Cowardly Copouts

As we well know now, the Impeachment Trial for Donald J. Trump ended on Saturday with 57 votes to convict and 43 votes to acquit. Since 67 votes (a two-thirds majority) were required to convict him, Trump is not held accountable for his actions in fomenting an insurrection culminating in an attack on the Capitol building on 6 January, 2021. A shameful day for our country.

My schedule in these days of a pandemic was such that I could watch or at least listen to most of the proceedings. I am not an attorney, but I learned a lot about various interpretations of the Constitution and about legal concepts. Foremost in my education was understanding the term “but for.” In this case, it was clear that but for Trump, there would have been no Big Lie, no campaign to overturn a free and fair election, and no attack on the Capitol. Take Trump out of the equation — say he did not exist or more realistically, was not president or a candidate for president — and there is no attack. Period. It is unimaginable that any other presidential candidate would have provoked the same attempted coup that Trump undertook. Today, I am not so sure that it couldn’t happen again in the future. A smarter, more knowledgeable future losing candidate might be able to pull it off, especially if that candidate is aided and abetted by key election officials and members of the House and Senate.

Most disappointing during the week were the spineless votes cast on the single Article of Impeachment. Of the 43 Republicans that voted “not guilty” I would say that some — those in the Sedition Caucus — would have voted for Trump regardless of anything that he did. They voted to acquit not from fear, not from an appreciation of his policies, but rather for pure personal power reasons. Their sworn oaths of office are just words to them, not a solemn promise that protects our country. I would put six or seven of the Republican Senators in this category. The others mostly voted to acquit, in my opinion, out of fear. Some out of political fear that they might lose their job, some out of personal fear given the nature of the domestic terrorist threat that saturates Trump’s supporters, and some out of fear that their colleagues might criticize them. Some could possibly be found in all of those camps. What was galling was that immediately after the vote, many of the “not guilty” crowd came to the Senate floor to give speeches that point to the fact that they did think that Trump was the inciter-in-chief, but they let him off on a technicality. Pick your copout — as there were several — but the most common was that a former official could not be tried by the Senate. Once out of office, impeachment does not apply.

There are several things wrong with that approach. Foremost, of course, is that Trump was impeached while in office. When the House tried to convey the Article of Impeachment to the Senate, then Majority Leader Mitch McConnell adjourned the Senate so that the Article could not be delivered. It was out of session until the Inauguration. Remember that, because it will come up again. If it is possible for common sense to be a factor, it is logical that a president or other official subject to impeachment under the Constitution cannot commit a “high crime and misdemeanor” and then resign and get out of a conviction. Indeed, there are precedents in our own history where people were tried by the Senate after they left office.

As I understand it from my Constitutional Law 101 course watching the proceedings, the Founding Fathers left the rules and procedures for impeachment and subsequent trial rather vague. In this case, well over 100 Constitutional scholars of all political stripes opined that the Senate sets its own rules for the trial and that most certainly a president can be tried after he leaves office for offenses that took place while in office. Prior to the actual trial, this issue came up. In a bipartisan vote, the Senate voted 56-44 that it was Constitutional to hold the trial. That should have settled the matter and the presumption moving forward should be that the Constitutionality of the trial is not a factor when rendering a verdict. But then, in this day and age, and especially in Trump World, rules do not seem to matter.

The shamelessness of the 43 can best be epitomized by the speech that Senator McConnell gave immediately after the vote. He hung his “not guilty” vote on his claim that the trial was un-Constitutional. He did so by claiming that the House did not deliver the Article of Impeachment in a timely manner. (See above. Hypocrisy, you’ve found a home.) He did so even after the majority of his speech condemned Trump and his actions in great detail and said that “there is no question, none, that President Trump is practically and morally responsible for provoking the events of the day.” Whaaat? It appears the Mr. McConnell may have wanted to vote to convict. He probably would have brought more Republican Senators along with him by voting to convict, possibly even reaching the 67 vote threshold. But he would not have been with the majority in his own party and thus would not be the Republican Leader. His decision to acquit was a pure personal power move. He likes being his party’s leader. There were only a few profiles in courage that day.

What are the takeaways from this episode? I have a few that I discerned from the proceedings.

• There are no impeachable offenses. Two precedents have been set with Trump. You can try and get a foreign power to intervene in our elections and not be held accountable. Was the Ukraine case too complicated, arcane, or insignificant for you? Okay, how about Obstruction of Congress? Obstruction of Justice? Trump dodged all of those. But attempting to overthrow the government of the United States? That’s not an impeachable offense? If a president attempting a coup is not worthy of a conviction on that charge, then I am hard pressed to think what would be worthy.
• It is okay to use violence to try and overturn an election. In fact, if you lose and don’t like it you can use any means necessary to over turn it. Bully election officials. Lie. Threaten state officials. Lie. Disenfranchise millions of Americans and nullify their votes. Lie. Ignore election laws. Lie. Send a mob to disrupt the certification of the Electoral College vote. If someone in your administration — say, the Vice President of the United States — doesn’t help you overturn the election then send white supremacists to track him down and hang him. (“Hang Mike Pence. Hang Mike Pence.” I hope all of those loyal Trumpists in the Sedition Caucus took notice of what loyalty gets you with Trump.) Violence is okay if you don’t win the vote and you can do anything you can think of to try and change it.
• The minority rules. The conservative political observer David Frum wrote a very interesting article in The Atlantic titled “The Founders Were Wrong About Democracy”. In it he argues that the Founding Fathers thought that by setting up the government so that head strong populist charlatans could not hoodwink the American public into wild and self-defeating actions, they would create a stable and enduring republic. They specifically did not want a true democracy because they did not trust the vast unwashed, uneducated, and ill-informed average American (all white men, by the way) to do the right thing. But what we have now is a minority (Republicans) that control nearly every aspect of government by their ability to block actions favored by the majority of the people.
• The Electoral College exacerbates the problem of minority rule and aids hooligans like Trump in their attempts to thwart the votes of the majority. Trump lost the popular vote by over 3 million ballots in 2016. He got about 46 percent of the vote. As the math shows, that it is less than Al Gore, John Kerry and Mitt Romney got when they lost. There were other even closer elections. Trump did not win in a “landslide.” In 2020 he lost by over 7 million popular votes. In the current era that is a landslide. It is too big of a number to overcome. So where did Trump focus his efforts? He focused on states to try and get them to change their Electoral College votes. Where did he focus his efforts in Congress? On the certification of the Electoral College vote. He was hoping to throw the election into the House of Representatives where, although the Democrats have the majority, the vote would be by state, and the Republicans control the most state delegations. One state one vote. Thus South Dakota gets the same vote as California. We can see that the Electoral College is vulnerable. It is an anachronistic vestige of another time.

It was a near miss. Trump came closer to pulling it off than I think most people realize. Despite the hand-wringing over Trump’s acquittal and the jubilation of the Seditionists and Trumpists (mostly all the same folks), Trump is an injured power broker. He is soon to be engulfed in significant legal challenges that are not ignorable now that he is an ex-president.

For the moment, I rejoice in having a competent president, addressing the nation’s crises. Best of all I don’t have to hear about Twitter attacks, Big Lie rallies, or see a failed showman suck up all the air whenever he shows his face. In fact, I don’t think I’ve seen the face of the twice impeached worse president ever in weeks. And I sleep a lot better at night as a result.

I hope we learn the lessons of these past weeks and months. The system is not perfect. It can be broken. We need to address the issues that were exposed and close the legal loopholes. Forgetting the past and moving forward will not work in this case. Our republic is too important to pretend that it doesn’t need fixing.