The Takeaway From the Impeachment Hearings: Our Constitution Has Failed

By Chris Edelson, In These Times

01 December 19

To guard against another authoritarian president we can’t impeach, we need to reform our constitution.

hen the House Intelligence Committee began holding hearings as part of the impeachment inquiry into President Trump, some media coverage suggested the proceedings lacked enough “pizzazz … to capture public attention.” It turned out that hearings produced more than their share of bombshells—from EU ambassador and Trump megadonor Gordon Sondland’s admission that there was a “quid pro quo,” to State Department official David Holmes’s testimony about  overhearing a phone call in which Sondland assured Trump that Ukraine would move ahead with the investigations Trump had requested, to former National Security Council official Fiona Hill’s conclusion that Sondland was carrying out a “domestic political errand” for the president that diverged from the U.S. national interest. When the Committee concluded its hearings, the evidence was damning and largely uncontested: Trump appeared to have been part of a scheme to extort a foreign country into sabotaging the US presidential election to his benefit.

Yet, even with the evidence on public display, it remains next to impossible to imagine Republicans taking meaningful action. Even Republicans seen as most likely to break from their party are signaling support for Trump. Rep. Will Hurd (R-Texas), a member of the Intelligence Committee who is retiring from Congress and has at times criticized the president, said that, while the president’s actions had been “inappropriate, misguided foreign policy,” he did not see evidence of an impeachable offense. Hurd’s statement can reasonably be seen as an indication that few (if any) Republicans in Congress will vote to impeach or remove the president from office.

Some observers describe what we are seeing as a crisis. In fact, what we are living through is constitutional failure. The system created by the framers is not doing the job it was designed to do, particularly in the current circumstances: We are faced with a corrupt president who rejects the very idea of legal limits on his power.

Our constitutional democracy is based on free and fair elections, individual rights, independent courts, and the rule of law—the idea that no one is above the law. Trump rejects all of these bedrock principles. He has tried to undermine free and fair elections (most recently demonstrated in the Ukraine scandal.) He threatens his critics with prosecution and lawsuits, disdaining the notion of First Amendment speech and press protections. He seeks to delegitimize judges who rule against his policies. He rejects the idea that ordinary rules and laws apply to him and his allies, declaring (erroneously) that under Article II of the Constitution, “I have the right to do whatever I want as president.”

Trump poses an existential threat to our system of government—and yet he remains in office. In a functioning system, Republicans would have already joined Democrats in taking action to remove Trump from office—just as Republicans stood against Nixon in 1974. In our failed system we are reduced to waiting to see how far Trump will go before congressional Republicans will act—if they ever do.

Every system needs a way to protect itself, and our constitutional system provides (in theory) all the tools needed to deal with the direct threat Trump poses. Congress is fully empowered to remove a corrupt president from office. But congressional Republicans, by refusing to act, render those tools useless. 

James Madison believed that the constitutional system would prevent the accumulation of too much power in any one branch of government. If one branch exceeded the limits of its power, it would be reined in by the others. In order for this to work, Madison famously wrote, “Ambition must be made to counteract ambition.” In other words, if the president engaged in a power grab, members of Congress would use constitutionally available tools to check him or her —not out of moral rectitude but because legislators would be worried about ceding their own power to an ambitious president.

The system is failing because Republicans are placing partisan concerns—their own loyalty to Trump or fear of the political costs of defying him—ahead of their constitutional responsibilities. The system Madison helped design cannot function properly under these circumstances.

It is important to forthrightly describe the reality of constitutional failure for two reasons. 

First, it emphasizes the emergency we face. If he does not face consequences, Trump will feel emboldened to do precisely as he chooses, without regard to ethical or legal limits. We’re seeing this, for instance, with Trump’s moves to undermine the rule of law within the U.S. military by pardoning the Navy SEAL convicted of taking a “selfie” with the corpse of a teenage boy who fought for ISIS.

We can’t count on his removal from office by election as a foolproof safeguard, especially when Trump’s misconduct in the Ukraine scandal was focused squarely on an illicit attempt to tilt the electoral scales in his favor.

Second, describing what has occurred as failure points out that we need a new constitution, one that will be designed to strengthen our democracy against future existential threats. No system is guaranteed to succeed, but a failed one demands replacement. 

Today’s Republican Party is an anti-democratic, authoritarian party that seeks to gain—and has gained—power without winning a majority of votes. To this end, it pushes voter suppression measures and takes advantage of structural defects in our system. Gerrymandered districts can allow the GOP to win a minority of the votes and still control the House. The Electoral College gave Trump the presidency 2016, even though he lost the popular vote—a feat he stands a realistic chance of repeating in 2020. And though deeply unpopular, he enjoys majority support in a Senate that does not reflect political preferences of the majority of Americans, but instead allows a  minority in sparsely populated states to wield power. 

Making the electoral system more majoritarian could force the Republican Party to abandon its anti-democratic approach if it wishes to win. There is no guaranteed way to prevent would-be authoritarians from gaining power. After all, a very popular authoritarian could easily win the popular vote. But clearly, the authoritarianism of our current president is not popular with Americans: Trump’s approval ratings are consistently in the low 40s. Constitutional change would strengthen liberal democracy against an authoritarian party. It is worth trying.

With this goal in mind, a new constitution could address some of the anti-democratic features of our current system, including:

• ending the Electoral College.
  
• reforming or replacing a Senate that gives the 435,000 voting-age people in Wyoming as many votes as the 17,524,000 in Texas.
  
• eliminating partisan gerrymandering.
  
• protecting the right to vote against voter suppression efforts.
  
• dealing with the corrupting influence of our current campaign finance system.

A new constitution could also be aimed at shoring up the rule of law, including by protecting the independence of the Department of Justice and replacing the current impeachment process with something capable of actually holding a lawless president to account. One idea to explore would be expressly giving the DOJ independent prosecutorial authority over the president. Another would be providing a process for triggering new presidential elections—say, based on a three-fifths vote in the House and Senate. 

Obviously, these kinds of changes are not politically plausible at the moment, but they need to be on our agenda—unless we are willing to risk another attack on the system from a future president. We need to begin talking about how to create the conditions needed for a new constitution, one giving us better odds of warding off the next authoritarian threat—assuming we survive the one posed by Trump.

David Duke and His Twitter Nazis Got Mad at Me. Twitter Took Their Side.

By Jon Schwarz, The Intercept

01 December 19

 

y troubles began last March when I made a joke on Twitter about Fox News host Tucker Carlson. I have some advice for you: Do not ever do this.

Twitter is notorious for its passivity as users are abused by its large contingent of Nazis, Christian Identitarians, Odinist/Wotanists, fascist furries, and presidents of the United States. When @hardrock2016 threatened political commentator Rochelle Ritchie on October 11, 2018, and she reported it, Twitter informed her using boilerplate language that it didn’t see anything the matter. A few days later, @hardrock2016 — i.e., Cesar Sayoc — began mailing out 16 pipe bombs to prominent Democrats, news outlets, etc.

But what happens when the feelings of Twitter’s Nazis get hurt? As I found out, Twitter becomes deeply concerned, and springs into action.

The short version of the story is that I made fun of Tucker Carlson; Carlson’s fans notified David Duke, the former KKK Grand Wizard and current Twitter personality; Duke dug up an earlier joke I’d made in 2015; Duke’s minions reported the 2015 joke to Twitter; and Twitter told me my 2015 joke violated its Terms of Service and my account would be frozen unless I voluntarily deleted it. Now, eight months later, I’ve finally given in and bowed to Twitter’s degrading demands.

The long version of the story is below. The details are as fascinating as any 1,000-tweet Twitter thread. In other words, if you end up reading it all, you will feel queasy and have no one to blame but yourself.

The whole saga has been an education for me in corporate America’s cravenness, as well as the insoluble problems of the internet. But more than anything, I’ve learned this: David Duke is unbelievably stupid.

Interestingly, his stupidity can be quantified. Male cane toads are notoriously dumb, so dumb that they’ll try to have sex with anything that will stay still long enough to hump, including live female cane toads, dead female cane toads, live snakes, dead rabbits, rotting mangos, and fellow male cane toads that are attempting to have sex with a rotting mango. Yet scientists tell us that if you extracted the stupidity from one million male cane toads, this would still only be half as stupid as David Duke!

Tucker, just say Jewish, this is taking forever pic.twitter.com/QnONrYFIEX

— Jon Schwarz (@schwarz) March 12, 2019

Back in March, the media monitoring organization Media Matters dug up some old radio appearances in which Carlson said, among other things, that the people of Iraq are “semi-literate primitive monkeys.” Ha ha! You have to admit that is funny, especially given that the U.S. has killed at least a million Iraqis.

When criticized, Carlson responded that he was being attacked by “the people who write our movies and our sitcoms.” This language is coded about as deeply as it is when you make your password “passw0rd.” No one will be able to crack that.

In fact, I was referring to a famous “30 Rock” joke, which had now assumed human form in Carlson. When NBC executive Jack Donaghy decides that TGS, the TV-show-within-the-show, doesn’t have wide enough appeal, he complains to its head writer Liz Lemon:

JACK: The television audience doesn’t want your elitist, East Coast, alternative, intellectual, left-wing —

LIZ: Jack, just say Jewish, this is taking forever.

What I didn’t realize was that tweeting about Tucker Carlson functions as a white supremacist bat signal. Soon I was being informed that it would be better for Carlson to “call you Christkillers Kikeburg-blatt-steins.”

Those were small fry, however. Before the day was over, I’d made it to the big leagues and was graced by this tweet from Duke:

These are not good people, folks. pic.twitter.com/o5AV4tSc0k

— David Duke (@DrDavidDuke) March 13, 2019

Somehow Duke had gotten ahold of a tweet of mine from 2015, and paired it with the joke about Carlson. That four-year-old joke was my downfall. After Duke publicized it, his Nazi and Nazi-adjacent fans reported my 2015 tweet over and over and over again, demanding that @twittersupport and @jack, the co-founder and CEO of Twitter, do something.

Soon enough, they did. I tried to log into Twitter, and was informed that I had violated its rules against abusive behavior. My 2015 Bad Tweet had already been removed by Twitter, but I could not use my account again unless I formally agreed to the deletion.

Now, anyone who’s been alive during the past 1,000 years knows this is a fair assessment. Given that Christian nations have mercilessly oppressed both Jews and Muslims, it’s peculiar that Christians and Jews are currently teaming up to kill Muslims. You’d think Muslims and Jews would be natural allies. (Indeed, while it’s completely forgotten now, there were tentative attempts by the Zionist movement during the 1920s to find common ground with the Arab world on this basis.) What makes this tweet a joke is that in 2019 it is completely preposterous to imagine, say, Iran and Israel joining forces to bomb America.

It’s so preposterous that it’s hard to think of any analogous joke. You could say in 1874 — as the Buffalo Soldiers pitched in on the extermination of American Indians — that it would make more sense if African Americans and Native Americans joined forces to kill white people. That would be true, but it wouldn’t be that funny. Today’s U.S. political dogma is that Christian America is the stalwart, eternal defender of Israel. There was no equivalent dogma in the 19th century that white people were the eternal, stalwart defenders of black people.

Here is where we get to the first aspect of David Duke’s stupidity. Duke is obsessed with Israel and continually cries bitter tears over its crimes against Palestinians. It’s not, of course, that Duke objects to ethnic cleansing in principle. Rather, he believes it must only be carried out by white Christians. If you say, “It’s not anti-Semitic to criticize Israel,” and someone demands, “What about David Duke?”, all you can respond is, “OK, I’ll give you that one.”

But Duke is such a cretin that it never occurred to him that my 2015 joke was exactly what he adores: criticism of Israel. That’s hopefully clear even out of context. But thanks to Twitter’s advanced search function, you can see that I was talking specifically in the context of two events — the publication of photographs of Gaza taken after Israel’s bombing campaign in Operation Protective Edge, and the murder of three Muslim students in Chapel Hill, North Carolina. That week I also wistfully suggested, “how about nobody kill anybody and then we go from there.”

If the cane toad methodology doesn’t make sense to you, here’s another way to measure how dumb Duke is. In 1848 a man named Phineas Gage was working on a railroad in Vermont when a malfunctioning explosive charge shot a four-foot long iron tamping rod through his skull. Incredibly, he survived and lived for another decade, although his intelligence was reduced to that of a child. Now imagine what he would have been like if he’d had 52 more tamping rods blown through his head, one each week, for an entire year. That’s David Duke.

Twitter gives you a chance to appeal in these conditions. So I did, laying out such concepts as jokes, history, and reality. Three weeks later my appeal was rejected. My tweet had to go, Twitter explained in rote language, “to ensure that people feel safe expressing diverse opinions and beliefs on our platform.”

I found this difficult to accept, especially given that my offending tweet remains available all over Twitter — just not via my account. David Duke’s screenshot is still there, as you see above. You can also find it here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and surely many other places I’m missing.

I asked Twitter’s press office about this. I also inquired whether any users who weren’t fans or followers of Duke had complained. They refused to answer. Given that I’m constantly contacted via direct message for my job, I asked if I could at least change my bio to make it clear the account was frozen and people could only reach me by email. No response.

It would be easy to interpret this as active contempt by Twitter for its users. But it’s more likely to be passive indifference. Like any huge corporation, Twitter is focused on the needs of its customers, which are its advertisers. By contrast, Twitter’s users are not its customers. They’re its product. Grocery stores don’t care if a can of soup complains about being taken off the shelf.

Similarly, contrary to speculation by some, I don’t think CEO Jack Dorsey secretly sympathizes with his Nazi user base. He probably just enjoys being a billionaire. As he’s said, “from a simple business perspective … Twitter is incentivized to keep all voices on the platform.” Whatever else you want to say about Nazis, they definitely drive engagement, which in turn lets Twitter charge higher prices for diaper ads.

I even sympathize a little bit with Twitter’s conundrum. They aspired to be a globe-straddling highly profitable monopoly that had no responsibility for what their users did. This was a circle that couldn’t be squared. Proctor & Gamble doesn’t want its promoted tweets to appear right above hypothetical user @hh1488 livestreaming himself massacring 17 congregants at an Albuquerque mosque.

I was simply caught in the natural dynamics that flow from this contradiction. The structure of multinational publicly-traded corporations inevitably puts them somewhere politically from the center-right to the hard-right. There will never be a large “liberal” corporation, any more than there will be a Hindu Pope. So Twitter can’t acknowledge the fact that, while there is dangerous incitement and violence on both the left and the right of the political spectrum, this is only true in the same sense that an ant and an elephant are both animals. Having occasionally banned actual incitement to violence from the right, Twitter is therefore desperate to appear even-handed about an extremely uneven reality, and so cracks down on imaginary incitement from the left.

This is part of why I finally agreed to the excision of my tweet demanded by David Duke, Twitter’s editor-in-chief. Certainly the experience brought home to me what a bad idea it is allow gigantic monopolies the power to decide what is and isn’t legitimate speech. But the problem is less the censorship part and more the monopoly part. Because Twitter dominates a kind of communication I need for work, I can’t just move to a competitor. My incentives all run in the direction of obeying Twitter’s diktats.

But there’s another reason I gave in. The terrifying truth about the freaks screaming about my old tweet is that they were generally not acting in bad faith. That is, it’s not that they got the joke but wanted to make trouble for me by pretending they didn’t. It’s that they genuinely believed that there is an organized effort to get Muslims and Jews to team up and murder Christians, and I was bragging about it right there in public.

I did not understand in 2015 that this fantasy was quietly metastasizing in the right’s online fever swamps, and certainly did not realize it was soon going to escape the internet and manifest itself in offline reality. The shooter at the Tree of Life synagogue in Pittsburgh claimed to be defending the white race from a Jewish conspiracy to replace them with immigrant Muslims. Given the degree to which my ancient joke has circulated on the scary right, I’ve developed a modest but real fear that it will someday show up in a killer’s manifesto as proof they were right. The hysteria of Duke’s acolytes makes me believe I should do what I can to reduce its visibility.

We need some animals with wheels. Get on it, evolution.

— Jon Schwarz (@schwarz) June 12, 2013

This brings us to the final and funniest aspect of David Duke’s stupidity: I’m not Jewish. Of course, he was certain that I am, and that my tribe had grown so impudent that I was shoving the International Jewish Conspiracy right in the face of the gentiles. Unfortunately, I am not invited to the cabal’s meetings. In fact, I briefly went to Sunday school at the Washington, D.C. Episcopal church attended by George H.W. Bush, perhaps the least Jewish action in which a human being could engage.

I hesitate even to mention my background. Certainly I don’t want to give the impression that, like Winston Smith in “1984,” I’m begging Duke & co. to do it to Julia, not me. But I’m an upper-middle class, college-educated white man. This was one of the few times in my life when I’ve been the target of this kind of unhinged frenzy — and been forced to recognize that the powerful people running the world absolutely are not on my side. I did not enjoy it. But it was a compelling demonstration for me that the only thing we have — i.e., those of us who are neither billionaires nor pullulating with hate — is each other. We must all hang together, or, most assuredly, we shall all hang separately. That is no joke.

What is a joke is 98 percent of the stuff I will now resume saying on Twitter. Please follow me there @schwarz, just don’t expect a whole lot of Tucker Carlson-themed humor.