Abuse of Power: Not Alan Dershowitz' Finest Hour

Today the eminent Harvard law professor Alan Dershowitz argued before the Senate that “abuse of power” could never be a legitimate ground for impeachment, and that the founders only intended impeachment for serious crimes or acts “akin to crimes”. I have a few questions for the professor. According to the Dershowitz theory, it would seem that none of the following would be impeachable conduct:

• a president who doesn’t perform any of his duties, but just sleeps in, plays video games, and watches TV all day long, and collects his $400K / year
• a president who shows up obviously intoxicated, stumbling and slurring his speech, at all of his meetings and public appearances
• a president who uses the White House as a set to make You Tube videos which he heavily monetizes
• a president who actively engages in real estate investments based on his inside information of where government projects will be located
• a president who directs the IRS to audit those who criticize him on Twitter and to not audit his supporters
• a president who wantonly Tweets photos of his Oval Office desk, exposing top secret documents including names of CIA agents, locations of all our missiles, and the nuclear codes
• a president who makes $$$$ doing commercial endorsements while in office (“In the White House, we only serve Pepsi”)
• a president who directs the firing of any federal employee he catches criticizing him on social media
• a president who creates heavy tariffs and grants exemptions only for businesses he deems “loyal” to him
• a president who makes it known he’ll pardon anyone who commits any federal crimes in the service of his personal interests
• a president who takes regular joyrides on aircraft carriers and F-15s, insisting on flying himself, and occasionally crashing them.

Does the professor really not think that the founders would have intended impeachment for such egregious situations? 

Let’s look at the text. The Constitution says that impeachment applies to “treason, bribery, or other high crimes and misdemeanors”. The record of the Constitutional Convention shows they all agreed just listing “bribery and treason” was insufficient. They considered adding “or maladministration” but revised that to “other high crimes and misdemeanors”. What does the professor suppose the founders had in mind by “misdemeanors”? Obviously we’re not talking about jaywalking here, but misdemeanor in the sense of bad behavior. True, that’s unspecific and there’s a danger there. But it’s far-fetched to assert that the same guys who spent so much time making clear that enumerations should not be misconstrued as limiting would write “and misdemeanors” and not mean anything by it. Or does the professor think “misdemeanors” is just another constitutional inkblot?

Let’s look at what the founders said. In records from the Constitutional Convention, Madison described impeachment as a mechanism to address “incapacity, negligence, or perfidy”. In Federalist No. 65, Hamilton characterizes an impeachable offense as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” I can’t see how these descriptions square at all with the way that Prof. Dershowitz would limit impeachment. The founders don’t even seem to be thinking about crime per se at all so much as bad behavior, the civil equivalent of the military’s “conduct unbecoming of an officer”.

Let’s look at what the founders did. Case in point: John Pickering, who has the dubious distinction of being the first person impeached and removed from office by the US Congress. While we tend to think of impeachment only for presidents, it applies to all federal officers. Pickering was a US District Court Judge appointed by George Washington. By 1800, he was starting to get a reputation for being inebriated on the bench and making rulings with questionable relationship to the law. In 1804, he was impeached on the charges of “drunkenness and unlawful rulings”. If Prof. Dershowitz is to be believed about the founders’ intention that impeachment be only for crimes, that seems difficult to reconcile with the fact that the Senate voted to remove Pickering for those charges, with the support of over 80% of the senators voting for removal. In looking at our history since the founding, there have been 20 impeachments, and “abuse of power” has been the most common charge.

With all due respect, I don’t think this was Dershowitz’s finest hour.

STAGE: The Last Ship

The musician Sting grew up in the shadows of the shipyards of Wallsend, near Newcastle in northeast England. His stage musical The Last Ship, now playing at the Ahmanson at the start of a national tour, draws on that heritage and experience in telling a multi-layered story of what happens to a small community whose livelihood and whole way of life is bound up with one industry, when that industry is in decline. There are some personal stories in here, about children who want to escape the town, and who chafe against stepping into their fathers’ boots and working in the shipyard like their fathers and grandfathers. And there is a romance suspended when one young man did escape. But the crux of this haunting work is about the shipyard workers and their families, and how they react when the last shipyard is closing down and the last nearly-completed ship is to be torn up for scrap rather than finished. There are some wonderful songs and strong performances in this evocative production, further bolstered by a marvelous set which, through clever use of lighting and projection, transforms from home to pub to shipyard to ship to a seawall where you can see and almost feel the spray of the waves crashing up on it. Though some complained that the show is long, we enjoyed it and found the music, story, and characters engaging. And though it’s set in a specific distant place and time (1980s England), I found it quite relevant and thought-provoking. On the surface, it is a simple union workers versus “the man” story with no pretense about where its sympathies lay. The good salt-of-the-earth union folks are distinct, fleshed-out characters that we get to know and like, while the owner/manager appears just enough to propel the plot, and the government is represented by “Baronet Tynedale”, a thinly veiled caricature of Margaret Thatcher. But the play is actually more thoughtful, giving some depth to the predicament. The workers understand their dilemma, acknowledging that they have only bad choices, and even understanding (while trying not to think about it) that the shipyard may actually come to an end. And while the baronet is cold and charmless, it’s hard to argue with the facts of economic reality that she delivers. There’s no buyer for the ship they’re building because it’s too expensive, and British shipbuilding is no longer competitive on the world market. It is no small irony that this last ship’s name is Utopia, as it is going nowhere. The climax of the show manages to be dramatically very satisfying, while also giving due to the unresolved socio-economic issues that linger. I was still thinking about them days later, even as some of the tunes still sang in my head.

Shirin Neshat at the Broad: I Will Greet The Sun Again

Shirin Neshat was born and raised in Iran, but came to the US in 1975 for college and eventually settled in New York. When she returned to Iran in 1990 to visit her family, she was shocked by the transformation of her country under the ideological rule of the ayatollahs, the changes in appearance, dress, and behavior from what she remembered. The experienced galvanized her to respond by producing a captivating array of photography and film commenting on distinctions of male and female, who can speak and who is silenced, modernity vs tradition. Three decades of her work are on display for a few more weeks at The Broad downtown, in an exhibit called Shirin Neshat: I Will Greet the Sun Again. Her series “Women of Allah” from the 1990s shows images of women in traditional garments, with lines from modernist Iranian women poets and writers superimposed on their skin. (Persian calligraphy on skin is a motif that runs through much of her life work, with the words offering ironic contrasts to the images.) In one image, hands held up in prayerful supplication face the muzzle of a gun coming out from under a black chador (full body cloak/veil). In another image, a mother fully hidden in black chador holds the hand of her young son who is naked and covered in expressive henna tattoos, a stark comment on the comparative freedoms of men vs women in Iran. These type of contrasts are drawn out in short film works where she uses two opposing screens to show contrasting images. In one work, drawing on the idea that women are forbidden from singing in public in Iran, we see on the left a man on stage singing expressively to an auditorium filled with an audience of only men, while on the right we see a fully veiled woman standing in front of a microphone in a completely empty auditorium. In a series called Soliloquy, Neshat explores her own ex-patriot sense of not feeling fully here or there in Iran or America, in images of a chador-clad woman standing in front of modernist American buildings. A photographic series called the Book of Kings features three walls of portraits divided into Patriots, Villains, and the Masses. The villains are bare-chested and tattooed with images from the Book of Kings, a famous 11th century epic poem of Persian dynastic struggles. The patriots have modernist Persian poetry boldly inscribed on their faces, while the masses have much smaller inscriptions of unidentified commentary. The masses face the villains on opposite walls and can be seen their reflections. Another powerful series of portraits from 2013, entitled “Our House Is On Fire”, was inspired by the Arab Spring uprisings. These affecting portraits are mostly of Egyptians whose children had been killed in the protests. Revolutionary poetry is inscribed on these faces in calligraphy so small that you have to get very close to even see that it is there, muting the voice of the revolution against the expressive power of these faces of the bereaved. (This reminded me of a similarly inspired collection of portraits by Colin Davidson we’d seen in Dublin, of bereaved parents who’d lost children to “The Troubles”.) These are just some of the highlights of this impressive exhibition. (See full album of my photos from this exhibition.)

Trump Tirade Against the Generals - How Is This Conservative?

‘You’re a bunch of dopes and babies’: Inside Trump’s stunning tirade against generals (Washington Post)

It’s hard to say what is most horrifying about this account of an early meeting when several of Trump’s former top advisors tried to keep him from going off the rails. The headline, highlighting Trump’s utter disrespect for basically the whole leadership of our nation’s military, is sad enough, but there are several things that should be more profoundly disturbing. First, there is Trump’s utter rejection of the premise that, as General Mattis phrased it, “the post-war international rules-based order is the greatest gift of the greatest generation.” This is not news. Trump has shown open contempt for NATO, and has managed to create real doubt about America’s commitment to allies so longstandingly staunch and solid that such doubt would have been completely unimaginable prior to 2017. What is shocking is that more Americans aren’t up in arms about this. The general peace, security, and prosperity that we have enjoyed for much of our lives is directly due to post-war institutions and alliances hard won through much blood and treasure by the greatest generation. Our grandparents are surely turning in their graves to see the damage done to their “greatest gift”. How anyone can approve of this wanton and callous erosion of institutions that have served us so well for three-quarters of a century and call themselves “conservative” is boggling. Conservatives are people who value proven institutions and who are suspicious of change. Trump foreign “policy” (if his erratic and unpredictable actions can even be dignified by that term) are not “conservative” in any normal meaning of the word, they are radical.

Second, this is an alarming example of Trump’s conviction that his gut instincts are always right, even in areas like foreign policy where he has no experience or understanding, and that none of the people who do have experience and expertise are to be trusted. He has been quoted as saying “it’s very easy, actually, to work with me. You know why it’s easy? Because I make all the decisions. They don’t have to work.” That may be one way to run a family business, but it’s no way to run a public enterprise of any scale, let alone a country. The Constitution itself provides for a cabinet of secretaries, and in the 20th century we have institutionalized a National Security Council, because no president could govern effectively without taking advice and counsel from those with expertise in specific areas. And it is an established best practice that the best leaders will create an environment where subordinates feel free to voice divergent opinions and question decisions, rather than “leading” in a completely top-down autocratic style. Trump obviously missed that day of school at Wharton. Needless to say, the erosion of trust in experience and expertise can hardly be said to be a conservative value either.

The third but possibly most alarming thing from this article was the quote from Bannon, whose attitude was presumably shared by Trump. In pushing back on why Mattis and Tillerson thought our longstanding alliances were so great, Bannon says, “All you guys talk about all these great things, they’re all our partners, I want you to name me now one country and one company that’s going to have his back.” I went cold when I read that: “his back.” Not “our back”, not “America’s back”, but “his back,” as if loyalty is owed by our allies to Trump personally. This administration seems to understand no distinction between the office of President and the man who temporarily holds the office, nor between the interests of Donald Trump and the interests of the American people, as if they were one and the same. That is how dictators talk. It is completely unfitting for a President of the United States.

FILM: A Beautiful Day In The Neighborhood

In the film A Beautiful Day In The Neighborhood, we are shown the extraordinary nature of Mister Rogers through a perfect foil: a cynical, hard-boiled reporter from Esquire who is sent to profile him and whose iconoclastic instincts lead him to look for a dark underbelly or some hint of dirt. Instead, he learns that the earnestness of Fred Rogers is actually earnest, as Rogers befriends the reporter and helps him heal some long-broken-and-buried parts of his own life. Tom Hanks is uncanny in his portrayal of the TV icon, and director Marielle Heller keeps the film honest, avoiding the clear pitfalls of such material that could have easily careened into maudlin Hallmark territory. When the reporter, Lloyd Vogel, finally completes his assignment, his wife’s reaction on reading it is, “this is great, although it’s more about you than about him.” Which is certainly true, and this film is more about Lloyd Vogel’s journey (note that Tom Hanks is nominated for best supporting actor), perhaps the best way to understand Mr. Rogers is in his interaction with and impact on others. We get little glimpses into the life of Fred Rogers – his daily routines of swimming and praying and playing the piano. His wife Joanne assures Lloyd that he is not a saint, he has a temper at times, and he works very hard to be the person that he is. But aside from that, he remains an enigma even at the end of the film, and he is rather saint-like. One rather telling moment in one of their early interviews, Vogel asks Rogers to make a distinction between Fred Rogers the real person and “Mister Rogers” the character, and Rogers is genuinely baffled by the concept – he is truly just being himself. And Rogers is one of those rare people for whom the most important person in the world at any given moment is the person right in front of them in that moment, a focus that creates a compelling rapport. He’s also thoughtfully slow and comfortable with uncomfortable silences, a trait that draws people out. But most of all, he was supremely compassionate and empathetic. He may not have been a saint, but he’s about as close as they come.

BOOKS: The Water Dancer

Having read his brilliant Between The World And Me, I knew that Ta-Nehisi Coates was an extraordinary writer, and in The Water Dancer, he shows that he is equally adept with fiction as with essay and memoir. This tale centers on Hiram Walker, born a slave, whose mother was sold away when he was young and whose father was the master who sold her. A young Hiram dreams of earning his father’s respect and perhaps somehow supplanting his white but far less gifted half-brother, but when the Underground Railroad gets a hold of him, his life changes in ways he could not have imagined. Coates not only creates a compelling story with true-ringing characters, but the vivid description of their lives is permeated by a depth of research into antebellum Virginia society – how Virginia estates worked and how the Virginia plantation economy eroded as they overworked the soil, what people wore and what they ate, and even how they talked. The landowning whites were “the Quality” and the slaves were “the tasked”, with the “low whites” in a miserable in-between. But what really makes this book is Coates’ ability to imagine and portray the emotional truth of people in these barely imaginable situations – the mask that is trained into the Tasked to never display their true emotions to their masters, the willful blindness that the Quality must engage in order to be masters, and the emotional scars and buried feelings that allow mothers, fathers, and children to survive when families are viciously ripped apart. Amidst the horrendous cruelty and injustice, the story is lifted by a humanity that refuses to be extinguished, along with a touch of magical realism concerning the power of our deepest memories to transport us.

FILM: Bombshell

Bombshell is itself a bombshell, done in a brisk exposé style using newsy tropes like datelines, voiceovers, and occasional graphics to quicken the pulse of an already engaging multi-character story. Disenchanted Fox talk show host Gretchen Carlson drops the bomb when she sues Fox editor-in-chief Roger Ailes for sexual harassment, while Fox superstar Megyn Kelly has questions of her own as she heads up an internal investigation, and a young climber learns the price of getting ahead at the network. The film does a great job showing the great pressure on all of these women at different points in their careers to "play the game", the serious risks of calling out harassment, and why it is not a clear or easy decision to make. It also shows the pressures of a ratings-driven network, the strange symbiotic relationship that developed between Trump and Fox, and how the rise of Trump gave them a bit of whiplash with which not everyone at Fox was equally in tune. I appreciated the complexity of motivations written into the three protagonist characters, and further complexity underscored with an intriguing supporting character played by Kate McKinnon as a closeted lesbian working for Fox, a different example of the sacrifices and choices people make to get and keep a job. Strong performances all around, but especially awesome Charlize Theron as the steely Megyn Kelly and John Lithgow as the paranoid autocratic network head. I have to say that this film gave me a renewed appreciation of the importance of corporate culture, and companies like my employer who not only do all the training but are serious about wanting to provide space and means for people to speak out if they think something's wrong. Very different from Fox, at least as portrayed here, which demanded complete near cult-like loyalty to its leader. We can see in this film how that works out (just in case we weren't already noticing it in our real-life news).

FILM: Little Women

There is a particular challenge in making a new film of a story that is well-known, well-loved, and has been done before. Greta Gerwig completely rises to that challenge with her fresh take on Little Women that suits our times. At first, I was a little rattled by some of the differences from the 1994 Winona Ryder / Susan Sarandon / Christian Bale film that was my reference point, but by the end, I was completely won over. Instead of a straightforward chronological telling of the story as in the book and most other films, Gerwig chose to portray events out of time order in a way that intentionally takes the focus off of the original romantic angles. And I think in some ways, it was a nod to the fact of doing the umpteenth adaptation and self-consciously saying “look we all know the story, and – spoiler alert – I’m going to dispense early on with the fact that Jo rejects Laurie’s proposal, because that’s not my focus.” I remember in the 1994 film, I along with all the viewers was swept up in the Jo / Laurie romance, and it was such a dramatic surprise when she turns him down. Now, even 25 years later where hopefully most of us have more evolved feminist understandings, it takes Gerwig’s telling the story in a very different way to make me rethink the traditional version and realize how much that focus on romance makes even Little Women skirt close to failing the Bechdel test. Now, despite casting heartthrob Timothée Chalamet as Laurie, the film doesn’t make us fall in love with him as Jo (and we with her) did in 1994. Rather, we get to know him at his Paris worst and learn of Jo’s rejection before we come around to seeing why that may have been a hard choice. But this film isn’t about him, it’s about her, and not about whether and whom she marries, but whether she can realize her ambition to be a successful writer. The film is framed beginning and end with scenes of Jo meeting with her publisher for the first time and Jo watching her book roll off of the 19th century printing presses (a gorgeous scene). That and Gerwig’s absolutely brilliant winking touch to portray Jo’s ultimate marriage in the context of her publisher’s demand for a “storybook” ending. It’s a shame she was overlooked for an Oscar best director nomination, and I hope she wins for best adapted screenplay. This may be the first Little Women adaptation that really honors the women. In addition to engaging us with Jo as a would-be author, we’re also drawn to respect the other sisters for their choices. Amy is particularly strong in her cold-eyed (but not cold-hearted) appraisal of how marriage means different things to men than to women in her time, and in defending her choices. Saoirse Ronan as Jo and Florence Pugh as Amy are both deserving of their Oscar nominations (though the best actress competition is tough this year!). Now 1994 seems so dated, and this is my new definitive Little Women.