Good morning!
Today’s musing is not so much about Mr. Trump, who should continue to fade into the background as he continues to be discredited and spend time in multiple court proceedings. It is instead about the need to honor our constitution and political processes as our country tries to arrest its descent into bizarroworld. The second impeachment was less about Mr. Trump as it was about the box into which the Republican party has maneuvered itself.
IMPEACHMENT, REDUX
A friend sent me a meme that said “Just like that, all of the folks who say what they like about Trump is that he says what he means, are now explaining that he didn’t mean what he said.”
It is obvious to most that the conviction of former President Trump should have been a fait accompli. He had been inciting his minions to action under false pretenses for weeks, culminating in his cri de guerre the morning of January 6. I doubt there was a person in the Senate chamber this past week who truly believes Trump’s behavior during the insurrection was beyond reproach. Yet, even as some maintain this behavior fails to rise to an impeachable offense, most fail to call for his rebuke. They no doubt were fearful of incurring the wrath of his base and inviting a primary challenge (though I suspect this loyalty will not be rewarded, as many of the more moderate Republicans will suffer primary challenges anyway).
In my naïve way, I half expected that a group of Republican members, upon failure of the vote on impeachment, would introduce a resolution that impose a lesser rebuke. Such a resolution could have condemned the language of, and incitement, by the president and perhaps even confirm the validity of the election. I think it would have been politically expedient and could have provided some balm to the country’s wounds. But alas…
WHAT DOES A POLITICAL PROCESS ENTAIL?
As we have heard ad nauseum, impeachment isn’t a typical criminal prosecution—it is a political process. The typical rules of evidence don’t apply. The very grounds for conviction, “high crimes and misdemeanors” is unique to the process of impeachment.
I think there is some misunderstanding of the term “political process.” What is not meant is that politicians exercise their political number in reaching a decision. This should not be a simple party-line vote based upon the exercise of political power. A “political process” does not allow for 15 Republican Senators, who are standing in judgment and who are supposed to consider the evidence, to not attend (one Democrat also fits this description).
This is not a proceeding that places the defendant in physical or financial jeopardy. Impeachment is a process whereby the discharge of an officeholder’s duties, within the context of their oath, is called into question. It is a process that proceeds through a political branch of government (Congress), rather than the judicial branch of government (the Supreme Court). It is not an invitation to treat the process in a “political manner” (as we currently seem to understand it) of power politics pitting one tribe against another.
WAS THERE INCITEMENT TO INSURRECTION?
I would argue that the prosecution need not prove Mr. Trump’s acts of incitement rose to the standard of being the “proximate cause” of the insurrection but, rather, that his acts as President rose to the level of a high crime that contributed to the unrest. I also think that the speech on that fateful morning is not the only evidence of the president’s support for insurrection. Rather, it is the prolonged, relentless repetition of the lie of the “stolen” or “fraudulent” election, the pressuring of officials charged with ensuring the validity of our elections, the accusations that those same officials and other, unnamed, members of the “deep state” were actively operating to destroy our country, and the repeated rallying of supporters toward violence in support of these claims, is a clear demonstration of causation.
His behavior makes a pretty clear case that he has committed high crimes and misdemeanors, not only on the day of the insurrection itself, but in his frequent attacks on our institutions and our norms of behavior prior to that date, which culminated with the attack on the Capitol. He behaved like a despot attempting to hold onto power through whatever means possible. One can hardly hear his words today and not cringe. One wonders whether the next would-be despot will be more sophisticated in their presentation and, therefore, be more dangerous.
IS IT CONSTITUTIONAL?
That Republican caucus voted 45-5 that the proceeding was unconstitutional was absolute sophistry. First, it is difficult to see how the “jury” in this case could (or should) even have the knowledge, standing or capacity to make a judgment of constitutionality. Such a vote on a technical legal matter hardly is the type of thing the founders could have imagined elected representatives to vote on. Certainly, there are few (if any) constitutional scholars who have supported or would support a finding of unconstitutionality. So from the get-go the president’s apologists made their intent clear.
On a practical level, if impeachment and conviction is an unavailable remedy for presidential misconduct, then what other legal recourse exists for such bad behaviors? It is ludicrous to believe that the mere proximity in time to the transition of power renders the impeachment remedy useless. But we are now in a world where issues of great national importance are decided not on what is an appropriate reading of the law or what is best for our nation, but what will sit best with the furthest extreme of one’s voter base.
IS IT JUST THIS ONE SPEECH?
It is odd that this impeachment and the prior impeachment are focused on the former president’s behaviors as singular events, as the totality of his actions is what is most damning. If ten years ago you told me that there would be a president who called a foreign leader to intercede in our elections, or who would have strongarmed election officials to “find” votes, or who would lie and lie about the sanctity of our elections processes, or who would demean and diminish our justice department to his own aims, or who would incite aggressive (if not violent) action against another branch of government, or who would speak to hate groups in coded language, or who would use language that stopped short of condemnation of hate speech, I would have laughed that such a thing could possibly happen. Mr. Trump made it normative and, I fear, it may be repeated in the future.
BRUCE CASTOR AND THE FORMER PRESIDENT’S CASE
Perhaps I’m biased but does anyone thing this knucklehead is a great lawyer? Is he really the best left for Mr. Trump? Rudy, Sidney Powell and Bruce Castor really have defined down the legal profession. But it didn’t really matter, of course. The burden on the defense was merely having to show up.
Warmly,
Glenn
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