A blast from the past

It occurred to me this week, reading about the Republican sit-in in the Capitol basement, that today's Republican legislators are using tactics developed 50 + years ago by my contemporaries in the Vietnam era.  This is not unprecedented: John Bolton led a gang of Republican operatives who descended on Miami in 2000 to stop the recount of Florida votes.  Democratic Boomers either dropped out of traditional politics altogether or became respectable.  Republicans, including many from Gen X, show the the same spirit, outlook and tactics that the SDS did back then.  That in turn reminded me of one of the first posts I did here fifteen years ago, which follows.

Thursday, October 21, 2004

George W. Bush--Man of the Sixties

George W. Bush—Man of the 1960s

President Bush likes to contrast himself and his policies with the 1960s. “We’re changing the culture of America,” he says, “from one that says, ‘If it feels good, do it,’ and, ‘If you’ve got a problem, blame somebody else,’ to a culture in which each of us understands we’re responsible for the decisions we make,” (When Dick Cheney used the language of the 1960s in the face of an opposition U.S. Senator and defended himself because he “felt better,” the irony got less attention than it deserved.) Culturally, of course, the President rejects the sexual liberation of his youth, and portrays himself as a reformed sinner. Politically, as a conservative, pro-war Republican whose father had campaigned against the Civil Rights Act of 1964, he was certainly out of step on the Yale campus of 1964-68. All this is, however, entirely misleading—and the country, particularly its younger voters, should try to understand exactly who and what they are voting for before the election. George Bush and his Administration actually represent the worst of the late 1960s—a terrifying certainty determined to repudiate the past, disrupt the present, and risk the future for an ideological ideal. His certainty is not merely, as Ron Susskind argued last in last Sunday's New York Times, a question of his faith—it is all too characteristic of his entire generation.

As George W. Bush’s college years drew to a close, the most visible political faction on most campus was the Students for a Democratic Society, which took over the main Adminstration building, provoked a police bust, and temporarily halted instruction at my own school, Harvard, in the spring of 1969. They were distinguished more than anything else by a complete rejection of everything our parents stood for. In their eyes, the Cold War’s “defense of freedom” was greedy imperialism; civil rights laws simply masked enduring American economic racism; marriage and family were outdated bourgeois conventions; and democracy was a sham. They and they alone knew good from evil, and they had less than nothing to learn from the past. Even within their own ranks, they had contempt for democratic processes. In April of that memorable year, a vote of the SDS turned down a proposal to occupy University Hall by a vote of about two to one—but the next day, the losing minority faction undertook the occupation anyway, dragging their colleagues (and eventually most of the student body) in their wake.

A similar omniscient spirit has dominated the Bush Administration from the day it took office. One by one, the achievements of our parents’ generation—who occupied the White House from John F. Kennedy through George H. W. Bush—have been gleefully tossed aside: the ABM Treaty, the rigid separation of Church and State, overtime protection for workers, environmental protection, and especially the spirit of compromise and civic responsibility that allowed Republicans and Democrats to work together for the good of the country from the 1950s through the 1980s. In foreign policy they have even repudiated, in effect, the NATO Alliance and the United Nations. Events in the fall of 2002 were particularly revealing. Prodded by Colin Powell, who remembers the 1950s, the Administration sought a second Security Council resolution to authorize war against Iraq, but when they found they had only two other votes on their side, they simply disregarded the opinion of the world in the same way that the SDS disregarded the majority vote the night before the occupation of University Hall. Meanwhile, our Boomer-crafted new National Security Strategy gives the United States both the right and the duty to decide what nations shall possess what weapons, and summarily to remove hostile regimes. My Harvard classmate Elliot Abrams opposed SDS’s attempt to rule Harvard University according to their lights, but he is now enthusiastically doing his part to assure that he and his Administration colleagues rule the whole world in the same way.

Other memories from the Vietnam era come to me these days. One Saturday afternoon in 1970, I sat in a packed Harvard Square theater watching Sam Peckinpaugh’s The Wild Bunch. Midway through the movie, William Holden (himself a member of what we now call “The Greatest Generation”) tried to explain to his fellow gang members why Robert Ryan was now working for the other side. “He gave his word,” Holden said, speaking for an older America. “It’s not whether you keep your word!” one of his companions shouted. “It’s who you give it to!” The audience went crazy with delight. Isn’t that the same spirit in which the Bush White House has patronized the scurrilous, baseless campaign of the Swift Boat veterans? John Kerry is on the wrong side; therefore, he can’t be a war hero. And such is the partisanship of our times that even Bob Dole and George H. W. Bush Sr. have joined this campaign—although John McCain, significantly, refuses to do so.

Reality, of course, is a casualty of classic Baby Boomer thought. SDS members truly believed in 1969 that workers and students were going to overturn the established order—because it was right. In the same way, George W. Bush, in defiance of mountains of evidence that Iraq is disintegrating and that our intervention has reduced our standing in the Arab world to new lows, repeats that Iraq is on its way to a democratic transformation that will spread through the region. Freedom, he explains, is the Almighty’s gift to every man and woman on this planet—an homily which leaves a calmer observer wondering why the Almighty has been so stingy about bestowing it in so much of the world for so many centuries, or whether the President believes that he is fighting Satan’s evil presence on earth.
Caught between ideology and reality, the Administration constantly resorts to Orwellian language. A loss of jobs becomes economic progress, less health care means more, opening national forests to logging becomes “The Healthy Forests Initiative,” and so on. In the same way, the SDS explained to us that dictatorship of the proletariat was the only true democracy. And the Administration cares nothing about federalism, because federalism could stand in its way. In 1960, when Kennedy and Nixon debated federal aid to education, Nixon argued that federal money would eventually mean federal control. Now a new Republican generation is using federal money to discredit and weaken public education through the No Child Left Behind Act.

The Bush Administration and its supporters are usually less obvious than their leftwing contemporaries were about their repudiation of our parents’ works, but the other day, Grover Norquist—the anti-tax activist who has bragged about his close relations with the White House for four years—let the cat out of the bag in an interview with a Spanish newspaper. The Weekly Standard has printed quotes from the tape of the interview. Here is now Norquist assessed the coming election.

And we've had four more years pass where the age cohort that is most Democratic and most pro-statist, are those people who turned 21 years of age between 1932 and 1952--Great Depression, New Deal, World War II--Social Security, the draft--all that stuff. That age cohort is now between the ages of 70 and 90 years old, and every year 2 million of them die. So 8 million people from that age cohort have passed away since the last election; that means, net, maybe 1 million Democrats have disappeared…
This is an age cohort that voted for a draft before the war started, and allowed the draft to continue for 25 years after the war was over. Their idea of the legitimate role of the state is radically different than anything previous generations knew, or subsequent generations. . . . Very un-American. Very unusual for America. The reaction to Great Depression, World War II, and so on: Centralization--not as much centralization as the rest of the world got, but much more than is usual in America. We've spent a lot of time dismantling some of that and moving away from that level of regimentation: getting rid of the draft . . .

Norquist, a younger Baby Boomer, has actually hit the nail on the head. The twenty million men we drafted to win the Second World War (a conflict he apparently regrets) deserved, and got, their countrymen’s reward, in the form of the GI bill, 4% mortgages, generous Social Security benefits, and real pensions. Franklin Roosevelt, Harry Truman and Dwight Eisenhower confirmed the government’s responsibility for their well-being and that of their families. Such policies have now become “un-American” as the Bush Administration leads us towards their New Jerusalem—really a new Gilded Age. Norquist is actually exalting the collapse of civic virtue and mutual responsibility that he has helped to promote during his political career. Younger Americans should understand one thing: our current leadership is impervious to facts. Ultimately, like so many of my contemporaries, they care less about any specific changes they make at home or abroad than about simply proving to their own satisfaction that they are right and everyone else is wrong. They have already left the nation and the world a dangerous legacy.

The Life of Harold Bloom

I did not know Harold Bloom, who died this week at the age of 89.  I have one of his books, The Western Canon, in front of me, and I have enjoyed reading bits and pieces of it, but can't claim to have read it through.   Certainly he appears to have been the most brilliant and prolific literary critic of the Silent generation (b. 1925-42), and his books had an unusually wide readership.  What struck me reading the fine obituary that appeared in the New York Times was how exemplary his life was--how much of twentieth-century egalitarianism and intellectual approach he seemed to embody.  I could not help thinking, too, that his early life and career had some things in common with my own father's, particularly in the way they saw their relationship to the culture and institutions of the country their parents had immigrated to from Eastern Europe earlier in the century.

Bloom, the Times, records, was born on July 11, 1930, into an orthodox Jewish household in the Bronx, the youngest of five children.  My own father had been born seventeen years earlier nearly to the day in Brooklyn, the ninth of ten children in a similar, though somewhat better off, orthodox family.  Bloom went to the Bronx High School of Science, then as now a competitive public high school at the summit of the New York educational system, while my father graduated from New Utrecht in Brooklyn near the top of his class.  Bloom won a scholarship to Cornell, while my father whose family had lost its money in the housing bust just before the Depression, went to the University of Wisconsin, which was very close to free even for out of staters in those distant days. 
They were, however, different young men.  My father, though a very good student, was the kind of all-around man who could, and did, win a Rhodes Scholarship, while Bloom was obviously far more singleminded in his focus on intellectual pursuits.  He had discovered literature as I discovered history--at a very young age--and he seems to have been more compulsive about assimilating as much of it as he could than I ever was.  He also had a prodigious memory, and claimed, pace the Times, to know the entire works of Shakespeare, as well as those of several other poets, by heart.

From Cornell Bloom went to graduate school at Yale, then the citadel of the New Criticism, which taught that the meaning of a work had to be found within itself, based on a close analysis of its language, without reference to the life of the author or developments in the outside world.  He rejected that view, arguing (apparently for the rest of his life) that all great works were part of a dialogue, and a struggle, with the great writers of the past--an approach which made a broad acquaintance with western literature essential.  Bloom's apostasy--his rejection of his department's prevailing approach, the preferred method of some of its leading lights--did not prevent the Yale English department from hiring him as soon as he had earned his doctorate at the age of 24, and tenuring him some years later.  He remained at Yale all his life, although he severed his connection with the department in the 1970s and became a university professor.  What fascinates me about all this is how Bloom evidently saw himself in relation to western society and culture--and the contrast between his views and those of the would-be scholars who see themselves as outsiders today.

Bloom, to repeat, had been raised as an orthodox Jew, a member of a minority that had been scorned and oppressed for centuries and which still faced some discrimination in academia at the time he came into it.  He identified as a Jew, but he had abandoned his religion.  Yet unlike race- and gender-focused critics today, he easily fell in love with the western literary tradition, found everything he needed to pose the questions that fascinated him within it, and simply tried to beat the goyim at their own game--as indeed, in many ways, he did.  In return, the academy did not punish him either for his originality or for the breadth of his interests--as it surely would if he were starting out today.   In the same way, my father abandoned his religion and assimilated, even to the point of marrying a gentile, and went in to public service, working in diplomatic posts in 1948-54, 1961-9, and 1976-80, an extraordinary period in American politics and history in which he was honored and fulfilled to take part.  Both Harold Bloom and Philip Kaiser made their careers within important parts of western civilization, whose arc, we can now see, was reaching a climax when they were young men.  Its appeal won them both over and they never looked back. Now academia in particular is obsessed with the supposed flaws of western civilization, and is filled with scholars who believe that their role is to show how it has oppressed their gender or race.

I have now read three obituaries of Bloom, in the Times, the Washington Post, and the Guardian.   All three summarized his career more than adequately, but none mentioned one of its highlights: that he was the dissertation adviser and mentor of my exact contemporary Camille Paglia, whom I regard as the greatest literary and artistic critic of the Boom generation.  In A Life in History, I thanked my own dissertation adviser Ernest May--who was just two years older than Bloom--for his reaction, in 1973 I believe, when I told him that I wanted to write my dissertation about the relations between Germany, France and Britain, on the one hand, and the new states of Eastern Europe on the other, during the 1930s.  That was enough for at least three dissertations, but instead of telling me that I simply had to cut it down--as many professors surely would have--May told me that it was a wonderful idea and that I should go ahead. Three years later, it was done.  Paglia must have had a similar experience when she told Bloom that she wanted to write an analysis of androgyny in literature and art from the ancients to modern times.  He too evidently encouraged her, and the result became Sexual Personae, another work that found new things to say about the western tradition without trying to repudiate it.  But Paglia, like myself, found that modern academia had no room for scholars of such breadth, and she has spent her career teaching the history of literature and art and the University of the Arts in Philadelphia, while postmodernists rule the nation's literary departments.  She had no opportunity to inspire, encourage and train her counterparts in the Xer and Millennial generations.  Bloom was fortunate to be born when he was--and he made the most of it.  Some day, whether in 50, 100, or 1000 years, others like him will get their chance.

Intellectual and political problems

In David Lodge's wonderful novel about the academic year 1968-9,  Changing Places, a party of Berkeley English profs play a game called Humiliation, in which they have to name the most prominent work of literature that they have never read.  One assistant professor, Howard Ringbaum, succumbs to his competitive urge to win by naming the most prominent work of all, and declares that he has never read Hamlet.  He wins the game, but when his tenure case comes up a couple of weeks later, he is denied promotion on those very grounds.  It's time for me to play a round myself.

I have come to realize that I am in some ways a Hegelian, although I have never read a single work, or even part of a single work, written by Hegel, whom I know mainly as the direct ancestor of Karl Marx.  Hegel believed that history consisted of the embodiment of various ideas, and I think there's a great deal of truth to that.  Every era--and perhaps every generation--has certain dominant beliefs, both conscious and unconscious, that determine its approach to just about everything--politics, life, and the arts.  At the same time, certain battles among various ideas continue indefinitely, with one side or another winning for a while, but without any complete victories that will endure for more than about 80 years at most.  One such was identified by the historian Henry Adams, one of those people from the past to whom I feel remarkably close, in the presidential address he wrote for the American Historical Association in 1894.  History, he said was trying to become a science, and if it succeeded, it was bound to reach one of three conclusions about where history was going.  None of those conclusions, however, was likely to win universal acceptance.   I have discussed this address here at least four times in the last 15 years here, I see, and I quote from the first time, all the way back in 2005.

"First, Adams argued, history might accept the tenets of socialism. (Something like this actually happened in the middle decades of the twentieth century, when Marxism in various forms became extremely influential in the historical professions of France, Britain, and the United States.) Yet Adams doubted (too pessimistically, as it turned out), that property owners upon whom universities depended would allow such a new orthodoxy to flourish. Secondly, historians might conclude "that the present evils of the world--its huge armaments, its vast accumulations of capital, its advancing materialism, and declining arts--were to be continued, exaggerated, over another thousand years," but that conclusion would be unpopular and could lead anyone who accepted it only to despair. Lastly, he said, historical science might prove "that society must at a given time revert to the church and recover its old foundation of absolute faith in a personal providence and a revealed religion," but in that case, the science would commit suicide."

I still think this was an uncommonly brilliant insight, but I can also see that it suffers from a disease of its age, namely, the tendency to regard human history and human behavior as subject to the same kind of immutable laws that science had found in disciplines like physics and chemistry.  As it happens, human behavior continually changes because of the human tendency to react against whatever the status quo may be--a tendency which is to a high degree generational.  Thus, by the time he died in 1917, new generations had inaugurated the Progressive era, and although most of the world never became formally socialist, the major industrial nations all put severe limits on the accumulation of wealth--and therefore, of political power--during the first half of the twentieth century, and inequality was drastically reduced. Then, beginning in the 1960s and 1970s, came two new trends, one in the historical profession and academia more generally, the other in our politics and society.  In the academy, the visions of history as a struggle among nations or among classes gave way to one of a struggle between demographic groups, including a struggle between men (patriarchy) and women.  Two generations of scholars have tried to re-interpret the whole past in that light, while anticipating a brighter future in which the last would be first.  But in the  upper reaches of our society, the philosophy of the Gilded Age--that corporations had both a right and a duty to maximize profits, unfettered by government regulation or high taxes--became predominant once more, and inequality has now surpassed the levels observed in Adams's day, and our new corporate oligarchy is every bit as powerful as the one he saw growing around him in 1894. 

The biggest insight in the piece, however, was that any truth arrived at would be unpopular.  Here I find two very important sources of our current discontents.

The New Deal, which now looms as an interregnum between two Gilded Ages, was not based merely on moral principles--the idea that some should not have too much while many more others had too little--but on a particular view of economics.   The economy was better off when workers and their families could afford to buy the products they made.  Corporations contributed more benefit to their workers and the public when executive compensation was effectively capped by taxation.  Securities markets needed tight regulation to prevent catastrophic panics.  The experience of the 1940s, 1950s, and 1960s had proven all these things to be true--but some corporate interests refused to accept them.  They formed networks and devised strategies to push free market views, and succeeded in making them first mainstream, and then orthodox, in the 1980s and 1990s.  As a result, we have more inequality, richer financiers, and, from time to time, threats of financial collapse again.   Contrary ideas now have a following among young people in particular, but I am afraid that they may be decades away from becoming dominant again.

An even broader truth, however, may be causing bigger problems because people cannot accept it--especially in the midst of the inequality that has now risen.

Modern society is based on the equality of every individual, and on the individual as the basic social unit.  This is far more true today than it was 100 or even fifty years ago, since family structures have tended to break down, and fewer people define themselves based upon family relationships.  That gives every individual both a great opportunity and a tremendous responsibility, which can be a huge emotional burden. I remember that when I first read Tocqueville's The Old Regime and the French Revolution, I was struck by his appreciation of a society of orders in which everyone had a particular place.  In those days, it occurred to me, men and women thought their place on earth was ordained by God or nature, and did not have to blame themselves if it seemed unfair.  In the modern world we are encouraged to blame ourselves, since we theoretically have the same chance as anyone else to reach the top.  The self-made man has been an American ideal, in particular, since the beginning of our independent history.

Unfortunately, even at the most egalitarian of times--the mid-20th century--a big gap between the rich and poor persists.  We can only have social peace and consensus, I think, if we keep that gap within reasonable bounds, keep ways to rise alive, and, crucially, provide a reasonably secure and happy life to the majority of losers in our ongoing competition, as well as the winners.  In the last 40 years we have stopped doing those things.  More people are out in the jungle of the workplace competing for at least a decent life, working longer hours, with more needs.  Higher education, practically free in mid-century, has become disastrously expensive.  Fed by the new ideology I discussed above, millions of women and minorities have come to believe that their demographic status, not our economic system itself, is the source of their problems, and they have sold the Democratic Party on that idea.  That in turn has bred resentment among millions of white people who blame solicitude towards nowhites nad immigrants for their declining economic status.  

What makes the issue of mobility, and the related issue of ability, so fraught, in my opinion, is this.  History shows that in any complex field of endeavor, a small minority of people are much better than anyone else. I have written an entire book showing how true this is in baseball, and I have seen it in my own profession and as a spectator in many other fields.  These people are different not because of their race or gender--much less their sexual orientation--but because of almost unique personal characteristics that are scattered more or less at random throughout the population.  

As I write the city of New York is wracked by controversies over admissions to its elite high schools and over the Gifted and Talented programs in all its schools, because they are filled with disproportionate numbers of white and Asian students.  In my opinion, test scores must continue to determine who gets into those top schools, so as to give the smartest people in our society an opportunity to develop their skills further.  We need that minority to perform many important tasks at the highest level, and to teach the rest of us.  But those of them that decide to use their skills to maximize their income must face some pretty strict limits on how much they can earn and how much wealth they can acquire.  At the same time, we must all pay attention, not simply to letting more representatives of unrepresented groups into a tiny economic elite,  but to giving those who will never reach the elite a chance at a decent life.  If parents regard an elite school or elite program as their childrens' only hope, most parents will never be satisfied.  I do think, by the way, that the admissions process and the college admissions process could changed in one way to make it much fairer.  Standardized tests should be varied very significantly from year to year, in form and in content, to make it impossible for targeted test preparation to be more than a long-shot gamble.  That would take away the very real advantage of richer kids whose parents can afford such classes.private instruction.

We shall never, in any case, end inequality or injustice on this planet, nor shall we create a Utopia that lasts for more than a generation or two before younger people overthrow it.  I wrote 15 years ago that Adams's three alternative views of history might be describe as the utopian, the stoic, and the religious.  "Unfortunately," I wrote then,  "the stoic view--which I personally believe to be the most useful and accurate, since it alone recognizes limitations on our power to control people and events--while it has nearly always produced the best history, seems, especially during periods of crisis like our own, to suffer from a fatal disadvantage in a contest with either of the other two--its inability to satisfy the eternal human fantasy of living happily ever after."  This seems to be more true now than it was in 2005--but I remain stuck with own form of stoicism, which can drive old friends crazy, but still enables me, I think, to provide something here every week that you won't find anywhere else.

Grounds for Impeachment

Contemplating the forthcoming impeachment of President Trump--an event every day's headlines make more likely, at a pace even more rapid than that of 1973-4--I began thinking harder about possible grounds.  That took me to a book that I had originally brought and read back in those days, Impeachment: The Constitutional Problems, by the remarkable law professor Raoul Berger.  Having worked as a Washington lawyer for many years before becoming a Professor at Berkeley in 1960, when he was 60, Berger, I see, was a fellow in legal history at Harvard's Charles Warren Center when he wrote Impeachment--and he was also exactly the age that I am now.  It's a wonderful piece of legal-historical scholarship, packed into 300 relatively short pages with a lot of footnotes at the bottom.  And it leaves me believing that the Congress has ever reason to impeach and convict President Trump, albeit on grounds that are not playing much of a role in the public discussion of his case so far.

Like every great legal scholar, Berger understood that American law--including Constitutional law--has to be understood against the background of British precedents.  The Constitution uses many words whose meaning had been defined by English law, the English common law was still part of the law of the colonies, and in many respects the framers aimed at keeping the good parts of the British Constitution while correcting the problems that had led to the Revolution.  "Impeachment" and "high crimes and misdemeanors" were both terms familiar in British practice, and both had very specific meanings which the framers were incorporating into our own Constitution.  Berger therefore began with a brief history of the development of impeachments in medieval England, going back to the 14th century.  Even then, the outlines of our current procedures emerged: the House of Commons, the lower house of Parliament, could vote impeachments, which the House of Lords then tried--and the monarch, although long thought immune from any judicial punishment, could not protect his ministers from impeachment, trial and conviction.   During the reign of Charles I, who tried to govern without Parliament and create an absolute monarchy, Parliament successfully impeached, tried, convicted, and executed, his first minister, the Earl of Strafford, on the specific grounds that he was subverting the unwritten English constitution by attempting to govern without parliament.  Indeed, his parliamentary accusers defined that behavior as a form of treason, and Strafford was executed. (See note at the end.) Several subsequent 17th-century impeachments of great ministers also claimed that they had committed various forms of treason, defined as subversion of the Constitution (although their punishments fell short of death.)  A much earlier statute had actually given Parliament the right to define treason--obviously a formidable weapon against an unpopular minister, especially in contentious times.

The framers of the Constitution, wise and well-read men that they were, took several explicit steps to prevent the abuse of the impeachment power, such as surely had taken place in Britain.  They defined treason very specifically as levying war upon the United States or giving its enemies (presumably, wartime enemies) aid and comfort.  They explicitly limited punishments in cases of impeachment to removal from office and disqualification from further office, although they added that those impeached and convicted could be subject to additional trials and penalties in ordinary courts.  They forbade pardons in cases of impeachment, such as at least one monarch had given to an accused subordinate in Britain.  They also outlawed Bills of Attainder, laws passed by Parliament (with the King's assent) that could order the execution of a guilty subject, as well as the forfeiture of all his property and titles.  Yet in their own way, they laid out broad grounds for impeachment of civil officers of the United States, including the President, for "treason, bribery, or other high crimes and misdemeanors."  To these we now turn.

As I have noted, treason has a very specific definition under the Constitution, and bribery has such a definition under the regular law.  The first thing that we may say about "high crimes and misdemeanors" is that they are not ordinary crimes, and the House and Senate have convicted and removed judges for offenses that are not punishable by statute law.  In 1936, a certain Judge Halsted Ritter was convicted not of income tax evasion, of which he had been charged, but of "[bringing] his court into scandal and disrepute, to the prejudice of said court  and public confidence in the administration of justice [emphasis added]."  His conduct made him "guilty of high crimes and misdemeanors in office," the Senate stated.  Two Chief Justices of the Supreme Court, William Howard Taft and Charles Evans Hughes, stated publicly that impeachments could be brought for any reason showing unfitness or misconduct in office, even if specific crimes were not involved--such behavior fell within "high crimes and misdemeanors."  That phrase also dates from 14th-century England many English precedents defined it quite clearly, and in ways most relevant to our current dilemma.  "Your lordships," a lord said in the midst of impeachment debate in 1725. "are now exercising a power of judicature reserved in the original frame of the English constitution for offenses of a public nature, which  may affect the nation; as well in cases where inferior courts have no power to punish the crimes committed by ordinary rules of justice. [emphasis added]"  In 1757 the great commentator Blackstone described "the first and principal" high misdemanor as "the mal-administration of such high officers, who are in the public trust or employment;" for this impeachment was the remedy. Another commentator expanded on this point with specific examples that, once again, show how frequently critical issues in politics and government tend to recur. "If the judges mislead their sovereign by unconstitutional opinions. . . .where the lord chancellor has been thought to put the seal to an ignominious treaty. . . .a privy councillor to propound or support dishonorable measures, or a confidential adviser of the sovereign to obtain exhorbitant grants. . .these imputations have properly occasioned impeachments, because it is apparent how little ordinary tribunals are calculated to take cognizance of such offenses, or to investigate and reform the general policy of the state[emphasis added].  On pp. 67-9 of Impeachment Berger prints a long list of impeachable offenses relating to the failure properly to perform the duties of a particular office, be it judicial, military, or civil.   The framers, however, also agreed, as Berger shows, that impeachments of Presidents had to be confined to "great offenses" which, although not necessarily indictable under the law, amounted to much more than a neglect of relatively trivial duties.

Berger fortuitously finished and published Impeachment just as the Watergate scandal was breaking.  Clearly the offenses of Richard Nixon and his men--including the break-in into the Watergate, the burglary of a doctor's office to secure damaging information about the leaker Daniel Ellsberg, the attempted use of the CIA to try to block the investigation of the Watergate burglary, and the payment of hush money to keep witnesses quiet--qualified as "high crimes and misdemeanors" as the framers understood them.  Equally clearly, the impeachment of Bill Clinton had no basis in constitutional law as understood by the framers, since his alleged offenses had nothing to do with the performance of his official duties.

What about Donald Trump?

Both before and after assuming office, the President has welcomed the interference of a foreign power in our elections.  He asked the Russians to try to find Hillary Clinton's emails during the campaign, and we have now learned that he told two Russian diplomats in the spring of 2017 that he did not mind what they had done.  Now, he has enlisted both his private attorney Rudy Giuliani and his State and Justice Departments in an attempt to persuade the government of Ukraine to develop negative information about candidate Biden and his son, and he probably blocked military aid to Ukraine to try to get his way.  In short, after having (with some difficulty) found cabinet officers who will consistently do his bidding at State and Justice, he has used them to try to use the power of the federal government to re-elect himself by discrediting a political opponent.

Meanwhile, the President has repeatedly shown contempt for the law of the land, and a willingness to obstruct it.  He wanted to fire Robert Mueller during his investigation and repeatedly ordered subordinates to do so.  He has also told Border Patrol officials to take potentially illegal steps to stop migrants from coming over our southern border, and promised to pardon them for doing so if they get into legal trouble as a result.  He has defied numerous subpoenas from Congress.

More importantly, in my opinion, the President has shown over the nearly three years of his administration that he cannot run the federal government effectively.  He has fired cabinet officers and other officials at an unprecedented rate because he cannot bear subordinates who have integrity and independence of mind.  Large numbers of important government positions still remain unfilled.  His administration has blocked various agencies from releasing scientific findings.  He has shown appalling judgment of foreign leaders such as Vladimir Putin and Kim Jong Un.  His phone conversations with various foreign leaders, we now learned, have seriously disturbed subordinates who heard them or saw the transcripts. The Congress in my opinion has every right to see the transcripts of his conversations with those men to see what they reveal about his fitness for office.

Law Professor John Yoo, who wrote the notorious torture memo for the Bush Administration when he worked in the Office of Legal Counsel, has argued that Trump should not be impeached based upon a conversation with the President of Ukraine because presidents need to have confidential conversations with foreign leaders. That, I think, completely misunderstands the founders' position on impeachment.  The broader issue involved here is this:  should a President be punished for the use he makes of a normal part of the duties of his office?  In my opinion, the founders and the English statesmen whose precedents they respected obviously answered that question in the affirmative.  Indeed, a President who used purely legal means to undermine national security, spread false stories about political opponents, and run a revolving door government in an attempt to find sycophants that would do his bidding would be more dangerous that one who obviously violated the law.  Such a man is exactly the kind of president with which the impeachment clause of the Constitution was designed to deal.

All of this would be quite obvious, it seems to me, in a nation that still took the history and procedures of its government seriously and appreciated what the federal government does for the nation. Unfortunately, the election of 2016 proved that that is no longer the nation that we are.  Partisanship, not a respect for established principles, now drives our politics.  Indeed, large parts of the Republican Party have resented the growth of the federal government and wished that much of it would disappear for 80 years.  Presidents Nixon, Reagan, and George W. Bush all shared, to a certain degree, Trump's hostility towards our permanent government and its purposes.  Thus we cannot be sure that if a House Democratic majority votes articles of impeachment, that the Senate will muster even a majority--much less the necessary 2/3--to convict.

And thus, while I feel that impeachment and conviction are more than warranted, I still am not sure that voting those articles will leave us better off than we are now.  Still, the die is cast.  More and more revelations are coming out, and a few Republicans are expressing doubts about Donald Trump.  When parties march in lock step, they can change direction with extraordinary speed.  Anything is possible.  Meanwhile, my thanks go again to Raoul Berger, who,. nearly 50 years after the publication of his book, has shown me that the situation we face is indeed exactly the kind of situation that the founders put impeachment into the Constitution to deal with.

Note: In the end the Earl of Strafford's impeachment did not result in a conviction.  Before the House of Lords could finish trying the case, King Charles' opponents in the Commons decided instead to pass a bill of attainder calling for his execution.  The Lords also passed it and the King assented to try to mollify Parliament and stop a revolution.  In that he failed.  Exactly why the leaders of the Commons changed their minds about procedure is not clear, as Berger shows, but it certainly was not because they lacked the power to impeach and convict the Earl for violations of Britain's unwritten constitution.