The Democrat’s Dilemma

The country is one week away from an election that likely will come down to the wire. If (when?) the Democrats win the White House and Senate and maintain their majority in the House, there will be several key issues that need immediate intention and others that may fundamentally change our system of government.

Of immediate concern is the ongoing pandemic. The Trump Administration threw in the towel and surrendered to the inevitable spread of Covid-19. Indeed, the administration surrendered back in March when the president refused to take responsibility for any actions to mitigate the spread of the disease. With his super-spreader events held daily all around the country, we are wasting our time expecting him to do anything positive to reduce the death toll that is expected to approach 400,000 dead Americans by Inauguration Day. In my view, win or lose, Mr. Trump will do nothing in the coming months to change the course of the disease.

Senate Majority Leader Mitch McConnell (R-KY) adjourned the Senate yesterday without addressing the economic impact of the pandemic. Several relief bills, starting last May, passed the House but Mr. McConnell refused to take them up in the Senate. Likely, he failed to do his job for two reasons. First, there was widespread disagreement within his caucus as to whether or not to spend more money. Mr. McConnell did not want to put any of his Senators in a politically precarious position by forcing them to vote one way or another on helping the average working person in the United States. Second, Mr. McConnell probably sees the writing on the wall that Mr. Trump will not be re-elected. Senator McConnell will do all in his power to make life miserable for a President Biden, including trying to keep the economy struggling so that Mr. Biden cannot take credit for succeeding where the current ruling party failed.

The pandemic will be the first and most important issue for a Biden Administration to address. Economic relief will be the first order of business for a Democratic Congress. Those plans are ready for implementation as soon as the new president and Congress are sworn in. Only time will tell if they are effective, but it seems that any attempt to improve the situation is better than none. We cannot sit around and wait for a vaccine or for effective therapies to help patients in the hospital. Those are important, but don’t yet exist. The real issue is what can be done now to stop the spread of the disease. We already know that masks, social distancing and good hygiene go a long way. For some misguided reason, those successful strategies have become politicized by Mr. Trump. It will take time, and a coordinated effort to overcome that mind set and to restore what has been lost over the last seven months.

Longer term, a Democratic administration and Congress have fundamental issues to address as to how government works. Legislation to institutionalize norms that have been respected in the past but ignored over the last few years are necessary. Trust in the character of the president is a charming relic of the past that we now know is too dangerous. Put it into law.

In addition, there are three dilemmas that Democrats will face. These are whether to:

• Investigate and prosecute any crimes committed by the president and/or members of his administration.
• End the filibuster in the Senate.
• Change the number of Justices on the Supreme Court.

Revenge and retribution will be on many minds come January. That feeling will not only color the views of politicians in Washington but also those of many of the citizens that voted them into office. The current administration and their enablers in the Senate ran roughshod over all of the norms and courtesies that traditionally applied in the government and especially in the Senate. Look no further than the court packing that occurred with the refusal to take up President Obama’s nominee to the Court eight months before an election, and the subsequent rush job to put Mr. Trump’s nominee on the Court eight days before Election Day after nearly 60 million Americans had already voted.

Constitutionally, the Republicans were well within their power to do both of those deeds, no matter how much it reeks of hypocrisy. It was legal. However, one of my guiding principles has been that just because you can do something doesn’t mean that you should. In my view, that idea should apply to the Democrats as well.

With that in mind, let’s look at the three dilemmas facing a Democratic government.

Investigate and Prosecute. What to do about Mr. Donald J. Trump who has abused just about every principle in the book and enriched himself and his family throughout his term? My nuanced answer is “it depends.” There is a precedent. Following President Nixon’s resignation, President Ford pardoned him of all crimes. The argument was that the country had already been through very rough times so do not protract it. Move on and start over. As President Ford said “our long national nightmare is over.”

I am not sure that we can do that with Mr. Trump. No president can be prosecuted for bad policy, the voters take care of that. However, if evidence comes to light that Mr. Trump was knowingly aiding and abetting a foreign adversary, for example, then an investigation and possible prosecution are very necessary. We now know that no counter-intelligence or national security investigation was ever conducted to look into Mr. Trump’s activities. The Mueller Investigation did not touch on those issues. The impeachment process did not look into that either.

We have also learned that federal and New York state District Attorneys are looking into Mr. Trump’s finances and possible crimes (like racketeering) prior to his entering office — and maybe while in office.

I say to let the chips fall where they may. If Mr. Biden is president he should have absolutely no involvement in any investigation or prosecution of Mr. Trump or his associates. Let the District Attorneys finish their investigations and decide whether or not to prosecute. This will be difficult to do as many in this country will readily assume that such action is merely one more thing on the list of “persecutions” Mr. Trump has “endured.” I think that in the current era it is necessary to show that no one is above the law if they knowingly commit crimes. Even if Mr. Trump is pardoned (there are multiple scenarios that might apply to make that happen) it would only apply to federal laws. State laws fall under a different jurisdiction and can only be pardoned by the respective governors. Just follow the money. If it leads to Mr. Trump, his children, any of his associates or Trump, Inc. just play it straight as the justice system would pursue any other citizen. If there is nothing there, then so be it.

End the Filibuster. The Senate was designed to be different than the House of Representatives. Until just over one hundred years ago with the passage of the 17th Amendment, Senators were not directly elected by the people. They were separate from the rabble that elects the House (also why we have an Electoral College) and therefore would be more deliberate, thoughtful and statesmanlike. One of the great Senate rules that helped to promote that atmosphere and to provide an opportunity for compromise is the filibuster. While one Senator could theoretically hold up the works, in practice it often resulted in compromises in order to get the two-thirds (later changed to 60) votes required to move legislation and Senate confirmed nominees.

There are now calls to end the filibuster. Such calls are nothing new, especially when one party or the other feels shut out or stymied in moving their projects forward. Then Minority Leader McConnell used the filibuster to stop the confirmation of federal judges under President Obama, leading then Majority Leader Harry Reid (D-NV) to go “nuclear” and change the Senate rules to require only a simple majority to confirm federal judges. Anticipating President Trump’s Supreme Court nominees, now Majority Leader McConnell knew that his narrow majority would not likely be able to get Supreme Court nominees confirmed following his dirty trick blocking Merrick Garland from the Court, so he changed the rules to only require a simple majority for confirmation of Supreme Court Justices. Both actions were huge mistakes.

Without the filibuster, the Senate becomes a small House of Representatives. The majority can ram through any legislation they want on a simple majority. The Senate is already way too partisan, ending the filibuster will only make it more so. There will be no need to compromise on anything.

The Democrats know that Mr. McConnell will do anything in his power to move his agenda. They run the risk of him, or another Republican Majority Leader, doing away with the filibuster in the future. It is a risk they should take. There can be little to no progress in regaining civility in government and consequently in the country if all of the rules go out the window and only pure partisan politics is in play. The Senate will cease to be the body it was envisioned to be if the rules change to favor only one party.

Change the Number of Justices. Likewise, I think the same way about the Supreme Court. The number of Justices is determined by law, not by the Constitution and can be changed. It can reasonably be argued that the Republicans already packed the federal justice system. When in the majority they blocked nearly every nominee of President Obama to every federal court. They stopped the nomination of Judge Garland. It could be reasonably argued that two of the three seats filled by Mr. Trump were stolen seats. Regardless, I think it a mistake to add three or more (as has been suggested) Justices to create a more “balanced” judiciary. Follow the current rules and make them work. The Democrats got outmaneuvered by Mr. McConnell. He plays hard ball and will use every trick in the book to get what he wants. Use the rules to get to where the country needs to be, but do not change them for partisan reasons.

The political partisan vibe needs to change. Mr. Trump has been many things including the worst president ever. He also exacerbated the divisions in our country for his own egomaniacal and profit making reasons. Let’s change that atmosphere. Besides, if the Republicans refuse to go along and restore a measure of compromise, then you can change the rules.

There is of course another remedy. That is through legislation. Pass laws to institutionalize the norms of government that we expect. Pass laws that provide health care that can pass review by the courts, for example, should the Affordable Care Act be overturned. Pass a law explicitly institutionalizing same sex marriage. And so forth. Use the existing rules through legislation to overcome any interpretation made by nine citizens.

I look forward to the new era that will dawn at noon on 20 January 2021. We all need to work together to move out from under the pandemic — to me a symbol of all that is wrong with the current administration. When we defeat the virus through national cooperation and neighbor helping neighbor, let’s keep that spirit and apply it to our political discourse.