Revitalizing Congress

Congress does not work for the President.  Congressional staff do not work for the President (let’s set aside the detail problem for now).  Just as Congress should not endeavor to destroy the President, neither should it seek to protect him.  It is not Congress’s duty to clear a path for the President or to help him deliver on presidential campaign promises.  It is, rather, the responsibility of Congress to check the President and to assert its own institutional prerogatives, using the limited tools that the Constitution has afforded it.  Unfortunately, loyalty to the president or to a political Party has usurped what should be the Senator or Representative’s ultimately loyalties: the legislative branch they serve, and, chiefly, the Constitution.

The entire enterprise of congressional oversight and investigation of the executive branch depends upon accepting the premise of institutional defense.  Senators and Representatives must accept that Congress must gather facts and evidence from the President and his subordinates in order for Congress to fulfill its constitutional role in the separation of powers.  That is, congressional oversight and investigation of the executive depend upon a recognition that the institutional interests of Congress are paramount to any loyalties owed to the President or to the Member’s political Party.

When congressional oversight and investigation are viewed merely as extensions of Party politics and political campaigning, however, oversight and investigation become meaningless as legislative prerogatives.  Congress consequently becomes weakened institutionally.  While there are certainly important bipartisan exceptions, Members of both Parties, over time, have too often either abused or ignored their responsibilities to conduct effective and meaningful oversight and investigation in aid of Congress’s constitutional functions, instead serving as blockers for the president during the opposition’s pass-rush.

Madison, in Federalist 51, described legislative power as the predominant authority in a republic.  He explained that this requires dividing legislative authority (into distinct bodies) and fortifying the executive (as with a veto). Hamilton, too, acknowledged in Federalist 73 the “superior weight and influence of the legislative body in a free government.”  (Hamilton, in fact, spent considerable time in The Federalist defending the veto, worrying about the accumulation of legislative power, and explaining how the executive could defend itself against the legislature, even noting the “hazard to the executive in a trial of strength with that body.”  How quaint.)  And the Supreme Court has consistently recognized that the power to investigate is a function of Congress’s power to legislate.  But modern politics have changed the way the institution operates, the way it is perceived, and the way the executive relates to it.

The over-sized modern presidency has far greater national stature than even the most high-profile Senator or Representative, and exerts tremendous influence over individual Members, influence that enables the President to dictate the content of national legislation and, often, the path of legislative oversight.  For its part, the modern Congress has contributed to the weakening of its place in the constitutional system.  The “dysfunction” of Congress is a subject well-covered in the literature, and although it is likely the case that many Democrats and Republicans privately enjoy cordial relationships, that privately held goodwill rarely manifests itself in the day-to-day public work of the institution.   The end result is that the venerable institution of Congress appears to be a mere wing of each Party’s national political infrastructure.  And when the majority in either chamber shares the President’s Party, that chamber’s majority appears to be transformed into a mere clerk of the executive.  This persistent quiescence with the executive further weakens the institution and minimizes its public stature.

But Congress can, at long last, fight back.  Oversight and investigation offer a good place to start, because this is an area in which Members from different parties can coalesce in defense of institutional interests.  Congress can also staff up, and increase the budget for congressional staff, so that Congress can compete with the other branches (especially the executive branch) in securing and keeping highly-qualified professionals.  Via our friends at Leg Branch, this recent piece in the Washington Post explains some of the difficulties.

The current controversies have given the Congress the opportunity to revitalize itself, to assert its institutional independence from the President and the dominant Parties.   If it does not (and there are signs that many individual Members are not interested in doing so), it will remain feckless and weak.  Madison and Hamilton were right to worry about the legislature’s ability to absorb the powers of the other departments.  The President, as Hamilton argued, should have tools for his defense.  But the accumulation of power into the executive is no better than accumulation in the Congress.  And Hamilton properly explained in No. 73 that the partitioning of power among the branches also teaches us that the branches should be independent.  Congress does not work for the President — and its Members should not be satisfied with perpetuating the appearance that it does.

 

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On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.

 

The first debate, and the vices of low expectations

Imagine the following exchanges on Monday night:

LESTER HOLT:  Secretary Clinton.  Please tell us ten specific things you would do to combat international terrorism, linking those specific proposals to a comprehensive plan for addressing the Syrian refugee crisis, which you should also link to a specific plan for addressing undocumented immigrants in America, and explain why the American people should trust you with these responsibilities given the fact that you were nearly indicted for transmitting classified national security information through a private email server and that people generally find you dishonest and unlikable.  And I will need that response in the form of a question.

[Clinton responds carefully and effectively to each point]

LESTER HOLT:  Mr. Trump, the next question is for you.  Please spell the word “dog.”

[Trump struggles at first, but ultimately spells the word correctly.  Trump is declared the winner.]

Though hyperbolic, this is the scenario that Clinton supporters, or at least those against Trump, fear: that so long as Trump can piece together a coherent sentence without using a racial epithet, he wins.  This is the low expectations game that has buoyed Trump throughout the election.  And the emerging conventional wisdom is that it benefits him enormously in the debates.  If that is true, Clinton must find a strategy that mitigates this advantage that Trump will have.

There is an interesting analogue to this.  In Season 4 of The West Wing, President Bartlet faces a re-election bid against the Republican Governor of Florida, Rob Ritchie.  Bartlet is seen as erudite, aloof, and pompous; Ritchie is viewed as unsophisticated and lacking in intellect but possessing a common touch with voters.  In “20 Hours in America,” Deputy Chief of Staff Josh Lyman and Deputy Communications Director Toby Ziegler clash over whether Bartlet’s smarts are a virtue or a vice against an opponent who, though not nearly as intelligent, appeals to the masses.  Critical of the Bartlet campaign’s efforts to make the election about their candidate’s ability to grasp the complexity of the issues, Lyman at one point says, “most people weren’t the smartest kid in the class.  Most people didn’t like the smartest kid in the class.”

In a later episode (“The Red Mass”), Press Secretary C.J. Cregg tells Toby Ziegler that she is convinced that the low expectations game heavily favors Ritchie.  She says, after being asked by others what would constitute a win for President Bartlet in the debates, “at this point, I feel like if, and only if, Ritchie accidentally lights his podium on fire does the President have a fighting chance.”  After Toby disagrees, she then elaborates:

C.J:  If the whole thing is that he can’t tie his shoelaces, and it turns out he can, then that is the ballgame.

TOBY:  And I believe he’ll have to do more than tie his shoelaces.

C.J.: Not much more.

Two episodes later (“Game On”), after the candidates have agreed to a single debate, and rather than take a softer and more collegial approach, the President demolishes Ritchie with a skilled performance that demonstrates his command of the issues and Ritchie’s lack of depth.  After the debate, in a bar up the road in California, Deputy Communications Director Sam Seaborn meets with a congressional campaign operative named Will Bailey.  Bailey says to Seaborn, referring to Bartlet, “I thought he was going to have to fall all over himself trying to be genial.”  Seaborn responds:

“So did we.  But then we were convinced by polling that he was going to be seen as arrogant no matter what performance he gave at the debate.  And then that morning at 3:10 my phone rings.  And it’s Toby Ziegler.  And he says ‘Don’t you get it?  It’s a gift, that they’re irreversibly convinced he’s arrogant, because now he can be.’  If you’re guy is seen that way, you might as well knock some bodies down with it.”

Bartlet cruises to a landslide victory in the election.

Clinton’s dilemma is not fictional and probably more complicated.  Trump is sui generis.  But there is a lesson for her in this series of episodes.  There exists a conventional wisdom that she must be careful not to come across as tutorial, or condescending; that no one really liked the smartest kid in the class.  Maybe.  But no one really liked the dumbest kid in the class, either.  They didn’t really like the class clown.  And they didn’t really like the class bully.  Clinton’s challenge is to show voters that when picking a President, it’s better to have the smartest kid in the class than the dumbest; better to have competence than clownishness; better to have an aloof cheerleader than a belligerent thug.   And she has to do it all while not coming off like Tracy Flick.

In other words, if people already see her that way, she might as well knock a few bodies down with it.

But it’s still a risk, especially at a time when facts and issues seem to matter so much less than ever before.  This has been the Attitude Election.  And for all of Trump’s shortcomings, attitude has been his asset.  It’s how he knocks down bodies.

So, there’s an irony here.  Trump wants to Make America Great Again, but his latest pitch is, “it can’t get any worse, so what do you have to lose?”  Hardly an inspiring message.  Hardly an appeal to American greatness.  But it is at least consistent with his broader message that we are a second-rate country.  He wants to Make America Great Again, but his easiest path to the presidency is to simply satisfy basement-level expectations of his abilities.  Greatness, by being mediocre.  That’s the Trump method.  And it’s working.  Will it on Monday?

More thoughts on the Comey announcement

I wanted to offer just a few additional thoughts on the FBI recommendation against prosecuting Hillary Clinton, now that the dust has settled after a surreal day in American politics.  There were already calls (see Politico here) for FBI Director James Comey to testify before Congress on this matter, and he has agreed to appear later this week. I think that could be a useful and revealing exercise if done properly, though I also think it could – as congressional hearings often do – devolve into a frustrating day of mindless finger-wagging and grandstanding that entirely misses the point and serves no ultimate purpose other than to waste the time of people with more important things to do.  I also think there is danger to the separation of powers in asking the DOJ to reveal its deliberative processes as to charging decisions (though that’s a more complicated claim in an exceptional case like this, where law enforcement makes such a comprehensive public announcement of its thinking).

First, Republicans have been – rightly, I believe – focused on the FBI Director’s failure to offer a more persuasive explanation as to his conclusion that no reasonable prosecutor would have charged Clinton, even under Section 793(f) (for gross negligence in mishandling classified information).   I, too, am troubled by the Director’s explanation, such as it was.  That is not to say that his ultimate conclusion – or that a federal prosecutor’s ultimate conclusion to that same effect – is not sensible or justifiable.  It is to say, however, that his conclusory statement about the “reasonable prosecutor” seems inconsistent with the facts that he enumerated about this investigation.  As I said yesterday, I would like to know more about this contention.  It may very well be that even a reasonable prosecutor would not seek an indictment under these circumstances – but that is very different from saying that no reasonable prosecutor would seek an indictment under these circumstances.

Second, there has been some attention given to other cases involving the mishandling of classified materials, most notably the Petraeus and Nishimura cases.  I’m not sure that it is enough to say that there have been other similar cases in which a person was prosecuted (Comey attempted to distinguish the Clinton case, though his attempt to do so seemed unpersuasive, at least as a reason for concluding that no reasonable prosecutor would seek an indictment here).  Rather, I would be interested in hearing about other similar cases that the DOJ investigated that did not result in a prosecution.  Of course, that information is likely harder to get.  But if Comey can show that similar kinds of cases have been investigated but not prosecuted, I think that would bolster his credibility on the Clinton case.  Examples that come to mind involve folks like Alberto Gonzales and John O’Neill and Martin Indyk (see Politico’s piece on previous cases here).

Third, yes, I think, the current DOJ will decline to prosecute.  But, so long as Clinton remains legally eligible for indictment, there is nothing to stop the DOJ from taking up her case later, Comey’s announcement yesterday notwithstanding.  Obviously, I am thinking of something very specific: the voters elect steak and water peddler Donald Trump as President; he installs a new Attorney General; and directs his DOJ to seek an indictment.  He has previously said that he would seek to prosecute her, and I have posted previously on whether this is something that he could do as President (it’s an interesting question of presidential power).  Trump has also said that he would base his selection of Supreme Court justices on whether they would investigate Clinton’s emails – once again demonstrating that Trump has absolutely no idea of how American government functions or of what the Supreme Court’s constitutional role is.  Of course, this all has the unseemly ring of prosecuting your political enemies for sport, simply because you can.  And whether there would be a revolt among line prosecutors on this matter is an open question.  But it is certainly possible to imagine a President Trump who would see a Clinton prosecution as an enforcement priority.

Finally, I  continue to think that Trump’s claim of the “rigged system” is dramatically overstated and self-contradictory.   Comey’s announcement yesterday was as devastating as it could have been in the absence of a recommendation to prosecute.  Clinton will have to spend week after week explaining away Comey’s findings.  Her prior statements on these issues will be played over and over again, and juxtaposed with video of Comey’s statements refuting her.  This hardly seems like the work of a law enforcement official rigging a system in her favor, determined to spare her any harm.  Comey, it appears, swept nothing under the rug.  No system rigged in favor of Clinton would produce such a scathing set of findings and announce them publicly for all the world to hear.  Moreover, Trump has already started using the Comey video and quotes in attacking Clinton (as always, refer to Twitter).  Surely Trump cannot claim that Comey is part of a rigged system while, at the same time, using Comey’s own words as evidence of Clinton’s unfitness for the presidency.  Trump is trying to have it both ways – hate the system, but use it to your advantage politically; the system is rigged, he says, but the very same system also publicly proved Clinton’s wrongdoing.

So Clinton will be damaged by this.  She has mostly been on defense against Trump, or simply waiting for the next Trump gaffe (which, let’s face it, seems inevitable).  But that strategy will only take her so far.  She needs to get on offense if she is to prevail.  That means the Trump oppo file will have to become more prominent than it has been so far in her campaign.  Trump versus Clinton is about to get much, much nastier.  Nice work, voters.  This is what you asked for.  (Wouldn’t it have been so much easier to just make John Kasich the Republican nominee, ditch the ugly circus, and start planning the Kasich Administration?)

FBI recommends against charges for Hillary Clinton

FBI Director James Comey today announced that the Bureau is recommending against any federal criminal prosecution of Hillary Clinton related to her email practices while Secretary of State.  FBI’s coverage, and the Director’s statement, are here.

This announcement was only of limited help to Secretary Clinton.  The Director’s announcement lambasted her for her handling of sensitive material, and exposed the reality that she used multiple unsecured email servers and sent/received emails that contained highly classified subject matter.  But, according to the Director, Clinton did not act willfully or intentionally, nor did this case involve an effort to obstruct justice or to engage in any disloyalty to the United States.  So even though there was evidence that could have implicated the federal criminal statutes regarding the handling of classified information, in Comey’s determination, no reasonable prosecutor would have prosecuted the conduct at issue here.

Legally, the issue is not dead yet.  The FBI does not charge crimes or seek indictments.  It is the prosecutors at Main Justice who will have the final say as to actual prosecutions.  But it is almost impossible to imagine that Main Justice will reject this recommendation.

While I think the decision is defensible when one views the particular exercise of prosecutorial discretion here, I am interested in Comey’s thinking.  He spends considerable time in his announcement discussing the improper conduct of Secretary Clinton, and concludes that “there is evidence that [she and her colleagues] were extremely careless in their handling of very sensitive, highly classified information.”  One might imagine that “extremely careless” means the same thing as “grossly negligent,” which is the mental state that one of the relevant statutes contains.  See 18 U.S.C. 793(f).  This will not escape the attention of Clinton’s critics today and in the coming days and weeks.  And if that is true – that Clinton was “extremely careless” – then it is not clear to me why no reasonable prosecutor would bring a prosecution for mishandling classified information in a grossly negligent manner, pursuant to section 793(f).

Once one considers the history of prosecutions under the Espionage Act, however, and the context of this particular case, it is easier (though not easy) to see why a federal prosecutor might choose not to pursue an indictment here.  I believe Comey was more interested in those factors than the issue of her mental state.  But Comey’s announcement also focuses substantially on evidence of intentional conduct, while seemingly minimizing the evidence of gross negligence.  Again, it may very well be that even with evidence of gross negligence, there were other countervailing prosecutorial considerations that militated against seeking an indictment.  That is understandable here.  Still, I would have liked a more detailed explanation on this particular detail, which I think Comey’s statement leaves mostly unexplained.  And I will be interested in seeing whether Comey speaks further about this issue in the future.

Today’s decision will almost surely spare Clinton a criminal prosecution, but it will do very little to squelch questions about whether she should be the next President.  The press will hound her with inquiries about the FBI’s conclusions.  And the FBI’s findings will play into every narrative about Clinton that her campaign would wish to avoid: that, her opponents will argue, she is an inveterate liar who is allowed to live by her own rules and whose corruption receives the constant protection of a Washington legal and political establishment that will never change as long as people like her sit atop the governmental food-chain.  And bellicose TV game show host Donald Trump will likely do everything in his power (which is to say, his Twitter account) to push this narrative over and over again.

In light of the findings and the coming onslaught, then, Clinton may want to consider a deeper and more sincere public mea culpa than we have seen thus far.  At the same time, it was always struck me as odd that the Clinton campaign has allowed Trump – of all people – to paint her as a liar, when she has an easy response that would simply involve publicly cataloguing Trump’s whoppers.  She has also allowed Trump to paint her as someone with “bad judgment,” though she has a smorgasbord of examples from which she could choose to show Trump’s poor judgment.  Saying he is “temperamentally unfit” is a useful phrase (and true enough), but still of limited value when she allows him to paint her as he has done thus far.  And today’s events won’t help her much.

Finally, a word about the folks at Justice.  The one Trump line of attack that he has been pushing most aggressively – that Clinton is benefiting from a “rigged system” – is a tough sell in this case.  James Comey is a man of real integrity, a hard find in official Washington.  He knows the principles of federal prosecution, understands the exercise of prosecutorial discretion, and has a long and distinguished record of apolitical service and decision-making in the DOJ.  It will be nearly impossible to make Comey into some political hack who is part of a legal establishment looking out for the Clintons and their cronies.

So I suspect that this line of attack will fail, and it should.  Trump’s attack essentially accuses the entire federal law enforcement community – both at FBI and Main Justice – of political hackery and of perpetuating a criminal justice system that is unfair to all but the powerful.  Nonsense.  These are folks who deal with the most important and consequential criminal and national security issues that our Nation faces.  While not perfect, they care deeply about spending their days trying to get it right.  They can do without the distant criticism from a man who has zero experience in sniffing out and punishing crime – and whose most important decision-making in recent years has involved the fake employment status of Meatloaf and Bret Michaels, or the location of another golf course that will be accessible only to the wealthy and privileged.

Landmines in the Democratic Veepstakes

Senator Elizabeth Warren of Massachusetts endorsed Hillary Clinton last night, just hours after President Obama did the same thing.  These were not the kinds of cold, grudging, “lesser-of-two-evils” endorsements that clearly reluctant Republicans have been giving to wealthy professional whiner Donald Trump.  These were, rather, enthusiastic (on the surface, at least) endorsements that focused on Clinton’s virtues as well as Trump’s vices.  Consequently, Senator Warren’s remarks have sparked further interest in the possibility of her being selected as Vice Presidential running mate for Clinton.

As appealing as that sounds to many on the Left (where I do not reside), I raise a note of caution.  First, and most obviously, Warren will continue to be hit with the charge that, while she may be ready for Hillary, she is not ready for the Presidency.  She clearly bristled at that notion last night, giving Rachel Maddow a terse response when Maddow asked about Ed Rendell’s remark that Warren’s lack of national security experience made her unprepared to be president.  Warren confidently said she was prepared, but if she thinks that Rendell is the only person who will be making that charge, then she is terribly naive.  Of course, that will be a hard charge for Trump to level, as he has zero experience in, or knowledge of, national security matters, and does not appear to care much about learning the subject.  So the Clinton camp could conclude that they have an easy response to that critique.  But Ed Rendell will not be the last person to question Warren’s readiness for the full panoply of issues a president must face.

Second, and perhaps less obviously, when there is a vacancy in the Senate, that vacancy is filled either by special election or by gubernatorial appointment for the remainder of the term. Warren is a Senator from a blue State that has a Republican Governor.  If she becomes VP, Governor Charlie Baker will name her replacement for a short, interim period, before a special election could be held and its results validated.  During the interim, he would almost surely select a Republican.  And while a Democrat would be favored to win the special election, any interim Republican appointee could obtain some advantages that come with that incumbency, even in a blue state like Massachusetts (which, after all, elected a Republican governor, and has elected a Republican Senator recently).

In an election year when the Democrats have a legitimate, though far from certain, chance of regaining control of the Senate, and when so many items on the Democratic agenda will depend upon gaining a Senate majority, every vote in the Senate will count.  The margin is likely to be razor thin.  Do Democrats really want to risk giving up a Senate seat to the Republicans when the next President takes office?

On the same subject, a Warren vacancy might pose less of a risk than a vacancy created by selecting Senator Sherrod Brown of Ohio, who is also almost certainly on Clinton’s short list for VP.  Ohio, too, has a Republican Governor – John Kasich.  But in Ohio, there is no special election – the governor fills the seat for the remainder of the term.  And Kasich would undoubtedly select a Republican to replace Brown (might he appoint John Kasich?  Brown’s term is up in 2018, as is Kasich’s in the governor’s office).  Again, do Democrats want to risk losing Brown’s Senate seat?  That’s a question worth pondering, if Brown is a contender.

If Clinton desires a Democratic female Senator with sufficient experience, she could do worse than Amy Klobuchar of Minnesota, which has a Democratic Governor and who would appoint a Democrat to replace her.  Kirsten Gillibrand of New York would be a popular choice, too, but Clinton is from New York.  And though the President and VP do not have to be from different states (contrary to popular opinion), the ticket would need two people from different states in order to assure that the electors in the Electoral College get to vote for both of them.  In a tight election, that would matter, so choosing a VP from the same state would not be wise.  On the male side, Senator Tim Kaine of Virginia is getting a lot of attention, too, and Virginia has a Democratic Governor.

My own view is that Clinton should be wary of the consequences of picking Liberal stalwarts like Warren and Brown anyway.  Although they appeal to the Democratic Party’s base, and would likely seal Clinton’s support from many reluctant Sanders voters, it is not clear what she gains from them with a broader general election electorate.  Warren has proven an effective attacker of Trump, but she will likely maintain that posture even if she is not on the ticket.  And Clinton would be handing the Republicans yet more ammunition for their claim that she has simply moved too far to the Left (though Clinton herself, in my view, does not fall into the “Liberal extremist” camp generally). Moreover, the hardcore “Bernie or Bust” voters won’t be persuaded by anyone, and for those Sanders enthusiasts who are not in the “Bernie or Bust” camp, Clinton was already likely to get those votes.  But the consequences for Senate control make Warren and Brown even more risky.

It would not be popular in the Democratic Party or among the Liberal base, but if Clinton could find a moderate Republican with national security credentials and who sides with her on some domestic issues like civil rights and job creation, that could go a long way with a general election audience.  And it might entice some Never Trump Republicans to view Clinton through a different lens.  Still, picking a Republican would alienate Liberal voters.

So Clinton has a complicated task ahead of her, especially in a world where she could garner some meaningful Republican votes if they viewed her, rather than Trump, as the lesser of evils.  Picking an unabashedly Liberal firebrand will do nothing to bring those voters closer to her.