Thoughts for the morning after

You can’t always get what you want. But you get what you need:

1. The House. If we didn’t get past 218, the ACA and more would have been in huge trouble.

2. The House committees’ powers to subpoena, to hold public hearings, to hire Mueller if he is fired, then impeach. So Mueller has more job security than ever.

3. The overall national House vote was Democratic +8.5, a huge 54-46 split. I have always worried about Trump’s re-election chances. I am less worried today. That 54 percent, much of it booming in the swing states Trump won, is a strong showing for 2020, and you can’t gerrymander away that majority.

Look where Dems did well: the key 2020 battlegrounds. PA and Michigan swung back solidly. Wisconsin voted out Scott Walker (who had survived repeated recall attempts). Hillary’s purple states VA, NH, CO and NV stayed solid.

Those 7 states are the road to victory.

Am I disappointed about Beto/Cruz, Abrams/Kemp, Gillum/DeSantis, and the Senate? Of course. Painfully disappointed!

But let’s take a lesson that the country isn’t persuaded that Trump is a criminal, and we need to proceed thoughtfully and incrementally with investigation. Don’t rush impeachment at all. Maybe don’t impeach at all, given no chance of Senate 2/3 removal. Focus on winning 2020. Don’t impeach Kavanaugh. Stop talking about increasing size of Supreme Court. (We couldn’t even increase our own Senate share). But absolutely investigate Trump and all his co-conspirators. Use the House committees to get information and publicize it. But remember that much of the country doesn’t see these scandals the way we do. We need to focus on persuasion and outreach for 2 years – and every year thereafter.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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