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 the 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.