• Max Stearns

Against Censure

Following Donald Trump’s egregious mishandling of the Charlottesville white supremacy march and counter protest, Democratic Representatives Jerry Nadler (D-NY), Bonnie Watson Coleman (D-NJ), and Pramila Jayapal (D-WA) proposed a resolution of censure. House Minority Leader Nancy Pelosi (D-CA) has endorsed the resolution, which now has the support of 80 members. See here. Followers of this blog know where I stand on Donald Trump. Despite that, I am certain that censure is a mistake.

The Constitution does not expressly provide for censure. Article 1, Section 5, Clause 2 of the Constitution provides: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member." There is no express provision for Congress to censure the President. Although there was an earlier attempt to censure President John Adams, the sole precedent for censuring a President was in 1834. Congress censured Andrew Jackson following his failure to turn over subpoenaed documents related to his decision to defund the Bank of the United States and to rely on alternative means of financing the westward expansion. See here. The symbolic reprimand was subsequently revoked when Democrats regained power in Congress. More importantly, the censure was entirely ineffective as a means of changing Jackson’s policy. In modern times, during the Clinton-Lewinsky scandal, Democrats proposed censure as an alternative to impeachment proceedings, a result that Bill Clinton stated he was prepared to accept. See here. Instead, the House voted to impeach, after which the Senate voted not to convict, leaving Clinton to complete his second term.

Although interesting, the history of intra-branch censure within Congress is largely irrelevant to the constructed-from-whole-cloth inter-branch censure of a President. And whatever one might think of the proposal to censure Bill Clinton, censure is entirely inappropriate for Donald Trump.

Censure is a public rebuke, a statement of shame. Rebuking a President is obviously unlike punishing a child, but the comparison yields some insight. Whether one views punishment in terms of deterring future bad behavior, or as retribution for bad behavior that just took place, effective punishment demands that the person experiencing it feel chastened, perhaps shamed, and, most critically, remorseful. Successful punishment instills in the person experiencing it a sincere sense of regret, followed by a refined, perhaps aspirational, sense of self. The goal for children is to push toward maturity, to account for past wrongs, and to realize how to become better, more thoughtful, and more responsible as they grow.

Adults, of course, are more fully formed, and thus prone to less cognitive or emotional plasticity. Certainly, for Bill Clinton, it is naïve to imagine that censure would have led him to discontinue philandering, or worse, although he likely would have refrained from continuing to do so as President. Following his initial shameful public denial “I did not have sexual relations with that woman,” see here, and his similarly shameful wordsmithing before a grand jury over the meaning of the word "is," which eventually cost him his license to practice law, Clinton eventually leveled with the public. See here. James Trafficante, inspired by Johnnie Cochran’s “if it doesn’t fit, you must acquit,” had offered this advice to then-President Clinton: “If it’s on the dress, you must confess.” See here. Clinton realized that coming clean was necessary to remove a stain on his presidency apt to follow if another stain were discovered. To analogize to criminal insanity defenses, the problem for Clinton was less that he failed to appreciate the wrongfulness of his conduct than his seeming inability to control it. See here. Censure would not have transformed Bill Clinton’s personal character, but even so, he was willing to publicly admit the profound wrongness of what he did, and that he not only violated the trust of his family and cabinet, but also the public trust. Clinton was willing to accept censure, to be publicly shamed, and to appear remorseful.

This is obviously untrue for Donald Trump. Trump would not accept censure as the basis for genuine remorse for a single reason; he never believes he has anything to be remorseful about. Try to imagine what he might say. He might read a teleprompter stating that he was mistaken in hesitating to condemn Nazis and white supremacists, or to have suggested in any way a moral equivalence as between those who joined such persons in marching, and those who joined in protesting the march. But there would be no basis to believe him. Trump is so systematically prone to lying and to contradicting himself that the irony is we least trust what he is saying when he speaks in his official capacity. Many would construe it all as a dog whistle to his base, knowing that the earlier statements about the “good people” who joined in marching with white supremacists is what he really feels. There simply is no meaning in censuring a man who refuses—always and forever—to concede that he has ever done anything wrong. Censuring Trump is equivalent to punishing a troubled child, one who construes the punishment as merely signaling the price of the next offense.

Where does this leave us? Unlike parliamentary systems, the Constitution does not provide for votes of no confidence. The branches are independent of each other in precisely that sense. The President does not need a favorable congressional coalition to hold office, and divided government is hardly uncommon. This might not be the best system, but it is ours. Impeachment is extremely hard to accomplish; it has happened only twice, and neither resulted in conviction. Of course, we don’t know what might have happened had Nixon failed to resign. Then-Speaker of the House, Gerald Ford offered what might be the most comprehensive assessment of the meaning of “High crimes and misdemeanors”: whatever the requisite majority of the House of Representatives think is means at any given time. See here. Impeachment is a political, not a legal, process, and with that, so too is the meaning of the impeachment clause’s operative phrasing.

The even more challenging alternative is the 25th Amendment, which allows as an initial step a majority of the President’s own cabinet to vote removal if those voting determine he is ill fit to serve. That alone is an obviously treacherous process. It’s a bit like the quote by Queen Cersai: “In the Game of thrones, you win or you die; there is no middle ground.” See here. Quite right. This would have to be done covertly, and it’s a game the players would not want to lose. Yes, those involved, if unsuccessful, will be fired, but worse, they will surely be replaced with those who serve to strengthen the President’s hand, along with his misguided sense of victimization by those who don’t understand him or who lack the requisite loyalty to all that matters in his world view: Donald Trump. And even if such a step took place, it is apt to set in motion an even harder process than impeachment, one that requires a 2/3 vote of each House of Congress. See here.

If we rule out censure, we are left with these very costly, hard to accomplish, alternatives. This is as it should be. Censure is not a panacea, some idyllic middle ground. For Trump it would be the price of doing business. If Trump survives a censure, he will take as the lesson that the price has gone up but with no recognition that he did anything wrong. Censure would not make him a better President, but rather one who thinks “wow, is that their best shot?" And he might be right. Censure might well take from the sails any wind for a truly meaningful course of action. Trump would further circle the wagons. He would be more paranoid, insisting all the more on the single litmus test he understands: loyal to him.

My message to Congress: Do not censure. Show us all that you understand how much more important it is to do what is right. And demonstrate that you have the will to fight hard enough during the next congressional election cycle to help make this happen. Do what is necessary and right, not what seems easy.

I welcome your comments.

#Censure #Impeachment #JerryNadler #BonnieWatsonColeman #PramilyJayapal #NancyPolosi #AndrewJackson #BillClinton #GeraldFord #MonicaLewinsky #QueenCersai #GameofThrones #JohnAdams #JamesTrafficante #JohnnieCochran


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