The central problem with the bet placed by the probably non-existent woman was that her victory in the bet was actually determined, not by her own actions, but by the actions of someone with whom she was in zero-sum competition. In order for her to win, her opponent had to decide to lose.
That's a mug's game.
Kind of like "the rule of law" in politics. And that is why the rule of law is crumbling into nothingness in the United States. In order for it to exist in the political realm, the crooks have to decide to submit to it, and lose Silent Cal's bet.
Broadly speaking, we can distinguish between two sets of proposals: those that set the basic rules for politics (also known as "the law"), and those that determine policy. Competing parties are supposed to disagree about policy. That is their function in a political system. However, the purpose of a legal system, and the constitutional order that lays its foundation, is to undergird the process by which they compete.
Of course, the parties may disagree about how the rules should be structured, and they may do so for philosophical reasons. Consider campaign finance rules. If you have an ideology built around financial deregulation, that will influence your beliefs about the electoral rules for money. Similarly, if you have an ideology in which free speech is a central goal, that will extend to electoral rules about money. Preferences over rules and process can get tangled up in other aspects of ideology.
Now, consider waterboarding. George W. Bush's administration ordered the use of waterboarding on detainees. He asked a UC Berkeley law professor named John Yoo to write some papers explaining how the controversial theory of the "unitary executive" allows the president to do essentially anything he wants as long as it is justifiable under the broad category of national security, while telling a bunch of other administration lawyers to redefine "torture" such that waterboarding no longer meets the definition.
Either George W. Bush, Dick Cheney and the rest of the people involved in this are war criminals because they ordered the commission of internationally-recognized crimes for which the US has prosecuted people, or waterboarding is simply a policy disagreement between the two parties. Which is it, and how do you know?
If you aren't a bullshit artist, you look at the law and precedent, but that takes, like, work or something. Also, you might find out that your side is wrong. People are lazy, ego-protective, and unwilling to criticize their own side. (Yeah, I mostly criticize the GOP these days, but seriously, Democrats, get a grip. I'll get back to you later.)
What if an entire party simply denies that a specific crime is a crime? Our political system is not designed to handle that because it definitionally takes that collective action as proof-positive that the action must not be a crime.
Here's the central problem. Either a matter is one of policy or rule. In order to be one of rule, both parties must agree that it is a matter of rule and consent to it. If one party does not consent, collectively, then the reaction of our political system is to assert that it definitionally must not be a matter of rule because it is a matter of policy. Anything that is the subject of partisan dispute must not be about the rule of law, or so goes the collective interpretation our political system takes. Once the set of matters upon which the parties agree becomes an empty set, rule of law becomes definitionally nonexistent.
This is what we saw with the George W. Bush administration and waterboarding. Let's be clear here. Waterboarding is torture, and torture is a crime. Whether or not you think it works has nothing to do with whether or not it is torture. Whether or not you think that moral compromise is worth it, conditional on it working, has nothing to do with whether or not it is torture. It is torture, by the only accepted legal and social definitions, and it is a crime. We have prosecuted people for the specific act of waterboarding. It is a crime. Period. However, because one party decided to assert that it was a matter of policy rather than rule, it became so. By the magic of bullshit and our polity's inability to distinguish that from reality, it became so.
Rule of law exists only as long as both parties consent to it. If one party decides that a matter is not a part of "rule of law," it ceases to be. It becomes mere policy, subject to partisan dispute. One party says X, the other says Y, there is no way to tell who is more right because everyone is entitled to their opinion, and it is up to the electorate to make a choice, thanks to the doctrine of phony equivalence.
All one party has to do to nullify a law that prevents it from doing X is not consent to it. As a whole party. Assert that it is a matter of partisan opinion, and not binding. With an entire party saying that, a party media apparatus parroting that in a perverse feedback loop with a demagogic president...
Silent Cal. In reverse.
The law says that Congress can examine a person's tax returns. In principle, this could be abused, but they aren't asking for your tax returns. The House is subpoenaing the President's tax returns because this President, alone in modern history, is refusing to release his, and going to bizarre lengths to keep them secret while running a business from the Oval Office, as a known tax cheat, whose family has admitted that his financial backers are Russian-- the very country that interfered in the election to try to put him in the Oval Office. Abuse? No. Oversight.
The President is broadly instructing executive branch officials not to comply with any subpoenas, and is trying to assert executive privilege over a document that was, in part, an investigation of him.
In other words, the President is flat-out breaking the law by refusing to comply with congressional oversight. Congress has the indisputable legal right to see Trump's tax returns and compel the testimony of executive branch employees on matters about which they have already had their comments, in part, public.
There's a funny phrase you may have heard: "co-equal," as in, "Congress is a co-equal branch." Funny, but that phrase isn't in the Constitution. The framers actually conceived of Congress as primary, and the Supreme Court as tertiary. They even wrote about a power imbalance in the Federalist Papers. Remember that line about the SCOTUS having neither the power of the sword nor the purse? Federalist 78. The framers did not conceive of three co-equal branches. They were, in fact, terrified of a powerful executive. The conception of the executive was that he (yeah, history, and we still haven't had a woman president, and I wouldn't bet on one by 2021) would implement the will of Congress. It's in the bloody etymology! To execute! Not as in "kill someone," but as in, "carry out someone else's will." This co-equal branches stuff is bullshit.
I generally don't recommend James Sundquist, but The Decline and Resurgence of Congress is worth a slog, for those who want some historical perspective. Nevertheless, the framers pointedly did not intend for the president to supersede Congress.
Which is exactly what Donald Trump is doing.
Over, and over, and over again.
And it is illegal. From his assumption of Article I powers through that phony emergency declaration to his refusal to hand over his taxes to ordering people not to comply with subpoenas, he is flat-out breaking the law, and turning the presidency into a branch that isn't just superior to Congress, but an unchecked branch. That isn't even just illegal. It's unconstitutional. And dictatorial. Yes, the word is apt. The line between "unchecked executive" and "dictator" is blurry. Each step here gets more terrifying.
Why is it working? Because one party has his back. More Senators than I expected voted against him on the emergency declaration, but that won't matter. They weren't "pivotal" votes, making them symbolic stands. Refusal to hand over his taxes and refusal to comply with subpoenas... we are in completely different territory here. He just keeps taking the next step, and the next step, and the next step, showing how unchecked his presidency is, and how complicit his party is.
That complicity is why it works. As long as the Republican Party asserts that Trump doesn't have to turn over his taxes, then like waterboarding, it becomes a partisan dispute. As long as the Republican Party asserts that McGahn, Barr, or whoever don't have to comply with subpoenas, they don't. It becomes a partisan dispute.
What happens when this goes to court? It gets challenged up to the Supreme Court. Where Trump put two people, including a proven plagiarist and a likely attempted rapist. That leads to two questions. First, how much do you trust John Roberts?
Second, remember all those times Trump mused about his love for Andrew Jackson?
"John
What if he just... didn't? What if he just told Mnuchin…. don't? What are you going to do about it? Federalist 78.
What if the Supreme Court says to various executive branch employees that they have to comply with subpoenas, Trump says no, and those employees just... do what Trump says?
Rule of law only exists if both parties consent to it, and agree that the law binds them. You need to understand how essentially fragile the social contract is, and hence how devastating it is when it is broken, again, and again, and again by a simple refusal to comply. 'Cuz one side doesn't wanna.
One party does not consent to the underlying rule of law here. And you can't make a whole party consent. Once one party reaches that point, it's over.
The law says Trump has to hand over his taxes. Period. The law says Congress can subpoena executive branch officials. Period. Once one party looks at a refusal to comply with these basic procedural checks on the executive branch and says, "yeah, we're good with this because we need to protect our power," that's it. We're done.
Do you play chess? If I say the phrase, 'mate in three, do you know what that means? It means in three moves, I've got you in checkmate. Checkmate means as follows. Being in "check" means that I just put a piece in a position to take your king on the next move. The rule in chess is that you are legally required to move out of check, either by moving your king, or blocking the attack, and that you are not legally allowed to put yourself into check. "Checkmate" means that you were just put in check, and you can't make a legal move because no matter what move you make, you'll still be in check. I win by putting you in checkmate. We declare the game over before I take your king, at the point where I take your king, inevitably, on the next move, because you are prevented from making a legal move.
'mate in three? That means that no matter what happens, I'll checkmate you in three moves. The game isn't technically over, but you can't win. We can play it out, if you'd like, but it's kind of pointless. You can still make legal moves, but you are as trapped as you are in checkmate, for all practical purposes. It's just going through the motions. The traditional response to "mate in three" is for the person who realizes it to tip his/her king over, signaling resignation because, why bother? Once you know it's over, why bother?
Does anyone seriously think Trump will ever hand over his taxes? Does anyone seriously think his administration will ever comply with any subpoena? (They may eventually show up to Congress, but they'd just stonewall.) As I have written several times, the state of the economy looks very favorable for Trump in 2020, which means five more years of rule-breaking. And even if he does lose in 2020, we are seriously having discussions about whether or not he'd step down in a peaceful transition. We have reached that point.
If you even have to have that discussion, how far are we from checkmate for American democracy? If that isn't a given, we are so far gone that I don't know the way back. Why? Because one party said, "you lose."