It’s a “solemn” and “sad” affair, impeachment: there are so many reasons to wear black. That’s what the pols and pundits tell us, anyway. Tonight’s House vote will unleash a host of plagues: stoking partisan furies, rattling the markets, and— worst of all from this town’s perspective — distracting Congress and the president from doing “the people’s business.” We’re in for a period of “squandered months during which official Washington is pulled apart,” U.S. News’s Kenneth Walsh warned in late September: brace yourself for “The Coming Impeachment Paralysis”!
Some of us don’t find that prospect particularly terrifying, but your mileage may vary. In any case, after last week’s legislative onslaught, can we finally put this particular hobgoblin out to pasture — or wherever it is that worn‐out hobgoblins go? For better or worse, it’s just not true that “nothing gets done” during an impeachment.
“Hidden by impeachment: ‘One of Trump’s best weeks yet,’” the Washington Examiner’s Paul Bedard crowed on Friday. In the midst of the impeachment drive, the president just keeps putting points on the board, including “a new U.S.-Mexico-Canada trade deal,” confirmation of his 50th appellate judge, “government family leave,” and — cue “Also Sprach Zarathustra”—Space Force! The New York Times hailed the $738 billion “defense” bill, which includes paid parental leave for over 2 million federal workers, as “part of a year‐end burst of bipartisan legislating that has broken out this week, even as the Democratic‐led House moves toward impeaching Mr. Trump.”
That impeachment paralyzes the government isn’t true now, and it wasn’t true in past impeachment struggles either. The 93rd Congress passed, and Richard Nixon signed, four major bills in between the House’s formal approval of the inquiry in February 1974 and the president’s resignation six months later. One of those laws, the Impoundment Control Act, you may have heard about in recent weeks: President Trump may have broken it when he held up military aid to Ukraine this summer. Of course, Watergate became all‐consuming before the House voted for an impeachment inquiry. If you start the clock closer to when Nixon’s troubles really took off — say with the Saturday Night Massacre in late October ’73 — you can add another half‐dozen, including the War Powers Resolution (passed over Nixon’s veto) and the Endangered Species Act.
More recently, President Clinton signed four major bills during his impeachment “journey,” even while soul‐searching for “the rock‐bottom truth of where I am and where we all are,” after his fling with an intern. In October 1998, the “people’s business” included the Children’s Online Privacy Protection Act, the Digital Millennium Copyright Act, and the Iraq Liberation Act. For my money, the people would’ve been better off without most of those, particularly the latter, which became a vital talking point for Iraq hawks in the run up to George W. Bush’s disastrous war. But if, like House Minority Leader Kevin McCarthy, you measure legislative “productivity” in terms of big bills passed, that was a fairly productive session.
It’s true, nothing much is likely to get done for a month or so after the holidays, while the Senate holds President Trump’s impeachment trial. “The legislative and executive business of the Senate shall be suspended” while it’s ongoing, per the Senate Rules. But maybe we could use a break.
Last night, the House Judiciary Committee began debate on the two articles of impeachment unveiled earlier this week by HJC chairman Rep. Jerrold Nadler (D‑NY). Despite recent talk about cluttering the articles with Emoluments Clause and Mueller probe accusations, in the end the Democratic leadership decided none of those charges sparked joy. The articles set for markup today focus exclusively on the Ukraine affair and President Trump’s response to the impeachment inquiry it launched.
The decision to Keep Impeachment Simple, Stupid was a smart call. The two articles confine the case against Trump to a digestible set of facts. Equally important, they avoid framing the president’s conduct in criminal‐law, focusing instead on misuse of official power and violations of public trust.
The first article, on “Abuse of Power,” accuses Trump of conditioning a state visit and delivery of military aid on the Ukrainians announcing an investigation of his 2020 rival Joe Biden. In so doing, Article I charges, Trump misused the powers of his office “for corrupt purposes in pursuit of personal political benefit.”
I could have done without the far‐fetched and irrelevant claim that Trump “compromised the national security of the United States” by holding up aid. But Article I does better at avoiding what I’ve called the “Overcriminalization of Impeachment.” Trying to shoehorn Trump’s conduct into one or more federal statutes invites a hypertechnical debate over federal bribery, extortion, and campaign‐finance statutes that’s quite beside the point. The president doesn’t have to violate the law to commit an impeachable abuse of power. Historically, according to a comprehensive report by the Nixon‐era House Judiciary Committee, “allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions” have been far more common than allegations of federal crimes.
In this case, there’s a fairly close parallel between Article I and one of the articles of impeachment that drove Richard Nixon from office (he quit before the full House could vote). The second article of impeachment against Nixon, passed by the House Judiciary Committee in July 1974, focused on abuse of power, and the first item it listed was the administration’s attempts to order up IRS audits on political opponents, including people who worked for or supported his opponent in the ’72 election, Sen. George McGovern. In that case, the notion that the president simply had a high‐minded interest in rooting out corruption didn’t sell.
The second article against Trump tracks the case against Nixon even more closely. Article II charges President Trump with “Obstruction of Congress” based on his “indiscriminate defiance” of lawfully issued congressional subpoenas in the impeachment inquiry. It draws heavily on the third article of impeachment the House Judiciary Committee passed in July 1974, adopting some of its language verbatim. Like Nixon, Trump “interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”
Nixon Article III was the most controversial of the articles lodged against the 37th president, passing HJC by the narrowest margin of the three. But the Judiciary Committee’s Report on the Nixon impeachment made a strong case that Nixon’s defiance was unprecedented and dangerous: of dozens of federal officers who’d been the subject of impeachment investigations up till that time “not one of them challenged the power of the committee conducting the investigation to compel the evidence it deemed necessary.” And Nixon’s obstruction wasn’t nearly as flagrant as the policy of categorical stonewalling Trump announced.
In this case, then, the articles rest on pretty firm constitutional ground. Of course, impeachment is “a mixed operation of law and politics,” and constitutional analysis can only take you so far. In this case, even more than past partisan impeachments, “the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
A study published last week in the Journal of the American Medical Association reported on an association between e‑cigarette use and depression. The cross‐sectional study of nearly 900,000 e‑cigarette users who self‐reported into the Behavioral Risk Factor Surveillance System from 2016 to 2017 found that users had a higher likelihood of reporting a history of depression, and that incrementally higher frequency e‑cigarette use was associated with an incrementally higher likelihood of reporting depression.
The authors mention that several earlier studies showed an association between tobacco smoking and depression, but there are few studies looking at an association between e‑cigarettes and depression. Regarding the meaning of their findings, the authors stated:
These findings highlight the need for longitudinal studies to examine the association between e‑cigarette use and depression, which may be bidirectional.
And in their conclusions, the authors note “the need for prospective studies analyzing the longitudinal risk of depression with e‑cigarette use.”
Correlation does not imply causation. And the fact that nicotine delivered in liquid vaping cartridges carries an association with depression among its users similar to that known to exist with nicotine delivered in combustible tobacco cigarette smoke should not come as earthshaking news.
At first blush, one is moved to ask what the researchers were trying to accomplish. The authors admit that any association between e‑cigarette use and depression “may be bidirectional.” Indeed. A Duke University study in 2006 found nicotine may decrease depression in nonsmokers, and many studies show nicotine has a calming effect, and aids in cognition. It has even been found to benefit patients with Parkinson’s Disease.
It is fair to say that this study provides no real useful information. True, if, as the authors recommend, a longitudinal prospective study was performed, it might help with the question of causation, because it can then be determined which came first — the nicotine use or the depression. But even then, underlying characteristics may be causes of both depression and a demand for nicotine. And nicotine use may be a way to self‐medicate for depressive symptoms but may still display first.
So why, then, was this study published? I am reminded of the influence that public policy and media narratives have on modern science. This led Stanford University Professor John Ioannidis to discover in 2005 “Why Most Published Research Papers Are False.” It is the subject of a new book, “Scientocracy,” to be discussed at a Cato Book Forum on December 17. (Full disclosure: I wrote a chapter in the book.) As I have written here, sometimes confirmation bias and politics influence which studies get published. If the study appears to add fuel to media‐driven panic — in this case, the media‐driven panic surrounding e‑cigarettes — it stands a good chance of getting published. It seems these days as if even peer‐reviewed academic journals are succumbing to the tabloid journalist dictum: “If it bleeds it leads.”
George Washington University law professor Jonathan Turley has come in for some rough treatment in the press and the Twitterverse since his appearance earlier this week before the House Judiciary Committee hearing on “Constitutional Grounds for Presidential Impeachment,” where he served as the lone GOP witness and impeachment skeptic on a panel of four.
Turley is a first‐rate scholar from whom I’ve learned a great deal. I drew heavily on his impeachment scholarship in my 2018 study “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power.” While there’s a lot to criticize in his testimony, it’s unfair and unserious to dismiss him as a partisan hack. Turley’s politics, it seems to me, have always been heterodox and hard to squeeze into a conventional left‐right framework. If forced to guess, I’d say his growing skepticism toward impeachment has more to do with his 2010 experience as defense counsel in a judicial impeachment trial than any latent #MAGA tendencies.
That said, I found Turley’s testimony this week tendentious, inconsistent with his prior work, and, in important respects, wrong. As the hipsters used to say, I prefer his early stuff.
Turley argues that the evidentiary record is far too thin — “facially insufficient” — to justify impeachment by the House at this stage. Among other things, “the House has not bothered to subpoena the key witnesses” who would have first hand knowledge of whether there was a quid pro quo in the Ukraine affair. (There’s a fairly obvious reason for that.) At times, he appeared to suggest that the House needs to secure enough evidence to try the case before the Senate can try the case.
But as Rep. Justin Amash (ex‑R MI) points out: Turley “consistently conflates impeachment in the House and trial in the Senate. The House simply *charges* impeachable offenses, and there’s clearly probable cause for charges.” The House’s role, in this view, is analogous to that of a grand jury: determining whether there’s adequate reason to have a trial in the first place.
That’s how Jonathan Turley used to see it as well. In his 1998 testimony during the Clinton impeachment hearings, Turley explained that
The [Constitutional Convention] debates reflect the view that the Senate would be the forum for the appearance of witnesses and a comprehensive treatment of the allegations of misconduct against a president. The Framers did not appear to anticipate the type of hearing with witnesses and subpoenas used during the Nixon inquiry by the House Judiciary Committee.
Instead, Turley argued, “articles of impeachment are a type of presidential indictment under Article I…. the Framers specifically mandated that a trial be held in the Senate under specific conditions while leaving the House to impeach in any fashion that it chooses.”
In that light, Turley’s insistence Wednesday that, before the House can impeach, “there needs to be clear and unequivocal proof of a quid pro quo,” is mystifying. Where’s he getting that? The Constitution doesn’t specify any particular burden of proof for impeachment, much less “clear and unequivocal” — a standard higher than is required for criminal indictment.
Equally puzzling is Turley’s newfound conviction that it borders on illegitimate to impeach a president unless you can prove he committed a federal crime. “We have never impeached a president solely or even largely on the basis of a non‐criminal abuse of power allegation,” he warns, and we shouldn’t start now. Turley acknowledges that “it is possible to establish a case or impeachment based on a non‐criminal allegation of abuse of power,” but even though we’ve impeached other federal officers solely for non‐criminal abuses, for a president, there should be a higher bar.
That’s not how Turley saw it in 1998. “There is no textual basis to claim that the Framers intended a lower standard to apply in the impeachment of federal judges than in the impeachment of presidents,” he testified, noting James Madison’s argument that the president’s position makes him more dangerous than other federal officers, and a removal mechanism even more vital.
In this week’s testimony, Turley asserts that “Congress has always looked to the criminal code in the fashioning of articles of impeachment.” That’s simply not true.Read the rest of this post »
Today is a great day for freedom. On this day in 1933, the 21st Amendment was ratified, thus repealing Prohibition. My former colleague Brandon Arnold wrote about it a few years ago:
Prohibition isn’t a subject that should be studied by historians alone, as this failed experiment continues to have a significant impact on our nation.
Groups like the Women’s Christian Temperance Union, a key force in the passage of Prohibition, survive to this day and continue to insist that Prohibition was a success and advocate for dry laws.
Prohibition‐era state laws, many of which are still on the books today, created government‐protected monopolies for alcohol distributors. These laws have survived for three‐quarters of a century because of powerful, rent‐seeking interest groups, despite the fact that they significantly raise costs and limit consumer options. And because of these distribution laws, it is illegal for millions of Americans to have wine shipped directly to their door.
The website RepealDay.org urges celebrations of the “return to the rich traditions of craft fermentation and distillation, the legitimacy of the American bartender as a contributor to the culinary arts, and the responsible enjoyment of alcohol as a sacred social custom.” It’s easy! You don’t have to hold a party. Just go to a bar or liquor store and have a drink.
RepealDay.org says that “No other holiday celebrates the laws that guarantee our rights.” I think that’s going too far. Constitution Day and Bill of Rights Day do exactly that. And in my view, so does Independence Day. But that’s quibbling. Today we celebrate the repeal of a bad law. A toast to that!
Cato celebrated the 75th anniversary of repeal with this policy forum featuring Michael Lerner, author of Dry Manhattan: Prohibition in New York City; Glen Whitman, author of Strange Brew: Alcohol and Government Monopoly; Asheesh Agarwal, Former Assistant Director of the Federal Trade Commission’s Office of Policy Planning; and Radley Balko, Senior Editor, Reason.
Senator Bernie Sanders has called levels of U.S. wealth inequality “outrageous,” “grotesque” and “immoral.” Democratic presidential candidate Elizabeth Warren is pushing for a wealth tax to curb what she describes as “runaway wealth concentration.” Yet despite their rhetoric, it’s not clear, deep down, whether either really cares about wealth inequality per se or believes that reducing it should be an overriding public policy goal.
To see why, consider this. Every year, Credit Suisse calculates a wealth “Gini coefficient” for major countries, indicating their level of wealth inequality in a single number from 0 to 100. Higher numbers indicate higher inequality. In 2018, the U.S. really did have a comparatively high figure at 85, as Warren and Sanders lament. But how this number compares to other countries is instructive.
Many poorer economies, such as Ethiopia (61), Myanmar (58), and Pakistan (65), have lower wealth inequality than America. Meanwhile, a diverse range of countries have similarly high wealth inequality, including Russia (88) and Kazakhstan (95), through to Sweden (87) and Denmark (84). Unsurprisingly, neither Warren nor Sanders argue for the U.S. to adopt Ethiopia or Pakistan’s economic model in pursuit of more equality. But Bernie Sanders has said in the past that Denmark and Sweden are exemplars par excellence of his vision of “democratic socialism,” seemingly not caring that their wealth distributions are “outrageous,” “grotesque,” or “immoral,” according to his own self‐defined standards.
The truth, acknowledged by the candidates’ own talking points and omissions, is that wealth inequality statistics in isolation tell us nothing particularly interesting about an economy’s health. Without analyzing in detail the underlying causes of a wealth distribution, statistics like the Gini coefficient, or the top 10 or 1 percent wealth shares, give us no indication of whether “good” or “bad” trends have driven the distribution of net assets across society. Sanders and Warren might use such summary wealth statistics as if they are proxies for “fairness” or how “rigged” the economy is. But few sane people would argue Sweden is less fair than Myanmar, or that the U.S. economy is more rigged than Argentina (79) or Qatar (62). These figures, as with top wealth shares, are a poor guide to policy.
All this shows that when it comes down to it, the candidates don’t prioritize wealth egalitarianism as a social goal when it conflicts with their other aims. This is somewhat of a relief. Japan immediately after World War II was a very equal place, as was China before its relative economic liberalization from around 1980. But the cost of achieving that wealth egalitarianism in both cases was intolerably high: mass destruction through war and grinding communist poverty. As former treasury secretary and Democrat Larry Summers recently said with beautiful understatement, “I do not think a focus on wealth inequality as a basis for being concerned about a more just society is terribly well‐designed.”
In our new paper today, “Exploring Wealth Inequality,” Chris Edwards and I examine some potential causes of wealth inequality in the U.S. In a global free market, the distribution of wealth can widen as entrepreneurs make groundbreaking innovations to become hugely rich through selling their products or services to better‐off consumers all around the world (a positive sum cause). On the other hand, cronyism, rent‐seeking, and certain bad government regulations can be a destructive cause of wealth inequality – enriching some at the expense of others and reducing overall wealth. There’s lots of evidence too that social insurance programs come with a big trade‐off: though they may reduce after tax‐and‐spend income inequality, they widen wealth inequality by deterring the means and incentive to save among the middle‐classes and the ability for them to inherit their wealth.
Sanders and Warren talk as if it’s pure cronyism or greed that has led to high measures of U.S. wealth inequality. In crude terms, they imply that the U.S. economy is more like Russia than Denmark. And, of course, there is some rent‐seeking, which policy change could help stamp out. But evidence that this is the overwhelming cause is weak; dynamic entrepreneurial activity and redistributive programs are clearly significant drivers of wider wealth inequality too. Yet neither candidate argues for shrinking the welfare state to reduce measured private wealth gaps. In fact, both want to massively expand it. That revealed preference heavily suggests wealth inequality isn’t a primary concern for either, but rather a secondary one.
To paraphrase Orwell: in highlighting wealth inequality statistics, Sanders and Warren talk as if all wealth inequality is created equal. But when it comes to their policy choices, some wealth inequality causes are clearly more equal than others.
“Mr. Biden, the last time you were running for president, you promised that if George W. Bush ‘takes this nation to war in Iran, without congressional approval, I will make it my business to impeach him.’ Now, over a decade later, war with Iran is again on the horizon, and just this Monday, the president said he does not need congressional authorization to wage war. If he acts on that belief, will you call for Congress to impeach President Trump?”
In December 2007, when then‐Senator Biden made those remarks, the crowd in Davenport Iowa answered with hearty cheers.
At the time, there was a serious concern that President Bush would use prior congressional authorizations – like the 2002 Iraq War resolution or the post‑9/11 Authorization for the Use of Military Force (2001 AUMF) – as cover for a new war with Iran. A month before Biden’s speech, then‐Senator Barack Obama introduced a joint resolution designed to foreclose that option. “There is absolutely no reason to trust that this Administration will not use existing congressional authorization to justify military action against Iran,” Obama warned.
Here we are again: now, nearly 12 years later, there’s no reason to trust that this administration won’t use the 2001 AUMF as justification for war with Iran. Secretary of State Mike Pompeo has suggested as much, behind closed doors, to members of the House Armed Services Committee.
Joe Biden knows something about the 2001 AUMF: he voted for it, three days after 9/11. And, like practically every other member who passed that resolution, he described it as a limited measure, aimed at those who were responsible for the attacks. As the New York Times reported after the vote: “Senator Joseph R. Biden Jr., chairman of the Foreign Relations Committee, said Congress was not ceding its constitutional authority to declare war or intending to write a measure like the Gulf of Tonkin resolution, which President Lyndon B. Johnson used in 1964 to justify escalation of the war in Vietnam.”
The 2001 AUMF has now been in effect almost three times as long as the Gulf of Tonkin Resolution, and the current administration thinks it can draw on that authority to wage war over the “Gulf of Oman incident.”
In the short term, Congress has limited means available to it for heading off war. Most of the measures currently being debated on the Hill would have to make it past a presidential veto. A sense‐of‐Congress resolution threatening impeachment for unauthorized warmaking would not. Biden’s no longer in a position to do more than advocate such a move, but it seems to fit with how he described his 2007 impeachment threat: “a prescriptive way to make clear to this man that there will be severe consequences, because [attacking Iran] would be the most dire action we could take at this moment.” Back then, Biden insisted that an unauthorized strike on Iran would be an impeachable offense. Does he still think so today?
If he got the question, my guess is that Biden would answer, “yes.” Willingness to use the dreaded “I‑word” might help shield the Democratic frontrunner from attacks on his left flank. Of course, given Biden’s service as vice president in an administration that ran roughshod over congressional war powers—that answer might also give rise to some awkward questions. But this is the business he’s chosen.