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This is Naked Capitalism fundraising week. 1696 donors have already invested in our efforts to combat corruption and predatory conduct, particularly in the financial realm. Please join us and participate via our donation page, which shows how to give via check, credit card, debit card, or PayPal. Read about why we’re doing this fundraiser and what we’ve accomplished in the last year, and our current goal, more original reporting..
A man can go along obeying all the rules and then it don’t matter a damn anymore. –Raymond Carver, What We Talk About When We Talk About Love
By Lambert Strether of Corrente.
Reporter Matt Taibbi, in his courageous yet not universally well-recieved essay in Rolling Stone, “We’re in a permanent coup” gives an operational definition of a coup from the standpoint of the average citizen observing events:
I’ve lived through a few coups. They’re insane, random, and terrifying, like watching sports, except your political future depends on the score.
The kickoff begins when a key official decides to buck the executive. From that moment, government becomes a high-speed head-counting exercise. Who’s got the power plant, the airport, the police in the capital? How many department chiefs are answering their phones? Who’s writing tonight’s newscast?… [Most] Americans are not used to waking up in a country where you’re not sure who the president will be by nightfall.
But perhaps we’re going to find out? Taibbi also lays out with great clarity the realpolitik of current sentiment in favor of impeaching Trump:
We are speeding toward a situation when someone in one of these camps refuses to obey a major decree, arrest order, or court decision, at which point Americans will get to experience the joys of their political futures being decided by phone calls to generals and police chiefs.
My discomfort in the last few years, first with Russiagate and now with Ukrainegate and impeachment, stems from the belief that the people pushing hardest for Trump’s early removal are more dangerous than Trump. Many Americans don’t see this because they’re not used to waking up in a country where you’re not sure who the president will be by nightfall. They don’t understand that this predicament is worse than having a bad president.
The Trump presidency is the first to reveal a full-blown schism between the intelligence community and the White House. Senior figures in the CIA, NSA, FBI and other agencies made an open break from their would-be boss before Trump’s inauguration, commencing a public war of leaks that has not stopped.
Trump stands accused of using the office of the presidency to advance political aims, in particular pressuring Ukraine to investigate potential campaign rival Joe Biden. He’s guilty, but the issue is how guilty, in comparison to his accusers. I don’t believe most Americans have thought through what a successful campaign to oust Donald Trump would look like. Most casual news consumers can only think of it in terms of Mike Pence becoming president. , using the lunatic spookworld brand of politics that has dominated the last three years of anti-Trump agitation.
(“[T]he precedent of a de facto intelligence community veto over elections” is the incipient change in the Constitutional order to which I drew attention back on December 13, 2016, writing of the scheme to prevent Trump’s appointment as President by faithless electors in the Electoral College, urging that, as did the Army in the Chilean Constitution under Pinochet, the intelligence agencies would “guarantee the institutional order of the Republic.” “From now on, if they manage to set a precedent, every Presidential candidate will have to be vetted before the electoral college by intelligence agencies.”)
Taibbi uses the word “coup.” His meaning is clear given his example, but how would he define the term? How would we? (I’ve noticed some controversy on this point recently in the commentariat.) In this post, I’ll first go through some authoritative definitions — they all differ — and give examples that fit each definition, and do not fit. For example, must a coup involve the military? (Yes and no.) Must it be violent? (Yes and no.) Answers differ! Then, I’ll take a look the institutional setting in which today’s impeachment battle is taking place, from a very soft originalist perspective. How would the authors of the Federalist Papers have characterized of “the intelligence community?”
Must a Coup Involve Military Violence?
The Encyclopedia Brittanica’s definition:
Coup d’état, also called Coup, the sudden, overthrow of an existing government by a small group. The chief prerequisite for a coup is control of all or part of the armed forces, the police, and other military elements. Unlike a revolution, which is usually achieved by large numbers of people working for basic social, economic, and political change, a coup is a change in power from the top that merely results in the abrupt replacement of leading government personnel.
(“Control of all or part of….” is very reminiscent of Taibbi’s “head-counting exercise.”)
One answer is yes. Had the “Wall Street Putsch” revealed by Smedley Butler succeeded, we surely would have recognized it as a coup. From Open Culture:
In what became known as the “Business Plot” (or the “Wall Street Putsch”)—a group of bankers and business leaders allegedly created a conspiracy to overthrow the president and install a dictator friendly to their interests. The conspirators included investment banker and future Connecticut Senator Prescott Bush (father of George H.W. Bush), bond salesman Gerald MacGuire, and Bill Doyle commander of the Massachusetts American Legion.
The plot was famously exposed by Major General Smedley D. Butler [of “War is a Racket” fame], who testified under oath about his knowledge of a plan to form an organization of 500,000 veterans who could take over the functions of government, as you can see Butler himself say in the 1935 newsreel footage above. The members of the Business Plot believed Butler would lead this irregular force in a coup. He had previously been “an influential figure in the so-called Bonus Army,” writes Matt Davis at Big Think, “a group of 43,000 marchers—among them many World War I veterans—who were camped at Washington to demand the early payment of the veteran’s bonus promised to them.”
Butler’s willingness to challenge the government did not make him sympathetic to a coup. He heard the conspirators out, then turned them in. But his allegations were immediately dismissed by The New York Times, who wrote that the story was a “gigantic hoax,” “perfect moonshine!,” “a fantasy,” and “a publicity stunt.” A congressional investigation corroborated Smedley’s claims, to an extent. The conspirators may have had weapons, violent intent, and millions of dollars. But no one was ever prosecuted. Many, like New York Mayor Fiorello La Guardia, waved the coup attempt away as “a cocktail putsch.”
But a second answer is no. Thailand, for example, is famously coup-prone (I can’t find the reference, but I recall an incident where signs, visible to drones, where placed on top of tanks heading toward the capital, reading “This is a drill!”). But those coups are not necessarily violent. And here is WikiPedia’s list of coups (going back to 876 BC, which seems a bit ahistorical to me). Most involve the miltary, and most involve violence. But not all.
Must a Coup Be Sudden?
Merriam-Webster’s definiton includes “sudden” (as does the Brittanica’s):
a sudden decisive exercise of force in politics
One answer is yes. Quoting from Marx’s The Eighteenth Brumaire of Louis Bonaparte:
Cromwell, when he dissolved the Long Parliament, walked alone into its midst, pulled out his watch in order that the body should not continue to exist one minute beyond the term fixed for it by him, and drove out each individual member with gay and humorous invectives.
That seems sudden. But a second answer is no. Still quoting from The Eighteenth Brumaire, the coup that brought Louis Bonaparte to power seems to have gone through a number of phases over many months. Marx puts together a timeline of what he characterizes as a coup:
3. May 31, 1850, to December 2, 1851. Struggle between the parliamentary bourgeoisie and Bonaparte.
a. May 31, 1850, to January 12, 1851. The parliament loses the supreme command over the Army.
b. January 12 to April 11, 1851. The parliament succumbs in the attempts to regain possession of the administrative power. The party of Order loses its independent parliamentary majority. Its coalition with the republicans and the Mountain.
c. April 11 to October 9, 1851. Attempts at revision, fusion and prorogation. The party of Order dissolves into its component parts. The breach between the bourgeois parliament and the bourgeois press, on the one hand, and the bourgeois mass, on the other, becomes permanent.
d. October 9 to December 2, 1851. Open breach between the parliament and the executive power. It draws up its own decree of death, and goes under, left in the lurch by its own class, by the Army, and by all the other classes. Downfall of the parliamentary regime and of the reign of the bourgeoisie. Bonaparte’s triumph. Parody of the imperialist restoration.
(Notice also that the Army is only one of the many moving parts.)
Must a Coup Involve Appropriation of Power?
Here is the American Heritage Dictionary’s definition:
2. a. A coup d’état.
b. A sudden appropriation of leadership or power; a takeover: a boardroom coup.
I like the second definition better, and I can’t think of a coup that does not involve the appropriation of power (in the context of the State, l’état).
Here is a farcical example of a failed appropriation of power after Reagan was shot in 1981 (not quite a coup, in retrospect, since Haig — I think — had no intention of retaining control personally). From War on the Rocks:
It is important to begin by getting the story of Haig’s undoing right. First, his benighted avowal to the press that “I am in control” occurred in the fraught hours after John Hinckley attempted to assassinate Ronald Reagan… For several dreadful hours, as White House lawyers provisionally drafted documents to transfer power under the 25th Amendment, no one who remembered Dallas on Nov. 22, 1963 knew whether the nation had plunged again into darkness…. Tapes of the immediate reaction in the Situation Room reveal Haig arguing with Defense Secretary Casper Weinberger over whether to raise or lower the Defense Readiness Condition (DEFCON) and bickering with his fellow cabinet members when he incorrectly insisted he was next in the line of succession after the vice president. When Haig saw Deputy Press Spokesman Larry Speakes uninformed and floundering on television, he rushed to the White House briefing room. Taking over in front of the press corps and on live television, he attempted to reassure the nation. Hunched over the podium, sweating, eyes bulging, and breathing hard, his effect was the opposite…. Asked who was running the government, Haig – notoriously obtuse without a script – responded that he was temporarily in charge while waiting for the arrival of the vice president, but again misstated the constitution by placing himself ahead of the speaker of the House of Representatives and the president pro tempore of the Senate….. His assertion that “I am in control here” immediately became a cynical Washington joke for “no one is in control.” Worse, Haig’s behavior evoked for many an untrustworthy and possibly irrational usurper.
So, if one day we wake up in the morning and don’t know who’s running the government, will we see a second Haig? Who knows!
Appropriation also works as a factor to distinguish both Nixon and Clinton’s impeachment from coups (although partisans of both Presidents insist on the opposite). Who took power after Nixon? Ford, a member of Nixon’s Party. Who would have taken power had Clinton been convicted? Gore, again a member of the impeached President’s Party. The correlation of forces between the parties changed, but no person or institution took new powers that they had not had before.
Must a Coup Involve a State of Exception?
Here my answer is yes. Jens Bartelson, in “Making Exceptions: Some Remarks on the Concept of Coup d’état and Its History” (Political Theory, Vol. 25, No. 3 (Jun., 1997), has perhaps the subtlest approach I have encountered. He writes:
What makes the concept of coup d’etat intriguing yet so difficult to disentangle is the fact that the logic of its usage forces us to reconsider a more general problem in political philosophy, one that concerns the relationship between the regular and the exceptional in political theory and practice. . At a minimum, therefore, the practice of coup d’etat is the technique of making exceptions from old rules and creating new rules out of those exceptions.
(The reference is, of course, to Nazi legal theorist Carl Schmitt’s famous remark: “Sovereign is he who decides on the exception.”) In the current political climate, we might view the constant, and deeply felt, repetition by liberal Democrats that “This is not normal” as justifying a coup by reference to “exceptional circumstances.” In practice, my view is that had the faithless elector ploy succeeded in deselecting Trump on the basis of evidence supplied by the intelligence community that voters were not allowed to examine, that would have been an appropriation of power, by the intelligence community, making gross “exceptions” to the “old rules” (certainly if one believes, as liberals are said to do, in norms). Similarly, if UkraineGate’s so-called whistleblower was allowed to submit testimony to the House “impeachment inquiry” in writing, instead of testifying in person so that they could be questioned, and if that evidence were kept secret from the public, that too would be an appropriation of power, by the intelligence community, making gross “exceptions” to the “old rules.” In either case, we would ineed have a coup.
The Intelligence Community as a Constitutional Actor
Let me caveat that I apologize for the clumsiness of this exposition; I’m no constitutional scholar, and this is the first time I’ve tried to think these issues through. Let’s begin with Chuck Schumer explaining realpolitik to “Rachel:”
Schumer, and what we might denote as Schumer’s Law: “ [smiles]. So, even for a practical, supposedly hard-nosed businessman, he’s being really dumb to do this.”
So, did the Constiution comtemplate an intelligence community that’s more powerful than the President it supposedly serves? I would argue no. I have looked through the Federalist Papers, and although the military is clearly an executive function, there’s very little mention of intelligence at all. Federalist #70 considers the question of “energy in the executive.” The issue is whether to have a single executive (or, like Roman consuls, several). Hamilton comes down firmly on the side of a single executive, writing:
The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.
Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.
That unity is conducive to energy will not be disputed. Decision, activity, , and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.
This mention of “secrecy” is the closest I can come to intelligence as a function of the executive branch in my reading of the Federalist Papers, and the distribution of that function across the executive and legislative branches is not contemplated; otherwise, there would be no “unity” in the executive.
But that seems to be exactly what has happened. Naïvely, I thought “intelligence community” was just a phrase, but it turns out there’s an actual website, INTEL., “How the IC Works” (“The Intelligence Community is made up of 17 elements that each focus on a different aspect of our common mission.”) Here is how oversight is said to work, at least as far as the Executive and Legislative branches are concerned:
Intelligence oversight is a way to ensure that the IC works with the law and balances collecting essential information and protecting individuals’ interests and privacy. . The IC regularly briefs the groups listed below on its activities and, where appropriate, .
Executive Branch: The President is responsible for all Intelligence Community oversight that falls within the executive branch [but not that outside it?]. The President must all covert or classified foreign missions and has the ability to appoint intelligence committees and commissions.
Senate Select Committee on Intelligence
Legislative Branch: The Senate Select Committee on Intelligence is responsible for regular oversight and review of U.S. intelligence activities. The committee also authorizes funding for intelligence activities and can provide legislative provisions that certain intelligence activities. The committee is comprised of 15 senators: eight from the majority party and seven from the minority party.
House Permanent Select Committee on Intelligence
Legislative Branch: The House Permanent Select Committee on Intelligence has oversight over the entire Intelligence Community and the Military Intelligence Program [now distinct, apparently]. It also has a role in intelligence funding and must be of covert action plans. Members from both parties make up the committee.
In short, “secrecy” is an executive power, but both branches now share it. I don’t see how that is compatible either with the unity of the exective or with the separation of powers contemplated in the famous passages Federalist 51:
To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the of the members of the others….
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices…
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
By Schumer’s Law, the “interior structure of the government” is broken; its “constituent parts” no longer keep each other in their proper places. For example, by Schumer’s Law, the intelligence community can affect appointments; and also by Schumer’s Law and with the assistance of a complaisant media, emoluments (both for air time, and leaks). Each department no longer has “a will of its own.” The Intelligence Community, far from being “overseen” either by the Executive or the Legislative branches, oversees both.
I am not saying that the “impeachment inquiry” by the House, or even conviction in the Senate, is necessarily a coup. I am saying that there are two litmus tests to apply: The first is whether power is appropriated by the Intelligence Community (as, for example, having a veto power over the selection of future Presidents, in practice or institutionally). The second is the question of exceptions: If, for example, the House impeached or the Senate convicted on the basis of evidence that the public was not allowed to see — and that most definitely includes intelligence “sources and methods” — that would be such a gross exception to the “old rules” that a change in the Constitutional Order, placing the Intelligence Community above both the Legislative and Executive Branches, could be said to have taken place. Crossing the Rubicon, if you will.
 Here, apparently, is the Democrat theory of the case. From New York Magazine, “Nancy Pelosi’s Game Inside the Democrats’ war room“:
But as the inquiry matures, Pelosi’s leadership team hasn’t sent rank-and-file Democrats talking points, and its messaging advice hasn’t changed. They “understand this is a deeply personal, member-by-member [situation], and we’re gonna talk about it like we want to talk about it. The train has left the station,” said Ruben Gallego, a Phoenix-area congressman who first called for an impeachment inquiry in July. “The president impeached himself by releasing the [UkraineGate] transcript. We don’t have to overthink this.”
In this post, I’m not expressing a view on that theory, which Democrats have great faith in. Michael Tomasky:
The Ukraine noose is going to tighten and tighten. The whistleblower will testify, and perhaps the second one, and perhaps others. Some brave State Department people. Lev Parnas and Igor Fruman may sing.
With each tightening, we will inch closer to justice. But the twisted, painful, and terrifying reality is that with this man in office and with an authoritarian political party behind him, as we inch closer to justice, we will also inch closer to our worst nightmare. And we have no idea which will win. Doubt nothing about what these people are capable of.
Of the realpolitik, Harvard Professor of Constitutional Law Adrian Vermeule’s comment is, to my mind, suitably acid, albeit from the conservative side of the house:
It’s awe-inspiring to see the Hand of Providence infusing the urban intelligentsia with a blind, absolute faith in the organs of the security state – the birth-pangs of the future
— Adrian Vermeule (@Vermeullarmine) October 13, 2019
 Originalist only in the sense that the text matters. The Constitution is designed. What does its text show about what its designers thought they were doing, and why they did it?
 The House “impeachment inquiry” is said by Stacey Abrams to be like a Grand Jury; hence no right for the accused to cross-examine witnesses, etc. I don’t know if witnesses can submit written testimony to Grand Juries. However, I think the analogy breaks down, because Grand Jury testimony is secret, and it’s hard for me to imagine that the House either would or should forward an impeachment indictment to the Senate based on testimony that the public could not see.