McGahn did Trump two huge favors. He kept him from firing Mueller, which would have put a nail in the presidential coffin. And he delivered Trump’s greatest triumph on the right, conspiring with Mitch McConnell to fill the courts with socially conservative judges intent on undoing government regulation.
From Maureen Dowd's Week in Review column
There seems to be a lot being written since the redacted Mueller report has been released about whether it warrants impeachment of Trump. For example, in today's NY Times, Charles Blow's column asks, Impeach Donald Trump? Blow answers in the affirmative. The House should go ahead and do this, although it is unlikely that the Senate would vote to convict. I agree with Blow about the Bill Clinton precedent being an inappropriate comparison. The nature of the charges against the two men are quite different. That should matter. Similarly, in Michelle Goldberg's most recent column, In a Functional Country, We Would Be on the Road to Impeachment, she takes a similar line though makes clear there is a difference between what we ought to do and what is likely to happen.
In this piece I would like to juxtapose the normative (what we ought to do) with the positive (what we expect will occur) but extend the thinking to consider the disposition of those conservative judges in the event that impeachment occurred and Trump was then convicted. It seems to me this should be gamed out (as in apply a game theoretic analysis) to understand the various issues. I'm reasonably competent as a game theorist, but I'm mainly ignorant of the applicable law. That needs to be taken into account as well. What I'd like to see is such a game theory analysis done by somebody who does understand the applicable law. Here I'll make my poor man's version of that.
To begin, I'd like to distinguish between the obstruction of justice charges, which pertain to after Trump took office, firing Comey might be the most visible of these acts, from the "back scratching" with the Russians, that happened during the campaign. It matters, in my way of thinking, whether the latter itself are sufficient grounds for impeachment, or if only the former count for impeachment. If the activities during the election are viewed as sufficiently heinous, the election itself then is not legitimate, in which case Pence should not succeed Trump. Given the line of succession, Nancy Pelosi would become President, which would be incredibly ironic as she is on record for not wanting to impeach. This is my way of saying that in game theory you do consider rare events (very low probability) because they matter in analyzing the overall strategic situation. How would a President Pelosi consider all the conservative judges appointed before Trump was removed from office. Would it be regarded as a fait accompli or as something reversible? If the latter, what would be the means for reversing these appointments?
If it is only the behavior after having assumed office that constitutes the impeachable offense, then Pence would become President and in the remainder of this term nothing would be done about the conservative judges. Would something then be done after the 2020 elections, if the Democrats sweep in with the Presidency and large majorities in both houses?
Let us return to the paragraph by Maureen Dowd that starts this piece. Were Trump and McConnell merely convenient bedfellows? Or is this process of turning the Senate into a factory for processing judicial appointments itself a crime because it is based on two antecedents that are criminal. The first is McConnell not having the Senate take up the Merrick Garland nomination when Obama was President. This was a clear violation of the Constitution. The second is ignoring the various impeachable activities that Trump engaged in, as this was necessary to keep the processing of judicial appointments rolling. If this was indeed criminal, then leaving the judges in place would seem to show that crime does pay. From a normative perspective, then, either it must be argued that the Senate acted in a legitimate, if highly Machiavellian, manner or that the justices should be removed.
Let's turn to a positive perspective. I want to now envision negotiation between Chuck Schumer, the Minority Leader, and McConnell in the subgame where the House has already passed articles of impeachment against Trump. Might Schumer secure enough Republican votes to get conviction if he promised not to make a big deal about the judicial appointments thereafter? In other words, might McConnell want to cement the gains he has already achieved here and so allow conviction to occur? The other part of this worth thinking through is whether such an agreement would hold after the 2020 elections. I wish I understood the politics better. I suppose the answer to this depends a great deal on who is in the White House and what that person would like to see.
* * * * *
My purpose in writing this is to request that those who can consider the issue of the judges with more to bring to the table than I can then do their own analysis. We tend to go one step at a time only. We really need to think several steps ahead to make sense of the current situation.