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.


Crushing An Insurrection

Only one week into the Administration of President Joseph R. Biden, there is a definite change in tone from the White House and around the country. The remarkable Inauguration Day, in spite of the pandemic and extremely tight security precautions, brought home the sense that indeed, a new day had dawned and hope is in the air. Unfortunately, there is some unfinished business that must be attended to in order to keep our country moving forward.

Donald J. Trump is impeached for a second time. The Senate trial is scheduled for the week of 8 February. It is imperative that after a due process, the Senators vote their conscience and carry out their Constitutional duty rather than play party politics. This is not a “both sides do it” issue. The impeachment is not “politics as usual.” Only one side tried to destroy our country. As I will review below, for the first time in our nation’s history a president, of these United States, actively sought to overthrow the government and install himself as the unelected leader of the country. So far, the Trump supporters have presented a circular argument. They continue to raise questions about the electoral process claiming that it was subject to widespread fraud and was rigged. Trump and his cultists in the House and Senate continued to repeat these claims loud and long. This is propaganda utilized to its fullest to convince his loyal followers that the allegations — and it never moved beyond unproven allegations — were true. The House and Senate cultists argue that since their constituents believe the election was rigged, then they must represent their constituents. Of course they think that there was fraud because their elected officials tell them that. And they do this with a straight face. Senators Ted Cruz (TX) and Josh Hawley (MO) are the leaders of this ridiculous argument for their own personal ambitious goals. They use allegations that they create to justify their claim that it should be investigated — even though roughly 90 court cases proved otherwise and all 50 states certified the election, including those run by Trump’s own party. Even Trump’s personal attorney, oops, I mean the Attorney General of the United States, said that there was no fraud and that the results were legitimate.

And yet, after the insurrection that caused five deaths at the Capitol, eight Trump cultists in the Senate and 139 in the House voted to overturn the election. Learn their names. They are guilty of sedition and are as culpable as anyone else for the death and destruction that resulted from their lies. Unfortunately, most will not be held accountable. Probably none of them will be held accountable. Some of them are proud of the havoc that they wrought.

Make no mistake what they are saying and doing. Those Trump followers, the majority of their party, are demonstrating their belief that any candidate but their own is not legitimate. Period. They believe that stopping Democrats by any means necessary is better than succumbing to their “socialist” ways. Democracy be damned. White Christian men are supposed to be in charge. One party believes in elections and the peaceful transfer of power and one believes that such quaint customs apply only when they win. As the newest Senator from Alabama, a member of the Sedition Caucus, and eminent scholar Tommy Tuberville put it “my dad fought 76 years ago in Europe to free Europe from socialism.” In his speech he later explained that his dad helped in “liberating Paris from socialism and communism” during World War Two, therefore Democrats must not gain power. Facts just do not matter to them.

The Senate trial is a place to start. Contrary to the revisionist stories starting to be spun, Trump had a long pattern of trying to overturn this free and fair election. It was not a spontaneous act. The lead up to the attack started well before the election. For months, Trump repeated at his rallies that the only way he could lose was if the election was “rigged.” He touted fraud at every turn. He made baseless claims about mail-in voting and bogus concerns about voting machines. These despicable lies were the only foundation to his campaign’s numerous lawsuits around the country. They were all based on allegations, not facts. Every case was shot down. To put a finer point on it, the maker of the voting machines, New Dominion Voting Systems, is going after those that spread the lies. They just filed a defamation lawsuit against Rudy Giuliani for over a billion dollars (yes, billion). Other lawsuits caused Fox News to retract their statements repeating the lies against Dominion and to confirm that there was no fraudulent use of the machines. Other news outlets such as Newsmax had to do the same.

In court, baseless allegations do not win cases. Facts do. If you lie in court, there are penalties. Apparently, the Trump cultists in the House and Senate have no fear of retribution in the courts. They may be surprised.

After losing every meaningful court case surrounding the election, Trump pressured election officials in Michigan. Then he pressured the Michigan legislature. When that did not work, he tried pressuring the Pennsylvania legislature. When that did not work he went after officials (Republican, but that did not matter to him) in Georgia and Arizona. When that did not work he made his now infamous phone call to the Republican Georgia Secretary of State and threatened him with criminal proceedings if he did not “find 11,780 votes” — one more than Mr. Biden’s margin.

But that was not enough. Upstanding state and local officials refused to cave to his demands. So he moved on. We now know that he plotted with an attorney in the Department of Justice (DOJ) to fire the Acting Attorney General, bypass the chain of command and install a person as the Acting Attorney General that was willing to bring the full power of the government to get the election overturned. When that plan was thwarted he wanted the Solicitor General to take a case directly to the Supreme Court to have millions of votes thrown out.

It seems a pattern is developing here. But, wait! There’s more! And it gets worse.

Trump started Tweeting in December urging people to come to Washington DC for a “wild” “Save America” rally on the day the Electoral College votes would be certified by Congress. Trump campaign money and former staffers were used to help organize it. In the days before and again at the rally, Trump pressured Vice President Mike Pence to defy the Constitution and overturn the election by decertifying the Electoral College votes. Before the rally, Mr. Pence told Trump that he could not and would not decertify the votes. As a result, Trump implied to the mob at the rally that Mr. Pence was a threat to his continued campaign to overturn the election. They understood what they were being told to do. Mr. Pence was now a target. Many groups that participated in the attack clearly pre-planned their actions based on Trump’s statements at rallies and over Twitter. The attack on the Capitol was definitely not a spur of the moment spontaneous attack.

Trump sent the mob to the Capitol to “fight” for his re-election. When they broke through police lines and violently entered the building he did nothing to stop it for hours after the riot started. Numerous reports indicate that he actually enjoyed it. His followers were “fighting” for him like no one else would do. Reliable reports indicate that Mr. Pence had to fill in as the Commander-In-Chief to get the National Guard moving into the fray because Trump would not do it. (This should also be troubling to all of us. Separately, an inquiry should be held on this point. If the Vice President was the de facto Commander-In-Chief, there was a very real breakdown in Constitutional law.)

Now the Trumpists are arguing that the Impeachment and trial is “divisive”. As if defying the will of the people at the ballot box, fomenting sedition, and sending insurrectionists to overthrow the government is not divisive. Spineless politicians such as House Minority Leader Kevin McCarthy (CA) change their story daily. Originally he said that Trump “bears responsibility” for the attack. Now he says “I don’t believe he provoked it” and that “we all have some responsibility” for the attack. Perhaps he realized that if they convict Trump, then the whole cabal is admitting their own guilt in the plot.

So if the argument now is to “move along — nothing to see here folks” how many dead police officers or dead politicians would it take to convict him? Apparently one officer beaten to death by the “demonstrators” is not enough. Four other deaths is not enough. Would it be an impeachable offense if the mob got ahold of Mr. Pence and/or Speaker of the House Nancy Pelosi and harmed them? Would Leader McCarthy’s stance be different if he had been taken out of the House in zip tie handcuffs and put on trial on the Capitol steps? A near miss of a massive catastrophe does not absolve anyone of a crime.

More importantly, many experts on the dark side of our society where the white nationalists, Proud Boys, Boogaloo Bois (Boys), white supremacists and others operate say that for the attackers and their supporters, 6 January 2021 was their equivalent of 19 April 1775 at Lexington and Concord. They view the attack as the opening shots of the coming revolution. Some are ardent Trump supporters, some support Trump as a means to an end, but the goal is to overthrow the government. Just because they failed this time doesn’t mean that they have given up on doing so.

Without punishing every domestic terrorist that participated, without convicting Trump in the Senate, without holding politicians responsible for the Big Lie, we send the message that it is okay to do it. Without punishing those proven guilty to the fullest extent of the law, then 6 January was merely a dress rehearsal for what is to come. Whether or not we think that is true, the insurrectionists think it is. Whether or not you believe that Trump really expected to overthrow the government and have himself installed as the leader, the insurrectionists believed it. Whether or not you think Trump’s message was often racist, the racists thought he had their back.

Without accountability we cannot begin to heal and without healing there can be no unity.

I will be surprised if the Trump defense team actually tries to defend his actions. What will ensue in his “defense” is a Constitutional argument that an ex-president cannot be removed from office that he has already left. Therefore, they will argue, to try him, much less to convict him, is un-Constitutional. I am not an attorney and I am not a Constitutional scholar, but that line of argument makes no sense to me. If it carries the day, then no president can be held accountable for their actions. Even when, as in this case, it was the worst action ever taken by any president in our history. Trump systematically and with malice of forethought worked to destroy the Constitution and people died as a result. To that we just say “oh well?”

Trump supporters in the House and Senate remain afraid of Trump. Why this is so, totally escapes me. However, if in their hearts they wish he was gone, a conviction is the way to usher him onto the dust heap of history. Unfortunately, for most of them, cowardice trumps honor and truth. When the Senate Trumpists acquit him for a second time, it will make him relevant again. He would have no power if they did not give it to him. Apparently, for them, holding power is more sacred than their oath to support and defend the Constitution.

End it now, or suffer the ongoing violence and acrimony that our country can ill afford now, in the midst of a pandemic, or ever, if we really stand for what we say we do.