Tuesday, January 21, 2020

Part I

---

Formal Proceedings of the Impeachment Trial Begin Today in U.S. Senate: How Did We Get to This Point and What Should We Expect as the Trial Begins?

There can be no doubt what will be the major story nationally and internationally over the next few days, and that is the beginning in the United States Senate of the impeachment trial of the president of the United States. This is only the third impeachment trial in the United States Senate of a president in the entire nation’s history. Thus, there’s a sense of gravity here, but as we shall see, there is a great deal more than gravity here and some of it is lacking in gravitas. But as we’re thinking about this, let’s just remind ourselves that the impeachment provision in the U.S. Constitution was there to prevent a sitting and elected president of the United States from violating his or her oath of office and therefore ruling in a tyrannical or autocratic way beyond democratic correction.

But as we shall see, the provision that was called during the founding era the grand inquest or the grand inquest of the republic is something that is very rare in American politics and history for very good reason. And when we’re watching what is going on right now as the trial begins today in the United States Senate, we need to separate two very different aspects of this story. You’ll recall that I’ve often cited Walter Bagehot, the great expert on the British Constitution who makes the distinction between the dignified and efficient branches of the British government, the dignified being primarily the monarch and the royal house and the efficient being parliament. The point that Bagehot was making is that if you’re going to have a democracy, it has to have a certain amount of gravity, a certain amount of formality, a certain amount of what can only be described as pomp and circumstance. We need that. We need that in order to understand the grandeur of the responsibility invested in a government.

Now, what’s his take here? Well, just remember that when you’re looking at hereditary monarchies ruling as autocracies, when you’re looking at dictators and when you’re looking at so many other different systems of government than democracy or representative democracy, then what you note is extraordinary pomp and circumstance. It’s because they are trying to put a show before the public in order to demonstrate the reality of their power and therefore also to claim a certain kind of legitimacy. Those who founded the United States, explicitly did not want a hereditary monarchy. They explicitly did not want a dictatorship or an autocracy, but they did understand that the government of the United States of America would also require both a dignified and an efficient branch or dimension. So let’s just think about what the nation saw, if it was paying close attention in the happenings last week.

First of all, on Wednesday, the United States House of Representatives through its Democratic majority and with only Democrats voting in the affirmative, moved to present to the United States Senate two different articles of impeachment against the sitting president of the United States. That was a vote that took place last Wednesday. In the same process, the House appointed seven impeachment managers that is seven Democratic, all of them Democratic, members of the House of Representatives who would act as prosecutors of sorts before the United States Senate making the case or arranging for the case to be made against the president. They in a very solemn display walked the two articles of impeachment from the chamber of the United States House to the chamber of the United States Senate on Wednesday.

Now Americans looking at that saw a form of solemnity. Here you had that entourage from the House going to the United States Senate, the entourage from the lower house of Congress to the upper house of Congress. But anyone who understands that dignified and efficient dimension of the British government and the tradition behind American constitutionalism understands that there are very deep roots here. Every time a new parliament is seated, the monarch gives an official address from the throne in the House of Lords. The Commons is invited to witness the speech given by the monarch. When you’re talking about Queen Elizabeth II, of course, it is called the Queen’s speech. It was recently broadcast internationally just after the last British national election, the sitting of the new parliament.

And in order to bring the members of the House of Commons into proximity to the chamber of the House of Lords, an official of the parliament known as Black Rod, goes to the House of Commons door and bangs on the door saying that the monarch bids that parliament should come and hear the monarch’s address. Something very similar to that is exactly what was taking place in that formality of the entourage from the lower house of the United States Congress walking those two articles of impeachment all the way personally to the upper house.

On Thursday, the actual trial began in its early process with the swearing in of the chief justice of the United States as the chief magistrate for the Senate’s trial. John G. Roberts, Jr., the nation’s chief justice took himself an oath. The oath that dates all the way back to the late 1700s says, “I solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” The oath was actually administered to the chief justice of the United States by the president pro tempore of the United States Senate, that will be Senator Charles Grassley of Iowa, the longest serving Republican member of the United States Senate.

After taking the oath himself, the chief justice then addressed the 100 members of the United States Senate and he administered the oath to the senators, each of whom repeated the very same words that the chief justice had uttered just a matter of minutes earlier. At that point, the trial basically adjourned until today and today starts the formal proceedings and the proceedings will be unusually formal. Now here we also see a distinction between the House and the Senate and it is likely to be missed by many in the media covering the impeachment trial.

The House tends to be the more raucous of the chambers of the United States Congress. It’s been that way all the way from the beginning. It is known often as the People’s House and it has a certain populist fervor to it that is foreign to the chambers of the United States Senate. It is not exactly like the House of Commons and the House of Lords in Britain, but it’s not exactly unlike it either. There’s a decorum in the Senate that is largely missing from the House. The House goes through formalities, but the Senate is all about formalities. And when it comes to the United States Senate often described as the world’s greatest deliberative body, the really interesting thing to watch in all of this is that all 100 members of the United States Senate will spend most of their time sitting at their desk, not deliberating at all, but instead listening, they are listening silently.

It’s extremely difficult to imagine members of the United States Senate, not deliberating, but they do not have a deliberative function in this impeachment trial. Instead, evidence will be presented to them. Cases will be made both by the House impeachment managers against the president and by attorneys for the president on the other side, and those arguments basically will constitute the trial. The big question that the media is focusing on as the trial begins is whether or not there will be witnesses. Interestingly, the Constitution of the United States says basically nothing about how the trial is to be conducted other than the sole power of impeachment lies in the House. The sole power to try a president on charges of impeachment lies with the Senate, and the chief justice of the United States is to be the presiding judge. Beyond that, there simply is not much.

But in worldview analysis, a part of what Christian should understand is we’re watching this, is that a representative democracy also requires a certain kind of formality, certain formal mechanisms, certain forms of etiquette, certain structures that give assurance of the continuity and legitimacy of government. That’s exactly what will be on display. But at the same time, as I said, there are two huge stories here. The first has to do with the dignified aspect. The second is the more efficient, which is to say the white-knuckled business of politics and an impeachment trial with the president of the United States is intensely political. That was the case in the late 1990s in the impeachment trial of then President William Jefferson Clinton. It is certainly the case in the impeachment trial with the President of the United States, Donald Trump in 2020. The impeachment itself having taken place on the 18th of December of last year, 2019.

The big issue to remember here is that the House of Representatives impeachment vote was entirely a party line vote, which is to say not a single Republican voted for the articles of impeachment, either of them. As just about everyone on the political scene and in the media concedes the outcome of the trial is if anything, almost a foregone conclusion. It is likely to be yet another party line vote. But the Senate is different than the House and the deliberations that will take place not so much amongst the senators but before them, will be different than what took place either in the committee structures of the House or in the well of the House in the impeachment vote. And that became very clear late yesterday when the actual procedures to be presented by the majority leader of the U.S. Senate, Mitch McConnell of Kentucky, became known to the media.

The big issue is this, both sides in the argument are going to be given 24 hours in order to make their case. The case against the president will be made by the impeachment managers. They will have 24 hours of trial session to make their case. Then the defenders of the president will have 24 hours. Interestingly, it is taken for granted that the house impeachment managers will use all of their 24 hours. It may very well be, however, that one of the strategies undertaken by the defenders of the president is actually not to use all 24 hours. If you’re looking at this in the raw-knuckled politics, just keep in mind that there’s a lot going on even in the timing.

One of the things you have to keep in mind is that the Supreme Court of the United States, as we shall see is meeting in the mornings, so the Senate trial is basically going to begin in the afternoon and continue into the evening. Now just think about this. Thus, if the House impeachment managers are given two 12-hour sessions, they may basically both extend well beyond midnight. Only after the opening statements are made, each side given their 24 hours, will the Senate then deliberate upon whether or not to call witnesses of its own or to subpoena its own documents. So get ready for an absolute barrage of media coverage about the impeachment trial. It’s likely to be wall to wall and 24/7 until the trial is over.

The Democratic strategy is going to be to extend the trial as long as possible. Republican strategy will be to try to keep the trial as short as possible, especially with the State of the Union Address coming up in early February. But it is also interesting that the impeachment trial especially is delayed almost 30 days by action of the Speaker of the House, Nancy Pelosi, in withholding those articles of impeachment from the Senate. It is really going to complicate the efforts of several members of the United States Senate to conduct presidential campaigns running for the Democratic nomination.

Just think about three of the front runners to the Democratic race, Amy Klobuchar of Minnesota, Elizabeth Warren of Massachusetts, and Bernie Sanders of Vermont, not campaigning in Iowa while other candidates are campaigning fiercely and instead sitting silently in the well of the United States Senate, which by the way is going to be an extraordinarily crowded place. If you can catch a vision of the trial on C-SPAN or on major networks, notice how close the senators are sitting to one another. That’s normal, but then notice the special tables created for the impeachment trial of President Clinton now brought back out of storage for the impeachment trial of President Trump, which is going to place the legal authorities on both sides basically almost touching the knees of members of the United States Senate. It’s going to be, as at least some senators and some of the lawyers have indicated, a bit tight and a bit awkward.

We’ll be looking closely at the actual arguments made over the course of the next several days. We’ll try to understand the worldview implications, the politics and the news developments, but that’s going to have to wait the actual occurrence of the trial.

In the meantime, as we’re thinking about the political dimension here, I want to draw attention to one issue that has been of concern to me ever since it happened. When the articles of impeachment were signed by the Speaker of the House, Nancy Pelosi, in order to be forwarded to the Senate, she did something that is not all that unusual in Washington. She had a signing ceremony in which she had members of her party, especially committee chairs standing around her and what is interesting is that she had an entire bowl of ceremonial signing pens and she used those pens one by one, as one news report said, for every loop of her signature on the requisite copies. And then handed the pens to members of her party who had been chairing committees and otherwise had had important roles in the impeachment process.

What’s unusual about that? The signing ceremony is not unusual, but just think about it. When you have that kind of signing ceremony, it is generally for a great legislative achievement, something that is considered to be a landmark law that is going to go down in history. Well, an impeachment vote is certainly going to go down in history, but it is not by any measure the kind of achievement that calls for that kind of partisan showmanship and who actually wants to claim a pen that was used in an impeachment document like that as something of a political trophy? That is a very troubling development and it adds to the politicization of a process that, as we said, is already excruciatingly political.

Part II

---

Supreme Court to Hear Case on Indirect Public Funding of Private Schools: A Reminder That When Religious Liberty Is Compromised for Anyone, It Is Violated for Everyone

But next, we shift to the Supreme Court of the United States for a case that will be heard in oral arguments before the court on Wednesday. The case doesn’t sound all that interesting, the name of it, Espinoza vs. Montana Department of Revenue, but in worldview significance, and as we’re thinking about religious liberty, it actually is a very big case indeed. I want to turn to the local daily newspaper there in Bozeman, Montana. The paper is known as the Bozeman Daily Chronicle. Gail Schontzler is the staff writer and she tells us, “More than 100 years ago, Montana and many states erected legal walls against spending public money on private religious schools, but today’s school choice activists are seeking to bring down those barriers using a case from Montana.”

Well, that’s an interesting lead paragraph, but it’s basically accurate. The justices on Wednesday will hear a case in which a Montana provision adopted by the legislature allows for a fund to be created with tax credits that would allow parents to receive vouchers which they could use to pay for tuition in private schools. Now we are told that over the process of the use of that fund, 94% have gone to parents who have placed their children in religious schools, primarily evangelical Christian schools. The opponents of the program include public school authorities in Montana and those known as strict separationists, that is as in a strict separation of church and state. Of course, the critics of strict separationism point to the fact that that effectively creates an entirely secular society.

Now what you see in Montana is an indirect funding of private education, not direct. The money is not given directly out of tax money, rather a fund was created that allowed those who donated to the fund to claim a tax credit. So that is tax supported in a sense, but indirect, not direct, but the opponents of this kind of program brought claim against it in the Supreme Court there in Montana that ruled against the parents and the program. They have appealed all the way to the Supreme Court of the United States, thus the oral arguments on Wednesday. But what’s really at stake here is not just the funding of this program. What’s at stake is the very existence of the Blaine Amendments as they are known.

Now, what in the world are we talking about with the Blaine Amendments? Well, they were adopted by all but about 10 of the states. They were proposed by President U. S. Grant after the Civil War. The president proposed an amendment to the U.S. Constitution that would prevent constitutionally any direct or indirect tax funding going to religious or so-called parochial schools, and it had a lot of support. It passed in the United States House by a vote of 180 to seven, but it came four votes short of the two thirds majority needed in the United States Senate. Thus it never became an amendment to the U.S. Constitution. But under the leadership of James Blaine, a Congressman from Ohio, the states began to adopt the very same language.

Now, what was going on there? Well, this is very interesting and evangelical Christians need to pay very close attention. It’s a reminder to us that when religious liberty is conscribed for anyone, it effectively is conscribed or violated for everyone. The Protestant majority in the United States in the late 19th century did not want to see any kind of tax money or cultural encouragement go to Roman Catholics or to their schools. The parochial schools that Roman Catholics began to establish all across the United States.

Now, what was going on there? First of all, why did the Roman Catholic church establish these schools? The answer to that is now quite understandable. They wanted to perpetuate their own convictions, their own family solidarity, passing on their beliefs to their children. They wanted effectively to be able to educate their children in a Catholic worldview. Now, evangelical Christians were at that point a part of the Protestant majority in the United States, and so far as those Protestants were concerned, the public schools were quite fine because the public schools in a very generic sense actually represented that kind of Protestant majority. But by the time you get to the secular period in the United States, in the last half of the 20th century, evangelical Christians are finding themselves following the very same logic as the Roman Catholics, establishing schools that would inculcate our own rising generation in a Christian biblical worldview. Thus, evangelicals followed the same example.

And at the same time there arose all across America, different sectors for different reasons, a deep dissatisfaction with much of what was going on in the public schools, and thus there was a demand for at least some tax remedy or relief for parents who were paying massive tuition dollars to send their children to the private schools even as their tax monies were funding the public schools. In one of the strange but important ironies of American history, those whose ancestors demanded the Blaine Amendments now find themselves chafing under the very same regulations and rules.

Now in another dimension of that irony, you have conservative evangelical Christians and conservative Catholics and Orthodox Jewish communities and even others joining in common cause because these tuition voucher programs would bring relief. Remember that all of these taxpayers are already paying to fund the public schools.

There’s another dimension of this story that demands our attention. It becomes apparent in The Washington Post coverage earlier this week. The article is by Robert Barnes. And as you recall our coverage on The Briefing yesterday of the controversy concerning a Christian academy in Louisville, Kentucky caught guilty in the eyes of the media for actually operating on Christian principles, it’s very interesting to see a similar dynamic at work in the lead paragraphs of The Washington Post article about the Supreme Court case.

When it speaks of the Stillwater Christian School, one of the schools at the center of this story, The Washington Post reports this, “It is a place that embraces the beliefs that sinners avoid eternal condemnation only through Jesus Christ, that a marriage consists of one man and one woman and that human life is of inestimable worth in all its dimensions from conception through natural death.”

Now, that’s not false, it’s actually true. Furthermore, if you put the schools together that would be covered by this Big Sky program in Montana, it’s really clear it would involve a lot of schools that have very specific religious beliefs, which actually again is the point of having the religious schools in the first place. But that particular paragraph I have to argue is placed as it is in that Washington Post article so that the rather liberal readership of the Washington Post will read that paragraph and say, “Oh, those are those people. There they go again, believing that marriage consists of one man and one woman. There they go believing in the sanctity of human life and there they go believing in the exclusivity of the gospel of Jesus Christ.”

Think about those Protestants and others in the mid-point of the 19th century that wanted to warn the public about the fact that Catholic schools were Catholic. This is effectively the same thing, warning America that evangelical schools are, of all things, evangelical.

Part III

---

Trump Administration Announces New Guidance on Religious Expression in Public Schools: An Important Policy Statement with Much at Stake

Next, on a related theme, last week, President Trump and the Trump administration announced newly issued guidance on school prayer and other issues of religious expression in the public schools. As The Hill reports, Joe Grogan, the White House Domestic Policy Council Director said that the new guidance will, “Remind school districts of the rights of students, parents, and teachers and will empower students and others to confidently know and exercise their rights.”

There’s a lot of history here. The particular guidance issued by the Trump administration last week is almost but not exactly the guidance that was issued by the George W. Bush administration in 2003. Why was it necessary to issue this guidance again in 2020? Well, primarily because between President Bush and President Trump was President Barack Obama whose administration took a very different approach. We might call this something of a positive and a negative approach. The Bush administration and now the Trump administration is issuing guidance that would argue what students can do. When you are looking at the advisement that was given by the Obama administration and its policies, it was more about warning the schools what they must not do.

But there’s another important dimension to this and this goes beyond the Bush administration’s guidance of 2003. As The Hill reports, “The proposed rules remove the alternative provider requirement established by a 2010 executive order signed by then President Obama. The executive order,” says The Hill, “required faith-based organizations running social service programs to refer a beneficiary to an alternative provider if he or she objects to the religious character of the organization.” Thus, to put the matter bluntly, the Obama administration policy put Christian organizations in the very awkward and compromised position of having to violate conviction in order to comply with the policy. The Trump administration’s new guidelines are a significant gain for Christian ministries in that light.

The documentation released by the Trump administration last week includes this statement: “The update will help safeguard students’ rights by giving education providers and students the most current information concerning prayer in public schools.” Then this sentence, “The new guidance makes clear that students can read religious texts or pray during recess and other non-instructional periods, organize prayer groups, and express their religious beliefs in their assignments.” It says something about our moment, a very fragile cultural moment in the United States that language would be necessary, but make no mistake that language is necessary.