Why the Rush to Impeachment? Jonathan Turley's Prudent Warning to the House Judiciary Committee

Although I have made it clear on this blog that I believe that there is a plausible case for impeaching Donald Trump for serious abuses of his powers, I have also worried that if the House votes for impeachment without building a strong case that can persuade at least 20 Republican Senators, the Senate will refuse to convict; and thus the House's vote for impeachment will appear to have been driven by a purely partisan hatred of the President rather than a reasonable non-partisan judgment that the President has really committed impeachable acts.

My reasons for worrying that the House Democrats are making a big mistake in their rush to impeachment before Christmas were articulated better than I could ever do by Professor Jonathan Turley on Wednesday, in his testimony before the House Judiciary Committee.  Turley is a law professor at the George Washington University Law School, and he was the one law professor selected by the Republican minority to testify.  The other three professors--Noah Feldman (Harvard Law School), Pamela Karlan (Stanford University Law School), and Michael Gerhardt (University of North Carolina Law School)--were selected by the Democratic majority on the Committee.  I watched all of the hearings.  And I have read Turley's written statement.  I regret that I have not yet read the written statements of the other three professors.

Some of Turley's recent articles on impeachment can be found at his website. Particularly good are three published in November:  "How the Democrats Can Build a Better Case to Impeach President Trump," USA Today, November 25; "Adam Schiff's Capacious Definition of Bribery Was Tried in 1787," The Wall Street Journal, November 28; and "Watergate Line Speaks Volumes about Weak Impeachment Case," The Hill, November 30.  Most of what he wrote in these three articles is included in his written statement for the Judiciary Committee.

Far from being a Trump supporter, Turley openly identifies himself as someone who voted for Hillary Clinton and who has been a staunch critic of Trump and his policies.  Moreover, he agrees that a good case might be developed for impeaching Trump for his abuse of power.  But still, he argues, that persuasive case for impeachment has not yet been made, and therefore the House needs to gather more evidence and hear from more witnesses so that they can slowly build a case for impeachment that could be persuasive enough with some Republicans to win a conviction in the Senate.  If the House rushes to impeachment, and then fails in the Senate trial, Turley warns, the impeachment of Trump will look more like the failed impeachment of Andrew Johnson in 1868 than the threat of impeachment that succeeded in forcing Richard Nixon's resignation in 1974.

In the hearings on Wednesday, the other three law professors all argued in favor of the House quickly impeaching Trump, but they did not respond to Turley's arguments.  Both the Democrats and the Republicans on the committee failed to ask the three law professors to reply to Turley.  They thus failed to set up what should have been a lively debate over what should be the central question in these proceedings: What counts as a sufficiently persuasive case for the House impeaching the President, so that conviction in the Republican-controlled Senate is likely?

Yesterday, Trump tweeted: "if you are going to impeach me, do it now, fast, so that we can have a fair trial in the Senate."  Trump himself wants the Democrats to quickly impeach him without taking the time to build the best case for impeachment--by going after the evidence that Trump is hiding--because then Trump can escape conviction in the Senate, and he can campaign against the Democrats for trying to use impeachment as a partisan weapon.

Turley makes three arguments for the conclusion that the case for impeaching Trump as it stands now is too weak.  The first argument is about the constitutional standard for impeachment as it was originally understood by the constitutional framers.  The second is about the lessons taught by the history of presidential impeachments.  The third is about the failure to prove that Trump has committed impeachable offenses.


(1) THE CONSTITUTIONAL STANDARD
Although the Americans adopted impeachment from the British, Turley indicates, the framers of the Constitution wanted to avoid the use of impeachment for political purposes, as had been done in England and in the American colonies.  They did not want the standards for impeachment to be so broad and vague that they could be used by political partisans to remove from office those they disliked.  They wanted the standards to be very limited and clearly defined.

For Turley, one important piece of evidence for this is an exchange at the Constitutional Convention on September 8, 1787, between George Mason and James Madison.  At that point, impeachment was limited to "treason or bribery."  Mason said this was too limited, and he moved to add "or maladministration."  Madison objected: "So vague a term will be equivalent to a tenure during the pleasure of the Senate."  Mason withdrew "maladministration," and substituted "other high crimes and misdemeanors," which was approved (Records, 2: 550).

[As an aside, I should say that I doubt the wisdom of Turley's reliance on Madison's notes on the Constitutional Convention as a guide to the framers' intention.  Madison's notes were not published until 1840, four years after his death, and over the years he had extensively revised his notes with both deletions and additions.  And as Mary Sarah Bilder has shown--in Madison's Hand: Revising the Constitutional Convention (Harvard University Press, 2015)--his revisions were slanted towards the Jeffersonian ideology that he had developed later in his life.]

Madison's notes show, Turley says, that the Framers did not want impeachment to be equivalent to what the British Parliament does today in a vote of no confidence that removes the Prime Minister for purely political reasons.  Turley observes:

"In the end, the Framers would reject various prior standards including 'corruption,' 'obtaining office by improper means,' betraying his trust to a foreign power, 'negligence,' 'perfidy,' 'peculation,' and 'oppression.' Perfidy (or lying) and peculation (self-dealing) are particularly interesting in the current controversy given similar accusations against President Trump in his Ukrainian comments and conduct" (10).

But then Turley admits that Madison apparently contradicted this position at the convention on July 20, when he said that he

"thought it indispensable that some provision should be made for defending the Community against the incapacity, negligence, or perfidy of the chief Magistrate.  The limitation of the period of his service was not a sufficient security.  He might lose his capacity after his appointment.  He might pervert his administration into a scheme of peculation or oppression.  He might betray his trust to foreign powers. . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic" (Records, 2:65-66).

So here Madison suggests that the standards for impeachment should include "negligence," "perfidy," "peculation," and "corruption." As I have said in a previous post here, Madison's ambivalence about the scope of impeachment shows the fundamental dilemma in the congressional power to impeach the President: either the standards for impeachment are so broad that it becomes a partisan weapon for subordinating the President to the Congress, or the standards are so narrow that it cannot protect the country from an incompetent or corrupt President.

This dilemma was manifest in an exchange at the Constitutional Convention on June 2, which is not mentioned by Turley:

"Mr. Sherman contended that the National Legislature should have power to remove the Executive at pleasure."

"Mr. Mason.  Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.  He opposed decidedly the making the Executive the mere creature of the Legislature as a violation of the fundamental principle of good Government" (Records, 1:85-86).

As I have said in my previous post, the impeachment of Trump really is an attempt to overturn the presidential election of 2016 because of the fallibility of those who voted for him and the corruptibility of Trump.  But the attempt to do this necessarily provokes partisan passions--or as Turley calls it, "rage over reason."  A partisan vote in the Democrat-controlled House is likey to impeach Trump, and a partisan vote in the Republican-controlled Senate is likely to refuse to remove Trump from office.

To avoid this outcome, Turley argues, the House Democrats need to slow down and take the time to build a better case for impeachment that can persuade some Republicans to rise above their partisan interests.

(2) THE HISTORY OF PRESIDENTIAL IMPEACHMENTS
Turley points out that the history of impeachment shows that this is possible--that politicians in the Congress can sometimes be persuaded to set aside their partisan interests in deciding how to vote on impeachment.

In 1868, President Andrew Johnson was hated by the Republicans who controlled the Congress.  He was ridiculed as incompetent and as the "accidental President," because he ascended to the Presidency as a result of Lincoln's assassination.  He was a mean and crude man who often used inflammatory language, such as suggesting that his political opponents should be hanged.  His racism was shocking, and he opposed black suffrage.  He defended the Southern states against the proposals of the Radical Republicans for Reconstruction of the South.  His widespread firings created chaos in the government.  He was one of the worst presidents in American history.  In other words, he was a lot like the man who holds the presidential office today.

It was surprising, therefore, when the Republicans failed in their effort to remove Johnson from office through impeachment.  The Republicans saw Secretary of War Edwin Stanton as their ally in the Administration, and they anticipated that Johnson would fire him.  So they passed the Tenure of Office Act, which prohibited the President from removing a cabinet officer without the appointment of a successor by the Senate.  The Act declared that any violation of this law would be a "high misdemeanor."  Johnson dismissed Stanton on February 21, 1868.  A resolution of impeachment was passed in the House on February 24.  By the middle of May, the Senate was ready to vote on removing Johnson.  And since 42 of the 54 Senators were Republicans, and 36 votes were required for the 2/3 supermajority to convict Johnson, it should have been easy for the Republicans to win conviction.  Nevertheless, on May 16, 1868, the vote was 35 for conviction and 19 for acquittal, with 7 Republican Senators voting for acquittal, thus falling only one vote short of conviction.  The 7 Republicans voting for acquittal hated Johnson, but they thought that impeaching him for violating what was probably an unconstitutional law was an abuse of the impeachment power.  They knew that this would be the end of their political careers because of the animosity of their party.

Turley rightly sees two lessons in the failure of the Johnson impeachment.  Not only does it show that members of Congress can be persuaded to vote against their partisan interests in favor of higher constitutional principles.  It also shows that "short impeachments are generally not strong impeachments" (17).  The Johnson impeachment proceedings stretched a little over three months.  It now appears that the congressional Democrats want their impeachment of Trump to be completed just as quickly; and like the Johnson impeachment, that means that the leaders of impeachment will not take enough time to develop a case for impeachment likely to persuade 2/3 of the Senate.

By contrast, the Nixon impeachment hearings in the House extended over 14 months, which allowed for the development of the broadest and deepest evidentiary record in any impeachment.  Nearly 70 officials were charged, and 48 of them were found guilty.  Some of the Watergate defendants were sentenced to as long as 35 years.  Nixon himself was not actually impeached, because he resigned in August of 1974 after Republican leaders in Congress told him that he had lost the support of his own party.

Turley rightly argues that the current proceedings for impeaching Trump look too much like the failed Johnson impeachment and not enough like the successful Nixon impeachment proceedings.

(3) IS TRUMP IMPEACHABLE?
At various points in the impeachment inquiries, the Democrats have charged that Trump has committed impeachable crimes such as bribery, extortion, obstruction of justice, and violation of campaign finance laws.  But so far there does not seem to be sufficient evidence to convict Trump of such crimes.

Originally, the Ukraine controversy--as centered on Trump's July 25th telephone call with Ukraine's President--was said to show not criminal conduct but an abuse of power in using the authority of the presidency to advance Trump's personal political interests rather than the national interest.  It's clear that a president can be impeached for abuses of power that are not criminal.  After all, Alexander Hamilton (in Federalist Number 65) identified impeachable offenses as "those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

But, still, as Turley points out, no president has ever been impeached purely for abuses of power without any charges of criminal conduct.  And while the Constitution does not require a presidential crime for impeachment, impeaching a president for a non-criminal abuse of power would presumably require clear proof of that abuse of power.  In the case of the Ukraine controversy, we would need convincing evidence of Trump offering a quid pro quo.

The problem here, Turley contends, is that the House Democrats have not yet gathered enough direct evidence of Trump's quid pro quo to be convincing.  A convincing case might be developed if they compelled the White House to release pertinent documents and subpoenaed the testimony of those who have direct knowledge of Trump's conduct in dealing with the Ukraine--people like John Bolton, Rudy Giuliani, Mike Pence, and Mike Pompeo. The White House would likely invoke "executive privilege" in appealing to the courts, and this would take some months to get a final decision from the courts.  But why not do this?

This was done in the Nixon impeachment proceedings.  In U.S. v. Nixon, a unanimous Supreme Court issued its decision on July 24, 1974, ordering Nixon to deliver tape recordings and other subpoenaed materials to a federal distinct court.  This decision came less than three weeks after oral arguments.  The White House released the subpoenaed tapes on August 5, which included the famous "smoking gun" tape in which Nixon indicated that he knew about the Watergate break in shortly after it occurred, and that he plotted to cover it up.  Nixon resigned on August 9, only 16 days after the Court's decision.

If something like this was done by the House Democrats investigating Trump, they might actually build such a persuasive record of impeachable conduct that 20 Republican Senators might vote for conviction.  It's hard to understand why the Democrats have decided not to do this.

The Darwinian Liberal Story of Humanity in Mexico City's National Museum of Anthropology

The National Museum of Anthropology in Mexico City

A Room Devoted to Tenochtitlan, the Aztec Island City with Four Causeways Joining it to the Four Points of the Universe

While travelling in Mexico City recently, I visited the National Museum of Anthropology, which offers a magnificent display of the archaeological and ethnographic history of Mesoamerica.  The concept of Mesoamerica was developed in 1943 in an article written by Paul Kirchhoff, a German anthropologist who lived in Mexico--"Mesoamerica: Sus Limites Geograficos, Composicion Etnica y Caracteres Culturales," Acta Americana 1 (1943): 92-107.  He identified Mesoamerica as a cultural area of pre-Hispanic civilizations that extended from what is now central and southern Mexico to the Central American countries of Guatemala, Belize, El Salvador, and parts of Honduras and Costa Rica, in the time period between 2500 B.C. and 1521 A.D.  1521 was the year that Tenochtitlan, the city of the Mexica (the Aztecs), was conquered by the Spanish.  Tenochtitlan was located in the Central High Plateau of Mexica in the center of what is now Mexico City.

Mesoamerica included many peoples with different languages and ethnic traditions: the Olmecs, the Mayas, the Aztecs, the Nahuas, the Zapotecs, the Mixtecs, and others.  Despite their many differences, they shared an agricultural way of life based on the cultivation of seeds and vegetables such as chia, maguey, cocoa, beans, squash, chili, and--most importantly--corn.  They also shared in the cultural development of calendars, pictographic writing systems, arts such as pottery, distinctive architecture, and some common religious beliefs.

The National Museum of Anthropology was opened in 1964 with the support of the Mexican government to present the cultural history of Mesoamerica as part of the national identity of Mexico.  The success of this enterprise is clear as one moves through the museum and sees the many groups of Mexican school children and adults as well as foreign tourists studying the exhibits and listening to lecturers.

What caught my attention was how the museum tells the story of Mesoamerica within the narrative framework of Darwinian liberalism.  It's Darwinian in the sense that everything is explained through the Darwinian science of the biological and cultural evolution of humanity.  It's liberal in the sense that it teaches a liberal morality of equal liberty and tolerance that respects the diversity and unity of the human species.  I have seen the same theme in other museums around the world--in Scotland, the island of Guernsey, and Ecuador.  I have written about this here, here, and here.

In these museums, one can see how the "Evolutionary Epic" or "Big History" has become the scientific replacement for religious origin stories in shaping the popular understanding of the place of human beings in the universe.  I have written about this here and here.  In the National Museum of Anthropology, one can see some of the religious stories of divine creation told by the Mesoamerican people.  For example, the Mayan text Popol Vuh described how the gods created human beings from a mixture of white and yellow corn.  Later, the Spanish conquerors brought with them Christian priests who taught the biblical creation story of how God formed Adam from the dust of the ground and breathed into his nostrils the breath of life (Genesis 2:7).  But when one enters the first hall of the museum--"Introduction to Anthropology"--the first displays are about the natural evolution of the human species from primate ancestors, which includes this recreation of the fossil hominid named "Lucy"--Australopithecus afarensis:

And thus the visitors to this museum are taught by implication that the Darwinian story of human evolution by natural selection is a scientific truth, while the religious origin stories of the Mayans or the Christians are poetic myths.  A Darwinian anthropology can explain these myths as cultural products of religious imagination, while denying that they have any literal truth.

The Darwinian story of human evolution starts in Africa with the first human ancestors such as Lucy, it then traces the migration of human beings around the world.  The museum tells that story of global migration, including the crossing from Asia to North America, as depicted in this mural:

Iker Larrauri's Mural Depicting Ancestral Humans Crossing from Asia to America Around 50,000 Years Ago

The museum's explanation of this mural includes a quotation from Jose de Acosta's Natural and Moral History of the Indies (1590).  Acosta was a Jesuit priest who had lived in the New World, and who wrote this book as a physical, biological, and cultural history of the New World, which included his speculation that the indigenous people of the Americas were descendants of human beings who had crossed over a land bridge between Asia and North America.  By the 20th century, this had become the generally accepted view of evolutionary anthropologists.  The Americas were initially settled by people from far northeast Asia crossing through Berlingia, the land bridge connecting to northwestern North America during the Pleistocene epoch.  Genomic analyses of ancient human remains from Late Pleistocene Alaska can show how indigenous Americans branched out from the initial founding population of Ancient Beringians (J. Victor Moreno, et al., "Terminal Pleistocene Alaskan Genome Reveals First Founding Population of Native Americans." Nature 553 (2018): 203-207.)

John Locke read Acosta's book and quoted from it in his Second Treatise of Government as an account of human beings in the state of nature--in the original human condition when human beings lived as hunter-gatherers.  "In the beginning," Locke declared, "all the world was America."  I have written about this here.

This shows the significance of the European discovery of the New World.  For the first time in human history, the entire Earth was bound together in a human network of global exchange and communication, which made possible a universal history of humanity.  Darwin's 5 year voyage on the Beagle around the world was part of this global exploration that made such a universal history possible.  

That universal history supported the modern anthropological concept of the unity and diversity of humanity that has been part of the liberal teaching of human equality, liberty, and tolerance.  The museum portrays this liberal teaching at the end of the first hall in a mural by Jorge Gonzalez Camarena:

Jorge Gonzalez Camarena's mural "Las Razas y las Culturas" ("Races and Cultures")

This mural celebrates the beautiful diversity of human races and cultures as products of Darwinian evolutionary history.  At the center of the mural is a female who apparently represents the future of humanity, as a species that is a mixture of all races and cultures.  Just below her is a child not yet born in a glowing womb.

On either side of this central female are 14 females symbolizing--from right to left--a sub-Saharan African, an Egyptian/North African, a Mayan/Mesoamerican, an indigenous South American, an indigenous North American, a Polynesian/Melanesian, a Japanese/East Asian, a Southeast Asian, a South Asian/Indian, an Arabian, a Hellenic/Mediterranean, an Iberian, and Celtic and Northern European peoples.

Beneath these women are artifacts symbolic of the great civilizations of history--including Neolithic megaliths, northern European castle walls, a Viking helmet, a Hellenic Doric column, a Hindu elephant sculpture, a Persian bull column, Assyrian Lamassu, a Roman Corinthian pillar, an ancient Egyptian hieroglyphic tablet, a Chinese dragon, a Celtic horse, a Polynesian Moai, an Incan kancha stonework, and an African Yoruba mask.

At the bottom of the mural are symbols of the domesticated plants of the agricultural way of life, which supports urban civilized life.  These symbols include maize, wheat, barley, rice, cassava, potato, yams, taro, sugar beet, and sugar cane.

Finally, on the far right side of the mural--not easily seen in the reproduction above--are several skulls representing the evolutionary hominid ancestors of human beings--those who lived in the evolutionary state of nature.

Camarena's mural is unsatisfying, however, in so far as it suggests a utopian transformation of human nature that overcomes tribalism in a spiritual unification of humanity.  The viewer is left wondering how this could happen.

As one walks through the museum, one sees opposing themes of conflict and cooperation in Mesoamerican history.  On the one hand, one sees religious warfare and brutal violence--such as human sacrifice to please the gods--that gives supernatural legitimacy to ruling elites exploiting those they rule.  I have written about how moralistic religion in the early states promoted human sacrifice here.

On the other hand, one also sees evidence of long-distance trading networks and marketplaces where people from different societies are brought together through cooperative exchange.

Does this suggest that even if the human propensity to tribalism can never be fully overcome, a liberal social order can promote the expansion of cooperative peaceful exchange through trading relationships and open societies based on pluralism and toleration?

The Strange History of the Hunter Biden/Burisma Conspiracy Theory

               Peter Schweizer and John Solomon on the "Hannity" Show, September 24, 2019

In his July 25th phone call with Ukraine President Volodymyr Zelensky, Donald Trump asked for a "favor"--that Zelensky launch public investigations supporting two of Trump's conspiracy theories: that the government of Ukraine--and not Russia--interfered in the U.S. 2016 election to support Clinton over Trump, and that Vice President Joe Biden had used his political influence to protect the economic interests of his son Hunter Biden in the Ukrainian company Burisma.  Both of these conspiracy theories came to him from Rudy Guiliani and Fox News.  Now, Trump is saying that the impeachment trial in the Senate should investigate these theories.

The historical chronology for all of this begins in February of 2014.  In the Revolution of Dignity, pro-Russia Ukrainian President Victor Yanukovych and his government were overthrown, and he fled to Russia.  The new government was moving towards the West and away from Russian influence.  Russia's response was to annex the Crimean territory of the Ukraine in March and to launch an invasion in April of the Donbass, the eastern portion of the Ukraine.  The war in the Donbass continues today.

The United States and the European Community pledged to support the Ukraine against Russian aggression.  In the Obama Administration, Vice President Joe Biden became the primary leader in advancing the American policies towards the Ukraine.  He visited the Ukraine five times.

On May 13th of 2014, Hunter Biden, Joe Biden's son, was appointed to the board of Burisma, one of the largest natural gas firms in the Ukraine, and a company with a reputation for corruption in a country where corruption is rampant.  Hunter Biden has had a tumultuous life that has made him the black sheep of the Biden family: he has struggled with alcohol and drug abuse, a bitter divorce from his first wife, and a sexual affair with the widow of his older brother Beau (Entous 2019).  It was not clear why Burisma would want him on their board other than having the support of the son of the Vice President.

This created at least the appearance of a politically corrupt conflict of interest.  In early December of 2015, Vice President Biden travelled to the Ukraine to argue for an anti-corruption campaign in that country and to warn that a billion dollars in promised U.S. loans to the Ukraine might be withheld if Viktor Shokin, prosecutor general for the Ukraine, was not fired, because Shokin was known to be corrupt himself and was not prosecuting corruption.  Shokin was later fired by Parliament in March of 2016.

Giuliani and Trump have said that the Vice President did this because Shokin was going to prosecute Burisma, and thus the Vice President was advancing the economic interests of his son.  Actually, what they don't say is that Shokin had failed to pursue any investigation of Burisma, and many countries and international agencies had called for Shokin's firing because of his failure to fight corruption.

But still the appearance of political favoritism in the Vice President's son serving on Burisma's board was pointed out in a New York Times article on December 8, 2015.  The author--James Risen--observed that "the credibility of the vice president's anticorruption message may have been undermined by the association of his son, Hunter Biden, with one of Ukraine's largest natural gas companies, Burisma" (Risen 2015).    There was no evidence then or subsequently that the Vice President had used his power to help his son, but the appearance of possible misbehavior was there.  A few weeks ago, Risen, who now writes for The Intercept, lamented: "It's strange to see my journalism twisted, perverted, and turned into lies and poisonous propaganda by Donald Trump, Rudy Giuliani, and their enablers.  But that's what has happened to a news story I wrote four years ago" (Risen 2019).

Clearly, Joe and Hunter Biden are guilty of bad judgment.  Hunter Biden should have seen that he would create the semblance of misconduct by joining Burisma.  And Joe Biden should have warned Hunter not to do this.  Joe Biden has said that he never talks with Hunter about his work, and so there is no possibility that he might favor Hunter's company.  But, again, that ignores the public perception of possible corruption.

Beginning in 2018, pro-Trump partisans began to exploit the opportunity here for misinformation about the Bidens, which led to Trump's call with President Zilensky on July 25, and then the impeachment hearings.  In March of 2018, Peter Schweizer published Secret Empires: How the American Political Class Hides Corruption and Enriches Family and Friends, which became a bestseller.  Schweizer is editor-at-large at Breitbart News and the President of the Government Accountability Institute, which was founded by Stephen Bannon with money from Robert Mercer.  Bannon's aim was to promote right-wing propaganda attacking Hillary Clinton and other leaders of the Democratic Party, with the hope that this propaganda would eventually be transmitted into the mainstream media (Mayer 2019).

Secret Empires includes a chapter on "Bidens in Ukraine," where one can see the rhetorical strategy of mixing facts with innuendo and unsupported assertions to lead the reader to think that the Bidens have been engaged in corrupt dealings in Ukraine, which is the strategy employed by Giuliani, Fox News, Trump, and Republicans like Devin Nunes.  As you read this chapter, you need to ask the question: Where is the exact evidence that the Bidens are guilty of corruption?  The answer is that there is no such evidence.

Consider, for example, this passage:

"Biden consulted regularly with the Ukrainian president by telephone and made five trips to the Ukraine between 2014 and 2017.  He did so at the same time that his son and his son's business partners prepared to strike a profitable deal with controversial and reportedly violent oligarchs, Kolomolsky and Zlochevsky, who would benefit from his actions" (60).

Notice how Schweizer creates by innuendo the impression that since the Vice President's discussions with Ukrainian officials occurred "at the same time" that his son was seeking profitable deals in Ukraine, the Vice President might have been helping his son, but without any direct evidence that this was the case.

You should also notice Schweizer's citations of sources.  First, if you read these sources, you will see that much of his writing has been plagiarized from these sources and from some Wikipedia articles.  But you will also see that his main sources on the corruption of Burisma--such as articles by James Stafford and Andrew Cockburn--do not even mention Hunter Biden!  So, yes, Burisma has a history of corruption, and yes, Hunter Biden can be faulted for serving on the board of such a company.  But still there is no evidence here that the Bidens were engaged in corrupt conduct.

Consider another passage:

"On January 16, 2017, Air Force Two was descending on Borypol Airport, just southeast of Ukraine's capital.  This would be Joe Biden's last foreign trip before leaving office.  It was cold and dark.  Dressed in an overcoat, he descended the stairs quickly and was met by a delegation from the Foreign Ministry on the tarmac.  This was his Ukrainian 'swan song,' as Reuters put it. 'a farewell visit by one of Ukraine's strongest political supporters.' The Obama Administration, under Biden's direction, had poured some $3 billion into the country.  Later that evening he met with the prime minister of Ukraine, and then a late-evening meeting with his friend Petro Poroshenko, the Ukrainian president.  As the Kyiv Post reported, that later meeting was to be 'behind closed doors, and details of most of their discussion won't be made public.'"

"Four days before Biden arrived, Burisma made a dramatic announcement: the Ukrainian criminal investigation into the company and its founder had been ended by Ukrainian government prosecutors" (67-68).

Notice the dark drama: "It was cold and dark.  Dressed in an overcoat, he descended the stairs quickly."  And the secrecy: "a late-evening meeting . . . behind closed doors."  This is followed by Burisma's "dramatic announcement" that investigations had been ended.  Aha, don't you see the connection?  But what exactly is the connection if the announcement occurred four days before Biden arrived?  And where's the evidence that Joe Biden's influence caused the ending of the investigations?  The evidence is not there, but the readers still see the conclusion that Schweizer wants them to draw.

By late 2018, six months after the publication of Schweizer's book, Giuliani as Trump's personal lawyer is promoting the Biden Ukraine conspiracy theory in interviews and on Twitter.  On April 1, 2019, John Solomon writes an article for The Hill propagating Schweizer's story.  During that month of April, there are at least a dozen Fox News segments with Schweizer and Solomon promoting the story.

Finally, on May 1, 2019, Bannon and his friends achieve their final objective--their conspiracy theory is picked up by the mainstream media in a front page article in The New York Times by Kenneth Vogel and Iulia Mandel under the title "Biden Faces Conflict of Interest Questions That Are Being Promoted by Trump and Allies."  Giuliani and many others send out Tweets linking to this article.  The oddity here is that this is The New York Times--supposedly the leader of the anti-Trump "fake news media"!

Here are the first four paragraphs of that article:

"It was a foreign policy role Joseph R. Biden Jr. enthusiastically embraced during his vice presidency: browbeating Ukraine's notoriously corrupt government to clean up its act.  And one of his most memorable performances came on a trip to Kiev in December 2015, when he threatened to withhold $1 billion in United States loan guarantees if Ukraine's leaders did not dismiss the country's top prosecutor, who had been accused of turning a blind eye to corruption in his own office and among the political elite."

"The pressure campaign eventually worked.  The prosecutor general, long a target of criticism from other Western nations and international lenders, was voted out months later by the Ukrainian Parliament."

"Among those who had a stake in the outcome was Hunter Biden, Mr. Biden's younger son, who at the time was on the board of an energy company owned by a Ukrainian oligarch who had been in the sights of the fired prosecutor general."

"Hunter Biden was a Yale-educated lawyer who had served on the boards of Amtrak and a number of nonprofit organizations and think tanks, but lacked any experience in Ukraine and just months earlier had been discharged from the Navy Reserve after testing positive for cocaine.  he would be paid as much as $50,000 per month in some months for his work for the company, Burisma Holdings."

This summarizes exactly the story being told by Schweizer, Soloman, Guiliani, Fox News, and Trump.  It's the same story we heard repeated by some of the Republicans in the impeachment hearings.  But, again, notice that these opening paragraphs convey the innuendo of corrupt misconduct by the Bidens in Ukraine with no supporting evidence.

It's not until the 19th paragraph of this article that we see the only sentence in the whole article about evidence: "No evidence has surfaced that the former vice president intentionally tried to help his son by pressing for the prosecutor general's dismissal."  Consider how different this article would have been if this had been the first sentence of the article, followed by an account of how Giuliani and other Trump allies have proposed a Biden/Ukraine/Burisma conspiracy theory unsupported by evidence.

Giuliani had meet with Yuri Lutsenko, who had succeeded Shokin as Ukrainian prosecutor general until August of this year.  Giuliani claimed that Lutsenko confirmed the Biden conspiracy.  But then in May and again in September, Lutsenko denied this by saying that Hunter Biden did not violate any Ukrainian laws, and "Hunter Biden cannot be responsible for violations of the management of Burisma that took place two years before his arrival" (Birnbaum et al. 2019).

Hunter Biden left the board of Burisma in April of this year.  His father has not publicly admitted his bad judgment in allowing his son to work for Burisma, which created the perception of misconduct that exposed him to the deceptive rhetoric of Guliani and Trump.  In an interview with ABC News, Hunter has denied that there was any unethical conduct in his work for Burisma.  But he did admit that in hindsight his joining Burisma was a matter of bad judgment, because he did not anticipate the problems it would create for his father.  He also admitted that he probably would not have had the corporate jobs that he has had if his last name had not been Biden.

Now, isn't there something odd in Donald Trump and his son Donald Jr. accusing the Bidens of corrupt nepotism?  Does anyone think that Donald Jr. and Ivanka would be working in the White House if they were not the children of the President?

In some ways, the deeper question here--beyond the partisan political debate in the United States--is how countries like Ukraine can escape their history of pervasive corruption.  The answer, I suggest, is that countries like Ukraine need to adopt the legal and political institutions of a free society.  In 2014, Ukraine ranked 111 out of 159 on the Human Freedom Index.  In 2016, it ranked at 118.  Many of the criteria for the Human Freedom Index involved factors like the rule of law, the protection of property, and the fair administration of justice that reduce the opportunities for corruption.  This supports the American foreign policy objection of promoting Ukraine's aspirations for moving towards freedom and away from Russian authoritarianism.  (I have written about the Human Freedom Index here.)


REFERENCES

Birnbaum, Michael, David Stern, and Natalie Gryvnyak. 2019. "Former Ukraine Prosecutor Says Hunter Biden "Did Not Violate Anything." The Washington Post, September 26.

Entous, Adam. 2019. "Will Hunter Biden Jeopardize His Father's Campaign?"  The New Yorker, July 8 & 15 isssue.

Mayer, Jane. 2019.  "The Invention of the Conspiracy Theory on Biden and Ukraine." The New Yorker, October 4.

Risen, James. 2015. "Joe Biden, His Son, and the Case Against a Ukrainian Oligarch." The New York Times, December 6.

Risen, James. 2019. "I Wrote about the Bidens and Ukraine Years Ago.  Then the Right-Wing Spin Machine Turned the Story Upside Down." The Intercept, September 25.

Schweizer, Peter. 2018. Secret Enemies: How the American Political Class Hides Corruption and Enriches Family and Friends. New York: Harper/Collins.

Solomon, John. 2019. "Joe Biden's Ukrainian Nightmare." The Hill. April 1.

Vogel, Kenneth P., and Iuliia Mendel. 2019. "Biden Faces Conflict of Interest Questions That Are Being Promoted by Trump and Allies." The New York Times, May 1.

Ivanka Trump's Fake Tocqueville Quote on Impeachment

Last night, Ivanka Trump--that distinguished scholar of American political thought and constitutional law--has posted on Twitter this quotation from Alexis de Tocqueville in 1835: "A decline of public morals in the United States would probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office."

If you go to the section on impeachment in Tocqueville's Democracy in America (Part I, chapter 7: "Political Jurisdiction in the United States"), you will not find this quotation.  Apparently, Ivanka took this fake Tocqueville quotation from her reading of John Innes Clark Hare's 1889 book American Constitutional Law, vol. 1, p. 21.  If you look at this page, you will see that Hare is paraphrasing Tocqueville, which Ivanka assumed to be a direct quotation.  Tocqueville, however, does not exactly say this.  He does say that the impeachment power of the national Congress and of the state legislatures is easy to abuse; and so "once the American republics begin to degenerate," one might expect to see an increase in the use of the impeachment power.  That might support what Ivanka Trump is implying--that it's a sign of America's degeneration that her father is being impeached unfairly by his political opponents.

But if you read the page in Hare's book, you will see a thoughtful observation about the dilemma the constitutional framers faced in formulating the impeachment power that does not necessarily support Ivanka's claim.  The dilemma was this.  On the one side, impeachment seemed necessary as a congressional check on presidents who abuse their powers.  On the other side, the Congress could abuse this power of impeachment "to overawe the executive by the menace of an impeachment."

Hare thought that if Andrew Johnson in 1868 had been convicted by the Senate through the power of the Radical Republicans, this could have been "the first step in the downward path" towards turning the impeachment power into a partisan political weapon for making the president subordinate to the Congress.  This was avoided because a "few steadfast men in the Senate"--a few Republican Senators--voted against conviction.

This illustrated how one way to guard against the congressional abuse of the impeachment power, Hare indicated, was the requirement for a 2/3 supermajority in the Senate to convict and remove the president from office.  He explained: "If less than one third of the senators were of the same party with the accused, he could not hope for favor, and would be fortunate if he received bare justice; if more, it might be difficult to obtain a condemnation, even on the clearest proof of guilt."

Ivanka does not quote this passage, because it works against her argument.  Today, far more than one third of the Senators are Trump Republicans, and therefore "it might be difficult to obtain a condemnation, even on the clearest proof of guilt."  Mitch McConnell and other Senate Republicans have promised this.

Trump's Impeachment Would Rightly Overturn His Election in 2016: The Question of Impeachable Conduct

Donald Trump's defenders are saying that the call for his impeachment is a plot by Democrats and Never Trumper Republicans to overturn the results of the presidential election in 2016.  On Friday, Attorney General William Barr said that House Democrats were trying to subvert the will of the voters.  Well, yes, of course, but that's the whole point of giving the Congress the constitutional power to impeach the President!

At the Constitutional Convention, James Madison thought impeachment "indispensable . . . for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.  The limitation of the period of service was not a sufficient security.  He might lose his capacity after his appointment.  He might pervert his administration into a scheme of peculation or oppression.  He might betray his trust to foreign powers" (Farrand's Records, 2:65-66).  George Mason said this power to impeach the president was "rendered indispensable by the fallibility of those who choose, as well as the corruptibility of the man chosen" (ibid., 1:86).  Those proposing impeachment today are arguing that Trump's presidency shows both the fallibility of those who voted for Trump in 2016 and the corruptibility of Trump himself.  The debate is over whether this is correct.  I have written about this in previous posts here. and here.

We should remember the only case in American history when a President was forced out of office by the threat of impeachment--Richard Nixon's resignation in 1974.  In two other cases--Andrew Johnson and Bill Clinton--the President was impeached by the House, but the Senate refused to convict and remove the President.  In 1972, Nixon was reelected to a second term with the largest landslide victory in American history: running against George McGovern, Nixon won 60% of the votes and 49 of the states, with McGovern winning only Massachusetts and the District of Columbia, so that the Electoral College margin was 520 to 17!  Nixon was compelled to resign, on August 9, 1974, when he saw that his impeachment and removal from office would be inevitable if he did not resign.

Those leading the impeachment inquiry in the Congress knew that they were overturning the presidential election of 1972.  As Chair of the House Judiciary Committee, Peter Rodino was one of the leaders of the impeachment process.  In a conversation with reporter Theodore White, Rodino observed:

"To me, 'high crimes and misdemeanors' were never precise.  The way I read them, they aren't meant to spell out anything but a President's performance in office.  I see it as the kind of conduct that brings the whole office into scandal and disrepute, the kind of abuse of power that subverts the system we live in, that brings about in and of itself a loss of confidence in the system . . . I guess, all in all, it's behavior which in its totality is not good for the Presidency, nor any part of the system.  I got to agree this is an effort to overturn the election . . . but if this country can't stand a crisis, something has happened I don't understand" (Theodore White, Breach of Faith: The Fall of Richard Nixon [New York: Dell, 1976], 285).

So as with the impeachment of Nixon, we are again in a debate over whether the behavior of the President shows an abuse of power that so threatens the constitutional order that we should make "an effort to overturn the election" of the President.

[At Tuesday's impeachment hearing, Congressman Denny Heck (D-Washington) made my point here, saying that by definition impeachment of a president means overturning an election.  He also noted that that one of the anti-corruption constitutional reforms in the Ukraine is allowing for the impeachment of the Ukrainean President.]

That debate turns on the question of whether Trump has committed "Treason, Bribery, or other high Crimes and Misdemeanors," the standards for impeachment specified in the Constitution (Article 2, Section 4).  Inevitably, the debate becomes confused by the mistaken assumption of many people that this constitutional language requires that the President must have committed an indictable crime that is very serious ("high").  This is mistaken because impeachment was understood by the Founders as directed not only against crimes such as treason and bribery, but also against "high crimes and misdemeanors" that were understood broadly as including maladministration and abuses of power that were not necessarily illegal acts.

So, for example, the Republicans on the House Intelligence Committee are correct in their insistence that President Trump has the constitutional power to dismiss Ambassadors at his pleasure, and therefore his dismissal of Marie Yovanovitch from her ambassadorship in the Ukraine was a legal act.  Indeed, she herself repeatedly agreed with this in the hearing yesterday.  But how the President uses that power can be impeachable if he abuses the power in some way that violates constitutional norms or subverts the national interest.  If Ambassador Yovanovitch was serving the nation's foreign policy interests in the Ukraine, and if Trump's dismissal of her was only to serve his personal and political interests--in having the President of the Ukraine announce investigations of the Bidens without any evidence of wrongdoing--that could be an impeachable offense.

Similarly, Trump  announced yesterday that he is pardoning some military personnel who have been convicted of war crimes.  The President clearly has a broad pardoning power in the Constitution, so these pardons are legal.  But the Congress could decide that these pardons are an impeachable abuse of the pardoning power if they violate the nation's foreign policy interest in upholding the laws of war.  In the same way, if Trump were to pardon Roger Stone and others involved in his collusion with Russia in the 2016 election, that could be judged to be an impeachable abuse of his pardoning power.

This is all supported by the history of impeachment in Great Britain and America, which is now well laid out in Frank Bowman's new book--High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press, 2019).

As I have indicated in my previous posts on impeachment, one could trace the origins of impeachment all the way back to our prehistoric foraging ancestors, or even to our earlier primate ancestors, because once animals have any kind of hierarchy of leadership, they face the problem of how to remove powerful individuals who become oppressive.  We see what Christopher Boehm has described as a tense balance between our natural dispositions to dominance, deference, and resistance to dominance.  Some individuals are naturally inclined to dominate over others, and many are naturally inclined to submit to these dominant individuals.  But we are also naturally inclined to resist dominant individuals who become oppressive.  The constitutional order of a regime has to structure political life to accommodate these three dispositions, which includes some way to overthrow those at the top who misbehave.

Impeachment in the strict sense is a British invention that was created by Parliament in 1376 to resist monarchic absolutism by removing and punishing royal ministers who were executing royal policies that Parliament found to be abusive. Rather than go into open rebellion against the monarch's policies, Parliament could use impeachment of the monarch's ministers based on the legal fiction that the monarch was not wrong, but that he had been misled by his ministers.  The first impeachments occurred during the reign of Edward III.

The British Parliament developed the term "high crimes and misdemeanors" to denote the scope of impeachable offenses.  It also developed the procedure of impeachment in which the lower house of a bicameral legislature launched the impeachment process with charges and then prosecuted the case before the upper house that decided whether the charged individuals should be convicted.

The delegates to the Constitutional Convention of 1787 were familiar with this British history of impeachment.  They were also familiar with the use of impeachment in the American colonies before 1776 and in the new American states between 1776 and 1787.  Then, after the adoption of the Constitution in 1789, the interpretation of the constitutional power of impeachment could be developed through a kind of common law procedure of setting legal and political precedents as customary norms that evolved over time.

We could see this as a case of gene-culture coevolution in which the genetic evolution of human nature--the natural disposition to resist oppressive dominance--interacts with the cultural evolution of the institution of impeachment and the history of individuals (such as the American constitutional framers) who exercise practical judgment in formulating the rules of impeachment.  Impeachment thus emerges from a complex interplay of natural history, cultural history, and biographical history.  (I have written about gene-culture coevolution here.)  The Trump impeachment process will contribute to this evolutionary history.

As Bowman indicates (pp. 46-49), impeachable conduct in Great Britain fell into six categories.

(1) Non-Political Impeachments: Armed Rebellion and Ordinary Criminality.  It was an ancient custom that hereditary peers of the realm could be tried only by other peers in the House of Lords.  Consequently, a peer accused either of armed rebellion or an ordinary felony could be tried by impeachment in the House of Lords.

(2) Corruption.  Corruption was the most common charge in British impeachments, and it was mostly identified as the misuse of office for private gain.

(3)  Incompetence, Neglect of Duty, or Maladministration in Office.  This was a common theme in British impeachments.  It often came up in connection with military leaders who had suffered military disasters.

(4) Abuse of Power.  Impeachment for some abuse of official power can fall under one of the preceding two categories, because the abuse of power might be seen as corruption or maladministration.

(5) Betrayal of the Nation's Foreign Policy.  A common theme in British impeachments was charging ministers with promoting policies that subverted the nation's foreign policy interests.

(6) Subversion of the Constitution and Laws of the Realm.  Parliament often acted against ministers and officials who sought to enlarge or misuse the executive powers of government against the interests of Parliament or against the legal order of statutes and court decisions, which thus violated the British constitutional order.

The Americans adopted all but the first category in their understanding of impeachment.  But they made one major change from the British practice: while the British monarch was exempt from impeachment, the Americans decided that the chief executive--the President--should be impeachable; and so while the American President had some monarchic powers (for example, the power of Commander in Chief and the pardoning power), he would not be an elected monarch so long as he was open to impeachment.

Trump's impeachable offenses could fall under any of the five categories adopted by the Americans.  He could be charged with corruption if he has used his office for private gain, and here the "Emoluments Clause" could come into play.

He could be charged with maladministration or incompetence manifest in the impulsiveness of his decision-making and the chaos he has introduced into the executive offices of government.  When William Taylor and Marie Yovanovitch complained of the "irregular channels" of policy making by Rudy Guiliani and his associates, they pointed to one kind of maladministration under Trump.

He could be charged with abuse of power, as in the dismissal of Yovanovitch.

He could be charged with betrayal of the nation's foreign policy by favoring the interests of Russia, by subverting American foreign policy objectives in the Ukraine, and by disrupting America's economic, political, and military alliances and agreements in ways that undermine American foreign policy.

But probably the clearest impeachable offense for Trump would be the last category--subversion of the constitutional order.  In 1678, the earl of Danby was impeached by Parliament with the charge that he had "endeavored to subvert the ancient and well established form of government in this kingdom, and instead thereof to introduce an arbitrary and tyrannical way of government."  Similarly, Trump could be charged with assaulting the norms of American constitutional government by pursuing his own self-aggrandizement by establishing government by his own will.

Some of these charges are likely to be persuasive enough with the House Democrats to lead to Trump's impeachment by the House.  But it seems highly unlikely that the Senate will vote to convict him and thus remove him from office.  The reason is that the Constitution's requirement of a 2/3 supermajority in the Senate for an impeachment conviction looks like an impossibly high bar.  67 Senators voting for conviction would require all of the Senate Democrats and 20 of the Senate Republicans.  It's hard to imagine that many Republican Senators turning against Trump.

The constitutional framers put the conviction threshold at this high level because they feared that any lower level would make it too easy to impeach the President and thus completely subordinate the President to the Congress.  In Federalist 65, Alexander Hamilton wrote that impeachable offenses

"are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.  The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly to the accused.  In many cases it will connect itself to pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt."

Requiring a 2/3 Senate supermajority to convict the President protects against party factions in the Congress using the impeachment power to make the President utterly subservient to Congress, and thus violating the principle of separation of powers.  But the constitutional framers did not consider the possibility that this high threshold would also allow party factions passionately loyal to a presidential demagogue to protect a dangerous president from being impeached, because they would need only 34 Senators out of a hundred to vote against impeachment.  That's what Mitch McConnell plans to do.

In 1973, Senator Barry Goldwater went to the White House to tell Richard Nixon that the Republicans in Congress would join the Democrats in impeaching Nixon if he did not resign.  Nothing like that is likely to happen today, because the tribalism of American politics today--the fanatical us-against-them psychology of party competition between Republicans and Democrats--make it almost impossible for most people in the Congress to put the interests of the Congress and the nation ahead of party partisan interests.  As I have said in previous posts here and here, Justin Amash is one of the few American politicians today who recognize the need to overcome the tribalism of the two-party system in order to recover the constitutional powers of the Congress in checking the unconstitutional supremacy of the presidency.

If the Congressional Republicans do succeed in protecting Trump from impeachment, that will set up the possibility that the elections of 2020 could lead to a devastating defeat for Trump's Republican Party, which could then force a realignment of the party system that might support a restoration of the constitutional balance between Congress and the President.  The 2018 mid-term elections and some of the recent elections (in Virginia, Kentucky, and Louisiana) show that Trump Republicans are losing all across the country.  Louisiana is supposed to be Trump country, and yet despite the fact that Trump made three trips to Louisiana to endorse Eddie Rispone for Governor, Governor John Bel Edwards, a Democrat, was reelected.  (I have written about the signs of political realignment and the declining appeal of populist nationalism in the 2018 elections here.)

There is another important point at issue here.  Many of Trump's Republican supporters have said that his moral depravity--his lack of any moral or intellectual virtues--does not matter as long as he promotes some good policy ends (such as attacking the administrative state and appointing conservative judges).  But almost every day now we see evidence for why moral character matters in politics.  And we see that in the impeachment hearings.

Yesterday, for example, the White House was following a careful strategy for dealing with the impeachment hearings: Trump would pretend to be so busy in the White House--working dutifully on the policies that benefit the people!--that he would not have time to watch the impeachment hearings, which would show that the Democrats' impeachment activity is an absurd waste of time.

But then Trump could not control himself.  He started watching the hearings on TV, and, without consulting with anyone, he sent out a Tweet attacking Marie Youanovitch, even while she was still testifying.  Adam Schiff then read Trump's Tweet in the hearing, Youanovitch said she found this very intimidating, and Schiff identified this as witness intimidation.  Suddenly, the White House's carefully planned strategy was blown up by Trump's impulsiveness.

The conclusion I draw from all of this is that the best witness for impeachment is Trump himself.  Let Trump be Trump!

I have written about Trump's immoral character here.

Testosterone and Intersexuality in Female Athletics: Caster Semenya and the Desire for Sexual Identity

              Caster Semenya of South Africa Winning the 800 Meters Race for Women at the Rio Olympics 2016

Here is a full video of the race.

In 2016, at the Summer Olympics in Rio de Janeiro, 8 women ran in the 800 meters women's final.  Of those 8, 3 of them were chromosomal (XY) males with disorders of sex development (DSD) who identify themselves as women.  Those 3 intersex women have levels of testosterone far higher than normal for women.  These 3 were the winners of the race: Caster Semenya (Gold), Francine Niyonsaba (Silver), and Margaret Nyaira Wambui (Bronze).  One of the women who lost that race--Lynsey Sharp--expressed her frustration with having to compete against intersex individuals with the unfair advantages that come from male testosterone levels.

Cases like this have created a controversy over whether it is fair for intersex individuals to compete in women's athletic events because they identify themselves as women.  Should we replace biological sex differences with gender identity, so that anyone who identifies as a woman is a woman, even when she has a male body in some respects?  Or should we say that segregating biological males and biological females really does matter, particularly in certain arenas of life like athletic competition, where males have a performance advantage over females?

Both men and women produce testosterone (T).  But men have higher levels of T as produced by the testes, with lower levels produced in the adrenal glands.  Women also produce T in their adrenal glands, and in their ovaries.  In general, men have 10 to 30 times more T than women.  Most women have T levels in the range of 0.5 to 1.5 nanomoles per liter (nmol/L), while most men have T in the range of 10 to 35 nmol/L.  This gap appears first in puberty, when the testes produce more T in men than the adrenal glands and ovaries produce in women.

These higher levels of T during male pubertal growth create physical traits for men that give elite male athletes a performance advantage on average over elite female athletes (Handelsman et al. 2018).  Compared with women, men on average have greater lean body mass (more skeletal muscle and less fat), larger hearts, higher cardiac outputs, larger hemoglobin mass, a greater ability to take in oxygen, greater glycogen utilization, and higher anaerobic capacity.  This gives an advantage to male athletes over female athletes in competitive running, throwing, jumping, swimming, and lifting weights.

Female athletes with T levels at or near the male range are either doping, or they are trans (male to female) or intersex women--that is, 46 XY males with some disorder of sex development (DSD).  Among elite female athletes, the most common DSD is 5-alpha reductase deficiency (5-ARD) (Coleman 2017; Fenichel et al. 2013).  5-ARD is caused by a genetic mutation that creates a deficiency in the enzyme 5-alpha reductase, which is necessary for the conversion of testosterone to dihydrotestosterone (DHT).  A low level of DHT in a developing XY fetus disrupts the formation of the external sex organs before birth.  At birth, children with 5-ARD have sexually ambiguous sex organs, and they are often raised as girls, although they are biologically male, with testes producing testosterone.  At puberty, their male typical testosterone levels will produce the normal development of secondary male sex characteristics.

Caster Semenya is probably an XY male born with 5-ARD, who has always identified herself as a female, although she has also the athletic performance advantages that come with her biologically male body.  Once this became clear, it was possible for some sports observers to predict that she would have a virtually 100% chance of winning the Gold Medal in the 800 meters race in Rio in 2016, because not even the best elite female athletes with female bodies could come close to overcoming her performance advantage with her male body.

In response to the complaints about the unfair advantage enjoyed by Semenya and other intersex athletes competing in women's athletic events, the International Association of Athletic Federations (IAAF) in 2018 issued new "Eligibility Regulations for the Female Classification."  The regulations applied to those individuals who were legally female and had some DSD causing them to have male chromosomes (XY), testes and not ovaries, circulating T in the male range, and bodies that can use circulating T.  These people would be permitted to compete as women in middle-distance track races (400 meters to one mile) only if they lowered the level of T in their blood down to below 5 nmol/L (the highest possible level for a healthy woman with ovaries) for a period of six months prior to competition.

Semenya filed a suit against these regulations as unfairly discriminatory.  Last May, the Court of Arbitration for Sport (CAS) ruled (by a 2-1 vote of the judges) to uphold the IAAF regulations.  Some of the coverage of this case in The New York Times can be found here and here.

The arguments in favor of the IAAS's position have been well stated by people like Dorianne Lambelet Coleman, a law professor at Duke Law School who was a champion 800 meter runner in 1982 and 1983 (Coleman 2017, 2019).  The opposing arguments have been put forward by people like Rebecca Jordan-Young and Katrina Karkazis (2019).

Coleman contends--rightly I think--that while sex segregation and discrimination should often be challenged as unfair, the separation of the sexes is justifiable when this serves some valuable institutional goals while minimizing any harmful effects.  That is true for the institution of sports because separating men and women into different competitive arenas promotes the valuable goals of sport in the modern world.  It showcases the best athletes, because in having men compete with men and women with women, the best female athletes have an equal opportunity to be recognized for their athletic achievements, which would not happen if they were competing with men, because biological sex differences--particularly in testosterone levels--give men a performance advantage over women.  This segregation of the sexes in sports promotes liberal reform by weakening the traditional subordination of women to men.  Beginning with the Olympics in ancient Greece, elite athletic competition was a purely male activity, and it was not until the beginning of the 20th century, that women were allowed to compete in women's only events.  To achieve these goals, there has to be some defined categories distinguishing men and women and some enforcement of rules for who can compete as women in the women's events.

Jordan-Young and Karkazis offer lots of objections to this position, but the most fundamental one is that Coleman's reasoning falsely assumes a sex dualism in which sex identity is clearly divided into the bipolar categories of male and female, which includes a "sex gap" in T--men have a high T level, while women have a low T level, and there is no overlap between the T blood levels of men and women.  If this were true, then one could say that a naturally high T woman like Semenya is not "really" a woman, and so she should not be allowed to compete in women's athletics, because her typically male T levels give her an unfair advantage over women with typically female T levels.

This is not true, they argue, because there is no clear sex gap in T levels between elite male and female athletes.  In one large-scale study of T in elite athletes--taking blood samples from 446 men and 234 women athletes in fifteen Olympic events in 2000--it was found that although the average T levels were very different between men and women, there was a substantial overlap in the T levels of the women and men athletes.  13.7 percent of the women had T above the typical female range, and 4.7 percent (12 individuals) had T levels within the typical male range.  The researchers concluded from this that "the IOC [International Olympic Committee] definition of a woman as one who has a 'normal' testosterone level is untenable" (Healy et al. 2014: 294).

And yet another large-scale study of T in elite athletes reached a contradictory conclusion.  Researchers measured the blood levels of T in 849 elite female athletes, and once they removed five doped athletes and five 46 XY DSD women from the group, they found that the median T values were close to the range typical for young women.  They concluded that "doping and some forms of DSD are likely to be the two most important confounding factors when hyperandrogenism in female athletes is considered" (Bermon et al. 2014).  This would explain the contradiction with the other study, because the 12 women in that study with T levels within the typical male range were probably either doping or DSD women.

Jordan-Young and Karkazis have objected that to exclude all women whose high natural T could be traced to variations in sex development--intersex people--as "confounding factors" is question-begging circular reasoning.  T levels look dimorphic only when you throw out women with intersex variations that have T levels overlapping the male range.  But if you include those women, you will see that T levels aren't dimorphic, because they are characterized by two curves for men and women that overlap.

This challenges the claim that I have often made about the natural desire for sexual identity--that human beings generally desire to identify themselves as male or female, which creates a universal bipolarity of male and female in all human societies.  Against this, Jordan-Young and Karkazis insist that there is no clear male/female dualism because the natural reality of sexual identity is too messy for that--some people are male, some are female, and some are in-between.  There are not just two sexes; but, as Anne Fausto-Sterling has argued, there are at least five.  I have written about this here, here, and here.

Jordan-Young, Karkazis, and Fausto-Sterling are correct in pointing out that sex characteristics are not always distributed bimodally into clear male and female categories.  But still, as Coleman has observed, as soon as one considers the incidence of this distribution and the reproductive function of male and female genitalia, sex clearly does appear bipolar.  Over 98% of all human beings have had a normal sex development into either a typical male or a typical female, so that for most of us, chromosomal sex, gonadal sex, hormonal sex, and phenotypic sex all support a sex identity as either male or female.  One can see this in any textbook chart of normal genital development.

And yet even as nature shows this bipolarity of male and female in normal genital development, it also shows genital variation, as in this illustration, which shows the typical male (figure 1), the typical female (figure 6), and the in-between types (figures 2-5).  As a statistical norm, sex is clearly binary, although it's binary with exceptions.  As Aristotle would say, the dualism of male and female is what nature creates "for the most part," but there will always be some exceptions to the rule.  This is generally true for all biological phenomena.

The science of sexuality confirms what we should know by common-sense experience that both the norm of sexual duality and the exceptions to that norm are real.  They are not just arbitrary social constructions.

We can respect Caster Semenya as an intersex individual with a partially male body and a female gender identity.  But we must also respect those many typically female athletes who want to compete with other females, so that they can display their athletic excellence.  This creates a conflict of interests.  The IAAF has tried to resolve this conflict by telling those intersex individuals like Semenya that they must either compete with men or reduce their testosterone levels to compete with women.  In doing this, they have weighed the possible harm to people like Semenya against the possible harm to typically female athletes.

There is another alternative.  We could say that all athletic competition should be unisex: everyone--whether male, female, trans-male, trans-female, or intersex--could compete in the same events.  If that were done, however, in many events, women would never win.  And surely that would be unfair for the women.  That's why women's only athletic events were originally established--to allow female athletes to display their athletic excellence, free from the unfair advantage that men would have in competing with them.  If that is correct, doesn't that mean that athletic institutions must define what counts as typically male and female individuals for the purpose of distinguishing who is rightly assigned to male or female events?

REFERENCES

Bermon, Stephane, et al. 2014. "Serum Androgen Levels in Elite Female Athletes." Journal of Clinical Endocrinology and Metabolism 99 (11): 4328-4335.

Coleman, Doriane Lambelet. 2017. "Sex in Sport." Law and Contemporary Problems 80: 63-126.

Coleman, Doriane Lambelet. 2019. "A Victory for Female Athletes Everywhere." Quillette, May 3.

Fenichel, Patrick, et al. 2013. "Molecular Diagnosis of 5 Alpha-Reductase Deficiency in 4 Elite Young Female Athletes Through Hormonal Screening for Hyperandrogenism." Journal of Clinical Endrocrinology and Metabolism 98 (6): E1055-E1059.

Handelsman, David J., et al. 2018. "Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance." Endocrine Reviews 39: 803-829.

Healey, M. L., et al. 2014. "Endocrine Profiles in 693 Elite Athletes in the Postcompetition Setting."  Clinical Endocrinology 81: 294-305.

Jordan-Young, Rebecca M., and Katrina Karkazis. 2019. Testosterone: An Unauthorized Biography.  Cambridge, MA: Harvard University Press. 

The Evolution of Social Inequality in Bronze Age Europe

In this 4,000 year old burial site in southern Germany, the headdress of this woman indicates a local tradition of high status burial; but an isotopic analysis of her teeth shows that she grew up in a land hundreds of miles away.

This ornate pin from the grave of another woman indicates her high social status.

These are two illustrations of some of the evidence gathered from Bronze Age gravesites in the Lech River Valley in southern Germany, dating to between about 2800 and 1700BC.  In a remarkable paper recently published online by the journal Science, researchers have combined evidence from DNA, artifacts, chemical analysis of teeth, and radiocarbon dating from prehistoric burial sites in this area of Germany to reconstruct the social life of 104 Bronze Age individuals found in 13 farmstead cemeteries (Callaway 2019; Gibbons 2019; Mittnik et al. 2019).

The patterns in the graves suggested that these individuals lived in a stratified society with complex households composed of three groups of people.  In the first group, there were closely related individuals with all the grave goods of wealth and status--men buried with elaborate weapons (daggers, axes, chisels, and arrow heads), women buried with elaborate bodily adornments (copper headdresses, bronze leg rings, and copper pins).  These seemed to be the members of a core family with wealth and status inherited within the family over generations.  Strangely, there were no burials of adult daughters, suggesting that daughters had migrated out of the group after reaching maturity.

In the second group, there were unrelated women who had migrated from distant locations and were buried with the grave goods indicating high status and wealth.  This appeared to be evidence for a system of female exogamy and patrilocal residence: adolescent females would leave their natal group and migrate to a distant group to find a mate, while adolescent males would remain with their patrilineal kin group.  Wealthy, high-status families were exchanging their daughters over long distances.

In the third group, there were local, low-status individuals who were buried near the graves of the core family.  Presumably, these were either servants, farm hands, or slaves who were considered members of the household.

Amazingly, this Bronze Age household structure of unequal ranking could show the deep history of the household system manifested much later in the oikos of ancient Greece and the familia of ancient Rome, in which a kin-related family lived with their slaves.

This shows the same pattern in the evolutionary origins of inequality that has come up in previous posts (here, here, and here).  Among nomadic foragers, some individuals could exercise informal leadership, but anyone who tried to exercise dominance over others would be checked by stubborn resistance.  Among sedentary, "complex" foragers, however, some inequality could emerge, including slavery, as was true for some of the indigenous people of the New World, such as the hunting-fishing-gathering cultures of the Northwest Coast of North America (Donald 1997; Santos-Granero 2009).  Once people settled into farming communities--as in Bronze Age Europe--there was even more stratified inequality with slavery.  

The key point here is that while status striving is inherent in our evolved human nature, and there will always be some individuals who want dominance over others, unequal ranking cannot be great as long as there are few valuable resources that can be distributing unequally.

REFERENCES

Callaway, Ewen. 2019. "Bronze Age DNA Hints at Roots of Social Inequality." Nature 574: 304-305.

Donald, Leland. 1997. Aboriginal Slavery on the Northwest Coast of North America. Berkeley: University of California Press.

Gibbons, Ann. 2019. "Bronze Age Inequality and Family Life Revealed in Powerful Study." Science 366: 168.

Mittnik, Alissa, et al. 2019. "Kinship-Based Social Inequality in Bronze Age Europe." Science 10.1126/science.aax6219.

Santos-Granero, Fernando. 2009. Vital Enemies: Slavery, Predation, and the Amerindian Political Economy of Life. Austin: University of Texas Press.