Monday, July 26

The Road To Hotel California — Part 2

So I called up the captain; please bring me my wine
We haven't had that spirit here since nineteen sixty-nine

It is important to establish some constant reference points, because from this paragraph to the end, I will be speculating about possible outcomes of a refusal of Trump to obey a Supreme Court order to comply with a subpoena from the Office of the Special Prosecutor. The following is decidedly not speculation:

  • The Constitution is the “supreme law of the land” (“Supremacy Clause,” Article VI, clause 2)
  • The President is bound by oath to " … faithfully execute the Office of President of the United States,” and … “ to the best of [his] Ability, preserve, protect and defend the Constitution of the United States" (Article II, section 1)
  • In particular, what the Presidential Oath means is that the President solemnly swears ensure “ … that the laws be faithfully executed” (Article II, section 3)
  • The Supreme Court, and only the Supreme Court, has the power to authoritatively interpret the Constitution, and therefore to “say what the Law is” (Marbury v. Madison, 1803)

Therefore, if the Supreme Court interprets the Constitution in such a way that the President is required to respond to a subpoena, then any President who refuses such compliance is in “facial” violation of the US Constitution, i.e., of “the supreme law of the land”   – and therefore in “facial” violation of the Presidential Oath.  Accordingly, he is subject to impeachment, and, if convicted, of immediate removal from office. The logic of (1)-(4) is unassailable.


Speculation No. 1:  While there will be arbitrarily large amounts of huffing and puffing and harrumph-ing from the House of Representatives because of Trump’s refusal to comply with the Supreme Court’s ruling – and therefore Trump’s refusal to comply with the Constitution – the Republican-controlled House of Representatives will not produce or vote on a Bill of Impeachment. Even if the Republicans do not control the House, there will be enough Republicans to avoid a majority vote on a Bill of Impeachment, since there are bound to be a number of conservative Democrats who are reluctant to compile and pass such a Bill.

With certain isolated and notable exceptions – lately Speaker Ryan, at least vis a vis the issue of “Spygate” – the House of Representatives is basically part of Trump’s “off-site” Mar-A-Lago staff. They will fall in line with the other butlers, housekeepers, groundsmen, pool cleaners, etc., etc. They are all in utter default of their Article I responsibility to act as a check on the actions of the Executive Branch. They have all undergone a radical orchidectomy and its female equivalent.

Speculation No. 2:  Even if the House of Representatives should, by some miracle, compile and approve a Bill of Impeachment, the Senate will refuse to convict, especially given that convicting a President of impeachment requires a 2/3 supermajority. While there seems to be a range of opinion on the issue, the consensus seems to be that, once impeached and convicted, there is no procedure for appeal.

Therefore, I would speculate that, even if the Supreme Court issues an opinion stating that the President is obligated to comply with the subpoena issued by the Office of Special Counsel, that (a) Trump will refuse to obey, and that, even more seriously, (b) there will be no punitive action from Congress. Therefore, an order from the Supreme Court notwithstanding, a refusal by Trump to comply with Mr. Mueller's subpoena will result in both an Executive and Legislative Branch in "facial" default of its constitutional responsibility to uphold "the supreme law of the land".

As I said in Part 1, such a decision by the Supreme Court ordering Trump to comply would be the worst possible outcome. I also said in  Part 1 that this statement is quite counter-intuitive. Certainly, a President in "facial" default of his presidential Oath should be brought to heel through impeachment and conviction. Yes, this would be the ideal -- because the most pristinely constitutional -- outcome. But we do not live in an ideal world. We live in a real world where both the President and the Congress, at least a decisive majority of the Congress, consider the solemn word of the US Constitution to be only a quaint footnote in American political history. In other words, any decision by the Court ordering Trump to comply with the Mueller subpoena would place the Nation one baby-step from anarchy. My preferred alternative -- speaking only for myself -- would be for the Supreme Court to find in the President's favor:  No, the President is not obligated to respond to a subpoena and be interviewed under oath by the Office of Special Counsel -- and for the matter then to be resolved politically in the media and at the ballot box.  The alternative -- peremptorally ordering the President to comply (subpoenas customarily "command" the obedience of the recipient) -- would, I predict, be a cure that was worse than the disease.


Herewith an analogy ... Over my 15-plus years of working with the military as a civilian consultant, I have had more than one senior commander tell me, strictly off the record, in lowered tones of voice, and even then only after a couple of double shots of Maker's Mark, that one of the worst mistakes any commander can make is to issue an order that he has good cause to believe the people under his command will most likely not obey. Doing so would, so I was told, amount to an utter abdication of command authority. Such would be the case, should the Supreme Court issue an order that Congress would refuse to enforce. That is the "baby-step" I referred to earlier, because it would -- again, I speculate -- provoke the fatal coup de grace to American republican democracy.

Again:  why?

The short answer is "Because the American public -- the great 'We the People' -- are not appreciably different from Trump and his pet Congress in its deference to the US Constitution". So going "over the heads" of Congress to the American people would be no more effective than going to Congress again. (To be sure, it was not always thus. But that is where matters stand now in today's world.) Having endured the "winter of our discontent" through two great world wars, interspersed with a Great Depression, we (meaning the American Republic) have experienced an almost-75-year period of uninterrupted peace (in the sense of no world conflagrations) and prosperity (the Great Recession was just that -- a recession -- no bankers jumping out of high-rise windows). Result:  we have become a Nation of 320 million spoiled, petulant, self-coddled, ungrateful, and blissfully oblivious brats and hellions, who care more about preserving our sacrosanct balance of payments than we care about the great Principles of governance, equality, and liberty enshrined in our Constitution that generations of people, beginning at Lexington and Concord in 1775, have shed their life-blood to preserve.

After all, did not Jesus Christ say in Matthew 4:4 "To hell with spirituality, personal integrity, and morals; man lives by credit swaps alone"? (Mar-A-Lago Codex, translated from the original Syro-Phoenician by Stephen Miller) Consequently, many of that 320 million are stupid enough to believe that we have exchanged that “winter of … discontent” for an ostensible “sun of York” named Donald Trump. We have become a Nation of Esaus more than willing, at times even eager, to sell its sacred birthright for a bowl of rancid soup offered us by a latter-day Jacob:  the first grifter, swindler, and con man who can most persuasively tell us what we want to hear by echoing back to us our basest impulses, and giving us permission to slavishly follow them.

This is why I no longer have any respect for “We the People” as a group. They are mostly a hive-mind version of Mitch McConnell and Devin Nunes. The post-World-War-2 generation — my generation — has never had to seriously face the prospect of fascist / totalitarian tyranny. (Yes, Dr. King and the leaders of the civil rights movement fought racism and Jim Crow. But that fight was carried on within the context of a liberal, Enlightenment-based constitutional culture, not that of an authoritarian, blood-and-soil-fascist Teutonism. If you do not see the difference, you are an individual instance of the very decadence to which I refer.) We’ve never had to fight -- really fight -- for anything, least of all constitutional government and Bill of Rights liberties. It has all been handed to us on a silver platter by my dad’s and my parents’ generation, i.e., the people who did have to fight. (To say nothing of the Washingtons, the Madisons, the Jeffersons, and the guys at Concord, Lexington, Valley Forge, et al.) The closest we ever came to fighting for the life of the American Republic is kicking back in our 5,000-sq-ft mc-mansions and playing “Call Of Duty” on our 60-inch OLED flat-screen TVs. We’re goddam spoiled brats who think that by voting for a filthy, marginally literate, pussy-grabbing fascist pig for President -- the same kind of two-legged, slavering, belly-crawling, busted-condom spawn leading the Third Reich that my dad and his buddies fought against in World War 2 -- we will somehow “make a statement” about how corrupt America is, by objecting to such desperately evil sins like, e.g., Barack Obama refusing to disavow his Chicago pastor. (Of course, people keep risking life and limb to emigrate to this red-white-and-blue hell-hole, anyway, but let's not talk about that.) Maybe we deserve to lose this country and its Constitution. Maybe we really are not worthy of it.

But in any case, I see no more hope in appealing to "We the People" to "preserve, protect, and defend the Constitution against all enemies, foreign and domestic" -- the Constitution they have never read and that many of them, like Trump, think comprises twelve (or however many) Articles -- than I see in appealing to the Republican Party to do the same damn thing. Do not tempt me to laugh because I just might start crying. If "We the People" gave a stone-righteous flying shit about the Constitution, the Bill of Rights, etc., Trump's campaign would have been over five minutes after he publicly advocated shutting down a free press by litigating it to death, requiring American Muslims to register and advocating for the warrantless surveillance of their mosques, police beatings of suspects as part of the arrest process, insulting war heroes with torture-broken arms who endured agonies that would have enabled us to track Trump without GPS merely by using satellites to follow his diarrhea trail, encouraging his supporters at his rallies to assault dissident anti-Trump people and offering to pay their legal expenses, etc., etc. (If you need to look up any of these references, then, again, you are part of the problem. Do your own homework.) Go look at old newsreels sometime of the kind of political violence attending National Socialist rallies in Weimar Germany. That is what the great and majestic American People have now apparently decided to normalize and to count as acceptable.

Pink Wine Pink Champagne Celebration


The only substantive hope I see, in the event of a government paralyzed by its own square-jawed determination to ignore its country's own Constitution as it gorges itself on Esau's stew, reposes in what I will call "professional and para-professional constitutionalists":   professional civil-liberties lawyers and activists and their avocational counterparts. In other words, mega-nerds like me who have some sense of urgency founded on a real apprehension of what is at stake in purging the Nation of the fascist virus, and of the sheer scale of the task of doing so. That task comprises nothing less than a social and political U-turn back to constitutional principles that should have always been deemed non-negotiable. What are those principles, specifically? If you have to ask, you are -- again -- part of the problem. But the short answer is "Read the Bill of Rights and the 13th, 14th, and 15th Amendments".

We must return to who we were and who we always should have been. We have to check out of our Hotel California.

Mirrors on the ceiling,
The pink champagne on ice
And she said 'We are all just prisoners here, of our own device'
And in the master's chambers,
They gathered for the feast
They stab it with their steely knives,
But they just can't kill the beast

Last thing I remember, I was
Running for the door
I had to find the passage back
To the place I was before

James R. Cowles

Image credits

Eagles in concert ... Linc-o ... Creative Commons Attribution 2.0 Generic
Hotel California ... Lawren ... CC BY 2.0
Mirrored ceiling ... Ibnazhar ... Creative Commons Attribution-Share Alike 4.0 International
Pink champagne ... Max Pixel ... Public domain
Robert Mueller ... The White House ... Public domain
Donald Trump ... Michael Vadon ... CC by SA 2.0
Subpoena ... Science Education Resource Center (SERC), an office of Carleton College ... Creative Commons Attribution-Share Alike 3.0 Unported
Supreme Court ... Daderot ... Public domain
Lyrics to "Hotel California" ... © Universal Music Publishing Group

Leave a Reply