Monday, May 06, 2019

The Chimpanzee Politics of the Mueller Report, Impeachment, and Trump's Mininum Winning Coalition

The debate over whether the Mueller Report justifies Trump's impeachment should remind the readers of this blog of how the power of an American president resembles the dominance of an alpha male chimpanzee in depending on a minimum winning coalition.

No ruler--either among humans or among chimps--can rule alone.  To win and hold power, every ruler requires a minimum coalition of powerful people who are loyal to him.  When a ruler is abandoned by his loyalists, he loses his power.  The only difference between a dictator and a democratic leader is the size of the loyal coalition.  A dictator depends on a small coalition.  A democratic leader depends on a larger coalition.  But in any case, the dominant coalition is less than the whole community.

The dominance of an alpha male chimpanzee depends on the support of a coalition of high-ranking males, perhaps combined with some support from the high-ranking females.  The overthrow of a dominant male chimp can come either through violence or non-violent resistance.  The assassination of the alpha male chimp is extremely rare.  Scientists have observed this only a few times.  Usually, the challenge to the alpha male comes from bluffing displays that only threaten violence.  Although chimps will kill other chimps in war with other outside groups, within the group fighting usually ends without fatal injuries, as one side submissively surrenders to the other.

Similarly, human rulers are overthrown when they lose the support of their winning coalition, and this overthrow can come either through violence (sometimes including assassination) or through non-violent resistance.  So, for example, in Venezuela today, the political drama is over whether Nicolas Maduro can retain the loyalty of a few hundred or a few thousand military people who constitute his minimum winning coalition, and part of the battle depends on the attempts of the non-violent resistance movement of protestors who are trying to persuade the military to desert Maduro.  If he loses, he could be killed, or he could resign and leave the country.

Under the U.S. Constitution, Trump's alpha male dominance depends on a minimum winning coalition that is defined in two ways--enough electoral votes in the Electoral College to win the presidency and enough support in the Senate to avoid impeachment.  In the 2016 election, Clinton won the popular vote by 2.8 million votes, a margin of 2.1%.   Trump won only 46.1% of the popular vote.  And since only 60% of the eligible voters voted in 2016, Trump won only 27.6% of the eligible voters!  Still, Trump won the electoral college by 304 to 228.  Clinton lost the Electoral College because of the low turnout of Democratic voters in swing states like Wisconsin, Michigan, and Pennsylvania.  What this illustrates dramatically is that the minimum winning electoral coalition for electing a president is often a tiny minority of the electorate.

But then once he has won alpha male dominance, a president must avoid losing it by being thrown out, and someone with such a small winning electoral coalition as Trump is particularly vulnerable, as indicated by the fact that impeachment has been a looming threat from the day of his inauguration.  In this way, Trump is like Luit, who became the alpha male chimp in the group observed by Frans de Waal in Chimpanzee Politics.  Yeroen had been the alpha male until he was overthrown by Luit.  But then once Yeroen formed a coalition with Nikkie, which won the support of the females, Luit fell from power, and Nikkie became the alpha male.  Eventually, Luit returned to power, but finally he was assassinated by Nikkie and Yeroen.

Throughout much of European history, kings often lost power by being killed.  In England, the House of Commons could vote for impeaching royal officials, and then a trial could be held in the House of Lords.  But the monarch was above the law and could not be impeached, or even tried for any crime.  When Charles I was tried before the Rump Parliament of the New Model Army in 1649, he denied that they had any legal power to indict him.  He argued: "no earthly power can justly call me (who is your King) in question as a delinquent . . . no learned lawyer will affirm an impeachment can lie against the King."  Nevertheless, the Rump Parliament convicted him of tyranny, and he was beheaded.

After their Declaration of Independence in 1776, the American colonists extended the impeachment power so that their new state governors could be impeached by the legislature for "offending against the State, either by maladministration, corruption, or other means" (Virginia Constitution of 1776).  In the Constitutional Convention of 1787, some of the delegates said that a congressional power to impeach the president was "rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen" (George Mason).  Some of the delegates were especially worried about likelihood that the president would be corrupted by foreign governments, and impeachment would be the only way to remove a president who had colluded with foreign powers.  (This material can be found at the website for The Founders Constitution.)

The Constitution gives the sole power of impeachment to the House of Representatives and the sole power to try impeachment to the Senate, in which conviction would require two-thirds of the Senate.  So, today, that means that at least 67 Senators must vote for impeachment for a conviction.  Consequently, as long as at least 34 Senators vote against impeachment, this constitutes the minimum winning coalition for the president to stay in office.  Today, there are 41 Republican Senators; and so conviction of Trump would require that all the Democratic Senators and at least 8 of the Republican Senators vote for his impeachment.  This seems unlikely, given the partisan commitments of the Republicans to Trump.

This requirement for a supermajority in the Senate for impeachment is one reason why impeachment has been so rare.  Only two presidents have been tried (Andrew Johnson and Bill Clinton), and neither of these were convicted in the Senate.

This goes against the expectation of the Constitutional framers that the impeachment of presidents would be a frequent response of the Congress to presidential "maladministration," "corruption" (such as collusion with foreign governments), and "abuse of power" (such as usurping the powers of Congress).  Responding to those critics of the Constitution who thought the president could become an elected monarch, Alexander Hamilton argued in Federalist Number 69 that the president was unlike the British monarch in crucial ways--one being that the president would be liable to impeachment, while the British monarch was not subject to impeachment.  So, to the extent that presidents do not have to worry about impeachment, the presidency becomes monarchic.

Another reason for the rarity of impeachment is that the only impeachable offenses are "Treason, Bribery, or other High Crimes and Misdemeanors," and many people--including many in the Congress--have assumed that this requires proof "beyond a reasonable doubt" that the president has committed some indictable crime.  Any careful study of the Constitution and of the pertinent documents from the founding shows that this is incorrect, because "High Crimes and Misdemeanors" was understood as "maladministration" or serious "abuse of power," which was a political judgment rather than a criminal judgment.  The standard of evidence for such a political judgment is not "beyond a reasonable doubt" but rather "preponderance of the evidence" or more-likely-than-not.

By giving the sole power of impeachment to the House of Representatives, the Constitution gives the House the sole power to investigate the conduct of the president to determine whether he should be impeached.  But the House has created confusion by allowing for the appointment of a "special prosecutor" by the Department of Justice to investigate misbehavior by the president.  The first problem this creates is that the appointment of a "prosecutor" suggests the normal standards of criminal prosecution, the same standards that govern any of the U.S. attorneys in the Department of Justice.  This obscures the point that impeachment requires a political judgment by the Congress of abuse of power rather than a regular judicial judgment of criminality.  The second problem is that when Congress allows the Department of Justice to appoint a special prosecutor to investigate presidential conduct subject to impeachment, this puts what should be a congressional investigation under the supervision of the Executive Branch and thus subject to the president's power to dismiss executive officers under his power.

We have seen both of these problems manifest in Robert Mueller's work as special counsel to investigate the collusion of the Trump campaign in 2016 with the Russians and Trump's obstructions to the investigation.  Mueller conducted what should have been a purely congressional investigation under the supervision of the Department of Justice.  This exposed Mueller to being dismissed at any time during his investigation.  And then once he gave his report to the Attorney General, the Attorney General was free to act as Trump's lawyer in suppressing anything in the report that Trump might want to cover up.

The other problem is that Mueller was given two contradictory assignments in his original appointment by Acting Attorney General Rod Rosenstein on May 17, 2017.  First, he was authorized to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump."  Second, he was also "authorized to prosecute federal crimes arising from the investigation of these matters."

The standards of evidence for these two kinds of investigation are not the same.  First, deciding whether there were any links between the Trump campaign and the efforts of the Russian government to interfere in the U.S. elections in favor of Trump is a matter of deciding whether the weight of the evidence supports a conclusion that such links were very likely.  But, second, deciding whether these links were such as to justify prosecution as federal crimes required evidence "beyond a reasonable doubt," which is the high standard for criminal convictions.

The Mueller Report makes it clear that there was compelling evidence for links between the Trump campaign and the Russian government in the 2016 election, and this would justify the Congress in impeaching Trump.  But the Report also makes it clear that these links did not justify criminal charges.  So, at one point, the Report declares: "while the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges" (vol. 1, p. 9).  Similarly, on the question of whether Trump was guilty of obstruction of justice in impeding the special counsel's investigation, the Report concluded: "while this report does not conclude that the President committed a crime, it also does not exonerate him" (vol. 2, p. 8).  Here, again, the compelling evidence that Trump tried to obstruct the investigation could justify impeachment by the Congress, even though there was not evidence "beyond a reasonable doubt" to justify conviction for a federal crime.

Consequently, it was easy for Attorney General Barr, acting as Trump's personal lawyer, in his letter of March 24 to Congress, to quote the Mueller Report as saying that "the investigation did not establish" that the Trump campaign "conspired or coordinated with the Russian government in its election interference activities."  And Trump could shout "No Collusion!" on his Twitter account.  But then Mueller, in his letter to Barr on March 27, could rightly complain that Barr's letter "did not fully capture the context, nature, and substance of this Office's work and conclusions," and thus it sowed "public confusion about critical aspects of the results of our investigation."

The ultimate source of this "public confusion," however, is the Congress's failure to assert its sole authority over impeachment--not to be shared with "special prosecutors" in the Department of Justice--as well as the Congress's failure to insist that impeachment is a political judgment of the Congress and not a legal judgment of prosecutors or the courts.

These failures of the Congress to properly exercise its impeachment power have rendered that power largely ineffective in checking the propensity of the president to become an elected monarch.  But there is also a failure here on the part of the constitutional framers: by requiring a supermajority of the Senate for an impeachment conviction, the framers lowered the minimum winning coalition for the president to 34 Senators obstructing impeachment.  If the framers had required only a simple majority of the Senate for an impeachment conviction, impeachments would have been more frequent.  Certainly, Trump's impeachment would have been much more likely if only 51 Senators were required to vote for impeachment.

As long as Trump has a minimum winning coalition among the Republican Senators to avoid impeachment, the only challenge to his alpha male dominance will be the next presidential election.  As someone who was elected with only 46% of the votes and 27% of the eligible voters, he is vulnerable to challengers.  Just as Luit was overthrown by a coalition of Yeroen and Nikkie, so that Nikkie could become alpha male, a candidate who could mobilize many of the eligible voters who did not vote in the 2016 presidential election could defeat Trump.  The stunning defeat of so many Trump candidates in the 2018 mid-term elections suggests that once the anti-Trump voters are motivated to vote, Trump cannot attain the minimum coalition for winning.  Moreover, that Trump is not impeached might actually be desirable if his running for reelection leads to a catastrophic defeat for the Republican Party that might then bring a realignment of the political parties and a new party system.

Some of my posts on the chimpanzee politics of a minimum winning coalition and Trump's chimpanzee personality can be found herehereherehereherehereherehere, and here.


Roger Sweeny said...

Clinton lost the Electoral College because of the low turnout of Democratic voters in swing states like Wisconsin, Michigan, and Pennsylvania. What this illustrates dramatically is that the minimum winning electoral coalition for electing a president is often a tiny minority of the electorate.

No, it doesn't. The "winning electoral coalition" is everyone who votes for the winner. Those low turnout voters are the minimum necessary to CHANGE the outcome. In ANY close election, the switch of only a small number of voters can change the outcome. An election decided by one vote doesn't mean that the winning coalition is only one person.

The ultimate source of this "public confusion," however, is the Congress's failure to assert its sole authority over impeachment--not to be shared with "special prosecutors" in the Department of Justice--as well as the Congress's failure to insist that impeachment is a political judgment of the Congress and not a legal judgment of prosecutors or the courts.

Perhaps this is overly cynical, but expecting Congress to remedy this failure is about as likely as expecting it to reassert its sole authority to declare war. The last Congressional declaration of war was more than 77 years ago (December, 1941), though we've been in a LOT of wars since then.

Larry Arnhart said...

Here I had in mind the distinction that Bruce Bueno de Mesquita and Alastair Smith make between the nominal selectorate, the real selectorate, and the winning coalition, and their claim that the winning coalition (those who voted for the winner) is usually a small portion of the nominal selectorate (those qualified to vote).

Roger Sweeny said...

I assumed that the last sentence of the paragraph referred to the two sentences preceding it. Since you meant to say "that the winning coalition (those who voted for the winner) is usually a small portion of the nominal selectorate (those qualified to vote)", those sentences should have been placed somewhere else. Or eliminated entirely, since they are about what is necessary to change an outcome, not what is necessary to form a winning coalition. Trump didn't have to just get a few hundred thousand votes "in swing states like Wisconsin, Michigan, and Pennsylvania", he had to get millions of votes in those states and in other states to get the the point where those few hundred thousand could swing the election. (Yes, I have the soul of an editor.)

Larry Arnhart said...

Thanks for your careful reading. And, yes, you do have the soul of an editor.