Limitations of Presidential Power

Yesterday, Harvard Law Professor Alan Dershowitz appeared in a panel on CNN arguing a point that caused other participants to turn red with anger. I think I saw smoke coming out of their ears. His argument was that no President can be legally accused of obstructing justice as long as he is exercising his constitutional authority. And remember, the breadth of that authority is immense. But pay attention to the modifier “legally”. There is a big difference between what is legal and defensible in a court of law and what is morally right and defensible in the court of public opinion.

 

According to Prof. Dershowitz, Trump can summarily fire anyone in the executive branch, except the Vice President and employees protected by civil service regulations. He can do this for any reason or indeed for no particular reason. He can order the Justice Department or the FBI to terminate any investigation, criminal or not, regardless of who is the subject. The so-called independence of the Justice Department is custom, not law. He can pardon anyone, before or after their conviction. He can even pardon himself, though not where an impeachment is involved. No one can gainsay any of these decisions. They are not reviewable by any court or by Congress. Moreover, the President is totally immune from civil liability for any of his official acts, though impeachment can remove this protection.

This pokes a gaping hole in most of the overheated rhetoric by his Democratic opponents. There is nothing currently in the public domain that would indicate legal jeopardy for President Trump. But these are early days and the establishment of a special counsel is ominous. And of course there are limits to Presidential immunity. The President cannot commit criminal acts, destroy evidence in a case under investigation, lie under oath or suborn perjury. He must submit materials demanded under subpoena by a legal authority. But he can quite legally halt any federal case in its tracks and raise his middle finger to his opponents.

This may appear to transform the President into a virtual dictator, but there are two resources available to restrain him. Article 2, Section 4 of the Constitution provides for involuntary removal by impeachment. The legal basis for impeachment is whatever Congress says it is. So it can consist of ordinary criminal activity or such indefinable offenses as “failure to execute authority” or “unbecoming conduct.” Essentially Congress can simply use this authority to say, “Begone, scoundrel! We have no further use for you.” This isn’t easy, requiring a two-thirds super-majority of the Senate. There have been four serious attempts to remove a President in this manner and all failed, though Nixon did leave voluntarily when the outcome was inevitable.

The second resource arises from the 25th Amendment to the Constitution. The President can exercise rights under this amendment to relinquish his office voluntarily whenever he feels unable to fulfill his responsibilities. This is a temporary measure until such time as he issues a revocation. Ronald Reagan and George W. Bush employed this mechanism when they required temporary hospitalization. No President under assault by political opponents would be likely to use it. But there is another part of this amendment that permits either a majority of his cabinet or even some ad hoc group established by Congress to force a President to give up his powers, presumably though not necessarily due to disability. This might be called the Fruitcake Provision, and it seems germane to at least some of Trump’s more imaginative opponents. It has never been tried and it is unclear whether any such attempt would survive judicial review.

This is our system, as explained by one of the country’s foremost constitutional scholars. So, TV commentators, self-appointed legal experts and the like can fuss and fume but that changes reality not one whit. I don’t much like this aspect myself but I can’t conceive an alternative that wouldn’t be subject to its own serious drawbacks.

Trump and the Dunning-Kruger Effect

Donald Trump is driving almost everyone crazy, even some of his supporters. The media are rife with pop psychology purporting to explain his odd behavior, outrageous tweets, and conflicting statements. It varies from deep conspiracy theories to pure psychobabble, even by observers who one might expect to know better.

But now I believe that some academics have hit on the real answer. Trump’s actions and thoughts are clearly a manifestation of the Dunning-Kruger Effect. This describes a syndrome in which people who are the least competent at a task rate their skills as exceptionally high because they are too ignorant to know what it means to have the skill.

Not only do sufferers of this disability fail, they don’t even learn from their mistakes. Their misplaced confidence causes them to attribute all failures to others. It is always either incompetent associates or a vast array of enemies who are responsible. Think about it. Listen to Trump the next time he stumbles or misjudges the problems every President faces.

Conservative columnist George Will expressed it succinctly and devastatingly. He wrote that Trump suffers a dangerous disorder not only because he is ignorant and is unaware of his ignorance, but also because “he doesn’t even know what it means to know something.

Trump has very little understanding of the real job of President of the United States, and he is blissfully unaware of this deficiency. He thinks that this is a management position where someone leads the country toward greater prosperity and happiness. This isn’t wrong but it is startlingly superficial. In truth, this is a highly complex job requiring specialized knowledge and skills, in many respects like the job of a physician.

Like a doctor, a President must accurately diagnose problems and prescribe cures. He must recognize when an issue exceeds his expertise and training, seeking appropriate experts to bring about a resolution. He must establish rapport to guide those he serves toward accepting and implementing his remedies. Often he must work effectively as a team member. Most importantly, he must study intensively to acquire constantly evolving knowledge.

Does any of this make you think of Donald Trump and his approach to the crucial office he holds? Face it, Trump is not a real President. As the saying goes, “He just plays one on TV.

“I thought it would be easier!”

Last Thursday, Donald Trump told Reuters in an interview, “I had so many things going. This is more work than in my previous life. I thought it would be easier.

Easier? Is it really surprising that being President of the preeminent world power, with the lives of millions or billions at stake, is a bit harder than being the host of “The Apprentice”? True, he is evidently a successful businessman by the usual standard of amassing wealth, but what exactly has this to do with making hard political decisions? So far the connection seems tenuous. In terms of results, the first hundred days of his Presidency are hardly promising. And listening to him bloviate, cast aspersions hither and yon, and invent facts that align with his untutored understanding is beginning to get old.

His supporters seem to be holding fast to their man, but I can’t help thinking that this is due in part to the fact the confessing their mistake would be just too embarrassing. No one likes to be seen as a dupe. One fallback for some is that it was better than the alternative. And I confess a little sympathy for this excuse. I didn’t vote for this fool, but I also couldn’t stomach “crooked Hillary”. And having voted for neither – a first in my entire life – I grant that I have weak grounds to complain one way or the other.

President Trump – can this actually be true? – is a shallow man. By his own statement, he rarely reads books, and it is evident that the few he manages don’t include American history. He holds a Bachelor’s degree from the University of Pennsylvania, but this only confirms what my fellow students at a real Ivy League school on the Charles River suspected about Ben Franklin’s academic offspring.

We will survive all this. Hard as it may be to believe, we have had Presidents before who were even worse, though none as ill-prepared by my calculation. One glimmer of hope is that he sometimes seems to learn from mistakes, and a few in his political entourage are adults.

This is really all I have to say at this point. I am just venting.

Trump’s Term of Office

I have long believed that there is a real possibility that President Trump won’t complete his current term of office. My thought is that he will leave of his own accord, although there are clearly wild-card events that might cause this to happen involuntarily. Regardless of these hypotheticals, he almost certainly won’t run again in 2020.

The President just gave some very revealing interviews as part of his 100-day status review. In particular he told two separate interviewers that he really misses his old life, that he loved it and that it was far easier than his current job. Possibly other Presidents had similar thoughts from time to time, but few had such a different life to recall. For most of them, unlike Trump, being President was the culmination of a lifetime’s effort. Only Eisenhower comes to mind for whom this clearly wasn’t so, although a few Vice-Presidents who assumed office unexpectedly also were ambivalent about their new circumstances. Andrew Johnson and Harry Truman are good examples.

Trump is clearly not an introspective person but it will slowly seep in that this might be how he spends the rest of his life. And increasingly, he won’t like that prospect. He appears to be vigorous and active but he will shortly be 71 years old, an age when most of us look toward a life of more leisure than hard work. That is not how anyone would describe the Presidency even in the best of times.

His problem will be how to extricate himself without dishonor. Reportedly, the consequential pain and dismay of associates who have tied their future to his would not be much of a deterrent. On occasion, he has been ruthless in severing professional relationships that no longer serve his purpose. Governor Christie is a prime example. Moreover his family would no doubt be delighted, assuming that he doesn’t come across as weak or cowardly on leaving office voluntarily. The trick will be to find a plausible excuse. A medical reason would be the obvious one, but that doesn’t seem to be in the cards unless a pure subterfuge is undertaken.

Of course I am not alone in this speculation about the President’s future. Odds makers in the United Kingdom have long had a betting proposition on this topic that has attracted many punters. Actually their hard-headed assessment of the likelihood of Trump completing his current term has slightly improved in recent weeks, but the odds are still only a bit over 50%. And the improvement relates mostly to receding chances of impeachment rather than other personal or programmatic factors.

“Yes Virginia, There are Alternative Facts!”

20170122_todd1Trump spokesperson Kellyanne Conway was universally condemned for using the term “alternative facts” while defending President Trump’s claims of attendance at his inauguration. Everyone scoffed. Surely there are just facts, falsehoods and unknowns. Indeed when this occurred in an interview by NBC’s Chuck Todd, his face became red and he expostulated, “Look, alternative facts are not facts. They’re falsehoods!

It’s too bad but he is wrong, as are all those who are ridiculing poor Kellyanne.

What is a fact? It is something believed to be true. But that belief can be based on a proof from fundamental principles or it can derive from competent data analysis. Generally speaking, mathematical facts are of the first type, while economic facts are of the second. The certainty of our belief is usually higher for the first type. Interestingly, religious facts are of that type, but they are distinguished by applying non-scientific fundamental principles.

To demean or even reject the second type of facts is a crippling intellectual mistake for human endeavor. Perhaps they could be labeled theories, conjectures or hypotheses, but that would reduce their force and utility both in science and in the public discourse. One would need constantly to apply confidence levels that would be confusing to all but experts, and the resulting convoluted terminology would impede the general understanding.

The second type of facts are conditional, because new data or refined analysis may alter conclusions. Moreover, at any given time there are often reasonable alternative analyses of the available data, leading to – you guessed it – alternative facts! Does this mean that these facts are nonsense? I don’t think so, and neither should you.

The preceding may seem too abstract, so let’s take an example or two. Consider the U.S. unemployment rate. An official announcement by the Labor Department put it recently at about 4.8%. But closer examination reveals that it was computed by ignoring people who have simply given up looking for work, while it includes many who work part-time because they can’t find full employment. It is entirely reasonable to reverse both of those decisions and arrive at a much higher unemployment rate, well north of 10%. These are alternative facts. Neither is a falsehood. They simply represent different analyses of the same basic data.

Even the representation by Kellyanne Conway deserves some reconsideration. Let us suppose that she was including people watching the inauguration on TV. Surely this isn’t an absurd analysis. In this age of technology, actually being present at events is hardly the usual circumstance. Is the audience of the Golden Globes merely those who had tickets to the event? I have read estimates of the watching audience that would actually support Trump’s claim that his inauguration was seen live by more people than any previous one. This would be a justifiable alternative fact. Of course, we don’t know that this was what she meant and it would have been smart of her to say so if it was.

Does this mean that all alternative facts are equally persuasive and deserve equal weight? Of course it doesn’t. One must examine the quality of the data that are used and the applicability and certainty of the analysis. This requires expert review and isn’t something casually performed. In the end, this devolves into a dependence upon expert opinion. That brings into question the quality of this opinion, which is largely a peer-reviewed process. Finding some expert or even small group of experts who believe an alternative analysis is insufficient. Strong consensus is the gold standard.

The Trump Titanic has sailed!

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After less than four weeks in office the Trump administration is already beginning to fray at the edges. I suspect the future is bleak. Today’s firing of Lt. General Flynn as National Security Adviser is just a minor example. And do you remember that Deputy Attorney General holdover who was fired by Trump for not backing his immigration executive order? Well, she warned the administration weeks ago that Flynn was a problem and that his ties to Russia expose him to the threat of blackmail. So was that a factor in her dismissal? Expect Congressional hearings to pursue this possibility.

Presidential Advisor Kellyanne Conway has been making a public laughing-stock of herself. Her claim of “alternative facts” that support risible Trump claims of widespread voter fraud is a gift to comedians that just keeps on giving. There comes a point where her slavish devotion gets old. Trump is unlikely to fire her but her usefulness is starting to wane.

Now there are reports that the nomination of Andrew Puzder as Labor Secretary is in dire jeopardy. Four Republican Senators have indicated that they will oppose him, and Trump can only afford to lose two, assuming Democrats stand together. Aides are scurrying around trying to solve this problem but the outlook is dim.

Also, the word is out that the most visible member of the Trump team, Sean Spicer, is due for the chop. His problems at the podium are not entirely his fault. He has been trying to hold down two key jobs, Press Secretary and Director of Communications, either of which would consume a full day’s work. The only thing holding him up is that a replacement isn’t obvious. And who in their right mind would want the job of explaining administration actions, not to mention the Twitter-in-Chief’s latest outbursts, to an increasingly restive press corps? It is a bit like that old joke about the job of President itself, “Anyone who actually wants it is probably too mentally damaged to succeed.

As I have long expected, Reince Priebus is floundering as Chief of Staff. He is a square peg in a round hole and he has the hardest staff job of all. His primary role is to set up and enforce procedures to make the White House run smoothly and to prevent anything important from falling through the cracks. So how well has that worked so far? See below for my take if you don’t already know the answer. They desperately need an old pro for this crucial position, but that goes against all of Trump’s instincts. A political pro who has Trump’s confidence is an oxymoron. What is desperately needed is a reincarnation of James Baker. Know anyone who qualifies?

Key positions just below the top are not just empty, they don’t even have viable candidates willing to serve. And the current turmoil would discourage even the most adventurous. Thus no legislation is being readied for Congress, just more ill-prepared executive orders. Nothing is happening on the Obamacare front or on tax reform or on infrastructure spending, and a budget is far beyond current capabilities. Of course Congress will begin to take up the slack, but that will make the administration even more irrelevant. Trump will devote more and more time to tweet tirades and responses to perceived personal affronts. Watch his body language when he makes his infrequent and brief public appearances. He hates this job. Ladbrokes, the premier British bookmaker, has the odds of him completing his term of office at only slightly better than even money. And, unlike the TV talking heads, these are pros who put their money where their mouth is.

Consider for a moment what these weeks of effort have brought forth: a border fence whose cost estimate now exceeds $21B, with Congress gagging on the expenditure; associates seen as stumbling over blatant lies and missteps; an immigration executive order whose roll-out is reminiscent of Obama’s ACA web site disaster; forced recantation of bold threats against China and the one-China policy; building evidence that an alliance with Russia to resolve international threats is the same false hope that mesmerized previous Presidents; recognition that driving a stake through Obamacare is much harder than was thought and may even be impossible to achieve; town hall meetings across the country flaring into shouting matches as his policies are debated; and one-by-one his bold campaign promises either fade from sight or are mired in the realities of actual legislation.

Things might be different if they had a real plan and the skill and sense of purpose to bring it to fruition. Evidently they don’t. And what they boast about achieving would be difficult even with a cooperative Congress. Yet in spite of controlling both Houses, cooperation will be a faint hope. Democrats are taking what may become infamously known as “The McConnell Option“. Just before the 2010 midterm elections, then Minority Leader Mitch McConnell stated that the Republicans’ number one priority is to ensure that there was only one term for their despised foe. Of course, Democrats are not as stupid as McConnell was, baldly announcing his intentions on the Senate floor. However I have little doubt that Chuck Schumer and his allies are whispering similar thoughts among themselves, with sly glances and wicked smiles.

Trump Administration Snapshot

I have been following President-elect Trump’s choices to lead his administration with great interest. When the list is reasonably complete, I plan to write a summary assessment of his picks and what they may mean for our future. In the meantime, I thought it amusing to summarize the demographics of this unusual and diverse group. At this writing, there have been 28 selections. So far, Trump has not ordered a group portrait, so I thought I would toss in a substitute for now. These are winners of Trump’s famous TV show, The Apprentice.

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  • 4 Ayn Rand fans: Trump, Tillerson, Puzder, Pompeo
  • 3 Goldman Sachs alumni: Mnuchin, Bannon, Cohn
  • 4 Retired Generals: Flynn, Mattis, Kelly, Kellogg (no West Point graduates)
  • 8 Lawyers: Pompeo, Sessions, Priebus, Puzder, Pruitt, McGahn, Friedman, Mulvaney
  • 6 Holders of MBA degrees: Trump, Chao, Ross, Flynn, Bannon, Zinke
  • 4 Harvard alumni: Chao, Ross, Pompeo, Bannon
  • 4 Other Ivy League alumni: Mnuchin, Carson, Crowley, Friedman
  • 2 Surgeons: Price, Carson
  • 4 Billionaires: Trump, DeVos, Ross, McMahon
  • 2 Governors: Haley (currently serving), Perry
  • 6 Women: Chao, DeVos, Haley, McMahon, Crowley, McFarland
  • 3 Non-Caucasian: Chao, Haley, Carson
  • 8 Top business executives: Trump, DeVos, Pompeo, Puzder, McMahon, Bannon, Tillerson, Cohn
  • 1 Foreign born: Chao
  • 4 Congressmen: Price, Pompeo, Zinke, Mulvaney (all currently serving)
  • 1 Senator: Sessions (currently serving)
  • 2 Ran against Trump: Carson, Perry