the Biden Administration and its friends in both houses of Congress have to do it by statute, as allowed by Art. I, sec. 4. It may take heavy lifting but no sacrifice is too great. If they can do that, the Republican Party will have to respond to a broader electorate and its Trump voters won’t have clear shots either to nomination or to victory.

I don’t want to bury the Republican Party; I want to reform it so that it can perform its proper functions, serving as watchdog and providing alternatives. A disloyal party, however, cannot and must not be tolerated.

I don’t know whether the path to those reforms requires ending or changing the rules regarding the filibuster but I’m all for it. The filibuster blocked Civil Rights legislation for years, protected segregation, lynching, the violence of the Klan and their allies against Freedom Riders and people trying to register to vote. Anti-lynching legislation was still being blocked last year after being introduced more than a century ago.

The filibuster could be procedurally weakened, the requirements for filibustering could be made more onerous, election laws removed from its clutches, or the filibuster could be eliminated completely.

Whatever it takes, Schumer, Harris and Biden have to create a path through the filibuster’s roadblock – a path to more democratic election laws that will help to make American democracy reliable, opposition parties loyal, and our constitutional system something we can be proud of again.

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This commentary was scheduled for broadcast on the WAMC Northeast Report, on January 26, 2021.

The Nunes Memo and Trump’s Disloyalty

I prepared something else to talk about today but find myself furious about the misuse of the Constitution to prevent getting at the truth. Trump, and his supporters, are attacking the Mueller investigation into ties between the Trump campaign and Russia. The Nunes memo, written by congressional Republicans, is part of that attack. It says that, though well after the investigation began, a former member of British intelligence who had ties to the Clinton campaign, transmitted information which was included in a request for a warrant from the Foreign Intelligence Surveillance Act court, the FISA court. Based on the Nunes memo, Trump and his supporters claim that the investigation is tainted.[i]

Members of the FISA court are all appointed by the Chief Justice of the U.S. Supreme Court. Since 2005, that’s been Chief Justice John Roberts, a Republican, Bush appointee. The Court found the papers sufficient and renewed the warrants.

But the Nunes memo and use of a source sympathetic to Clinton, are being used as part of a campaign to thwart the investigation and dump those who run it. No Democratic hands allowed. Most Republican commentary about the memo claim it proves that the FBI, and the Russia investigations conducted by the special counsel, are tainted by bias against Trump.

First, it is unacceptable for Trump or his supporters to insist that the FBI must decide whether to investigate based on whether the informants are Republicans or Democrats, supporters or critics of Mr. Trump, and forego finding out whether the information is or can be corroborated. Playing politics with policing that way violates the Constitution.

That’s the way police function in dictatorships. Are you for me or against me? If you’re against me, your knowledge and opinions don’t count and can’t be trusted. We alone count and we’re pure. The very idea of a loyal opposition is crucial to the survival of democracy. But it’s anathema to Trump Republicans.

So Trump’s release and use of Nunes’ memo is the best and most important reason to consider impeaching him. He lacks loyalty to democracy; instead, his power trumps all else. This man is the greatest danger to the values on which our country was founded. The fact that he was apparently born in the U.S., as he claims, only makes his disloyalty worse.

Second, a large part of the information gathered by any police organization comes from people who are in some way connected or involved. To exclude information by such informants would cripple policing. To rely only on information from one side of a dispute or the other threatens justice, as does refusing to investigate. Motives deserve consideration and were disclosed to the FISA Court, but the ultimate question is whether the information can be corroborated and is correct. To follow the Nunes approach would undermine the ability of American police to enforce the law, impartially, so that no one is above the law.

The FBI historically was a conservative organization. A succession of presidents insisted that it rise above politics and investigate crimes without regard to politics. Trump is the first president to insist that the FBI should begin with a political test – a political test for employees and a political test for informants. This president has no respect for constitutional norms. These too are grounds which deserve to be considered for impeachment.

— This commentary was broadcast on WAMC Northeast Report, Feb. 6, 2018.

[i] The Democratic response has not been released by the House Intelligence Committee but a Democratic statement of objections can be found here.