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Moe Power, Moe Problems

14 days ago

Moe Power, Moe Problems | Cato at Liberty Blog

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Pelosi’s Bizarre 25th Amendment Gambit

January 12, 2021

We keep hearing that this is a rushed impeachment, but the House leadership seems to think there’s plenty of time for a frolic and detour before getting to the main event. Before considering an article of impeachment based on President Trump’s January 6 pre‐​riot rally speech, they’re going to vote on a toothless, hortatory resolution urging Vice President Mike Pence to do their jobs for them. Specifically, the resolution calls on Pence and a majority of Trump’s cabinet to trigger Section 4 of the 25th Amendment, making Pence “acting president” for the remainder of Trump’s term.

In her letter announcing the move, Speaker Nancy Pelosi (D-CA) proclaims that “In protecting our Constitution and our Democracy, we will act with urgency, because this President represents an imminent

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Impeachment, the 25th Amendment and Trump’s Final Days

January 7, 2021

We started the week with an impeachment debate that looked like a rewarmed version of the one we had last year. “Read the transcript!”: when President Donald Trump got on the phone Saturday to lean on Georgia election officials, was it another “perfect call” or a second, sordid shakedown attempt?
By yesterday afternoon we were in entirely new territory: a violent mob storming and trashing the Capitol, four dead, guns and explosives seized, Congress evacuated, Vice President Mike Pence fleeing a mob inspired by the president’s tweets. “We will never concede,” Trump fumed at the pre‐​riot rally, “you don’t concede when there’s theft involved. Our country has had enough. We’re not going to take it any more.… if you don’t fight like hell, you’re not going to have a country any more.” Howard

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Introducing “Pandemics and Policy“

September 15, 2020

The 21st century has so far seen three great crises: the terrorist attacks of September 11, 2001, the financial collapse of 2008, and the COVID-19 pandemic—which has by itself already inflicted a greater toll in life, liberty, and prosperity than its two predecessors combined. And just as COVID has upended our daily lives, it’s transformed the political terrain, with governments at all levels exercising emergency powers rarely seen outside the context of total war.
But “panic is its own contagion,” and with so much at stake, what’s needed now is a calm, realistic assessment of the choices ahead—a guide to policies that can stem the damage while avoiding permanent transformation of American life and law. The Cato Institute intends to meet that need with the new series of

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Trump the Decider

January 8, 2020

The MQ-9 Reaper attack that took out Iranian General Qassim Suleimani was a drone strike for peace, President Trump explained last week: we took action “to stop a war. We did not take action to start a war.” That’s a theory, and it’s going to be put to the test. “All is well!” the president tweeted last night as a salvo of Iranian missiles fell on U.S. positions in Iraq: “So far, so good!”
Trump’s decision to target Suleimani—a figure described as the Iranian equivalent of “an American Vice President, chairman of the Joint Chiefs and CIA director rolled into one”—wasn’t the first time the U.S. government has aimed lethal force at a top government official. There’s the checkered—and occasionally absurd—history of the CIA’s Cold War assassination attempts, including the Kennedys’ efforts to

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Keeping Impeachment Simple

December 12, 2019

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

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Jonathan Turley: Then and Now

December 6, 2019

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

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Impeach Me—I Dare You!

October 10, 2019

President Trump is done cooperating with the House impeachment inquiry, White House Counsel Pat Cipollone announced yesterday in a letter that reads like the lawyerly version of a primal scream. “Your unprecedented actions have left the President with no choice,” he told the House Democratic leadership: the Trump administration “cannot participate in your partisan and unconstitutional inquiry under these circumstances.” We’re done here: It’s a “full halt,” full stop.

Does Donald Trump actually want to be impeached? There’s been some speculation along those lines recently. But the fact that the president seems to be having a Nixon-style, talking-to-the-portraits nervous breakdown live over social media makes me skeptical that’s the plan—or that there’s any plan at all. Still, if Trump

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Trump’s Emergency Economic Powers: “Case Closed”?

August 27, 2019

On the campaign trail a few years back, Hillary Clinton declaimed: “We need a president who is ready on Day 1 to be commander in chief of our economy.” We got a good laugh out of that here at Cato—what a megalomaniacal misconception of the job! When President Trump embraced the role last Friday, it somehow seemed less amusing. “Our great American companies are hereby ordered to immediately start looking for an alternative to China,” he brayed, sending the markets into a Twitter-driven tailspin. 

Where does Trump derive the authority for that “order”? On Saturday, he followed up with a statutory citation for the haters: “try looking at the Emergency Economic Powers Act of 1977. Case closed!” 
True, President Trump makes a lot of crazy threats he never carries out: from revoking

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Repeal Old AUMFs and Salt the Earth

August 13, 2019

For months now, the Trump administration has pursued a “maximum pressure” campaign that—by accident or by design—has brought the United States to the brink of war with Iran. The branch of government with the constitutional power to declare war ought to have the final word here. Lately, however, Trump officials have hinted that Congress has already had its say—nearly 18 years ago, when it authorized war with Al Qaeda and the Taliban.  
The 2001 Authorization for the Use of Military Force, passed three days after the September 11 attacks, targets the perpetrators of 9/11 and those who “harbored” or “aided” them. In the intervening years, the 2001 AUMF has been stretched far beyond its original purposes—but the Trump team apparently believes it can be stretched further still. In June we

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Joe Biden on Impeachment for Illegal Warmaking

June 27, 2019

I don’t know if the moderators of tonight’s Democratic primary debate are taking requests, but here’s my question for former vice-president—and current frontrunner—Joe Biden:
“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.

[embedded content]
At the time, there was a

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Emergency Exit Strategy

June 24, 2019

His brand is crisis, so it can be hard to keep abreast of the various calamities President Trump stumbles into or deliberately courts. Now that tensions with Iran seem to have momentarily cooled, another recent episode of Trumpian brinksmanship, closer to home, deserves some attention before we lurch forward into new dangers. 
As you’ve surely heard, but may have already forgotten amid the fog of near-war, three weeks ago, President Trump threatened to declare yet another national emergency at the southern border. If Mexico didn’t sufficiently crack down on cross-border migration, Trump warned, he’d use “the authorities granted to me by the International Emergency Economic Powers Act” to hammer our third largest trading partner—and U.S. consumers—with a series of escalating tariffs on

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The Right Call on Iran, But It Shouldn’t Be Trump’s Call

June 21, 2019

It says something about the way we go to war now that one almost feels like thanking President Trump for deciding, at the last minute, not to kill (at least) 150 people—and risk catastrophic conflict with Iran—in order to avenge one unmanned Northrup-Grumman RQ-4 Global Hawk drone, downed by an Iranian missile. It wouldn’t be “proportionate,” he said, and he’s right—though that apparently didn’t bother National Security Adviser John Bolton, Secretary of State Mike Pompeo, and CIA Director Gina Haspel.
While you’d never call the man cautious, much less squeamish about foreign casualties, it’s not the first time Donald Trump has appeared that way compared to the putative “adults in the room” advising him. There are several such stories in Bob Woodward’s 2018 book Fear: Trump in the

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Impeach John Bolton?

May 29, 2019

“We’re not looking for regime change [in Iran]. I want to make that clear,” President Trump said Monday at a news conference in Japan, “nobody wants to see terrible things happen, especially me.” That’s good to hear, but has Trump’s National Security Advisor gotten the message?
It’s the undeterrable John Bolton, after all, who’s been at the epicenter of the rumors of war plaguing Washington in recent weeks. It’s Bolton who ordered up a Pentagon plan for “retaliatory and offensive options” to check Iran, including a 120,000 troop surge to the region, and Bolton who blustered that a recent carrier-strike-group deployment signaled America’s willingness to meet any Iranian challenge with “unrelenting force.” 

Trump is said to be frustrated by his aide’s brinksmanship, privately cracking

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Amash Note on Impeachment

May 24, 2019

On May 18, in the first of three long Twitter threads, Rep. Justin Amash (R-MI) announced his conclusion that “President Trump has engaged in impeachable conduct.” That tweetstorm unleashed a… different kind of storm from his fellow Republicans. The self-styled House Freedom Caucus voted unanimously to condemn Amash, an irate Michigan state rep. announced he’d challenge the congressman in the GOP primary, and, of course, there was President Trump, fuming that Amash is “a total lightweight” and “a loser who sadly plays right into our opponents hands!”  
About the only GOP officeholder with anything nice to say was Sen. Mitt Romney (R-UT). Romney made sure to emphasize his disagreement with Amash, but praised him for “a courageous statement.” Coming from the on-again, off-again Trump

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Criminal Obstruction vs. Impeachable Obstruction

April 26, 2019

Earlier this month, the effort to impeach President Trump looked like a #Resistance fantasy. The release of the Mueller Report seems to have shifted the debate dramatically. This week, Democratic presidential contenders Sen. Kamala Harris and Sen. Elizabeth Warren called on the House to impeach Trump for obstruction of justice.  

Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for Article I of the charges against Richard Nixon, and Article II  against Bill Clinton. 
Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here;

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This Is Our Emergency

January 11, 2019

Last Friday, President Trump threatened to declare a national emergency and build his border wall using “the military version of eminent domain.” By Tuesday, Trump seemed to have climbed down somewhat, declining to repeat the threat in his televised Oval Office address. But the week’s end found the president declaring it would be “very surprising” if he didn’t pull the trigger.
So is the emergency-powers gambit a live option or—like the executive order revoking birthright citizenship Trump floated before the midterms—another pump-fake designed to thrill the base and rile the media? Either way, it’s a noxious, thuggish proposal. Using the army to do an end-run around Congress is not how constitutional government is supposed to work. Imagine believing that Latin American immigration so

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Imperial Rites

December 5, 2018

Writing in National Review, Charles C.W. Cooke decries the pharaonic spectacle of the modern presidential funeral. “Whether he was a great man or a poor one, George H. W. Bush was a public employee.” In order to honor his passing, Cooke asks, do we really need to shut down the stock market, postal service, and much of the nation’s capital for a national day of mourning? The whole business marks “another step toward the fetishization of an executive branch whose role is supposed to be more bureaucratic than spiritual.” I’m glad he said it first, but he’s absolutely right.
Our first president, ever conscious of the precedents he could set, didn’t want an elaborate state funeral. “It is my express desire that my Corpse may be Interred in a private manner, without parade, or funeral

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Impeach Justice Kavanaugh?

October 19, 2018

If the Democrats take the House, they’ll impeach Justice Kavanaugh, President Trump warned at a mass rally in Iowa last week. “Impeach, for what? For what?” Trump demanded. For perjury, most likely: “If we find lies about assault against women,” says Rep. Luis Gutierrez (D.-Ill.) one of several House Judiciary Committee members calling for renewed investigation, “then we should proceed to impeach.” 
I’m not the newly-minted Justice’s biggest fan. From the start, I thought Kavanaugh was a lousy pick for the Court: weak on the Fourth Amendment and unreasonably fond of extraconstitutional privileges for the president. I’ve also argued, at great length, that we ought to impeach federal officers more frequently than we do. That goes for Supreme Court Justices as well. The Framers thought

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Pardon My Skepticism

June 11, 2018

In his prime tweeting time, bright and early last Monday, President Trump proclaimed:

“Numerous legal scholars?” I harrumphed to myself: “come on.” Given that no president has ever been crazy enough to try it, the self-pardon is a novel question of constitutional law. When I first looked into the issue last year, I could find only two law review articles devoted to the subject, one pro, one con. 
But sure enough, in the week that followed, “numerous legal scholars” chimed in with impressive confidence. Jack Goldsmith has a useful roundup over at Lawfare, noting that while the “constitutional text does not speak overtly to the issue and there is no judicial precedent on point… that doesn’t stop people from voicing strong opinions” on each side of the issue.
Since Goldsmith’s post, two

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Presidential War: From “Not Normal” to the New Normal

April 11, 2018

A US attack on Syria is imminent, but don’t expect a congressional debate on whether it’s wise or lawful, the Wall Street Journal reported this morning. “I think for a surgical strike, they easily have the authority to do it,” says Senate Foreign Relations Committee chairman Bob Corker. 
That’s the same Senator Corker who, not long ago publicly agonized that President Trump’s “volatility” and recklessness could put America “on the path to World War III.” One wonders what he could have had in mind if not something like this: 

Russia vows to shoot down any and all missiles fired at Syria. Get ready Russia, because they will be coming, nice and new and “smart!” You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!
— Donald J. Trump (@realDonaldTrump)

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Impeachment for “Impulsive, Ignorant Incompetence”?

October 11, 2017

In Sunday’s episode of “Reality-Show Presidency,” we found out what happens when the president and the chairman of the Senate Foreign Relations Committee “stop being polite… and start getting real.” After President Trump blasted him in a series of tweets early Sunday, Sen. Bob Corker (R-TN) shot back:


Senator Corker is hardly the only highly placed Republican to express grave doubts about Trump’s stability and competence. Daniel Drezner has assembled a list—now at 115 items and counting—of news stories in which the president’s own aides or political allies talk about him as if he’s a “toddler.”  But since Corker’s not running for reelection, he felt free to go on the record: Trump “concerns me,” Corker said in an interview later that day, “he would have to concern anyone who cares

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Scaring Ourselves to Death over Impeachment

September 29, 2017

Richard Cohen’s latest column is sillier than usual, which is really saying something. (Hat tip to Jason Kuznicki, who sums up Cohen’s argument as “Trump is SO bad that we must not impeach him.”)
In purple, paid-by-the-metaphor prose, Cohen calls our 45th president “a dust storm of lies and diversions with the bellows of a bully and the greasy ethics of a street-corner hustler,” someone whose “possible crimes line up like boxcars being assembled for a freight train.” And yet, “we would impeach Trump at our peril.” 
Why? Because the president’s hardcore supporters would view impeachment and removal as the reversal of a democratic election. Worse, some of them—possibly with Trump’s encouragement—might resort to violence. We could see “a lot of angry people causing a lot of mayhem” if

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9/14 Changed Everything

September 14, 2017

Over the last decade and a half, we’ve heard over and over again that “September 11th changed everything”—but maybe September 14 was the pivotal date. Sixteen years ago today, Congress passed the 2001 Authorization for the Use of Military Force (AUMF). Aimed at the perpetrators of the 9/11 attacks and those who “harbored” or “aided” them, the AUMF has been transformed into an enabling act for globe-spanning presidential war.  
“I don’t think one generation should bind another generation to war,” Sen. Rand Paul (R-KY) insists, but that’s exactly what’s happened: the AUMF Congress passed in 2001 still serves as legal cover for “current wars we fight in seven countries.”
Sixteen years ago, Barack Obama was an unknown state senator and part time law professor, and Rep. Gary Condit (D-CA)

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“The Complete Power to Pardon” and “the Sole Power of Impeachment”

September 1, 2017

“The sense of responsibility is always strongest, in proportion as it is undivided,” Hamilton argued in Federalist 74; for that reason, the broad constitutional power to pardon was best vested in “a single man,” the president, who could be expected to wield it with “scrupulousness and caution.” Things aren’t exactly working out according to plan so far in the Trump presidency.
Trump’s first presidential pardon, accomplished with an end-run around his own Justice Department, went to former Maricopa County, AZ sheriff Joe Arpaio, an unrepentant, serial abuser of power. If, as Hamilton suggested, “humanity and good policy” are the ends the pardon power is supposed to serve, its exercise in this case served neither. 

“All agree the U. S. President has the complete power to pardon,”

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Take Me to Our “Moral Leader”!

August 23, 2017

Ripping into President Trump on “Morning Joe” last week, historian Jon Meacham invoked FDR: “the presidency is preeminently a place of moral leadership.” When I heard that, I thought, man: if that’s right, then we are well and truly…er, doomed. But is it right?
A lot of people seem to think so, including some conservatives. In his Washington Post column this week, Michael Gerson laments “the sad effects of President Trump’s renunciation of moral leadership on American politics and culture.” And in a piece titled “Conservatives Need to Remember, Presidents Affect Culture,” National Review’s David French writes that “In 1998, Bill Clinton damaged the culture for the sake of preserving his political hide”; now, “a GOP president is inflicting even deeper wounds.” Instead of minimizing

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Stopping the President from Going Nuclear

August 16, 2017

Add yesterday’s rage-spasm of a press conference to the growing list of reasons reasonable people are inclined to worry about Donald Trump’s proximity to nuclear weapons. In addition to what it suggested about Trump’s moral compass (“Very fine people” aren’t attracted to posters that look like this), his performance also highlighted questions about the judgment, temperament, and impulse control of the man entrusted with the world’s most fearsome arsenal.
Last week, recall, Trump threatened North Korea with nuclear annihilation: “North Korea best not make any more threats to the United States…. They will be met with fire, fury and frankly power the likes of which this world has never seen.” “Fire and fury” was ad-libbed, apparently, but on Thursday, he upped the ante: “if anything,

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The Overcriminalization of Impeachment

August 7, 2017

Trying to tamp down impeachment talk earlier this year, House minority leader Nancy Pelosi (D-CA) insisted that President Donald Trump’s erratic behavior didn’t justify that remedy: “When and if he breaks the law, that is when something like that would come up.” 
Normally, there isn’t much that Pelosi and Tea Party populist Rep. Dave Brat (R-VA) agree on, but they’re on the same page here. In a recent appearance on Trump’s favorite morning show, “Fox & Friends,” Brat hammered Democrats calling for the president’s impeachment: “there’s no statute that’s been violated,” Brat kept insisting: They cannot name the statute!” 
Actually, they did: it’s “Obstruction of Justice, as defined in 18 U.S.C. § 1512 (b)(3),” according to Rep. Brad Sherman (D-CA) who introduced an article of

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I Beg My Pardon?

July 24, 2017

If you’re looking for an upside to the Trump presidency, there’s this at least: it promises to be endless fun for executive-power geeks. That “this is not normal” means there’s plenty of opportunity to consider constitutional questions that rarely come up in periods of relative normalcy.
Case in point: the current debate over whether the president has the power to pardon himself, sparked by Friday’s Washington Post report that President Trump “has asked his advisers about his power to pardon aides, family members and even himself” in connection with the special prosecutor’s Russia investigation. Trump himself chimed in over Twitter Saturday:

On ABC’s “This Week” Sunday, Trump attorney Jay Sekulow denied that any such discussion had taken place, but told George Stephanopolous that

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Crying “Coup,” Red and Blue

June 15, 2017

History hasn’t been kind to Alexander Hamilton’s hypothesis, in Federalist 68, that “there will be a constant probability of seeing the [office of the presidency] filled by characters pre-eminent for ability and virtue.” Still, he was spot-on in No. 65, when he predicted that impeachment debates would stoke partisan rancor, driving “pre-existing factions [to] enlist all their animosities, partialities, influence, and interest on one side or on the other.”
Impeachment talk started unusually early in the Trump administration, and seems likely to get louder as we go. So far it’s been an even richer source of hyperbole and hypocrisy than the judicial filibuster.
“Congress must begin impeachment proceedings immediately,” insists, the activist group born in a 1998 campaign urging

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