February 13, 2021

The Case against Trump

 I was surprised this morning when defense attorney Michael van der Veen argued that the impeachment document against ex-president Donald Trump only charges that Trump incited the attack on the Capital. In other words, he considers Tump’s dereliction of duty, i.e., his failure to “take Care that the Laws be faithfully executed” by trying to overturn the election and to prevent the Congress from certifying the votes of the Electoral College is irrelevant. This position attacks to full story that the House prosecutors have laid out.

That story is the following. It is clear and, I think, compelling:

  1. Trump knew that he would likely lose the 2020 election. Beginning months before the election, therefore, he began arguing that he could only lose if the election were stolen.
  2. Trump lost the election decisively.
  3. Trump never conceded defeat, arguing that the election had indeed been stolen and that the “steal”had to be stopped.
  4. Trump tried to turn the vote in his favor through intimidation and numerous meritless, unsuccessful lawsuits.
  5. Trump encouraged his supporters to come to D.C. on June 6 for what was eventually billed as a “Save America” rally.
  6. At that rally, Trump and other speakers told the crowd that they had to fight for their country; that he hoped that the vice president would dispute the Electoral College votes; and that they needed to march to the Capitol.
  7. Trump supporters, many of whom had attended the rally, sacked the Capitol while the votes of the Electoral College were officially being counted.
  8. Trump, knowing that the Capitol had been overrun, intentionally delayed calling for the attack on the Capitol to stop.
  9. Finally, Trump told the insurrectionists to go home and called them patriots.
  10. Once the insurrectionists were cleared from the Capitol, the Congress accepted the Electoral College votes that made Joe Biden the winner of the 2020 presidential election.
Trump had tried every ploy he could devise to keep himself in office. His final hope involved Vice President Pence’s acting improperly and rejecting some of the votes of the Electoral College. Barring that, Trump thought his people could interrupt the vote certification that was ongoing in the Capitol. To what end was inclear.

February 3, 2021

Further Thoughts on the Trump Trial

Just over a week ago, I published an essay about the upcoming Senate trial of Donald J. Trump. (See On the Upcoming Trial of Donald Trump.) The purpose of that piece was to clarify the constitutional issues related to the trial. As the trial nears, we are getting clearer pictures of the arguments that will be advanced by the prosecution and the defense. Below, I consider those arguments.

The Senate has already taken a vote as to whether it is constitutional to try a president who is no longer in office. That vote failed to head off Trump’s trial, but it is clear that Republican senators find the argument that a trial is unconstitutional an attractive one. This position allows them to sidestep the question of Donald Trump’s actual guilt and to avoid the ex-president’s notorious vindictiveness. As I wrote earlier, however, there is precedent for trying a federal officer who is no longer in office. In that instance, a failed vote on the unconstitutionality of the proceeding also occurred before the trial.

The prosecution will argue that, if the Constitution does not allow for a trial of a president who has left office, a president can misbehave with impunity in the final days of his (or her) presidency, since it takes time to vote impeachment and conduct a trial. The defense may respond that an ex-president is still subject to prosecution for actual crimes. The “high Crimes and Misdemeanors” of Article II, Section 4. however, may encompass activities that are not strictly statutory crimes and which could therefore not be charged against an ex-president. Whether Donald Trump violated existing laws—I believe he has–is a separate question.

The defense will also argue that, since Mr. Trump is no longer in office, an impeachment trial is a meaningless exercise. To this may be argued that a conviction will bring opprobrium to the defendant, which will affect public opinion and discourage inappropriate presidential behavior in the future. More importantly, the Constitution allows (though does not require) the imposition of penalties beyond cashiering the defendant, namely “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (Article I, Section 3).

That Mr. Trump, if convicted, could be prevented from again running for office is a tempting penalty to Republican senators contemplating their own run for president in 2024. It may not, however, be tempting enough to compel a guilty vote. On the other hand, little notice has been taken of the word “Profit” in Article I. One can reasonably argue that ex-presidency is actually an office, as it comes with pension, allowances, and Secret Service protection. By this argument, no only does Donald Trump have a lot to lose, but he can actually be removed from office by the Senate! (It is not clear whether the House prosecutors intend to make such an argument.)

When pressed to address the alleged offenses of Mr. Trump, the defense is apparently prepared to argue that the president was simply exercising his First Amendment rights in urging the Georgia Attorney General to “find” more than 11,000 votes and instructing his obviously armed followers he had gathered in D.C. to be strong, lest they lose their country. Under the circumstances, this argument is laughable. Mr. Trump clearly suborned election fraud in Georgia and, along with other speakers at his January 6 rally, encouraged the sack of the Capitol, even if he didn’t exactly say “interrupt the Congress and kill the vice president.” Remember that calling “fire” in a crowded theater when there is no fire is not an application of one’s free speech right. It is criminal.

Of course, the bar for conviction being so high, a not guilty verdict in the closely divided Senate is more than likely. This clearly will send the wrong message to future presidents. This miscarriage of justice can be compensated for by the charging of Donald Trump with federal crimes by the Biden Department of Justice. Indictments from the Attorney General of New York will simply be icing on the poetic justice cake.

February 1, 2021

President Biden: Go Big

I understand President Biden’s desire to bring the country together. “Unity” is an attractive concept, but it can be a slippery one. Sometimes, the best path toward a goal is not the most obvious and direct one.

The president has a long list of policy objectives that were, in part, responsible for his election. (Admittedly, not being Donald Trump may have been his biggest asset in the 2020 election.) Unfortunately, there is every reason to believe that Mitch McConnell and his minions are intent on seeing that Mr. Biden achieves as few of those objectives as possible.

If the Democrats are to build a lasting working majority and defeat decisively the anti-democratic, power-hungry elements of the GOP, they cannot do it with rhetoric, whether about “unity” or anything else. They can only do it by passing landmark legislation that will appeal to those voters who have felt that the government has done nothing for them. The Biden program can do that and can contribute to the defeat of the GOP’s rule-of-minority strategy.

A group of Republican senators is trying to get the president to scale back his relief bill, thereby giving the GOP credit for “fiscal responsibility” and minimizing a potentially significant Democratic victory. This is a trap; the president should simply say, “No thank you.”

President Biden may be able to accomplish some of his goals through reconciliation, but certainly not all of them. Instead, he needs a Senate that can pass whatever Democrats want to enact. This includes such objectives as achieving D.C, statehood.

To reach such a happy state, the filibuster, at least as it’s currently implemented, must go, and go soon. (Let Republicans talk forever if they are up to it.) If eliminating the filibuster requires squeezing sensitive parts of Democratic senators’ anatomy, then so be it. Having a true governing majority will be worth the effort.

If Mr. Biden’s program is enacted, the country, despite a small number of “conservative” crazies, will follow. Joe Biden has an opportunity to become the next FDR. Or, he can follow President Obama’s path of having one big accomplishment and being blocked from obtaining others by unyielding Republicans.

There are many possible definitions of “unity.” Getting along with GOP politicians is not a useful one. Uniting the voters in their appreciation of compassionate and effective governing is.

January 29, 2021

The Horrors of Movies on Television

 I am a big movie fan, and much of my movie watching is done on the television. (Particularly so in the current circumstances, of course!) I prefer to watch movies on HBO, Showtime, Netflix, or TCM. since I can see the movies without commercial interruptions and more or less in their original form.

The Silence of the Lambs Poster
If there is a movie I really want to see on another network, I usually record it, so I can fast-forward through the commercials when I actually watch. Even if I intend to watch this way, I am discouraged by the occasional announcements that the format of the movie has been altered or that the movie has been edited for time or content. Whenever I see such a notice, I stop watching and delete the recording. I have no desire to see movies butchered by a rapacious or cowardly network.

The other day I recorded The Silence of the Lambs on BBC America. I had seen this movie a long time ago and thought it time to see it again. The movie is quite good, though it strains credulity at times. (Hannibal Lector’s escape from incarceration is a bit hard to believe, for instance, as is Clarice Starling’s being assigned to the case at all.) I enjoyed watching the movie, though the density of commercials at the end of the film—the most exciting few minutes—was especially annoying. I was surprised, however, that BBC America deleted the end credits! This was unforgivable and was done without any warning that the movie had been edited for length. I suspect that I will no longer watch movies on BBC America.

Of course, BBC America is not the only network that seems to assume that no viewers care about credits. An indignity often visited on films shown on television is the compression of credits at the bottom of the screen to allow a commercial or promo to shown above them. Of course, if you don’t have a wall-sized TV screen, the credits are unreadable. If the film is speeded up to show the credits, even your big-screen TV won’t help.

Clearly, some networks don’t show movies to appeal to real movie lovers. Pity. 

January 25, 2021

Really, SCOTUS?

I was surprised to learn today that the Supreme Court instructed the Fourth Circuit Court of Appeals to dismiss two suits alleging that President Donald Trump violated the Emoluments Clause of the Constitution by accepting money from foreign governments at his Washington hotel. (See news stories here and here. The Summary Dispositions of the high court can be found here—see cases 20-330 and 20-331.) The court ruled that the lawsuits were moot, since Mr. Trump is no longer in office and no more infractions can occur. The court cited United States v. Munsingwear, Inc., a decision from 1950. 

To the casual observer, the dismissal of these suits  seems akin to dismissing a murder charge because, after all, the decedent is dead and can no longer be killed by the defendant. Was the president guilty or was he not? Surely, the charges brought against the ex-president, if brought by the House of Representatives during his term of office, could have resulted in impeachment and potential conviction and removal from office. Apparently, however, the Emoluments Clause lacks enforcement provisions in ordinary law making the prohibited action illegal and subject to particular penalties.

The action of the Supreme Court is outrageous, but the court could perhaps do nothing more than it did. Apparently, actual legislation backing up the Emoluments Clause is needed.

On the Upcoming Trial of Donald Trump

 Donald Trump is to be tried once again by the Senate. There is much confusion—some of it intentionally generated by Trump partisans—about the legitimacy and consequences of such a trial. I hope to clear up a few matters here.

Impeachment and trial are authorized by the Constitution. For our purposes, the most important passage occurs in Article I, Section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 4 provides that:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The above section enumerates offenses that may trigger impeachment and specifies that a person impeached and convicted is necessarily removed from office. (Donald Trump’s impeachments have both been enacted under the “high Crimes and Misdemeanors” provision.) Removal from office is the only obligatory penalty, but the punishments of Article I (“disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”) may be imposed. It is almost certain that, were Mr. Trump to be convicted by the Senate, his ability to hold (presumably federal) office would be restricted, as the certainty of not running against him in the 2024 presidential race is an incentive to convict for at least some Republican senators. The ex-president could also have his pension, allowances, and Secret Service protection terminated, but a separate vote would be required to impose such penalties.

Under the circumstances, Mr. Trump will not be removed from office, as he is already out of office. He would not be the first federal official to be impeached and tried after having left office, however. Secretary of War William Belknap was impeached minutes after his 1876 resignation and tried by the Senate. The vote for conviction was 35–25. The Senate had voted 37–29 that a trial could be held, but arguments that such a trial was unconstitutional contributed to a not guilty verdict. In any case, the Belknap affair offers a precedent for trying a former officeholder. Prominent Republicans are arguing that a trial of Donald Trump is unconstitutional, and this argument will undoubtedly affect the Senate vote in the current instance.

It has been widely reported that conviction of the ex-president will require the votes of at least 17 Republican senators. It is assumed that all 50 Democrats and independents will vote for conviction, and that 17 Republican votes will be needed to reach the 67 votes required for conviction in the 100-person Senate. This is not quite true, however. Article I, Section 3 requires “Concurrence of two-thirds of the Members present” [emphasis added] for conviction. Certain Republican senators may choose to be absent for the vote to convict.

Finally, whether or not the ex-president is convicted by the Senate, Article I, Section 3 indicates that he may still “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In fact, the post-presidential career of Donald Trump may be consumed with fending off indictments and avoiding prison, activities that may minimize the time he can devote to political mischief.

January 24, 2021

How to Run Mass Vaccinations Redux

 NPR’s Weekend Edition Sunday led off today with a story titled “Unpacking The Biden Administration's Coronavirus Strategy.” Dr. Carlos del Rio, Rollins Professor and chair of the Hubert Department of Global Health at Emory University, was interviewed by Lulu Garcia-Navarro. He reported on having just taken a turn inoculating people for the coronavirus. Some people were excited to get the vaccination, he said, but others were nervous. Apparently because he had conversations with the people being injected, Dr. del Rio was only able to vaccinate four or five people per hour.

Whereas we can all appreciate the doctor’s caring bedside manner, we should be appalled at the throughput he was able to achieve. A reasonable concern for efficiency would suggest that the person giving injections should not have to chitchat with patients. Giving injections does not require an epidemiologist.

Earlier this month, I suggested in a post—see “How to Run Mass Vaccinations”—that sites intent on maximizing the rate at which vaccinations can be given should use personnel wisely. Injections should not be given by doctors but by lower-level professionals skilled in the task. (My experience suggests that nurses, for example, are better at giving injections than are doctors simply because they are called upon to do it more often.) Less skilled people, likely not even medical personnel, should be checking people in and answering their questions, which are likely to be quite repetitive. Enough people should be doing this so that the queue of persons ready to be vaccinated is never empty. It may even be helpful to have a person whose only job is to fill syringes for the person actually delivering doses. There is no reason for the actual task of giving a vaccination to take as long as one minute. Medical personnel can be standing by to handle unusual questions or concerns and to respond to any unexpected reactions to being vaccinated.

Judging from the pictures I see on television, I have concluded that we are being less than smart about designing procedures for mass vaccination. Especially appalling are the long lines of automobiles queuing up for vaccinations. This is a waste of time and resources, and it seems to be driving some people crazy.

Here is a suggestion for delivering vaccine in many circumstances: In locations where there are many and conveniently located voting sites, why not use them for vaccinations? Certainly, in many cities—those run by Democrats, in any case—there are many polling locations, none of which serves an inordinate number of voters. In each on, on an announced, rotating basis, set up a vaccination group as I suggested in my earlier essay. Non-voters in the area served by a given site can be accommodated. People from outside the voting district can be served only if time and demand allow. This system may not be perfect, but it surely would be better than what is often being done.

With any luck, the Biden Administration will come to conclusions similar to my own. Someday, I hope to be vaccinated against COVID-19. Moreover, I hope it is this year!

January 18, 2021

Donald Trump’s Future

 Many of the insurrectionists who sacked the Capitol on January 6 are claiming, in their defense, that the president told them to do what they did. Fine. If Donald Trump does not pardon himself (and probably even if he does), he should be indicted as the fomenter of the insurrection against the United States of America and should be arrested at Mar-a-Lago at the earliest opportunity.

Perhaps U.S. Marshals should be waiting at Mar-a-Lago for the former president when he arrives on Wednesday.