Presidents' Day Questions for Ralph Hancock

[Cross-posted to By Common Consent]

Ralph Hancock, a political theorist at Brigham Young University, is a fairly notorious figure in certain tiny Mormon slivers of the internet, which I happen to partake of regularly. I never took a class from him when I was a student at BYU, but I've interacted with him, in person and online, dozens of times over the decades; we're friendly, if not necessarily good friends. Recently, Hancock made waves with a piece he published in Utah's Deseret News (a Mormon Church-owned newspaper), arguing, in reference to the recent impeachment vote, that Utah Republican Senator Mike Lee, who voted, along with every other Republican save one, to find President Trump not guilty of the impeachment charges, had acted like a true statesman; Mitt Romney, the only Republican senator to voted to convict Trump, had not. This is a position I disagree with, to no one's surprise. So this President's Day, I'd like to pose some questions for Ralph--not with any illusion that anyone's mind will be changed by voicing such questions, but because I honestly want to understand just what it is he's claiming about American statesmanship circa 2020, and why.

Ralph's short piece spends most of its length setting up a philosophical argument regarding the place and the nature of partisanship in our odd political moment, in which we (or, depending on what kind of right-wing or left-wing critique of American voting practices you prefer, "we" in scare quotes) govern ourselves through a pluralistic democratic arrangement wherein certain civic republican ideals and standards are nonetheless at least ritually given a place (the senators taking an oath to judge impartially, and not in accordance with political pressures, during an impeachment trial, for example). Ralph thinks Romney's speech explaining his impeachment vote demonstrates a poor understanding of the place of partisanship today, thus making his appeals to conscience and ethical and religious principles an annoying distraction. (He's made this argument similar to this about Romney before, charging him with failing to recognize that the "foundation" of civic virtues like "decency" and "civility"--which Romney condemned Trump for lacking, as he obviously does--are more "vulgar" virtues like "courage and loyalty," which Trump, in Ralph's view, has plenty of.) The key paragraph in this section, I think, is this one:

To take political responsibility is to reckon with the inevitable fact of partisanship. Anyone really interested in making a difference for the better for our country must recognize the need to have political friends and to beware of enemies. To recognize the reality of allies and adversaries is not to debase political action but simply to reckon with the actual partisan situation. The question is whether Sen. Romney has frivolously spent his political capital (in Utah, especially) or wisely traded it in order to make some powerful new friends in the national political arena....[I]t is hard not to question the otherworldly “profile in courage” of a political gesture that results in immediate celebrity among the great and powerful, if not among the more vulgar in Washington or in Utah.

I'd like to understand whether Ralph, who has insisted multiple times over the years that he is a strong advocate for "original constitutionalism," sees this as a necessary correction to Madison's (I agree flawed, but important and admirable all the same) claim that a properly constituted "extended republic" could effectively sideline the problem of parties (or "factions," as he put it), or whether he actually does hold with Madison, and instead simply believes that "reality of...the actual partisan situation" today requires fighting fire with fire. I'd love to learn it was the former, and thus be able to count Ralph, whatever our other political disagreements, as an advocate for pushing our system in a parliamentary direction wherein partisan divides are treated more honestly and responsibly. My suspicion, however, is that it's the latter, in which case the long theoretical case he makes in the first four paragraphs seems like so much throat-clearing.

Either way, the meat of condemnation of Romney's vote, and his praise of Lee's, comes immediately after this:

Senator Lee deftly framed his decision in the context of the larger partisan conflict over the design and purpose of our constitutional republic. For decades...progressives have worked to overcome the limitations of federalism and the separation of powers by transferring more and more power to unelected “experts” forming a virtual fourth branch of government, the bureaucracy. Trump’s alleged constitutional offense, from the standpoint of progressive or “living” constitutionalism, consists precisely in overriding the authority of expert bodies or the prevailing “inter-agency consensus.” Lee is a frank partisan of the original Constitution and a critique of its progressive reinterpretation. True solicitude for the constitution thus dictates, he concludes, not righteous indignation at the president’s use of executive power, but the defense of his Article II powers against the increasing arrogance of the fourth branch.

I would really like to understand better some of the assumptions Ralph is making here--assumptions which operate, I should note, without ever mentioning any details of the allegations about President Trump made in the articles of impeachment, thus obliging readers of Ralph's column to assume that the truth or falsehood of those allegations is irrelevant. Leaving entirely aside larger historical and theoretical debates over constitutional interpretation and the definition of "progressivism" being used here, the crucial leap I see here is the idea that the "experts" who expressed the "inter-agency consensus" against Trump's bribing or threatening or pushing of President Zelensky (presumably this is a reference to the testimony of Ambassador Gordon Sondland, Ambassador Marie Yovanovitch, Lt. Col. Alexander Vidman, and multiple others), actually constitute a unified body that seeks to operate as a "fourth branch of government," outside of the will of the executive or legislative branches That these individuals and others were actually operating within the reach of the executive branch--hence Trump's ability to fire them--complicates this assumption somewhat, especially in light of the centrality which Ralph grants to partisanship as a necessity of proper statesmanship.

While it is true that conservative stereotype of the progressive interpretation of the U.S. Constitution has involved the progressive empowerment of various agencies, boards, and other institutions within the executive branch, I have never heard it said that President Woodrow Wilson or other progressive bogeymen of the conservative imagination were empowering such agencies in order to limit presidential discretion by way of "expert consensus." On the contrary, the conservative knock against them has long been that these agencies and experts centralized power in the office of the presidency. So in what way, exactly, can executive appointees hypothetically undermining the actions of a president via expressing their critical judgment against him in impeachment testimony be understood as following through on a progressive agenda to centralize power?

I think I can imagine one way, but only one. If Ralph is a complete adherent to the theory of presidential power laid out by Attorney General William Barr, then presidential power must be understood as something that belongs not to the executive branch, but to a single person, wholly and entirely. The executive branch, under this (I think frankly ahistorical, and others agree) interpretation, then the people around the president must be understood as his partisan tools, nothing more or less. Thus, any Republican appointee of President Trump who dissents from or really is just in any way critical of Trump's actions has failed to follow their partisan role within the constitutional structure of the executive branch, and must be understood as acting independently, in alignment with those progressive forces, hiding behind their civil service protections, acting as an unelected, undemocratic force.

If this is correct, then Ralph is arguing--or at least as best as I can construct the argument--that if ours is to be a responsible constitutional democracy, it must firmly resist any kind of intra-party dissent within the executive branch, because absolute partisan unity is central to the executive (that is, the President of the United States) governing--including, I suppose, making phone calls--the way he or she chooses to, and giving the presidency wide freedom in what they choose to do holds off or at least hampers the development of an elite body of undemocratic, unelected others.  Hence, Lee is acting a statesman in voting in support of the president, and Romney, invoking an "impartial" ideal to justify his vote against the president which fails to reckon with the necessity of an executive being free from push-back from his own partisan tools, is not. Have I got this right, Ralph?

I think there are huge historical and theoretical problems with this, and I say that as someone who is entirely willing to dump on Madison, praise parliamentarianism, and join in rolling my eyes at obviously partisan individuals and organizations cloaking what they do in civic republican language. But that's not what Ralph has done here; I think he's made a different kind argument, one that I would really like to understand better, because not only does it not seem to fit the "original constitutionalism" Ralph has so long praised, but it doesn't even seem to entirely fit the conservative complaint against progressivism which so many adherents of "original constitutionalism" have long put forward. Yes, I know; Occam's Razor suggests that Ralph doesn't actually believe any of this; that's it's all motivated reasoning, same as my response, and that his column and my response here is all just so many pointless words tossed around. But noentheless I'd love to be humored, at least a little bit. Ideally I'd love to hear from Ralph himself, but if anyone would like to explain to me what I've misunderstood about his claims, I can't think of a better way to honor Presidents' Day than to argue about it all.

A Plea to Kansas Senator Jerry Moran

This morning, I was asked by a small, hastily organized group of Wichita citizens to speak on behalf of "A Kansas Call for a Full and Fair Impeachment Trial." There was almost more media there than people--Martin Luther King, Jr. Day is a slow news day, I guess--but many good questions were asked, and hopefully my comments will, in some tiny way, do some good. For whomever is interested, here they are. [Update, 1/27/2020: the Wichita Eagle printed a much shorter and to-the-point version of my comments today here.]

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I'm going to take my inspiration from the title of this event--the organizers which to issue a "Kansas Call" to our senators. The historian and political contrarian within might be tempted to use that as an excuse to invoke Kansas's populist and radical past, and engage in some deep criticism of the whole impeachment process. That would be fun, at least for me. I could talk about how the authors of the U.S. Constitution probably intended impeachment to be, if not routine, than at least a regular part of the way Congress emphasized legislative supremacy over the executive branch, as opposed to politically fraught enormity it has, popularly at least, come to be seen as. Or I could talk about how the authors of the Constitution apparently assumed a classical republican foundation in their thinking about the responsibilities of elected representatives in investigating and pursuing impeachment, and since that foundation soon disappeared, the result is a process that reads today like a strange mish-mash of the partisan and the principled. And that just scratches the surface!

But no, that kind of deep critique wouldn't fly as a true "Kansas call," at least not in 2020. So instead, I'm going to take the Constitution and what it says about impeachment as conservatively and as straightforwardly as I can. Senator Moran has shown himself to be someone whose conservatism isn't solely a reflection of his membership in the Republican party; though mostly a loyal soldier, he has defended small-town rural interests in opposition to his party's priorities, and has refused to sign up in support of the president and his party leadership in regards the matter of executive war powers. So on that basis, I'm going to imagine that he might be a receptive audience to what I have to say.

Senator Moran, as you know, the Constitution says that presidents may be impeached for treason, bribery, or "high crimes and misdemeanors." The latter is not reducible to a clear question of whether or not a law has been broken, though that is one of the main talking points of President Trump's planned defense in the impeachment trial to begin tomorrow. Unfortunately, it's admittedly something other than an obvious determination.

When President Johnson was impeached, the charge taken to the Senate for trial was that his firing of his secretary of defense without informing Congress was a violation of the Tenure of Office Act, the law of the land at the time (a bad law later repealed and widely viewed as unconstitutional anyway, but still an illegal act in 1868). When President Clinton was impeached, the charge taken to the Senate for trial was his lie under oath about his affair with Monica Lewinsky given during a deposition conducted in connection with another investigation; lying under oath in a legal proceeding being, of course, against the law. In President Trump's case, though, the House impeachment investigation brought forth charges of "abuse of power" (pertaining to his subtle pressuring of the Ukrainian government to begin an investigation into his political rival's son) and "obstruction of Congress" (pertaining to the way he denounced and discouraged compliance with legal subpoenas and other investigative actions taken by the House). These issues are murkier than those in the previous two impeachment trials. Though the Government Accounting Office says otherwise, Trump continues to insist that there was nothing wrong with his phone call to Ukranian president Zelensky, and that in any case, pushing foreign leaders around isn't--or so the president's lawyers say--criminal "abuse." And as for obstructing Congress, well, it won't be hard for those sympathetic to Trump to acknowledge he's a rude loudmouth, a narcissistic blowhard, and then point out that, given his history of hapless fulminating to the crowd, a President of the United States mocking people and slapping them around on Twitter can't be considered the same kind of obstruction as, say, shredding documents. They may have a point.

But of course, that's the rub: someone has to decide if they have a point or not. And that someone includes you, Senator Moran. I urge you to think about what making that judgment call involves.

However politically convoluted or historically dated or theoretically incoherent the process may seem to be, the constitutional facts remain: in the impeachment process, the House, whatever partisan agendas among its membership may or may not exist, investigates and then votes on articles of impeachment--and then you, along with all the other members of the Senate, swore an oath to sit, listen, and act like jurors in a full-on trial. Or in other words, to "do impartial justice according to the Constitution and laws." Note that--the Constitution and laws. Which is a recognition that they are not always the same.

This isn't the time or place for a long survey of constitutional theory, so simply accept this: a constitution functions at least as much through the norms, customs, and performative expectations which it shapes as it does through the specific rules that it lays down. The chaos that has attended President Trump's administration, whether or not you think it to have been abetted by his political opponents from the very moment of his election, is at least partly a consequence of the fact that in the way he approaches his executive responsibilities, his relationships with other branches of the government, his treaty obligations to other countries, as so much more, reflects a total disregard for, and often outright ignorance of, all those norms, customs, and expectations. Maybe you're a "Flight 93" conservative, Senator, convinced that the Deep State is out to destroy President Trump and taking delight when he essentially blows raspberries at every tradition that pertains to his office. I doubt that's the case--but even if it is, the role you are in today demands that you conserve a responsible relationship to those norms.

That, of course, doesn't mean you have to agree with the House prosecutors as they make their case for impeaching the president for abusing his power and obstructing Congress. But to call for hearing their case fully, and for considering what witnesses (both the prosecution's and the defense's!) have to say about that case--that would be an honorable way to acknowledge that responsibility. And it would enable you to be able to authentically exercise the judgment which you have before. 

Last year, when President Trump claimed that the emergency at the southern border was all the pretext he needed to appropriate money for building his wall which Congress had not, in fact, constitutionally allocated for that use, Congress, rightly, protested. The House voted against that action (Representative Ron Estes, my congressman and your colleague, voted with the president); as did the Senate--and you voted with the majority, against Trump's (and your own party leadership's) wishes. At that time, you wrote at length about your fear of an "all-powerful executive," the importance of showing some "understanding of history" in making decisions, and most of all about how "the ends don't justify the means." Tomorrow you will begin sitting as a juror in President Trump's impeachment trial, and prominent members of your own party have made it known--despite criticism from the right and the left--that they have already decided what the end should be: namely, Trump's acquittal. That's not a show of judgment, that's not using--as you said you did a year ago--your "intellect" and your "gut." That's just assuming that this whole process is a show, and there's not reason to pretend that it matters. Taking impeachment seriously, by contrast, whatever the flaws and confusions of this example of it, involves being willing to perform a role, and follow through with it to where the evidence--witnesses included!--you feel it leads.

Look, we're all smart people here: we all know, and most of all we know that you know, President Trump will not be impeached. (Similarly, you surely knew that Trump would veto Congress's blockage of his claimed emergency powers last year, which he did.) We're not asking you to make some kind of grand, pointless stand. But we are asking, as your Kansas constituents, that you do what I suspect your own conservative judgment surely calls for you to do: to push back against Senator McConnell's cynical approach, and demand that the trial, with all its customs and trappings, with its witnesses and evidence and two cases ritually presented, be allowed to go forward as the Constitution specifies.  Let the House impeachment managers call witnesses. Let Trump's defense team do likewise. Let the whole process be performed as it ought to be, however convoluted that path that led to this point may be.

Yes, the articles of impeachment sent to you by the House demand, in the end, a judgment call, an assessment of murky issues of presidential expectations and responsibilities, rather than a cut-and-dried application of the law. All the more reason to add your vote to those who will push against the hurried, dismissive (dare I say "Trumpish") approach to this constitutional matter, those who seek to it as fair and impartial as possible. The result may be foregone--but the process isn't. And is anything positive is to come out of the whole impeachment process, it may be a reminder that, so long as we choose to accept the basics of our constitutional order, then constitutional procedure still matters. That's a reasonable judgment, don't you think?