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Impeachment: Constitutional Crisis or Political Poker

Who holds the winning hand in this game of Swamp poker?

As former Chicago Mayor Rahm Emanuel said, “You never let a serious crisis go to waste.” As Democrats widely and loudly proclaim a constitutional crisis of the first order, they seem emboldened to do things that were previously beyond the realms of contemplation. But what is the constitutional crisis? What aspect of the US Constitution did President Donald Trump violate? And, most importantly, why all the mystery, intrigue, and secret testimonies?

A Telltale Reaction

Perhaps the Dems could learn a thing or two from Tinseltown. Flashback to Christmas 1990, and one might have heard people remark to someone making histrionic claims, “It’s not a tumor!” This was an allusion to Arnold Schwarzenegger’s hit movie Kindergarten Cop, in which an adorable child repeatedly suggested that a tumor was the likely cause of all problems, however minor. Annoyed by the child’s incessant references to a metastasis, Arnold’s character yelled, “It’s not a tumor!” And so another classic one-liner was added to his oeuvre.

Democrat officials and their enablers/protectors in the legacy media need a similar talking to, lest their cries of constitutional crisis subsume all discourse.  And for the same reason the kid in the movie did: Their shrill discussion of the problem comes off worse than the problem itself.  As significant voices join the constitutional crisis chorus, endlessly repeating the refrain, many listeners will accept it as fact, probably hoping it is fact, but not bothering to examine the unprecedented and inexplicable impeachment process being executed by congressional Dems.

Lest they be perceived as power-mad political hacks, the pious Dems in charge claim, “We are just exercising our oversight duty.” Meanwhile, the advocacy press headlines this narrative all the way to Election Day, supported by the drip, drip, drip coverage of Trump administration ineptitudes and mistakes. But does this erode Trump votes with each passing day? What’s the meat of this crisis? We can learn from a gen-u-wine Harvard professor of law, writing in The New York Times. There can be no greater imprimatur of authority for our age. Professor Noah Feldman lays out conditions for a claim of constitutional crisis to be met:

“First, the Constitution doesn’t indicate what is supposed to happen if the House tries to exercise its constitutional power of oversight to investigate the president and the president flatly rejects the House’s constitutional authority. Congress can demand that the president comply, but it can’t very well send its sergeant-at-arms to the White House to enforce its subpoenas.”

So, if Congress can’t get its subpoenas answered, how does that represent a crisis? What would you do if you were in charge of auditing or supervising an employee, and that person flat-out refused to show the requested records? Why, you would fire him or her, of course.  And then if the big boss asked why, you would have a good reason. Could all the congressional subpoena set-ups be designed to allow the legacy media to report breathlessly into existence a crisis that will produce negative results at the polls for Trump?

The ‘Con’ in Constitutional

Dems in Congress claim they have made demands of Trump and his administration consistent with their oversight role. President Trump has refused to comply, so what else do they need? Fire him. Or, in this case, impeach him. Why proceed with an inquiry? If refusal to comply with their demands is an impeachable act, why not just be done with this “tumor”? Because then members of Congress might have to justify the firing to the real boss – the voters. Perhaps all this dithering with impeachment reveals their true purpose is more political than constitutional.

I’m reminded of the great scene in Atlas Shrugged when the genius industrialist and metallurgist Hank Reardon is on trial for imagined crimes against the “people.”

“Do you mean that you are refusing to obey the law?” asked the judge.

“No. I am complying with the law — to the letter. Your law holds that my life, my work, and my property may be disposed of without my consent. Very well, you may now dispose of me without my participation in the matter. I will not play the part of defending myself, where no defense is possible, and I will not simulate the illusion of dealing with a tribunal of justice.”

The Final Condition

But let’s take a moment to absorb Feldman’s second condition for a constitutional crisis:

“That brings us to the second condition, namely that neither of the key actors seems prepared to back down. About the only thing the House could do now would be to pass a resolution formally authorizing the impeachment inquiry — something it has not yet done and which the White House counsel cited in his letter as a reason to consider the current inquiry ‘unprecedented.’ Passing such a resolution might be a good idea for the House. But it would not qualify as backing down. To the contrary, passing a resolution to investigate impeachment would raise the stakes in the constitutional confrontation.”

Again, where is this crisis? It appears the professor drops the facade relatively quickly. He admits there is no crisis if Democrat political outcomes are not part of the equation:

“Impeaching a president for refusing to participate in an impeachment inquiry is a kind of meta-impeachment. It would allow Mr. Trump to argue that the meta-impeachment is illegitimate because it isn’t based on an investigation.”

So the constitutional crisis is that Trump gets to make political hay of the Democrats’ actions.

A Vendetta?

Trump believes the deck is stacked against him, and that Democrats in Congress are plain and simple out to get him. Given that so many of the movers behind impeachment are the very same people who called the president a Russian agent, it’s not exactly a stretch to believe they are motivated less by a sense of civic duty and more by political gain. At this juncture, it appears that Trump’s move is to call the Democrats’ bluff and force them to take action on impeachment if they dare the political consequences. It’s still early in this most unusual game of Swamp poker, and it will be fascinating to see who comes up aces. But one thing is certain: A constitutional crisis does not this saga make.


Read more from Scott D. Cosenza or comment on this article.

Read More From Scott D. Cosenza, Esq.

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