Forays into Hackery (Tucker and Derschowitz)
Wherein I explore the notion that ignorance is bliss.
Most weekend mornings I like to sit on my back patio with coffee and my laptop and catch up news from the week and to specifically take time to write about said news. It is, perhaps, an insane thing to do during what is ostensibly “relax time.” More than once I have been semi-paralyzed in terms of choosing topics to address as so much goes on in a given week upon which I might want to comment.
For example, in just the last 24 hours or so, there was yet another mass shooting in the United States, more possible evidence of presidential obstruction of justice emerged, and Trump has decided that merging trade policy and immigration policy is a great idea. This is all in a week wherein Mueller finally spoke, Israel has to have new elections, Trump aides blocked the President from having to see John McCain’s name,and, oh by the way, half (give or take) of the United States is running to be the Democratic nominee for president. (Not to mention the roiling abortion debate, the ongoing Brexit drama, and the unbearable smugness of Mitch McConnell).
Now, you say, there is always a lot going on, so quit your bellyaching.
Fair enough.
But Good Lord, the Era of Trump feels more filled than any in my lifetime.
And, really, one could argue that all of us (the writers and the readers of this site) could just slip off into the land of ignorance and not pay attention. But, since that ain’t going to happen, let me press on.
Now what makes all of this worse is that in the context of a remarkable amount of very important news out there to digest and understand, the level of hackery is off the chain. Note just two examples that hit my radar screen since yesterday: Tucker Carlson and Alan Dershowitz.
The hackery in question is problematic, as most hackery of scale is, because it simply takes an already complicated and very significant set of circumstances and then creates greater confusion in the audience which consumes said hackery (an audience, I would note, that includes Donald J. Trump).
First, Tucker:
This is absurd. Mexico is our largest trading partner and an ally. It is by no definition “a hostile foreign power.” Beyond that, levying tariffs on Mexican imports is, as I am sure readers here know, a tax on Americans. They will ultimately damage American businesses and the broader American economy.
Further, if the tariffs do cause economic harm to Mexico that damage will a) decrease their policy capacity to deal with Central American migrants, and b) increase the number of Mexicans who seek to come to the US to work.
Beyond that, Tucker is just stoking flames of xenophobia and white nationalism with his audience here.
Second, to an opinion piece in The Hill: Dershowitz: Supreme Court could overrule an unconstitutional impeachment.
President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only are there no ‘High Crimes and Misdemeanors,’ there are no Crimes by me at all.”
[…]
Commentators have accused Trump of not understanding the way impeachment works and have stated quite categorically that the courts have no constitutional role to play in what is solely a congressional and political process. Time magazine declared in a headline “That’s Not How It Works,” and Vox called the president’s argument “profoundly confused.”
Scholars also echoed the derision. The influential legal blog Lawfare wrote confidently that “The Supreme Court Has No Role in Impeachment,” and my friend and colleague Larry Tribe, an eminent constitutional law scholar, called Trump’s argument simply “idiocy,” explaining that “the court is very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction.”Not so fast. Our nonlawyer president may be closer to the truth than his lawyer critics. In fact, the Lawfare blog noted that “Trump’s suggestion of resorting to the Supreme Court to appeal an impeachment did not come out of nowhere. … Alan Dershowitz recently made an argument along the same lines, writing in an essay on ‘The Case Against Impeaching Trump‘ that ‘[w]ere a president to announce that he refused to accept the actions of the Senate in voting for his removal … and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him.'”
I will state up front that I have never been overly impressed by Derschowitz, who has been a fixture on TV for decades. But his hackery has reached amazing heights of late, as he clearly loves the attention he gets on FNC defending Trump more than he likes maintaining intellectual integrity.
This argument is nonsense–and Trump got the idea because he saw Derschowitz make it on FNC.
First, the US Constitutional clearly places the power of impeachment an removal in the hands of the Congress.
Second, the notion that the impeachment process has to prove a crime was committed, as if it was a criminal trial, is a novel notion, to say the least.
Third, SCOTUS has previously ruled on this question, as Dershowitz clearly knows. In Nixon v. United States, 506 U.S. 224 (1993), the Court unanimously ruled against Judge Nixon (this was not a case about the President Nixon) and upheld the lower court’s ruling: ” The District Court held that his claim was nonjusticiable, i.e., involved a political question that could not be resolved by the courts. The Court of Appeals affirmed.”
From the unanimous opinion by Rehnquist:
In this case, we must examine Art. I, § 3, cl. 6, to determine the scope of authority conferred upon the Senate by the Framers regarding impeachment. It provides:
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside:
And no Person shall be convicted without the Concurrence of two thirds of the Members present.”
The language and structure of this Clause are revealing. The first sentence is a grant of authority to the Senate, and the word “sole” indicates that this authority is reposed in the Senate and nowhere else.
Emphasis mine.
Not only is Dershowitz a constitutional law professor, so clearly knows of the Nixon case, he selectively quotes two of the concurring opinions from the case in his column (without making reference to their source). His manages to link to Marbury v. Madison in the column (as well as to the Goodreads page for his book) but not even a mention of Nixon v, United States, despite directly quoting from it.
Dershowitz does not deserve to be treated as a scholar (and this has likely been true for some time), but here he is clearly acting as a paid television personality, as well as a person trying to sell a book.
It would be blissful of the Fox News (and wider) audiences were ignorant of both these individuals
I know I’d be happier if I had never heard this nonsense (so, sorry to have shared).
How many of our problems come not just from an uninformed electorate, but from a deliberately misinformed electorate?
I have no idea what we can do to fight this — between social media networks that don’t care if they are used for misinformation (or spurring people to genocide, as Facebook was used to spur on the Rohinga genocide), and then Fox News which peddles bullshit as part of their own agenda… I don’t think either our governments or people themselves are capable of dealing with this.
On the plus side, I can send a few well crafted texts to my brother about how I am reading a book on global warming, and then get a continuing stream of nonsense texted to me all day about sun spots, glaciers moving uphill, poor conditions involving the storage of ice cores, Vikings, faked data, and claims that we have been living in an unnaturally cool period for the past few centuries.
If we measure the goodness of our world by how easily I can get my brother to waste his day off angrily texting me because he has fallen into a bubble of bullshit…. were doing pretty good.
@Gustopher: I don’t even say anything to anyone anymore. What’s the point? I see Facebook friends posting garbage like “the Trump tariffs mean MEXICO IS GOING TO PAY FOR THE WALL!” How does one counter that level of ignorance?
I have military buddies–guys I went to war with, guys I stood watch on the East German border with–who are voluntarily turning a blind eye to an actual Russian military and intelligence service attack on America because acknowledging it would mean admitting Trump’s victory is tainted. They’ll periodically put up the text of their oath of enlistment, saying “THIS NEVER EXPIRES!” (actually, it does, but whatever). And I’m thinking, you go on and on about your service and what it means to you but when it comes to your preferred political party you just ignore a no-shit attack?
Anyway, I’m just ranting at this point. Sorry. It just bothers the hell out of me.
@Mikey:
In many ways this post is an invitation to rant, because as Gustopher notes, this is about deliberate misinformation that is spewed because it lines people’s pockets.
The stupid, it hurts.
Back when I was coming along (and Eisenhower was President) there was an often-repeated line about “an educated public being necessary for the working of democracy”. So of course that’s exactly where Roger Ailes put the cross-hairs.
@Steven L. Taylor: @Mikey: @Gustopher:
Most of my family – 6 of 8 siblings and my parents – are totally dialed in FoxNews viewers/consumers, and it is nearly impossible to have an honest discussion about national issues . It almost always ends in silence – let alone policy and opinion which I expect wide difference, we never agree on facts, it’s pathetic and depressing.
What the courts ruled on once, they can rule on again.
@Steven L. Taylor: I’m less convinced that it’s about lining pockets. It’s usually a good guess, and I’m sure it is some of it, but I don’t think it explains all of it, and it doesn’t explain why my brother believes Fox despite so much of the rest of the media.
I don’t think Zuckerberg looks at Myanmar and says “wow, promoting genocide converts even better than silly cat videos!”
It doesn’t explain why Russia is promoting antivaxxers in the US.
I think it’s a whole host of things, money being just one component and not the major component. Power, and the fear of being powerless. Trolling culture, and the slide into believing the shit you spew. A libertarian belief in free speech, along with a faith that the truth will win out in the end. A desire to hear that you are a good person — your beliefs, your actions and your privilege are justified.
All of this plays out to different degrees up and down the media foodchain. Reporters, consumers, newsmakers all in a self-reinforced cycle of bullshit.
Why do my brothers send me “funny” memes about AOC that are just old polish jokes? To troll, but they also start to believe that she really is stupid.
Why do I delight in my brother wasting his day off sending me nonsense after I provoke him a little? Because I won the trolling game.
Why does my brother see both Fox and MSNBC on his cable box, and decide that Fox is the source of truth, and that other one is just lies? It gives him a world where he is blameless, where he is powerful.
Ages ago, I had a conversation with a conservative acquaintance, and I asked him he listened to Rush Limbaugh. He replied that he didn’t and never would, because Limbaugh and his ilk were just blowhards who’d figured out a lucrative scam.
I have no idea what people like Carlson actually believe, if anything. What they know is that if they give an audience what it wants to hear, they make a lot of money.
@Gustopher: Scott Galloway just did the Inside the Hive podcast, and he usually does the podcast with Kara Swisher, and they both have strongly made the case that Zuckerberg and Sandberg at Facebook put morality and principles and absolutely everything else second to having the maximum number of users, regardless of the consequences, growth uber alles, and that Zuckerberg in particular can’t even conceive of taking blame for anything that he does.
@Kit:
Pehraps. But some things are less likely than others. It would take a truly radical interpretation of the actual text of the constitution to reach Dershowitz’s position.
Worse, in terms of his argument, he should have acknowledged the case.
@Gustopher:
To clarify: I was referring to the purveyors of this claptrap (like Tucker and Dershowitz), not the consumers thereof.
Based on this quote, I don’t see that Derschowitz is making so much a legal argument as a political one, and maybe a threat. He seems to be saying Trump could refuse to depart, using appeal to SCOTUS as an excuse, and that the public would back him. Now, I don’t think he’s right that the public would back him, or at least more than 35%. And I can’t imagine the court putting up with this. But nonetheless, there are no Constitution Police. Is Pence going to have to order the Secret Service to physically remove him? Dersch is trying to muddy the water and suck up to Trump. Derschowitz probably doesn’t believe SCOTUS would hear such a case any more than I do, but he’s threatening that Trump really could create an ugly situation.
@JohnMcC:
It’s really no coincidence the Teacher’s Unions have consistently under attack for decades.
@Steven L. Taylor:
A one-off ruling a la Bush Vs Gore would do the trick.
I think that opinion has aged well.
@Steven L. Taylor:
And be grounds for impeachment of the so deluded justices, the power of which also lies solely with the congress.
@gVOR08: The Secret Service oath:
Nice selectivity there.
After citing two former SC Justices he writes.:
“No one should criticize President Trump for raising the possibility of Supreme Court review, especially following Bush v. Gore, the case that ended the 2000 election. Many of the same academics ridiculed the notion that the justices would enter the political thicket of vote-counting. But they did and, in the process, weakened the “political question” doctrine. The case for applying the explicit constitutional criteria governing impeachment is far more compelling than was the case for stopping the Florida recount.
So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional.”
Not sure what you put in that morning coffee. But if memory serves Bush v Gore actually happened. And some of the same authorities you no doubt are relying on were actually on the other side of the argument then. Further, he raised a hypothetical. He did not make an assertion. Hackery charged to thee, but not for me?
Indeed, right back to days when he was a darling of the Lefties (and hated by the Right).
re Tucker
Beyond that, allowing wholesale immigration is, as I am sure readers here know, a tax on Americans. They will ultimately damage American workers and the broader American economy.
There, fixed it for you.
“Further, if the tariffs do cause economic harm to Mexico that damage will a) decrease their policy capacity to deal with Central American migrants, and b) increase the number of Mexicans who seek to come to the US to work.”
Ah, yes. A hypothetical. A debunking of economic sanctions in general. Musing about backfiring. Let me guess, all unless we continue the feckless immigration policies in place for years now. We just have no choice but to follow the Democrats and Corporitist Republicans, right?? Agree or you are a xenophobe, and American workers be damned.
@gVOR08:
That’s the way Dershowitz always operates. For example, he does not support torture. Instead, he says that torture’s going to happen whether we like it or not, so we might as well give authorities permits to do it so at least we can keep our eye on them.
Dershowitz’s modus operandi over the past couple of decades is to construct arguments that just happen to land on a defense of the despicable actions of right-wing governments, but to do it in such a way that he can claim he’s not really supporting the act in question, he’s just being a more consistent civil libertarian than everyone else. He’s become a parody of his former self, and he uses his past liberal record (such as his defenses of Bill Clinton) to help maintain the pretense that he hasn’t morphed into a right-wing hack.
Back in the ’90s there was a silly little movie called Double Jeopardy about a woman convicted of murdering a man, then the man turns out to be alive, and therefore she’s free to kill him now because to prosecute her for his murder a second time would be double jeopardy. I remember Dershowitz going on TV at the time to explain that, um, that’s not how double jeopardy works. If Trump were to make an argument like that today, Dersh would be the first to come to his defense. He’d find some rationale, some backdoor argumentation about how the justice system just might have to take up such a line of reasoning, all the while claiming he’s not endorsing that scenario, he’s just saying we gotta face the facts that it will happen whether we like it or not.
@Guarneri:
Funny you should mention “selectivity” because Dershowitz is relying a lot on that for his quoting of Souter. From his editorial:
Note that ellipsis… I wonder what Souter had written there…
Note that Souter is thinking about a far extreme and even then only suggests review *might* be warranted. Funny that D. Should have left out Souter’s contextualization of his quote. I wonder why he did that.
Btw, that analysis, written before Dershowitz, is a good read on why his essay is so far off base.
@Guarneri:
In terms of selectivity, he cites those Justices writing concurrences from Nixon without mentioning the case nor its ruling. Pure. Hackery.
He is using his platform on FNC to get this hypothetical in the bloodstream of those who consume that content (including into the mind of Trump). It is reckless and irresponsible.
@Guarneri:
Except, that isn’t true. Apart from that, you fixed it up real good.
No, reasonable inferences based on the history of such policy moves.
Why are you such an apologist for this nonsense?
@mattbernius:
There’s that, too.
His argument is intellectually dishonest and is designed to tickle the ears of the FNC audience (and to sell books). And Guarneri just laps it up.
@Guarneri:
What, no defense of how Mexico is a hostile foreign power?
How about a defense of levying tariffs on our largest trading partner?
I thought you were some sort of finance guy.
@Kylopod: Many years ago I saw Reversal of Fortune, the movie about Dershowitz’ defense of von Bulow. It was based on Dershowitz’ book and IIRC he had a hand in the script. He came across as an unscrupulous self absorbed ass in a movie he wrote.
@Steven L. Taylor: In defense of Guarn, most (all?) of the finance people I’ve met were Republicans, and most seemed to know little outside finance. And really only the conventional wisdom of that. With a good line of bull and attention to detail, they can make a fair amount of money. He may well be both what he comes across as and what he claims to be.
@gVOR08: In the hypothetical situation where the Senate convicts Trump, I think that probably about 65-70 percent of the voters support getting rid of him. That’s my estimate of the threshold.
So “the people would support him” is a fantasy. If the people support him, say at the level they do now, there is no conviction by the Senate, and thus no refusal or appeal.
@gVOR08: My perhaps too subtle question about being in finance is linked to the fact that the main problems we have seen in the stock market over the last several quarters have been linked to Trump’s trade wars.
But, of course, I was talking to someone in finance just last week who made an offhand comment about keeping the Democrats out of power to help the stock market (and this was late Tuesday afternoon after the DJIA started a multi-day plunge specifically because of Trump). And, the 4Q disaster that we had just been talking about was also trade war related,, but, you know, the Dems!
It is maddening.
BTW: something I should have said in the OP is that if the Senate did remove, it would mean that public opinion would have so thoroughly turned against Trump that there is no way the SCOTUS would get involved.
Derschowitz is purposefully sowing seeds of doubt about the process, and ill-educating the population to sell books and to keep his fees from FNC coming.
@Mikey and @al Ameda:
I feel lucky that my family is not quite so challenged. I feel it’s important to inject dissent somehow into the sorts of discussions you mention, but I’m not at all sure how to go about doing that.
My brother-in-law has managed to get his stepfather to start getting his news from more sources than Fox. This has been successful in the sense that said stepfather hasn’t really changed his politics so much as he now thinks Trump is a dumbass.
My sympathies to y’all.
@OzarkHillbilly: I suppose I should find that comforting. But isn’t it pretty much the same oath Trumpsky swore to?
@Steven L. Taylor:
Ouch! 🙂
@Kylopod: “Back in the ’90s there was a silly little movie called Double Jeopardy about a woman convicted of murdering a man, then the man turns out to be alive, and therefore she’s free to kill him now because to prosecute her for his murder a second time would be double jeopardy”
And back in 1984 it was the story for the pilot of “Crazy Like a Fox.”
(Which I know only because I worked for that show’s showrunners on the immortal classic The Cosby Mysteries.)
@gVOR08: “It was based on Dershowitz’ book and IIRC he had a hand in the script”
Just the book. The screenplay was by Nick Kazan.
@gVOR08: @wr: From what I’ve seen, it’s quite common for movies based on memoirs to present the author in a more negative light than they themselves did in the book.
@Steven L. Taylor: Because Trump lowered his taxes and owns the libs.
Guarneri would deny the Holocaust or actively defend genocide if he thought there was profit in it for him or that it would piss off the libs.
@Guarneri:
Don’t be sad… :-(. We’ll always think of you as a hack.
@Steven L. Taylor:
I believe that this thread has demonstrated that the consumers become the purveyors. 😉
Tucker and Dershowitz have found a paycheck in it, but there is a whole lot of people who are willing to do it for free. I’d almost say that in the chain of claptrap, from the folks building and managing the network, all the way down to my idiot brothers, Tucker and Dershowitz are the least interesting. Spokesmodels for Bullshit.
@mattbernius: “Guarneri would deny the Holocaust or actively defend genocide if he thought there was profit in it for him or that it would piss off the libs.”
Of course for all we know, Drew might already deny the Holocaust or defend genocide anyway.
@wr:
Honestly, it would be better (or at least less actively evil) in some way if he actually believed in what he was saying.
Steven, your opinions are well stated but are not entirely without question.
First, Tucker is stating that Mexico is engaged in activities contrary to US interests. That in itself makes them an adversarial power. Much like China, they engage in activities to boost their own economic advantage as well as engage in activities that undermine US laws – kinda sounds like hostile acts, and they are a foreign power. Even our allies are not “exempt” from a label such as Tucker used when they engage in such activities. Maybe Tucker was overstating his case, but essentially ANY country competing for economic advantage is engaged in hostile acts.
Second, Alan Dershowitz is stating an obvious constitutional point. In any legal proceeding, the presiding judge DOES have the authority to rule if the proceedings meet the burden required by law. Hence the Chief justice (as the presiding judge in an impeachment) would be fully within his authority to dismiss or set aside an impeachment if the legal thresholds are not met. This is for obvious reasons. The reason the founders provided us with three co-equal branches of government is to prevent one branch from overstepping their legal authority. Without the SCOTUS being involved in the process, then congress could remove ANY legally elected president for ANY reason – all they would need is the control of both houses of congress. That would be dangerous for our republic since it could facilitate the majority party in congress to nullify ANY election.