Lawrence Lessig Spins A Bizarre Scenario To Put Hillary Clinton In The White House
There's something in the water up at Harvard......
Harvard Professor Laurence Lessig has a post up at Medium where he goes completely off the rails in unfolding a way that Hillary Clinton could still become President. As Newsweek reporter Julia Glum notes, it starts with the premise that the ongoing Russia investigation finds affirmative evidence that the Trump campaign colluded with Russia to fix the 2016 election. I’ll let Lessig words speak for themselves:
This “if” has got to be specified very precisely. The question is not whether Trump obstructed justice, or is guilty of tax evasion, or has violated the Emoluments Clause or done any other act justifying impeachment. The “if” here is quite specific: It relates explicitly to the validity of the election. The question I’m asking here is what should happen if Trump conspired with a foreign government to get elected? If he did that, then what should happen.
If that is shown, then the first step is obvious. Trump should resign or, if he doesn’t, he should be impeached.
The second step should be obvious as well: Pence should resign or, if he doesn’t, he should be impeached. He benefited from the criminal (and treasonous) conspiracy just as much as Trump. He shouldn’t benefit even more by becoming the residual President.
Under the law as it is, this leaves Paul Ryan as President. And the hard moral question that Ryan would then face is whether he should remain as President. By hypothesis, we’re assuming the office was effectively stolen from the legitimate winner by a criminal and treasonous act of the (previous) leader of Ryan’s own party. Ryan’s being President is just the fruit of that poisonous tree. So should he just ignore that? Or should he acknowledge the wrong, and act to make it right?
(…)
President Ryan would have the right to nominate a Vice-President. That right is specified in the 25th Amendment. That nominee then becomes Vice-President once confirmed by a majority of both houses. That’s how Gerald Ford became Vice President. And that’s how he eventually became President without ever running for that office.
(…)
Without doubt, if Ryan did the right thing, that would be the most extraordinary event in the history of America since the Confederate Army fired on Fort Sumter. But unlike that, this event would build the union, not divide it. And if he did it, then Clinton should embrace the spirit of cross partisan decency and nominate Ryan, or a Republican, as her Vice President. At least for the balance of her first term, the frame of adults-behaving-like-adults could live.
To his credit, Lessig does admit in his post that “I realize this all sounds crazy right now.” Crazy is the least of the terms I would use, Professor Lessig. This is downright nuts, and a plot development that would be laughed out of the room by the writers on House of Cards or even ABC’s slightly implausible yet still very good Washington drama Designated Survivor. As I joked on Twitter, it makes one wonder what Lessig is smoking up there in Cambridge during his off hours.
Right off the top, it’s worth noting that we still don’t have anything approaching plausible evidence of collusion between the Trump campaign and Russian officials regarding the election, much less any evidence that Trump himself had knowledge of or participated in any such collusion. Certainly, there have been plenty of reports of previously unreported contacts, suspicious meetings, and other activity, but this is far short of the kind of evidence that would be needed to justify the first step in this process, namely Trump’s removal from office before January 20, 2021 via either voluntary or involuntary means. Clearly, these matters need to be investigated but that’s a far cry from saying there are grounds for impeachment and removal.
Even if we get past that issue, the idea that Vice-President Pence would also be removed from office, again either voluntarily or involuntarily, is wholly unsupported by any available evidence. So far at least, there’s been no allegation that Pence or anyone close to him was even aware of the meetings that were taking place between top Trump officials and representatives of the Russian government both during and after the campaign. This fact is seemingly confirmed by the fact that Michael Flynn, Trump’s former National Security Adviser, was forced to resign in part because he lied to Pence about the nature of his contacts with Russian officials before an after the 2016 election. Given that, and absent any evidence to the contrary, it seems unlikely that Pence had any idea any of these meetings were going on. This seems to be further backed up by multiple reports that Pence is not necessarily being kept in the loop about what’s going on in the White House even today. Given this, it’s hard to see how Pence would be implicated even if the worst assumptions about Trump campaign collusion with Russia are proven to be true. The fact that he was Trump’s running mate is not sufficient, and it’s at this point where Lessig really starts going off the rails.
Lessig is essentially asserting that Pence should either voluntarily resign or be impeached in his own right if it is proven that the Trump campaign colluded with Russia during the election. This is absurd. First of all, Pence’s resignation would serve no useful purpose other than to make an already chaotic political situation even more chaotic. Second, even before taking into account how unlikely it is that Trump would be impeached and removed from office, it’s even less likely in Pence’s case. The more likely outcome would be something akin to what happened after President Nixon resigned and Gerald Ford became President. Politicians on both sides of the aisle, and on Capitol Hill would be a desire to calm the nation and move on from what would be a horrible political ordeal that would be as traumatic to the system as Watergate was.
Having assumed that Pence would leave office, Lessig then moves on to the next leg of his bizarre scenario. Yes, under the laws of succession Paul Ryan would become President at that point assuming that he was still serving as Speaker of the House, but the idea that he’d appoint Hillary Clinton his Vice-President, and that she could possibly be confirmed for that position as required by Section Three of the 25th Amendment, is simply absurd. The same goes for the suggestion that Hillary Clinton would or should appoint Ryan as her Vice-President after he decides to resign so that she can become President.
As I said, this is a plot that would be laughed out of Hollywood, and that’s saying something.
Well, Doug, that may be the case, but it wasn’t that long ago we’d have said the same thing about “President Donald J. Trump.”
What’s really ridiculous about Lessig’s scenario is its suggestion anyone in the GOP would “acknowledge the wrong, and act to make it right,” especially considering he’s talking about Paul Ryan.
Lessig said that this scenario would be possible if “adults-behaving-like-adults” were possible, referring to Clinton and Ryan. The author is probably correct in saying that “this is a plot that would be laughed out of Hollywood” because at this point most Americans are aware that neither Ryan nor Clinton is capable of behaving like an adult. Since trump is even less like an adult than Clinton, it really doesn’t reflect well on American politics if none of its upper leadership is apparently capable of making grownup choices.
I saw this. I asked myself, “Why bother?” I’m really surprised you did, Doug.
Washington’s great men and women, working together in the spirit of Bi-partisanship and Doing The Right Thing, put aside their petty squabbles and join hands to make good decisions for history and posterity.
This was the plot to every episode of The West Wing. So we know where Mr. Lessig gets his thinking.
If the Trump campaign is shown to have colluded with Russia, then Trump, Pence or any other Republican would not be the legitimate President of the United States. Whatever the legal case might be, the populace would have no reason to accept as legitimate any actions taken or laws passed. Soldiers would have no reason to follow orders other than the threat of death or imprisonment. The staff members of government agencies would have no moral obligation to carry out any orders by their Republican appointed leaders. Juries would have no moral obligation to convict someone charged with peacefully sabotaging republican policies.
Doug, however ridiculous Lessig’s scenario might be, the reality would be at least as ridiculous and much more tragic.
Lessig cited one of his main inspirations for presidential leadership as Jon Snow from Game of Thrones. Nuff said.
@MarkedMan: There’s never going to be any evidence that Trump knowingly worked as a Russian intelligence asset in a plot to control America. Never ever.
@Ben Wolf: First, never say “Never.” 2nd, that’s not what MarkedMan postulated. He said,
Besides, trump isn’t smart enough to work for the Russians and they are smart enough to know it. Besides all of that, they only need a useful idiot in the White House and that they have in spades.
@OzarkHillbilly: If Trumo doesn’t know then there are no grounds for impeachment or any other extraordinary action. Trump must be personally responsible and evidence for that ain’t gonna be found.
@Ben Wolf:
I tend to overwhelmingly agree with you…but every time I think Donnie can’t be any dumber…he proves me wrong. Cheney was smart enough to not leave evidence of outing a covert agent. That talking Comb-Over is no Cheney. If anyone is dumb enough and baselessly arrogant enough to leave behind a trail…it’s Donnie and his progeny.
I’ve wondered for years what Lessig is smoking.
Seems to be the same stuff many people here are smoking tho, whatever it is.
@Ben Wolf: He doesn’t have to be impeached to be removed. And it’s wholly beside MMs point (if I am reading him correctly) which is if the trump campaign colluded with Russia, the trump presidency loses what little credibility it presently has. I have no idea what happens then or how this country would deal with what would be a honesttodog constitutional crises. There is no precedent for such a situation and there are no constitutional solutions for it.
@TM01:
Actually, delivering the most lame, witless insults imaginable while thinking you’re putting liberals in their place is a far greater sign of smoking something.
@TM01:
You voted for, and continue to blindly support, the most failed Presidency in our history…apparently you aren’t smart enough to strike a match in order to smoke anything. Anyone who voted for this clusterfvck has severe mental health issues. You should seek help before Obamacare is totally dismantled, Donnie crashes the economy, and you are left unable to get any sort of professional help.
Wow. Not that is a plot not to be believed.
How about this…
Hillary is made Secretary of Dog Catching. During the State of the Union address, one of the many terrorist that she allowed to enter the country while she was Secretary of State plants a nuclear device in the House Chamber during the address. Having just broken her toe she was unable to attend. All of the Cabinet member and members of Congress…… Oh that’s right….. she’s not qualified to be dog catcher.
What’s the stink all about. Isn’t this all covered in Article XII USCon?
Trumps worth dropped 16% last year…in the midst of a growing economy.
https://www.forbes.com/sites/danalexander/2017/10/17/the-poorer-president-donald-trumps-fortune-falls-600-million-in-a-year/#58d5c0c9141b
My freude is over-schadened.
@Conservative Wiseguy:..If you have evidence of many terrorist (sic) in the United States you should take it to the proper authorities immediately!
Apparently you were not aware of the terrorists here on September 10, 2001 that REPUBLICAN President Bush allowed into the country or you would have reported them.
@Conservative Wiseguy: No offense, but with a name like “Wiseguy” people expect you to be clever.
I guess you have never seen Designated Survivor….. (sigh)
This is the same guy who ran that totally random non-campaign in the 2016 Democratic Party primaries, right?
@Conservative Wiseguy:
I thought you Republicanists believed in using English as your first language?
Dumb Donnies latest travel ban was blocked again in Federal Court.
Soooo much winning….
Lessig concluded:
He’s quite explicit that he’s constructing an extreme hypothetical to. Heck, he was snarkier about the concept of Paul Ryan doing the right thing than I would have been. He said he wrote this to get people thinking about what we do if it turns out Trump did collude with Russians. Maybe instead of criticizing his deliberate extreme hypothetical for being an extreme hypothetical, we should take his advice and think about the unthinkable.
There seems little question the Russians interfered, and it looks like Manafort, at least, is a dead man. I personally think Trump was mostly a useful idiot for the Russians. But money laundering? Jr. and Cambridge Analytics sharing data?
As Lessig wants you to ask, what do we do if Trump committed impeachable offenses? If only his associates violated campaign laws bigly? If oligarchs have a blackmail or financial rein on Trump? If under pressure Trump flips out and does something nuts?
This is the same Lessig who managed to totally screw up copyright law with his case before the Supreme Court, right? THAT Lessig?! The guy who admitted much later that maybe he shouldn’t have used the strategy he did, especially in light of the fact that he basically blew a hole in the possibility of any further SCOTUS cases being brought on the issue?
Lessig is one of those guys who is technically brilliant and with absolutely no horse sense whatsoever.
” Lessig wants you to ask, what do we do if Trump committed impeachable offenses? If only his associates violated campaign laws bigly? If oligarchs have a blackmail or financial rein on Trump?”
What we do is impeach him and try to remove him from office, in which case Mike Pence becomes President. Baring that, we vote against him in 2020.
Lessig’s “though experiment,” or whatever one wants to call it, is foolish nonsense.
We absolutely have plausible evidence — secret meetings, timing of Trump’s ramblings and email dumps, and efforts to block any investigations. We don’t have enough to convict, but we have enough evidence that it is an entirely plausible scenario.
There is no doubt that the Trump campaign benefitted from Russian interference. The only questions are how much of that did they know, and whether they were actively involved.
It’s also possible that the Trump campaign was infiltrated with Russian assets, and that any collusion was between those assets and their Russian handlers, and that Trump and his family are a clean as pure-driven snow that happens to have a suspiciously pro-Russian bias. The Russians may have favored him because of his pre-existing pro-Russian views.
The million dollar question here that no one is asking or answering. If collusion did occur how many current members of Congress knew of it? When they knew and why did they keep quiet?
A real investigation of all of Congress should be done. It is way past time that we let Congress know that they are Public Servants not masters of the USA. Thus an independent investigation would clearly let ALL in Congress know that the people are watching them ALL very closely.
“To his credit, Lessig does admit in his post that “I realize this all sounds crazy right now.” Crazy is the least of the terms I would use, Professor Lessig. This is downright nuts…”
Lloyd (all of us here at OTB):
What are the chances of a Hillary… ending up in office?
Doug:
Not good.
Lloyd (all of us here at OTB):
Not good… like one in a hundred?
Doug:
I’d say more like one in a
millionbilliontrillionLloyd (all of us here at OTB):
So you’re telling me there’s a chance !!!
.
Yes. It’s constitutionally possible. No, it won’t happen.
More likely what we’ll see is a true Trump loyalist, realizing that he’s been lied to and royally scried by the liar-in-chief, will go way Way WAY off the deep end and try for a second amendment resolution to the problem.
I hope that won’t be the case. I won’t be surprised. Bannon knows that Trump is “no true Scotsman”.
@Daryl’s other brother Darryl:
C’mon Darryl… give the guy a break!
It must be tough translating English to Russian to English that fast !
@Daryl’s other brother Darryl: Forbes? The guys who said he’s not worth $9 billion? FAKE NEWS! The fakiest of fake, fake news. Bigly!
Sad. Pathetic. Low energy.
@Conservative Wiseguy:
Yeah, that reminds me …
Today’s conservative base voters are those guys who arrive uninvited at a party, proceed to vomit on the couch, punch holes in the wall, urinate on the back porch, and then leave as they complain that, “this place is a f***ing dump and it smells bad too.”
And while this trying to impeach is going on, Trump fights every inch as is his way. If he’s distracted enough, then Kelly and the Cabinet run the country. Trump’s not a micro-manager, he’s already delegated to the Secretaries. They’ll be deep in their programs and things will continue as planned. Except NK will become emboldened, if they drop a nuke say 300 miles off Guam, then those pushing the impeachment get hung on the Mall and Trump is freed up to lead.
My personal guess is, even if this mythical and so far non-existent collusion evidence is found and impeachment starts, it drags out until 2020 minimum. Lots of SCOTUS rulings on every little thing.
@Conservative Wiseguy: Nope. Don’t watch non “reality” TV.
Just to be clear, I agree with Doug. Almost entirely but, crucially, not completely. If Trump is shown to have committed impeachable offenses such as selling his veto pen to the highest bidder, altering policy to gain favor with repressive governments who can ok a hotel deal, or laundering money (tell me again, why does Ritz Carlton get 3-4% for putting their name on a hotel and Trump gets 30%?), then, if the Republicans lose the next election, he will be impeached and convicted and thrown out of office and Pence, however stupid, will be the legitimate President. But if Trump is That’s a difference in kind. Under those circumstances, no Republican president, however legally installed, will have any legitimacy whatsoever. There would be a substantial minority, perhaps even majority, of Americans that would feel pretty much anything short of violence is valid in opposing and overturning and negating anything that came out such a presidency. Doug, you may feel this is ridiculous. I don’t. But ridiculous or not, this will be the opinion of tens of millions of Americans if such a thing came to pass. That would be very, very dangerous for America.
@JKB:
OK, I’m missing something here. You seem to be saying that if NK drops a nuke, somehow that will reflect badly on Trump’s opponents?
You’ll have to unpack that for me; I’m not following the logic there.
@gVOR08:
Idiot certainly describes Trump. Useful harder to say.
But of course the Russians interfered. We and they have been interfering in each other’s internal affairs since the Russian revolution, and probably even before. Its what major powers do.
The question is whether they did so with Trump’s help. If he participated then that should be grounds for impeachment (though I suspect it’d sooner lead to a make-up election than President Clinton). If not then regrettably he can’t be impeached on that score – it’d become automatic in every election for the losing party to try to follow that precedent, because there’s always interference by major powers. Its the way politics has been done for the last couple thousand years. You need treason – ie he had to take part.
@DrDaveT:
Impeachment only works if they lay the groundwork first. It is not a decision made in DC, that’s the formality. If the voters aren’t first prepped, then any impeachment will be viewed as weakening the US in the face of an enemy. If that enemy then detonates a bomb, then it won’t be the embattled President held responsible, it will be those sending the message of weakness to our enemies.
I’m not surprised the folks around here have missed the two biggest problems.
1. There is no evidence that anything the Russians did or anything they are accused of doing actually affected the election…unless you think the Russians were secretly running Hillary’s campaign.
2. Even if you went full on into fantasy land, why in the name of George A. Romero would that fantasy end with Hillary in the White House? She was always an obviously terrible candidate and it was only slightly less obvious she would have made a terrible President, but you can at least argue that multiple reasons made her the inevitable nominee. But to exercise your imagination to remove Trump and replace him with a Democrat, potentially ANY Democrat…and you still pick Hillary? For pete’s sake, he actually posted this crazy scenario AFTER the public defenestration of Bill and Hillary’s good friend Harvey Weinstein. Is there a better example of how spectacularly out of touch our elite can be?
Mike
Two questions:
1) Why didn’t Lessig save a step and have Pence nominate Hillary for Veep, then resign? Why bring Ryan into it at all?
2) If Russian interference is such a bad thing, I trust the Fine and Noble and Principled members of the commenting community here is properly outraged and demanding more details based on this report.
Just kidding. I expect a full blackout on this story (which is far better substantiated than the “Putin got Trump elected farce), just like there’s been a full blackout on the Imran Awan/House Democrats IT scandal. Don’t wanna mess with the all-Trump-hate, all the time policy, after all.
@MBunge: “Terrible” would be a dramatic improvement over what we have now.
But at the same time, you raise an interesting point that’s actually not made of dried stalks of grain: in the unlikely event Lessig’s scenario were to play out, why Hillary? She was the nominee, yes, but this scenario wouldn’t be a re-run of the election, it would be an entirely separate process. Any qualified person could be appointed, there would be no election.
Hang on a second…looking up 22nd Amendment…”no person shall be elected to the office of the President more than twice…”
Hello, Mr. Obama? We have a job for you…
@Mikey:
Uh…if possible Russian corruption of the American political process is the sticking point, Obama might not be the best choice.
http://thehill.com/policy/national-security/355749-fbi-uncovered-russian-bribery-plot-before-obama-administration
@Mikey: Nice fantasy, Mikey, but unlike Mr. Lessig, yours is merely impossible, not delusional.
The 12th Amendment states:
Obama can’t be president again, so he can’t be vice-president.
You can plead ignorance, or “just kidding.” Lessig, on the other hand, better be ready to plead insanity.
@Bob The Arqubusier:
Well, it was tongue-in-cheek, I’m well-aware it will never happen.
But you’ve got my hypothetical wrong, anyway–I was suggesting he would be appointed, rather than elected, to the office of the Presidency, not VP. This would be allowed, because the 22nd Amendment states “no person shall be ELECTED to the office of the President more than twice.” (emphasis mine)
Since, in my hypothetical, Obama would not be elected, he would be permitted to serve the remainder of Trump’s term. He wouldn’t be eligible to run in 2020, of course.
@Mikey: I was sure it was black and white, but a little more casual digging says that it is unclear whether or not Obama could be appointed veep, as there are valid arguments on both sides, and it (obviously) hasn’t been tested.
I would offer that we both probably agree that it’s about as unlikely as Lessig’s opioid dream, though.
@Doug Mataconis: Even as a liberal, I agree with you. If we respect the institution of the presidency and the Constitution, then if Trump is removed, Pence should be president.
IMO, Pence would be a terrible president, but we’ve survived terrible presidents before (Nixon, GW Bush). Trump’s issues go beyond the possibility of collusion with Russia, to his overall unfitness for the office and extreme instability. Maybe I’m naive, but I can’t see Pence doing nearly as much damage.
@Bob The Arqubusier:
Honestly, even as bad a President as I believe Trump is…I hope it’s never tested.
@Mikey: There are several Constitutional issues that have never been tested… and several times we’ve run into issues that the Constitution doesn’t cover. I’ve read quite a few novels that tackle some interesting scenarios. One of them was Congress declaring war on another country, but the president — as Commander In Chief — refusing to actually order the military to attack. (I think it was Eric L. Harry’s “Protect And Defend.”)
Constitutionally, Congress declares war, but the president wages it. We’ve seen what happens when they disagree in one direction (the War Powers Act), but what if the positions were reversed? Could a president ignore a declaration of war? Could Congress interfere with the president’s Commander In Chief prerogatives to compel fighting?
A far more interesting notion that Lessig’s hallucination…
@Bob The Arqubusier:
Only the President holds the ultimate authority on employment and deployment of the military. Congress can’t deploy a single private. So even if Congress declared war, if the President says “stay put,” the troops stay put.
Of course, if Congress were to declare war, that would mean the will of the American people they represent would be to wage war, so the President would be under a great deal of pressure to order deployment. But I am pretty sure if he said “we’re not sending anyone,” no one would be able to go.
@Mikey: Another novel had Congress issue a Letter of Marque and Reprisal to a carrier battle group to go after pirates when the president was too slow for their tastes. That one went deep into Constitutional arcana and international law…
Edit: that was Balance of Power, by James Huston.
@Mikey: I farted around with my response, but Huston’s novel actually addressed the point you made: a Letter of Marque and Reprisal could, arguably, be considered a “command” from Congress to a specific military command, and would have significant Constitutional standing. I think the Supreme Court might have to settle that one, should it arise.
I find myself both hoping it never comes up, and still fascinated at the possibility…