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WASHINGTON, DC - APRIL 02: U.S. Rep. Adam Schiff (D-CA) speaks to a reporter after a news conference in front of the U.S. Supreme Court April 2, 2019 in Washington, DC. Congressional Democrats held a news conference ... WASHINGTON, DC - APRIL 02: U.S. Rep. Adam Schiff (D-CA) speaks to a reporter after a news conference in front of the U.S. Supreme Court April 2, 2019 in Washington, DC. Congressional Democrats held a news conference to call on the Trump administration to "halt legal assault on Americans' health care." (Photo by Alex Wong/Getty Images) MORE LESS
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May 29, 2019 9:35 a.m.

Let me return to one point on impeachment and another on the 2020 election.

Yesterday JustSecurity.org published this article by Michael Stern on how convening an impeachment inquiry would strengthen the House’s hand in gathering information on the Trump White House and President Trump himself. It’s exhaustive and I recommend it. The point of the article is to show that an impeachment inquiry really would strengthen Congress’s hand.

To me though the detailed summary actually reveals the opposite. There is at least one area where it likely would strengthen investigators’ hand: getting hold of grand jury testimony, though that is of fairly limited significance. But the argument that it would increase Congress’s power is almost entirely based on readings of the constitution which suggest it should do so and implications in earlier court decisions which suggest it might do so.

The critical flaw in this argument, at least from a practical and predictive standpoint, is that it relies entirely on judges – ultimately the Supreme Court majority – adopting the same reasoning or picking up on the same implications in court decisions, many of which are almost 50 years old. There’s really nothing about the current federal judiciary and especially the current Supreme Court, which is of course the ultimate decider, that suggests either will happen.

Of course if the five Justice majority adopts a purely outcome-based jurisprudence and finds arguments, however strained, to back up President Trump’s stonewalling at every turn then none of it matters anyway. I don’t think that will happen. I think they’ll decide every remotely close call in his favor, regardless of their implications of earlier precedent or their own personal reasoning in past cases. They may do much more. I think they’ll do at least some more. But thinking they’ll adopt these arguable or plausible implications in earlier cases in the House’s favor seems a fool’s errand.

Of course, this is only one argument for impeaching the President and few would put it forward as the deciding one. But viewed from this perspective, this article shows me the weakness not the strength of this argument.

I’ll try to address the broader questions soon.

Next, the 2020 election.

Yesterday I explained why I don’t think these economics-based predictive models should change our current take on the 2020 election. It’s not that they’re wrong. They just don’t tell us much we don’t already know. But there is one reason why they are if not wrong than at least questionable as predictors: the sample size just isn’t big enough. We are 230 years under the US Constitution. But the modern electoral system really only goes back less than a century. And much of the power of these models derives from taking this relatively small sample and finding rules that fit it.

The failure to win three straight elections in 1968 and 1976 were heavily tied to the personal and idiosyncratic decisions of two men: Lyndon Johnson and Richard Nixon – ones that are very hard to tie to metrical factors like the economy and incumbency.

From 1840 to 1960 every president elected at 20 year intervals died in office. It happened like clockwork until it didn’t in 1980. I’m not saying these models are based on something so seemingly coincidental. But I don’t think they tell us more than that under fairly normal, consensual politics, these two factors – incumbency and the economy – play a big role in the outcome. The fact they missed Trump’s numbers so significantly in 2016 should tell us they are poor predictors, especially when we’re operated in the same Trumpian political moment.

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