Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). My threads are here: terikanefield-blog.com/ My author website is here: www.terikanefield.com/ Mar. 26, 2019 4 min read

(Thread) Our Constitutional Crisis

Subtitle: How Democracies Die—and How They Are Saved

The Constitutional showdown this week is over who gets to decide whether the president is guilty of crimes: AG William Barr or Congress.

Since before Barr published his 4-page summary. . .

1/ . . .I've been talking about why I think Mueller wouldn’t indict, even if he had evidence.


The Constitution is clear on how matters of Presidential guilt are decided.

2/ Congress gathers evidence and decides whether there is sufficient evidence to impeach.
Impeachment requires a majority of the House. If a president is impeached, a trial is held in the Senate.
Two thirds of the Senate is required for a finding of guilty and removal.

3/ The issue we are facing is whether the AG will prevent the House from fulfilling its Constitutional duties by refusing to hand over the relevant evidence.

I envision this story ending one of 2 ways.

4/ Way #1: The House, led by Pelosi, figures out how to get the full Mueller report. I have no doubt that she will use every legal means available to her. There are many possibilities including, if all else fails, subpoenaing Mueller and the other prosecutors and asking them.

5/ If the House decides there is enough evidence to warrant it, the Senate will hold a trial.

BTW, it turns out Pelosi was wise when she refused to comment on whether to talk impeachment until after the House sees the evidence.

6/ The good thing about a Senate trial is that all the evidence will be put before the American people, with lawyers arguing both sides (the adversarial method)
 https://definitions.uslegal.com/a/adversarial-system/ 
The Constitution provides that the Chief Justice presides over the Senate trial.

7/ This brings in another branch of government, so there would be a check on GOP shenanigans.

Whether the Senate removes or not, truth and rule of law win: The people will see the evidence, and then they’ll get to make up their own minds in 2020.

8/ Way #2: The House is unable to obtain the full report.

This is possible, but unlikely. Will Mueller refuse to testify? Will each prosecutor refuse to testify? Will the Supreme Court step in and say that the House—which has oversight duties—isn’t entitled to the evidence?

9/ Let’s just assume that indeed, Trump and friends manage to bury the evidence.

This puts us into a clear constitutional crisis.

According to Harvard profs. Ziblatt and Levitsky👇 one way democracies die is when politicians (and government officials) reject democratic norms.

10/ They explain👇 that the unraveling began when Republicans (led by Newt Gingrich and others) disregarded democratic norms by refusing to compromise, and by delegitimizing political opponents (Clintons, Obama).

11/ The disregarding of norms turned into disregarding the Constitution, when, for example, McConnell unreasonably blocked Obama’s Supreme Court nominee.

Constitutions don’t enforce themselves. If enough people abandon the Constitution, it ceases to be a guiding document.

12/ Obvious point: In a crisis of any kind—including a Constitutional crisis—it is not a good idea to panic, or to go down “what if” rabbit holes. (What if this happens!?? What if that happens!?) Imagining horrible possibilities is easy, and will wear everyone out.

13/ Even in a plane accident, panic and despair are not helpful. The National Transportation Safety Board says that 95% of people in flight accidents survived.  https://www.ntsb.gov/news/press-releases/Pages/NTSB_releases_statistics_on_aircraft_accident_survivability.aspx 
So we can survive this.
Our chances are better if we don't give in to despair.

14/ Also remember: The goal of Putin’s Active Measures is to get people to lose faith in democratic systems. Because when enough people lose faith (despair and give up) it’s all over.

Here's the hard part: The only way to save democracy is through democratic means.

15/ If both sides abandon democratic institutions, the institutions will crumble.

It’s easier to destroy a democracy than to protect one, because the destroyers cheat. Those saving the democracy have to play by the rules and norms. That’s harder.

16/ But there are a lot more people who want to save the democracy.

From Chapter 9👇Saving Democracy: The first and easiest way to save US democracy is for Trump to “fail badly enough” so that “public disgust” motivates reforms that improve the quality of our democracy.

17/ @TimothyDSnyder says that in a healthy democracy, people don’t have to do much. They elect leaders, who do their jobs. Similarly, when democracy is dead there isn’t much people can do.

But now, while we teeter on the edge, what each person does matters.

18/ For example, if millions of people subscribe to local newspapers and national journals that do solid investigative reporting, we pump millions of dollars to fund the people who pursue truth. (I know they get it wrong sometimes. They're human. They have a hard job.)

19/ If you’re worried about cheating in the 2020 elections, start now. Get involved. Start organizing.

Here’s what I learned in 2016 and 2018 as a volunteer lawyer monitoring voting and vote counting 👇

20/ Mike, this kind of thing⤵️will backfire when the truth comes out.

The battle to save democracy is Truth v. Cult of Leadership.

I just spent time at neighbors houses. They know the truth. People do get it. We have to help make sure of that.

21/ This brings me to what I think our biggest worry: Trump and the GOP are masters at spinning a narrative and controlling the national conversation (I’ve talked about this elsewhere).

Politics is partly about effective messaging.

end/

All of my threads are now blog posts. This one is here:  https://terikanefield-blog.com/our-constitutional-crisis/ 


You can follow @Teri_Kanefield.



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