Should Trump be tried by the Senate for insurrection?

January 13, 2021 • 9:00 am

It looks pretty certain now that the House of Representatives will vote today to impeach Donald Trump for “high crimes and misdemeanors”, namely fomenting insurrection. You can watch the impeachment proceedings live at the site below, which are underway:

The charges are laid out in the following five-page document (click on screenshot below). The heart of the charges is this:

Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has ‘‘engaged in insurrection or rebellion against’’ the United States from ‘‘hold[ing] any office . . . under the United States’’.  In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States. . . .

 

The House will certainly vote for impeachment, and at least five Republicans will join what will certainly be nearly all House Democrats, ensuring a majority vote—all that’s needed to send charges to the Senate.

As VP Pence has rejected the House’s demand that he use the 25th Amendment to expel Trump from office, impeachment would be the only way to get him out before Biden’s inauguration. A Senate hearing could in principle be held and dump him before January 20th, though that seems unlikely since there would be just one day to have that hearing. A Senate impeachment trial could of course proceed after Trump’s out of office.

There’s also the possibility of Congress censuring Trump in a resolution, but that isn’t in the offing yet.

Now four House Democrats didn’t endorse the impeachment resolution (one voted “present” and another is likely to become a Republican), but the other two oppose impeachment, at least one because it’s “divisive.”

The question at issue is not whether the House should vote to impeach Trump, as that’s a fait accompli. The question is whether the Senate should try him for insurrection. I think that they are required to have a trial if sent the bill of charges approved by the House, but I’m just laying out the pros and cons.

Here are the arguments I see both in favor of and against trying Trump in the Senate:

IN FAVOR:

A.) It is a punishment of the man for all the bad deeds he did, culminating in his reprehensible and unconstitutional behavior last week. He would be the only President to have been impeached twice, and it’s a black mark on his record.

B.) He can be prevented from running for future office even if he’s not convicted. As Reuters notes:

Impeachment could be used to remove Trump from office and to disqualify him from holding political office in the future.

Two historical precedents, both involving federal judges, make clear that the Senate could also vote to disqualify the president from holding office in the future, with only a simple majority needed.

Paul Campos, a professor of constitutional law at the University of Colorado, said that even if the Senate does not convict the president, senators could hold a second, separate vote to prevent him from future office.

That would mean Democrats, who will take control of the Senate later in January, could bar Trump from running for president in 2024 even without the support of Republican senators.

C.) As Mitch McConnell thinks, kicking Trump out of office (or convicting him after he’s gone) would rid the Republican Party of Trump, whose actions are fracturing the party.

 

AGAINST:

A.)  He will not be convicted, as that requires 17 Republicans to join with all the Democrats in the Senate to get the necessary 2/3 majority. Convicting him is, at this time, a futile hope.

B.)  It will be a symbolic vote since he’d be out of office even if he were convicted.

C.) It smacks of retribution, of Democrats getting back at him, and not just for his reprehensible actions last week. This occurs at a time when Biden is calling for “reaching across the aisle.”

D.) It makes Trump even more of a martyr to those of his minions who see him as persecuted. It’s thus divisive.

E.) It takes up time that the Senate needs to enact new legislation under Biden.

The most powerful argument for trying him, at least in terms of doing something concrete, is B above: he might be barred from running for office again, and that requires a simple majority vote which would surely occur in the Senate. The symbolic shaming will do little, I think, to stop his reprehensible behavior, which is hard-wired in his neurons and not subject to change. The fact that an impeachment vote will surely fail in the Senate does, however, tell the world that we will not tolerate a fascist, and at a time when the world’s opinion of America has fallen quite low.

Though there are arguments on both sides, I tend to approve of both the House impeaching Trump and the Senate trying him, even though they won’t secure a conviction. The symbolic act is a powerful one, which, though it may be divisive, will only divide those who support America’s democratic values from those who support fascism. Congress needs to make a statement, and impeachment, even without conviction, is a statement.

And, of course, if the Senate can secure that majority vote, it may be able to bar Trump from holding any federal office, which is a good thing. HOWEVER, even that might not work. As Reuters adds:

Trump could, however, try to challenge such a determination [the “can’t run for office” vote] in court, Campos said. The Supreme Court in 1992 said it would not second-guess the Senate’s decisions about how to handle impeachment proceedings.

“The Senate has great latitude in deciding how it wants to conduct a trial,” Campos said.

Other legal experts, however, said the Senate could only prevent Trump from holding office if it first votes to convict him in the impeachment trial.

So even a majority vote might not be enough to keep Trump from running again.

In the end, though, we can expect Trump, even if he doesn’t hold office, to remain a major figure in the Republican party, a “senior statesman”—horrible as that sounds—who will continue to make pronouncements and foment hatred. There’s nothing that anybody can do about that now.

But we can be heartened by realizing that Trump will now likely face state charges for tax evasion and other issues, and he cannot pardon himself for those. For the rest of his life he’ll be embroiled in legal and political fighting. Maybe he’d like that, as it feeds his narcissism, but I sure wouldn’t want to spend my dotage fighting the law—and perhaps sitting in jail.

Weigh in below, of course.

Impeachment articles drawn up by House, as well as request for Pence to invoke the 25th Amendment

January 11, 2021 • 1:00 pm

Just a a couple of hours ago, the House of Representatives introduced a motion to impeach the “President” for the second time. Click on screenshot to go to the pdf:

There’s one article: “Incitement of insurrection,” but that includes not only his speech to the protestors before they bum-rushed the Capitol, but also his sleazy phone call to Georgia’s Secretary of State, urging him to “find more votes” to overturn the state’s electors.

There’s also this resolution, based on the same data, calling for Pence to get the 25th Amendment rolling and call on Trump to resign, forcing him if he balks (click on screenshot):

House Republicans objected to the second measure, but they’re in a minority, so if that resolution comes to the floor, it will pass. But it’s toothless, for it has no power to force Pence to do anything. The NYT gives more details:

As expected, Republicans objected to a resolution calling on Mr. Pence to invoke the 25th Amendment, meaning that the House would have to call a full vote on the measure, most likely on Tuesday. Democratic leaders were confident it would pass, and pressured Republican lawmakers to vote with them to beseech the vice president, who is said to be opposed to using the powers outlined in the Constitution, to do so.

It was a remarkable threat. If Mr. Pence does not intervene “within 24 hours” after passage and the president does not resign, House leaders said they would move as early as Wednesday to consider the impeachment resolution on the floor, just a week after the attack. Already more than 210 Democrats have signed onto the leading charge, just shy of a majority of the House. Several Republicans were said to be considering voting to impeach for the first time, though party leaders were opposed.

I think there are grounds for invoking the 25th Amendment, as Trump is clearly incapacitated by some mental affliction, but this is a futile gesture. I have more hope for (and approval of) the impeachment, but with the proviso that if the House passes it (and it will), they wait a while before sending it to the Senate before trial. That would prevent Biden’s first days in office from being tied up in a fractious impeachment trial, and allow him—as, I believe, he wishes—to get going with his legislation. And we need him to get going, for we don’t know if he has longer than two years of a Republican Senate.

As they say every decade, “We live in interesting times.” But I never imagined I could see the day when a fascist could hold the reins of power and command his minions to storm the Capitol building. This is worse than Nixon, which is the worst I’ve seen since I’ve been alive.

Snopes investigates claim that Trump incited the storming of the Capitol

January 9, 2021 • 10:30 am

Snopes leans largely to the Left, so if it gives a mixed rating to the question below (half true/half false), you can be pretty sure that it would not stand up in a court of law, much less the Senate. I didn’t follow exactly what the Orange Man said before the horrific events of three days ago (five people are now dead, including a Capitol police officer who died after being bashed in the head with a fire extinguisher), but I’m pretty sure that Josh Hawley’s fist-pump to the demonstrators does not constitute incitement to imminent violence. Hawley could have been giving an “I’m with you” sign—odious enough, but not unambiguous enough to prove, much less buttress, the calls of people who want him tried for treason.

Trump may be impeached, and I support the House going forward with that, but what was his role, if any, in inciting people to storm the Capitol? Well, Snopes gives the question a “mixture” response (click on screenshot).

It turns out that Trump may have had this violence in mind, but he was very, very canny about what he said, and since we can’t show that he knowingly incited violence, that can’t be proven. Here’s what Snopes says:

There’s more stuff, but author Jessica Lee concludes this:

In short, the president called on supporters to “peacefully and patriotically” march or walk to the Capitol on Jan. 6, 2021, to urge members of the senate to defy the Electoral College vote in a constitutionally mandated procedure to affirm Biden’s win, without using the words “storm” or “breach” or “break into” the federal building.

Put another way, the president encouraged supporters to descend on the Capitol grounds and “cheer” on senators who would break laws governing U.S. elections, but he did not explicitly tell people to commit crimes themselves.

Furthermore, it was a subjective call on whether the phrases “you have to show strength” and “demand that Congress do the right thing” were actually messages condoning crimes and violence among extremists, without outright encouraging it. Such a rhetorical strategy is known to scholars of white nationalist and extremist groups, including the Proud Boys.

In sum, while Trump did not say the words “storm” or “break into” the White House, Trump indeed told supporters to gather at the U.S. Capitol and try to convince members of Congress to delay the constitutional process that would affirm Biden’s presidency. For those reasons, and the ones outlined above, we rate this claim a “Mixture.”

In other words, if Trump had that in mind (and who knows?), he was very clever. Demented, maybe, but perhaps clever. He may be impeached, but if this is the main charge, I predict that he won’t be convicted in an impeachment trial. Why, then, do I favor impeachment? Well, there’s the slight possibility that some Republicans may vote with the Democrats, for there were many reasons to remove Trump from office besides the charge of incitement, but mainly I think it will be another black mark on his record: the first President to be impeached twice.

Ossoff wins Senate seat in Georgia, both houses of Congress now with a Democratic majority

January 6, 2021 • 3:30 pm

This may inflame the mob more, but we have some good news from Georgia.  The second Senatorial election has been called by several sources for the Democrat Jon Ossoff.

With exactly half of the Senators now Democratic, the deciding vote in the many ties to come will go to the Vice President of the U.S., who happens to be Democrat Kamala Harris.  That the tying vote comes from the VP will drive Republicans crazy—if they can be crazier than they’re acting now. (n.b. I am not indicting all Republicans. Yes, there are some reasonable ones—ones who are appalled by what’s happening in Washington.)

Fascist President spurs on mob to invade Capitol; woman in critical condition after being shot

January 6, 2021 • 3:00 pm

Well, 2021 isn’t starting well after all. All I can do is be upset and pass on the news to others who share my feeling. Here are links:

All from the New York Times:

Each bullet point goes to a link:

It’s a good time to be a news reporter, and a bad time to be an American—even a Democrat. It’s bad for all of us.

Oh, and now there are reports that a woman is in critical condition after being shot on the Capitol grounds.

The good news and the bad news.

January 6, 2021 • 2:30 pm

What do you want first? How about the good news? (click on screenshots):

Once again I will be right, and happily so.

The bad news:

I didn’t think this would happen, despite many people warning of it. It is a putsch prompted by a fascist who doesn’t have the concern about America to call it off. His motto should be “Make America Hate Again”.

Chaos engulfed the Capitol on Wednesday as a faction of Republicans sought to overturn President-elect Joseph R. Biden Jr.’s victory in Congress and a group of protesters loyal to President Trump tried to storm the building, demanding to be heard.

Around 2:15 p.m., the proceedings ground to a halt as security rushed Vice President Mike Pence out of the Senate chamber and the Capitol building was placed on lockdown, with senators and members of the House locked inside their chambers.

The extraordinary day in Washington laid bare deep divisions both between the two parties and within Republican ranks, the ceremonial counting of electoral votes that unfolds every four years in Congress was transformed into an explosive spectacle, with President Trump stoking the unrest.

“This is what you’ve gotten, guys,” Senator Mitt Romney, Republican of Utah, yelled as the mayhem unfolded in the Senate chamber, apparently addressing his colleagues who were leading the charge to press Mr. Trump’s false claims of a stolen election.

Look at this! I think it’s illegal to carry guns inside the Capitol building, but if they can’t stop these miscreants from entering, how could they take their guns?

(From the NYT). Supporters of President Trump swarmed and entered the Capitol building in Washington on Wednesday, prompting a lockdown and portions of the grounds to be evacuated.  Credit: Erin Schaff/The New York Times

They will not win, but I may have been wrong in thinking that there would be no violence. Think about this: there are people who would risk their lives to illegally keep Trump in office.

Watch the Congressional debates live

January 6, 2021 • 1:00 pm

Click on the screenshots below to watch the proceedings of the electoral certification debate in the House and Senate. Right now two bodies have split up, after first meeting together, to debate objections to the election results. This could in principle take forever, but the total debate in the House is limited to two hours. You can watch the Republicans flaunt their phony claims, which is somewhat amusing.

The House:

And click below to see the live Senate proceedings. Ted Cruz was speaking, arguing that the results need to be independently audited because “nearly half of Americans think that there was voter fraud.” But the results already were audited by both the states and the courts—Biden/Harris won. Cruz and his Republican minions are reprehensible.

The Senate:

Thank Ceiling Cat that Mitch McConnell rebuked his moronic colleagues:

Meanwhile, Trump supporters are massing in Washington, like vultures around a carcass, to demand that election results be withdrawn or changed.  I didn’t think there would be any violence, but I’m getting a bit nervous now. . . .

Reparations for Merrick Garland: he gets to be attorney general

January 6, 2021 • 12:00 pm

Merrick Garland, Obama’s unlucky nominee for the Supreme Court whose seat was pulled away by Mitch “666” McConnell, will now be Biden’s nominee for attorney general.  And now that it looks even more sure that the Democrats will control the Senate, fears about the lacuna he’d leave on the appeals court are waning.

As CNN reports:

While Garland has been a top contender for weeks, concerns about the vacancy his selection would create on the US Court of Appeals for the District of Columbia raised alarm bells among Biden and many advisers who believed Senate Republicans would block any nomination to that seat. But with Democrats poised to control the Senate after two Georgia runoff races, those concerns were allayed. “Judge Garland will be viewed in a whole new light now,” a top Biden ally tells CNN.
I tell you: what with the vaccines and the new Democratic administration, and perhaps a Democratic Senate, 2021 is looking up. It would be lovely if Garland got to lead the prosecution of Donald Trump, but any prosecutions will be on the state rather than the federal level, especially if Trump succeeds in pardoning himself.
Merrick Garland

Who will win the Georgia Senate seats?

January 4, 2021 • 12:00 pm

The rational among us will be hoping that, in tomorrow’s Georgia senatorial runoff elections, both Democrats will win. For if they do, the Dems will have the Presidency, the House, and the Senate, and stuff can actually get done. But both elections are tossups, though I think the Democrats’ lead is widening. According to FiveThirtyEight (see below, click screenshot for more), each Democrat is leading by about 2%, but that’s well within the margin of error.

If you go to the article, you’ll see that, despite the data, you can make a case for either party (Nathaniel does so for the Democrats; Geoffrey for the Republicans). Just for fun, since we’ll know what happens by the end of the week, we’ll do a poll. And VOTE, damn you!

How many Senate seats will the Democrats win in Georgia?

View Results

Loading ... Loading ...

Glenn Greenwald’s attack on authoritarianism

December 31, 2020 • 10:15 am

Like many disaffected journalists, Glenn Greenwald has found a home on the Substack platform; this after he resigned from The Intercept. Although, like other writers on the site, he charges for access to his essays, for a limited time you can read for free. The piece below was recommended by a reader, and, having read it, I can see where Greenwald is coming from. But he sounds a bit overheated, as well as a bit of a sourpuss, and I don’t think I’ll subscribe. (I may cancel my subscription to Andrew Sullivan’s site, too, if he doesn’t start writing more interesting pieces.)

At any rate, you can click on the screenshot below to read Greenwald’s piece. It will at least make you think.

Greenwald makes several points, which I’ll list in order and show an excerpt for each one (indented).

1.) Donald Trump was never an authoritarian. That is, he never wielded the power that he could have. 

In 2020 alone, Trump had two perfectly crafted opportunities to seize authoritarian power — a global health pandemic and sprawling protests and sustained riots throughout American cities — and yet did virtually nothing to exploit those opportunities. Actual would-be despots such as Hungary’s Viktor Orbán quickly seized on the virus to declare martial law, while even prior U.S. presidents, to say nothing of foreign tyrants, have used the pretext of much less civil unrest than what we saw this summer to deploy the military in the streets to pacify their own citizenry.

. . .But early in the pandemic, Trump was criticized, especially by Democrats, for failing to assert the draconian powers he had, such as commandeering the means of industrial production under the Defense Production Act of 1950 . . .  Rejecting demands to exploit a public health pandemic to assert extraordinary powers is not exactly what one expects from a striving dictator.

A similar dynamic prevailed during the sustained protests and riots that erupted after the killing of George Floyd. . . while Trump threatened to deploy [military power] if governors failed to pacify the riots, Trump failed to order anything more than a few isolated, symbolic gestures such as having troops use tear gas to clear out protesters from Lafayette Park for his now-notorious walk to a church, provoking harsh criticism from the right, including Fox News, for failing to use more aggressive force to restore order.

2.) The authoritarian myth was made up by the media to attract clicks, dosh, and attention. 

The hysterical Trump-as-despot script was all melodrama, a ploy for profits and ratings, and, most of all, a potent instrument to distract from the neoliberal ideology that gave rise to Trump in the first place by causing so much wreckage. Positing Trump as a grand aberration from U.S. politics and as the prime author of America’s woes — rather than what he was: a perfectly predictable extension of U.S politics and a symptom of preexisting pathologies — enabled those who have so much blood and economic destruction on their hands not only to evade responsibility for what they did, but to rehabilitate themselves as the guardians of freedom and prosperity and, ultimately, catapult themselves back into power. As of January 20, that is exactly where they will reside.

Note that he segues to his next point:

3.) The Democrats, among them Biden and his administration (he calls them “neoliberals”), as well as previous presidents who waged war without the proper authorities (e.g., Obama), are the real authoritarians. 

. . . as I wrote in a Washington Post op-ed in late 2016, the U.S. Government itself is authoritarian after decades of bipartisan expansion of executive powers justified by a posture of endless war. With rare exception, the lawless and power-abusing acts over the last four years were ones that inhere in the U.S. Government and long preceded Trump, not ones invented by him. To the extent Trump was an authoritarian, he was one in the way that all U.S. presidents have been since the War on Terror began and, more accurately, since the start of the Cold War and advent of the permanent national security state.

The single most revealing episode exposing this narrative fraud was when journalists and political careerists, including former Obama aides, erupted in outrage on social media upon seeing a photo of immigrant children in cages at the border — only to discover that the photo was not from a Trump concentration camp but an Obama-era detention facility (they were unaccompanied children, not ones separated from their families, but “kids in cages” are “kids in cages” from a moral perspective). And tellingly, the single most actually authoritarian Trump-era event is one that has been largely ignored by the U.S. media: namely, the decision to prosecute Julian Assange under espionage laws (but that, too, is an extension of the unprecedented war on journalism unleashed by the Obama DOJ).

4.) The Democrats are further culpable because they’re in league with the large monopolies, like Facebook and Amazon—companies that are really destroying America. (Greenwald goes on and on about this. )

What makes this most menacing of all is that the primary beneficiaries of these rapid changes are Silicon Valley giants, at least three of which — Facebook, Google, and Amazon — are now classic monopolies. That the wealth of their primary owners and executives — Mark Zuckerberg, Jeff Bezos, Sundar Pichai — has skyrocketed during the pandemic is well-covered, but far more significant is the unprecedented power these companies exert over the dissemination of information and conduct of political debates, to say nothing of the immense data they possess about our lives by virtue of online surveillance.

Stay-at-home orders, lockdowns and social isolation have meant that we rely on Silicon Valley companies to conduct basic life functions more than ever before. We order online from Amazon rather than shop; we conduct meetings online rather than meet in offices; we use Google constantly to navigate and communicate; we rely on social media more than ever to receive information about the world. And exactly as a weakened population’s dependence on them has increased to unprecedented levels, their wealth and power has reached all new heights, as has their willingness to control and censor information and debate.

That Facebook, Google and Twitter are exerting more and more control over our political expression is hardly contestable. What is most remarkable, and alarming, is that they are not so much grabbing these powers as having them foisted on them, by a public — composed primarily of corporate media outlets and U.S. establishment liberals — who believe that the primary problem of social media is not excessive censorship but insufficient censorship. As Sen. Ed Markey (D-MA) told Mark Zuckerberg when four Silicon Valley CEOs appeared before the Senate in October: “The issue is not that the companies before us today is that they’re taking too many posts down. The issue is that they’re leaving too many dangerous posts up.”

Note the implicit call for more censorship. And, finally, there’s this:

The dominant strain of U.S. neoliberalism — the ruling coalition that has now consolidated power again — is authoritarianism. They view those who oppose them and reject their pieties not as adversaries to be engaged but as enemies, domestic terrorists, bigots, extremists and violence-inciters to be fired, censored, and silenced. And they have on their side — beyond the bulk of the corporate media, and the intelligence community, and Wall Street — an unprecedentedly powerful consortium of tech monopolies willing and able to exert greater control over a population that has rarely, if ever, been so divided, drained, deprived and anemic.

Although Greenwald, as far as I know, has been quite critical of Trump, he’s no fan of the Democrats or Biden, either. In this essay he comes off largely as a centrist Republican, wary of too much power inhering in government.  I suppose it’s worth thinking about the economic hegemony of these big media sites, and how they’ve increased income inequality in America, but I find myself strangely unable to resonate with Greenwald’s sky-is-falling narrative. For all I know, he may be right.

Perhaps it’s the other horrors of 2020 (and you can’t deny that even if Trump wasn’t an authoritarian, he had a severe personality disorder), but I somehow can’t get worked up about Facebook or Amazon. That may be my fault, but, after all, we can’t care about everything. For example, much of America is concerned right now with racial rather than economic inequality, and I expect they won’t get excited about this piece, either.

However, I’d be glad to hear what readers have to say. I am absolutely sure that many of you have followed Greenwald more closely than I.

h/t: Will