Can As Dysfunctional A Government As Ours Actually Impeach A Character Like Trump?

Harvard Professor Lawrence Lessig's Politico "Big Idea" essay yesterday tackled something that's been worrying many of us-- how severely divided we are as a people inside fundamentally dysfunctional political system. The essay is based on his book about creating a moral, unified America, They Don't Represent Us. He identifies 5 fundamental non-partisan problems of our democracy that are "all dimensions of a democracy which means that we are not, as citizens, equal with anybody else," and that must be tackled before we can move forward:

• gerrymandering
• the electoral college
• the way we fund campaigns
• voter suppression
• the U.S. Senate

In the essay, Lessig talks about how profoundly disruptive impeachment is likely to this time, much more so than any other time. "The nation has never entered impeachment proceedings in a media environment-- and hence a political environment-- like the current one. That difference will matter profoundly to our democracy. And as the process unfolds, it’s not just elected leaders but our media institutions that need to consider how to limit the potential damage."

As the Watergate hearings progressed, Americans weren’t just focused on the story: They were focused on the same story. The networks were different in how they broadcast news, but not much different. And thus, as widespread polling would reveal-- to the public and the administration-- views about the President were highly correlated across a wide range of America. When support for Nixon fell among Democrats, it also fell among Republicans and independents at the same time. America had heard a common story, and what it heard had a common effect.

The impeachment of Donald Trump will happen in a radically different media environment-- again. (In Clinton’s impeachment, standing between Trump’s and Nixon’s, the effects were consistent but muted relative to today.) Polling persists, indeed it has expanded, and so politicians will know almost exactly how the proceedings are playing among their own voters. But as information channels have multiplied, real “broadcast democracy”-- the shared and broad engagement with a common set of facts-- has disappeared. An abundance of choice means fewer focus on the news, and those who do are more engaged politically, and more partisan. No doubt, there is more published today about impeachment across a wide range of media than before, but it lives within different and smaller niches.

That division will have a profound effect on how this impeachment will matter to Americans. In short, it will matter differently depending on how those Americans come to understand reality. In a study published last month, the research institute PRRI found that 55% of “Republicans for whom Fox News is their primary news source say there is nothing Trump could do to lose their approval, compared to only 29% of Republicans who do not cite Fox News as their primary news source.” That 26-point difference is driven not just by politics, but in part by the media source.

This means that as the story of impeachment develops, it will be understood differently across the network-based tribes of America. The correlation among conservatives and liberals alike that drove Nixon from the White House won’t be visible in 2020—because it won’t be there. Regardless of what happens, on one side, it will be justice delivered. On the other, justice denied.

That difference, in turn, will radically constrain the politicians who Americans have entrusted to render judgment on the president. The reality of Fox News Republicans will be persistently visible to red-state representatives. More idealistic, less inherently partisan senators like Ben Sasse might have a view of the “right” thing in their heart of hearts, but they will be forced to choose between what they know and what they know their very distinctive voting public believes. So far, few have faced that choice with courage.

Though the president was wrong to invoke it in this context, the Civil War may well have been the last time we suffered a media environment like this. Then, it was censorship laws that kept the truths of the North separated from the truths of the South. And though there was no polling, the ultimate support for the war, at least as manifested initially, demonstrated to each of those separated publics a depth of tribal commitment that was as profound, and tragic, as any in our history. That commitment, driven by those different realities, led America into the bloodiest war in its history.

We’re not going to war today. We are not separated by geography, and we’re not going to take machetes to our neighbors. But the environment of our culture today leaves us less able to work through fundamental differences than at any time in our past. Indeed, as difference drives hate, hate pays-- at least the media companies, and too many politicians.

In a nation dedicated to freedom of the press, it’s not possible—not to mention, desirable-- to legislate limits on political speech. That cannot be the role of government, if democracy is to remain free of state control.

But the nation could use some temporary, if voluntary restraint. The business model of hate may well pay, both politicians and the media. But the cost to the Republic of this profit will be profound. This is a moment to knit common understandings, not a time to craft even more perfectly separated realities.

That knitting could begin with both networks and digital platforms asking not what is best for them, individually, but what would be best for us all, together. Which network or platform strategies will enable a more common understanding among all of us? And which strategies will simply drive even more committed tribe-based ignorance? The norms should be different in the context of impeachment, even if that means networks and platforms would be less profitable. Not because this President, in particular, must be respected, but because any President charged with impeachment deserves a nation that at least understands the charge. If we as a people are to be persistently read because persistently legible, then at least we should know enough in common to make judgments in common.

That would mean that television networks take impeachment as seriously as a civic matter as they now treat it as an entertainment matter. Fox, MSNBC and the others should push opinion-based reporting to the side, and place journalism-based news in prime time. They all must take responsibility for their audience understanding the facts, more than simply rallying its side to its own partisan understanding. Partisan networks may not be a bad thing in general. They are certainly a bad thing in moments like this.

Social media platforms have responsibilities here as well. We don’t yet know the consequences of those platforms forgoing political ads in the context of an entire election season-- even as, and importantly, some are experimenting with this right now. But impeachment could be an important moment to experiment even more fully. This is precisely the kind of question for which we do not need interested ad-driven spin. It is precisely the moment when Facebook and Twitter together could take the lead in turning away ads aimed at rallying a base or trashing the opposition. Whether or not political ads make sense on social media platforms during an election-- at least for races not likely to be targeted by foreign influence-- there is no reason for them here. America’s understanding of this critical event could come through the organic spread of the views of Americans-- and it is just possible that the organic spread alone is not as poisonous as the spread spiked by advertising.

More fundamentally, platforms could block falsity better. Intellectual property on the Internet has long been protected by a notice and takedown regime. If a platform gives copyright owners an easy way to tell it about copyright violations, and if it removes those violations quickly, then the platform is not liable for the infringement. It is time we extend a similar mechanism to defamatory speech. If a platform has been shown the falsity in what it continues to publish, its continued publication should be considered “actual malice,” and thus no longer immune from liability. It’s not clear that the Supreme Court would accept a legislature redefining the scope of this constitutional privilege alone-- it should, but the Court has been jealous about guarding its jurisdiction before. But at least the Court could acknowledge the difference between an initial publication and a continued publication, and focus immunity on the former. Let the platforms establish the mechanisms against malicious claims of falsity. The law might even allow the platform to demand a bond which the person complaining would lose if an independent process determines the complaint was baseless. But platforms without editors cannot be immune from responsibility-- especially when the incentives of clickbait become so central to the business model of online publishing.

None of this, of course, is likely to happen anytime soon, even with an impeachment crisis standing right in front of us. But we should not underestimate the potential for leadership here. There is an equivalent to peaceful nonviolent protest—to an act that so surprises the other side that it forces a recognition that otherwise would be missed. Any prominent actor in the midst of this mess who stepped above the common play might surprise enough to trigger a change. Or even prominent actors not in the midst of this mess—here at least is a role for former presidents. Why don’t we see George Bush and Barack Obama standing together on this, not by directing a result but by counseling the process

No doubt, all this is a big ask-- lucrative networks and social-media platforms unilaterally disarming, or agreeing to a new set of rules. But there’s another way to look at it. Businesses succeed by managing risk, and the risk of a truly destabilizing event here-- a fractured America because of siloed information-- is much greater than the risk of losing some ratings for a few weeks, or months.

Because impeachment is different, and we cannot take for granted that the nation will get through it unharmed, regardless of what anyone does. There is no mechanism that guarantees a democracy’s safety. There is only, and always, the courage of individuals to be better than anyone expects. We saw that with the first witnesses that were called to testify publicly. We need to see it with politicians, ordinary citizens, and corporations as well.

Paul Kane's column in yesterday's Washington Post, Democrats Face A Consequential Choice-- Limited Or Broad Impeachment Articles Against Trump, gets down into the fully partisan weeds inside a Democratic Party grappling with how exactly to proceed with this. On Friday, we saw how craven are conservative Democrats in purple districts who see themselves as jeopardized:

One of the most conservative and cowardly of all the worthless Blue Dogs, Ben McAdams (D-UT): "Activities from the 2016 election, I think, should be left to voters in the 2020 election. My focus is on those things that are forward looking." Basically just as bad as McAdams, a former Republican state legislator pretending to be a Democrat now, slow-witted Blue Dog co-chair Tom O'Halleran, agrees: "I would prefer that we stick to what we have." Elissa Slotkin is an utterly worthless and spineless New Dem from Michigan who the party should be eager to lose. An especially vile creature, she votes like a Republican and sits around whining about losing her reelection bid. "I know that there's some people who are interested in kind of a kitchen sink approach-- let's throw all kinds of things in there because we can and talk about all the things we're concerned about regarding the president. We have been taking the country down this road on this very targeted issue of Ukraine and the issues around the president using his office for personal and political gain. And that's what I think we should focus on." If you survey Democratic staffers and ask them to name the 5 most brain-dead Democrats in Congress, every single list will include Slotkin. Sick of values-free cowards in Congress? That's why we've included... this suggestion from Omaha progressive Kara Eastman on how to respond to impeachment in a purple district:

"Some Democrats," wrote Kane, "particularly the more liberal members of the House Judiciary Committee now writing potential articles, want to wrap in charges against the president linked to Russian interference in the 2016 election to help Trump defeat Hillary Clinton. Ever since his report was released in the spring, these Democrats believe that Robert S. Mueller III, who served as special counsel, painted a portrait of criminal behavior by Trump that at the least demonstrated an attempt to obstruct justice. 'The real question is whether we want to focus on a singular, discrete episode or focus on patterns of misconduct. And I do think we need to focus on patterns of misconduct, I think that the Constitution directs us to examine that,' said Rep. Jamie B. Raskin (D-MD), a member of the Judiciary Committee. To ignore the Mueller findings, Raskin and other liberals believe, is to let Trump escape condemnation for a pattern of behavior. 'The misconduct that we saw with respect to the Ukraine shakedown was not some kind of aberration,' he said."

Democrats will have an easier time writing charges against Trump for trying to pressure Ukraine’s leaders into investigations that would have helped the president politically, an inquiry that all but two Democrats supported last month.

The evidence, produced in hearings before the House Intelligence Committee, has only gotten stronger since that vote, so Democrats are optimistic they have more than enough votes already to impeach Trump based on the Ukraine matter.

But any articles reaching beyond Ukraine would renew an old clash between liberals and dozens of Democrats from swing districts where their constituents struggled to understand the complex Mueller findings. This corner of the caucus might well vote against anything not related to Ukraine, risking a potentially embarrassing episode of losing a floor vote on some recommended articles.

...Officially, House Speaker Nancy Pelosi (D-CA) told reporters Thursday that she is leaving it up to Judiciary Democrats to make the decisions, but everyone in the caucus knows that she will play an outsized role in settling the dispute.

Rhapsody in Blonde by Nancy Ohanian

Pelosi’s call will go a long way to answering a hypothetical question that historians will ponder decades from now: Would Trump have been impeached based on the Mueller report or did he bungle his way into impeachment over the Ukraine issue?

...Pelosi has offered strong hints that she is leaning toward the more limited articles framed around Trump’s actions withholding $391 million in military aid to Ukraine and a meeting with its new president. On Thursday, she thanked a reporter for noting her past reluctance to base impeachment on the Mueller report, highlighting how it took almost two years to produce.

...Rep. Jackie Speier (D-CA), a member of the Intelligence Committee, said Democrats should stick with the “fail safe” articles related to Ukraine, rather than risking failed votes on the House floor.

...“There’s a sense that we will move forward on articles of impeachment on which there’s broad consensus and have the support of the caucus,” said Rep. David N. Cicilline (D-RI), a member of the Judiciary Committee. Rep. Tom Malinowski (D-NJ), a former State Department official, was one of the rare swing-district freshmen to announce support for starting an impeachment inquiry over the Russia probe. But he now wants to focus entirely on Ukraine. “If we went about impeaching President Trump for every possible impeachable act that he’s committed, we’d probably be here until beyond his first term. So my advice has been keep it focused, keep it simple,” Malinowski said Friday. A member of the Foreign Affairs Committee, Malinowski sat in on some of the depositions with career diplomats who accused Trump and some associates of an extortion attempt to get investigations that would benefit his 2020 campaign. He suggested that the wording of the impeachment articles might find a way to nod toward the 2016 campaign and other issues, but should focus squarely on Ukraine.

“What he did in putting his personal political interest ahead of the interest of the American people, I think symbolizes all of his abuses of power to this point,” Malinowski said.