One of the persistent irritations of today is that even notionally well-educated people are so ignorant, dismissive, or disdainful of our civic institutions. Unlike France or Germany we have a common law system. That means that the written law is only the tip of the iceberg of our legal system. Below the waterline is the vast body of legal principles and opinions going back hundreds of years.

At Bloomberg Noah Feldman articulates something I’ve been hearing for the last couple of days:

Now that the House of Representatives has voted to impeach President Donald Trump, what is the constitutional status of the two articles of impeachment? Must they be transmitted to the Senate to trigger a trial, or could they be held back by the House until the Senate decides what the trial will look like, as Speaker Nancy Pelosi has hinted?

The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work.

But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

Note that very little of that is in the written text of the Constitution. Essentially, he’s making a common law argument about impeachment.

I’m not comfortable in taking a position on how much the common law actually applies to impeachment. Additionally, what are the enforcement measures and penalties if one house of Congress or the other fails to satisfy its constitutional duties. John Marshall has made his decision; now let him enforce it! I’m even less comfortable with the executive branch compelling the members of Congress to do their duty.

The following multiple choice question was posed in comments by regular commenter CuriousOnlooker (I have added a few options):

When will the House transmit the articles of impeachment to the Senate?

1. Today
2. Before Congress goes on holiday
3. As soon as Congress reconvenes in the New Year?
4. After the Iowa caucus
5. After the Easter break
6. After the Party conventions in Aug
7. After the election
8. Never

I think it’s going to be #3 or #8.

Editorial pages are responding to the impeachment of President Donald Trump by the House.

On Wednesday evening, the House of Representatives impeached the president of the United States. A magnificent and terrible machine engineered by the founders, still and silent through almost all of American history, has for only the third time in 231 years shifted into motion, to consider whether Congress must call a president to account for abuse of power.

So why does it all seem so banal? The outcome so foreordained?

Most people say they know what’s going to happen, and who are we to say they’re wrong? The House voted to impeach Donald Trump by a party-line vote, with the exception of three Democrats representing Trump-friendly districts who voted against at least one article of impeachment. In the next month or two, the Senate will almost surely acquit him, also on a party-line vote.

It isn’t supposed to be this way. There’s plenty of blame to go around for the intense — really, infantilizing — degree of polarization that has overwhelmed American politics across the past 40 years. But the nihilism of this moment — the trashing of constitutional safeguards, the scorn for facts, the embrace of corruption, the indifference to historical precedent and to foreign interference in American politics — is due principally to cowardice and opportunism on the part of Republican leaders who have chosen to reject their party’s past standards and positions and instead follow Donald Trump, all the way down.

It’s a lot to ask of Republicans to insist on holding their own leader accountable, just as that was a lot to expect of Democrats during the Clinton impeachment inquiry. But while many Democrats then criticized President Bill Clinton and some voted to impeach him, Republican lawmakers would not breathe a word against Mr. Trump on Wednesday.

Instead, they competed with one another to invoke the most outlandish metaphor of evil — from the attack on Pearl Harbor to the crucifixion of Jesus Christ — and suggest that Mr. Trump is enduring even worse.

Senate Republicans are preparing to follow the example of their House colleagues, though many know better. Not so very long ago, several of them — including Ted Cruz and Marco Rubio, even the majority leader, Mitch McConnell — warned that Donald Trump was wrong for the country. Lindsey Graham memorably called Mr. Trump “a race-baiting, xenophobic, religious bigot” who was “unfit for office.” Now these senators seem eager to endorse the very sort of behavior they feared.

It is not too much to wonder how much of this cynicism and betrayal of principle any democracy can handle.

Every president from George Washington onward has been accused of misconduct of one kind or another, and many have faced calls for their impeachment. But Congress has resorted to the ultimate remedy so rarely because of the unspoken agreement that it should be reserved for only the most egregious and inexcusable offenses against the national interest.

Mr. Trump himself drew this distinction in 2008, arguing that President George W. Bush should have been impeached for lying about the reasons for the Iraq war, while at the same time rejecting the Republicans’ impeachment of Mr. Clinton for lying about sex as “nonsense,” done for something “totally unimportant.”

THE HOUSE of Representatives’ impeachment of President Trump on Wednesday was proper and necessary. Mr. Trump withheld a White House meeting and U.S. military aid in an attempt to force Ukraine’s president to aid his reelection campaign. This was a gross abuse of his office that Congress could not allow to go unpunished. Nor could it acquiesce in Mr. Trump’s stonewalling a constitutionally authorized inquiry with a blanket refusal to cooperate with lawful subpoenas for documents and the testimony of senior aides.

Whether or not a Senate trial leads to his conviction and removal from office, Mr. Trump has deservedly suffered an indictment imposed on only two previous American presidents. The two articles of impeachment reinforce essential, and what should be self-evident, norms of our democracy: that presidents cannot use their powers to extort political favors from foreign governments, and that they cannot comprehensively reject congressional checks. That Mr. Trump denied all wrongdoing made the House action only more necessary.

House Democrats voted Wednesday evening to impeach Donald Trump but, media high-fives aside, what have they accomplished? They have failed to persuade the country; they have set a new, low standard for impeaching a President; Mr. Trump will be acquitted in the Senate; and Democrats may have helped Mr. Trump win re-election. Congratulations to The Resistance.

Democrats Nancy Pelosi and Jerrold Nadler have said in the past that impeachment must be bipartisan to be credible, and they have achieved their goal—against impeachment. In the actual vote, two Democrats voted against both articles and a third voted with them against one. New Jersey Rep. Jeff Van Drew voted no and may switch to the GOP. All Republicans voted against impeachment.

The impeachment press will deride the GOP as either afraid of Donald Trump or moral sellouts. But note that even the 20 GOP Members who are retiring from the House and not running for another office voted against impeachment. GOP Members like Peter King (N.Y.), Jim Sensenbrenner (Wis.) and Will Hurd (Texas) have been unafraid to break with party leaders or Presidents in the past.

The problem isn’t GOP consciences, it’s the weak and dishonest Democratic case for impeachment. One issue is the unfair House process. Democrats refused GOP witness requests in the Intelligence Committee, denied the GOP a hearing day in the Judiciary Committee, and rushed the impeachment debate and vote. They claim impeachment is a serious, solemn moment but then sprinted to judgment to meet the political needs of swing-district Members who want it over fast.

On the substance, Democrats have taken an episode of Mr. Trump’s reckless foreign-policy judgment and distorted it into broad claims of bribery and extortion. The evidence of weakness is that their own articles of impeachment include no allegations of specific crimes.

Instead they watered them down to “abuse of power” and obstruction of Congress. The first is so general that the majority can define it to be anything. Impeachment doesn’t require a criminal offense, but the virtue of including a violation of law is that specific actions can be measured against it. That is why every previous impeachment included charges of specific violations of law.

This time Democrats have pulled a legal bait and switch. First they alleged an illegal quid pro quo. After doing focus groups with voters, they switched to bribery and extortion. Then they dropped those in the formal articles of impeachment, only to reassert them again on Monday in a 658-page Judiciary Committee document justifying impeachment. Can’t they at least be honest enough to charge Mr. Trump with the specific acts they claim he committed?

In their other Judiciary staff document on the history of impeachment, Democrats cited with approval the Republican impeachment of Andrew Johnson. They claimed that while the articles of impeachment cited Johnson’s violation of the Tenure of Office Act, Republicans were really impeaching him for undermining Reconstruction.

This is a giveaway that Democrats are impeaching Mr. Trump not for Ukraine, but because they believe he is simply unfit to be President. Democratic Rep. Adam Schiff has been explicit in justifying impeachment to prevent Mr. Trump from being able to “cheat in one more election” in 2020—a pre-emptive impeachment.

Where is that in the Constitution? Democrats are defining impeachment down to a tool of Congressional ascendancy that will threaten any President of the opposite party who becomes unpopular.

I will add more as I find more notable responses.

The U. S. House of Representatives has voted to impeach President Trump. ABC News reports:

Splitting along party lines, the House voted on Wednesday to impeach a sitting president for just the third time in U.S. history.

In the debate leading up to the vote, Democrats accused President Donald Trump of abusing his power for personal and political gain in the 2020 election, while Republicans insisted there was no evidence of a crime.

“This has become one of the most intensely partisan episodes, I think, of our history and it’s more than just a partisan divide,” ABC News Senior Congressional Correspondent Mary Bruce says on “Start Here” today. “We saw this fundamental divide over right and wrong, and that led to essentially a debate where the two parties can’t even agree on the basic facts of what happened here.”

Kudos to House Speaker Nancy Pelosi for keeping her caucus together. In the end all Democrats but three voted in favor of impeachment; all Republicans voted against.

I honestly thought more Democrats would break ranks. The House Democrats started holding impeachment votes against Trump in June 2017. If, indeed, the articles of impeachment are forwarded to the Senate for prosecution, as I expect them to be, I expect Trump to be acquitted, also largely along partisan lines.

The editors of the Chicago Tribune have lurched uncontrollably onto the position I proposed four months ago:

To put it bluntly, House Democrats are overreacting while Republicans are underreacting — pretending there’s nothing to criticize in Trump’s behavior.

So, given the cold reality that the Senate won’t vote to remove Trump, impeachment opens the way for him to claim victory.

Hence our call for censure. Without that, Trump walks.

and

This impeachment inquiry hasn’t persuaded us the president’s actions regarding Ukraine threatened the security and integrity of our republic. Impeachment requires a political rather than legal judgment, and in our view his overstep, while serious, didn’t meet the extraordinary standard required to seek to expel a president and thus overturn an election. Trump did pressure Zelenskiy and likely delayed aid. In doing so he didn’t jeopardize American governance or national security.

Hence our verdict: Trump does deserves censure — not the freedom to claim exoneration.

Unfortunately, a wholly partisan inquiry followed by partisan support for impeachment and bipartisan opposition to it have actually increased the likelihood that Trump will, indeed, claim vindication. The path towards a bipartisan agreement on censure was greatest before Nancy Pelosi announced her impeachment inquiry.

I think I agree with Byron York’s assessment, expressed in the Washington Examiner:

Schumer is not trying to convince all 53 Senate Republicans to support his proposal. He just needs four. There are 47 Democrats in the Senate. If Schumer can persuade four GOP senators to join Democrats, they’ll have a majority of 51 and can force the calling of new witnesses. Of course, Schumer is counting on Democrats voting as a bloc against the president, which is probably a good bet.

If Schumer gets what he wants, it seems hard to believe that will be the end of it. The request for more witnesses appears designed to lead not to closure but to reopening the case against Trump. In this way, if Democrats can introduce new testimony in the trial, they can say the new testimony has raised new questions that will require new investigation. And new investigation will require more new witnesses, which will surely lead to more new questions, which …

IMO it’s actually quite likely that the trial in the Senate will be longer than the investigation in the House has been as well as being less partisan.

I doubt that will actually change the outcome which is that a lot of people, including Adam Schiff, will be dirtied up and Trump will ultimately be acquitted and the odds of his being re-elected in November will rise.

I wonder if the members of Congress have considered the following:

• Trump’s approval rating is actually going up.
• Congress’s overall approval rating is half Trump’s.
• “Own Congressman” approval rating is a bit higher than Trump’s but it hasn’t been sampled in a year.
• Most people didn’t vote for Adam Schiff, Jerry Nadler, or Nancy Pelosi. They don’t have to. They’ve all been elected from “safe” districts.

Perversely, the impeachment vote by a Congress so despised may actually convince people that Trump is doing something right.

Update

Apparently, I’m not the only one thinking along these lines. Consider this quote from Michael Bloomberg’s campaign manager as cited by Jonathan Capehart in his Washington Post column:

Kevin Sheekey always speaks with a sense of urgency. Usually, he does so as a happy warrior in pursuit of the goals of his boss, former New York City mayor Mike Bloomberg. But now Sheekey’s the campaign manager of Bloomberg’s 2020 quest for the Democratic nomination for president, and there is the sound of genuine fear in his voice.

In the worlds of politics and political journalism, Sheekey is like Cher, widely known by one name and just as famous. He is part of the small and tight coterie of advisers who have guided Bloomberg since before he ran for mayor in 2001. Full disclosure: I worked on that campaign as a policy adviser after being approached to do so by Sheekey. So, when I tell you there was something different about his tone, trust me.

Before the mics were even set up for the interview in a small office at Bloomberg campaign headquarters on Manhattan’s Upper East Side, Sheekey told me, “President Trump is already winning and Democrats don’t even realize it.” When I asked him to elaborate once we were recording, Sheekey didn’t hold back.

“As we’ve seen the polls in the swing states, I’m incredibly nervous. I am nervous that Donald Trump is poised to win again,” Sheekey told me in the latest episode of “Cape Up.” “And quite frankly, there’s no question in my mind that Brad Parscale, who is Donald Trump’s campaign manager, shows up for work in the morning and thinks he has a winning hand, and that he’s playing a winning hand.”

I seem to be in the minority in believing that, however much the House Democrats hate Trump, the House impeachment inquiry hasn’t actually been about Trump but mostly about Nancy Pelosi attempting to keep her caucus together and, coincidentally, keep her job even as she recognized that the impeachment inquiry and inevitable subsequent impeachment vote was not in her strategic interest. She may end up mollifying the democratic socialist wing of her caucus at the expense of defeat in the fall of 2020.

There’s an interesting article in the Wall Street Journal. The amount of actual physical money in the world is increasing very rapidly and no one knows where it is going:

The value of U.S. dollars in circulation hit about $1.7 trillion last year ($12.4 billion of it in $1 bills; $1.3 trillion of it in $100 bills) according to the U.S. Federal Reserve. That is up from $1.2 trillion in 2013.

A Federal Reserve economist, Ruth Judson, wrote in a 2017 paper that about 60% of all U.S. currency, and about 75% of $100 bills, had left the country by the end of 2016—for a total of about $900 billion in U.S. dollars kept overseas. Socking those bills away provides some protection against economic turmoil, especially in countries with a record of instability in their own financial systems, the paper said.

It isn’t just the United States. Germany, Australia, Switzerland, the ECB, and New Zealand are also cited.

Where is all of the physical cash going?

1. Lots of ordinary people all over the world are holding more cash.
2. A handful of big companies in various countries are keeping a lot of cash in their petty cash drawers.
3. It’s mostly the Chinese. A billion Chinese who don’t trust their banking system (for good reason) and the amounts add up quickly.
4. Chinese officials are planning to boogie out and are holding their ill-gotten gains in cash.
5. American officials are planning to boogie out and are holding their ill-gotten gains in cash.
6. The underground cash economy is growing extremely rapidly.
7. A billion here and a billion there and pretty soon you’re talking about real money.
8. Aliens
9. Other

I think it’s all of the above except maybe for H.

This post at Bloomberg is extremely difficult to excerpt, consisting as it does of snippets of conversation. It is a review of the book, The Myth of Capitalism, by Jonathan Tepper and Denise Hearn. I’ll do my best. Bloomberg’s fairly tight restrictions to access may limit your ability to access the post yourself.

Jonathan Tepper

Six players is the minimum number for good competition. It may appear to be an arbitrary number, but it is not. Professor John Kwoka examined industries by number of players and concentration and found that when you get below six major players the incentives for price collusion and price increases and other expressions of market power is higher.

Let’s do a quick headcount of American business sectors. Which sectors have six or more major players? Computer retail, auto manufacturing, retail, telecommunications, insurance, hospitality, commercial banking, steel, ag? A first order approximation would be that none of them do.

Denise Hearn

Regulatory capture is largely to blame for the lack of merger scrutiny, and an intentional intellectual capture since the 1980s that had companies focus on consumer pricing as the primary concern of merger review.

This reductionism led to a narrowing of our identities to mere consumers, rather than workers, suppliers, and citizens — where the effects of outsized concentrated power also reach.

What can be done to reduce regulatory capture, the phenomenon of regulators promoting the interests of the companies they’re supposed to be regulating rather than those of the public at large? The incentives of regulators must change. The allowable tenure of regulators must be reduced and regulators’ incentives must promote an adversarial relationship between regulators and the regulated.

Jonathan Tepper

I don’t think markets tend inevitably towards concentration, but you do end up with “dictatorships” and a very suboptimal set of outcomes if you have a communist monopoly on power deciding economic questions or a private monopolist deciding market outcomes.

Hayek identified the problem of communism was “the knowledge problem”. Decentralization and competition produced the best outcomes because no one could have a monopoly on knowledge.

I don’t entirely agree with Mr. Tepper here. I think that when any sector is dominated by a small number of players the tendency is for every sector to follow suit. The reason for that is that big businesses prefer to do business with other big businesses. The only solution for that is eternal vigilance and a steadfast refusal to allow consolidation in any industry.

Denise Hearn

Regarding Warren’s legislation, I think it is a welcome move to challenge the perpetual merger mania. She wants to ban deals where a company has annual revenue of more than $40 billion or together the businesses generate more than $15 billion in sales.

I think, in addition to merger review, acquisitions should be addressed, particularly in the tech sector –where the giants have spent the last decade acquiring any competitive threat (over 450 companies between the big four, Apple, Alphabet, Google and Facebook).

If there were rigorous enforcement of antitrust laws, mergers of that sort wouldn’t be a problem because they would be seen as illegal exploitations of monopoly power. Given the present environment $40 billion is altogether too large. Only 80 U. S. companies are that large. Think a quarter of that size.

I’d say “read the whole thing” but that may be quite difficult. All I’ll say is that most of us would be much better off if U. S. companies actually had to compete with each other for business. There would be more better-paying jobs, there would be more innovation, and in all likelihood prices would be lower, too. Today producers are capturing the overwhelming preponderance of the economic surplus. Just as one benchmark, more new products are introduced in Japan every year than in the entire United States. Consolidation has made us lose our edge.