Every book group in the country should take the time to read this memo. That’s not a joke. It’s the kind of thing people should read and discuss together, not alone. It’s a primer in the republican theories of self-governance that animated the founding generation. (The term “republican” originally simply designated commitment to popular self-government.)
It returns to questions at the roots of our democracy, of any democracy. Why is the corrupt exercise of power bad for society? Why are there three distinct aspects of power — legislative, executive and judicial — and why is it best to keep them both separated and intermingled? Why does the health of a constitutional democracy depend on civic virtues like the faithful execution of the laws? What was the original purpose of impeachment?
Here’s the short answer: Corruption endangers liberty; our constitutional structure, including separation of powers, was designed to ward off corruption; the structure can work only when combined with civic virtues like honesty and unswerving preference for the public good over private good. The place where the structure and the need for civic virtue come together is, above all, in the Office of the President. When the president is charged in the Constitution with executing the powers of his office faithfully, the Constitution makes civic virtue in the president — preference for the public good — the final ingredient necessary to make the whole thing work. Impeachment is a tool to protect self-government anchored in free and fair elections, when that is endangered by a corrupt official.
In this memo, the Democrats are being more republican than the Republicans, despite their history of objecting to originalism and of shying away from concepts like civic virtue or, in education, character education. Think of how we all were asked to put questions of character aside during the Clinton impeachment.
Civic virtue specifically — that preference for the public good — is at the heart of the matter in this case. Every set of articles of impeachment ever presented against a president has begun by charging him with being in violation “of his constitutional oath faithfully to execute the office of president of the United States.” The antithesis of faithful execution is corrupt execution. By definition, impeachment turns on a question of character. This is what makes it such a challenging topic to engage.
In the memo’s most powerful segment (Section VI, part D), the Judiciary Committee reviews the evidence for their argument that President Trump’s motives were corrupt — that he was giving preference to personal over public good — and analyzes his motives for seeking a “thing of value,” in the form of a public announcement of an investigation into a political opponent.
Do the president’s explanations for his actions with Ukraine hold water? The memo argues that they do not on grounds of (1) a “lack of fit” between his conduct and his explanations for it, (2) arbitrariness in his selection of a target for a corruption investigation, (3) shifting explanations, (4) irregular decision-making, and (5) explanations based on falsehoods.
Some defenders of the president say that his desire for a public announcement was not terribly significant and such an announcement not much of a “thing of value.”
This fails to acknowledge a political universe transformed by networked social media. Nothing is now more precious to PR professionals than “earned media” — the label for generating a story that people cover and that gets your message out, in this case a message against Trump’s political rival, Joe Biden. PR professionals calculate earned media’s value in detail — in terms of numbers of eyeballs reached, dollars moved and the like. It is considered more valuable and effective than paid media (buying ads) or spreading messages through one’s own channels, such as websites. Anybody with two eyes in their head understands that Trump is the world’s master of earned media and knows a “thing of value” of that sort when he sees it.
Some scoff at the Democrats’ invocations of the founders as fig leaves cloaking naked partisan interest. Indeed, for the Democrats to take the founding this seriously is novel; Republicans have conventionally been more likely to draw on these intellectual resources. But what if this is an honest recovery of key principles of free self-government?
This is how it reads to me. Indeed, it reads as one of the best such statements I’ve seen in quite some time. If that is the case, and if the Democrats can commit to this course, then the mantle of defending constitutional democracy may have passed to the Democrats.
Certainly, it is encouraging to see them sticking up for the legislative branch. The founders did not understand the three branches of government as co-equal. Congress, described in Article 1 of the Constitution, is the first branch. The exercise of power originates with the expression of a will or intention. Congress expresses the will of the people.
Only after the will is expressed can there be execution of the desired action. The executive branch, described in Article 2 of the Constitution, is the second branch. Judiciary comes third as a necessary mediator for addressing conflicts between the first and second branches. In the Federalist Papers, the founders used the language of “co-equal” institutions to refer to the taxing powers of the states and of the national government. They also described the House and the Senate as co-equal. But they did not describe the three branches as co-equal.
This doesn’t mean the House will prevail. When the impeachment process moves to the Senate, the Democrats may not win this particular battle. But if they have earnestly taken up the cause of constitutional democracy itself, they will surely win in the long term.