Cry, The Beloved Country . . .

The Senate minister opened Donald Trump’s second impeachment trial with a prayer, asking for God’s guidance as “truth strives against falsehood, as good strives against evil”.  The assembled Senators then faced the flag, and, hands across hearts, recited the Pledge of Allegiance – “to the flag, and to the Republic, for which it stands . . .”. 

Congressman Jeremy Raskin (D-MD) presented the opening prosecution case; briefly tracing origins of impeachment from pre-revolutionary English law; through the Federalist Papers; the Constitutional convention; and the Constitution itself.  With simple, straightforward points, Raskin demonstrated that the Constitution definitively empowers the Senate to conduct an impeachment trial of the President while, and after, he is in office.  Raskin then played a gripping video montage, with a timeline, of the riot in the Capitol on January 6th, interspersed with excerpts of Donald Trump’s comments and tweets; repeating his lie about a stolen election; calling his mob to Washington; encouraging it to march on the Capitol to disrupt the counting of the electoral votes; and then, as the mob invaded the building, tweeting that Vice President Pence had failed his duty; and then, with his mob now occupying the Senate and House chambers, tweeting his “landslide victory, viciously stripped away from great patriots treated badly and unfairly” and calling on the rioters to “go home”, telling them “I love you”.   

In this Jan. 6, 2021 file ...

Congressman Joe Neguse (D-CO) then presented a clear, straightforward and focused recitation of Constitutional requirements; historical impeachment precedent; and extensive Constitutional scholarship; all of which support the Senate’s power to conduct the trial after Trump left office. Neguse cited the 1797 case of William Blount, who conspired to sell Florida and Louisiana to Britain; Blount was impeached; then expelled from the Senate; then tried and convicted; and then banned from office.  Blount himself acknowledged that he was impeachable even after his expulsion; and the Founders were all available to dispute this impeachment and did not, as it was not controversial.  Neguse then cited the 1876 case of Secretary of War William Belknap, who resigned his office to avoid impeachment for corruption, and was then impeached, tried, convicted and banned from office.  Senators recognized the danger of Belknap’s attempt to avoid impeachment as precedent, and were outraged by his argument that he could not be impeached after resignation, and this attempted defense was rejected. Neguse then cited the opinions of several Constitutional scholars at the Federalist Society, a conservative advocacy group, who all endorsed the Senate’s power to impeach the President after his term expired; then quoted the recent Wall Street Journal op-ed by conservative attorney Charles Cook with the same conclusion; then cited conservative Constitutional scholar Jonathon Turley, who testified on Trump’s behalf in his first impeachment trial, endorsing this position.  Neguse pointed out that Constitutional Law Professor Brian Kelt, who defense attorneys quoted in their trial brief in support of their position, publicly confirmed his opinion that an impeachment could be conducted after a President leaves office, and criticized the defense attorneys, who used an excerpt of his citation, as misleading and disingenuous. Neguse then addressed the Constitution’s language limiting sanctions from conviction “not to exceed” removal from office and banishment from holding future office; quoting Senator George Edmunds: “a prohibition against doing more than two things cannot be turned into command to do both or neither”.  Neguse concluded that a contrary conclusion, that the trial could not be held after a President left office, would negate the power of the Senate to impeach, as trial, conviction and banishment from office could be easily avoided by resignation of the accused.  

The defense presentation reflected the chaos in the mind of the client. Defense Attorney Bruce Castor, former Pennsylvania Attorney General, struggled mightily to make his points, and did not accomplish this objective. He presented a long, rambling, random, incoherent speech filled with vague generalizations and patriotic platitudes. Castor went on at great length to insist that all Senators are patriotic; care greatly about the country; do the right thing; and always insure full debate of all issues. He expressed abhorrence of violence; wondered who caused the riot; made reference to the judicial thinking of Nebraskans; referenced mostly forgotten quotes and forgotten sources; and explained the workings of a record player.  Castor made reference to ancient Rome and Greece, where failure of their Senates to act caused failure of their democracies, causing me think for a moment he was the prosecutor he accidentally stated he was when he introduced himself.  His hand written notes on a yellow legal pad suggested he had just written them, which he later acknowledged, as after seeing the prosecution’s presentation, the defense was forced to change its entire rebuttal strategy on the spot.  Castor went on to warn against passion and rage blinding logic and reason; this seemed a strange defense of the President’s incitement of a riot to overturn an election. Castor then warned that limitation of freedom of speech was a danger to our democracy, and that we should not ”give up liberties that we sent armies around the world to create”; again leading me to wonder which side he was on.  He continued on, warning that partisan impeachments will become commonplace; that anyone can be impeached at any time; and that party control and impeachment power can shift.  Castor concluded the “real reason” for Trump’s impeachment was not the riot by Trump’s mob that killed seven people in an effort to stop the electoral college vote; but was a partisan political act reflecting fear of Trump in the 2024 election. Almost mind numbing, Castor concluded it is “the people” who decide upon removal of a President through the election, and since Trump has just been removed from office in the election, the Senate’s role was irrelevant; this seems a bizarre statement under the circumstances of Trump’s continuing insistence that he won the election, and his extensive efforts to overturn its result, including by mob riot, the subject of the trial. 

David Schoen followed; he is a private criminal defense lawyer experienced defending various mobsters, criminals, Roger Stone, and Joel Epstein.  Schoen repeated much of Castor’s false narrative, insisting Trump’s impeachment was too late to be tried because Trump was out of office; and then arguing the opposite position, that it was too early, due to lack of supporting evidence from extensive investigation.  This was followed by a long critique of due process based on criminal trial practice; wholly ignoring the radically different format, procedures and standards for impeachment trials which are laid out in the Constitution.  Then a long attack on the prosecution’s partisan political motivations; decrying of the opening of political wounds; the Democrats “lust for impeachment”; treating impeachment as “blood sport”. This was all designed to eliminate Trump as an electoral threat in 2024, disenfranchising 74 million Trump voters, contradicting the argument of his co-counsel that “the people” had already removed Trump from office at the election. Schoen insisted Democrats were using impeachment to further their political agenda; and cited an anonymous quote of a Democratic appointee regarding the trial’s unconstitutionality.   He then waved Mao’s famous “Little Red Book”, claiming this was what the Democrats wanted, the ability to dictate policy, as with rule by the Communist Chinese dictatorship.  Schoen concluded with a extended recitation of a Longfellow poem about sailing into a storm.

The impeachment of the President is not a normal criminal trial in the courts; the accused has a unique position in our system of government with unique powers.  Impeachment procedures are laid out in the Constitution and are fundamentally and radically different from normal criminal trials; so that trial procedures, standards of proof, and constitutionality of the trial are all for the Senate to decide and they are empowered by the Constitution to do so.  So critiques of due process standards based on normal criminal trials are wholly misplaced. Supported by the Constitution’s language; by numerous impeachment precedents; and by extensive and unrebutted current scholarship; the Senate has decided that trial of the President after the end of his term is Constitutional; so that issue is now settled. Procedures for the trial, within parameters set forth in the Constitution, have been negotiated and approved by vote of the Senate, so that issue is now also settled.

Now the Senate has to decide if former President Trump is guilty of the charge of incitement of an insurrection against the government in violation of his oath of office, and if this is a high crime and misdemeanor. The Supreme Court’s Brandenberg decision concludes that the Constitution’s guarantee of freedom of speech precludes use of inferential language as the basis for a criminal charge of incitement to riot; a direct instruction to commit violence is required to meet this legal standard.  But the defendant in the Brandenberg case, the self-appointed “leader” of the Ohio Ku Klux Klan, is not the President of the United States; does not possess the powers of that position; has not taken an oath to protect and defend the Constitution; and is not the subject of a Senate impeachment trial for incitement of insurrection against the government. 

The President holds a unique position under the Constitution with unique powers, and has an affirmative obligation, based upon his oath of office, to protect and defend the Constitution. Since Trump’s actions January 6th are the culmination of four years of ignoring, undermining and outright attacking the Constitution, it seems clear his incitement of his mob’s attack on the Capitol to disrupt the electoral vote count, in the midst of his months-long campaign to reverse the election result, violates his oath of office, and is a high crime and misdemeanor. This remains true despite argumentation over the meaning of the word “incite”, or its normal application in a criminal trial; again, the Senate is empowered by the Constitution to decide these standards. No other criminal cases of riot incitement have ever involved the President of the United States. It does not matter if we use the word “incite” or synonyms like “encourage” “instigate” “provoke”; etc.; none of this changes what Trump actually did, and what actually happened as a consequence of his actions. Argument to the contrary reduces a grave and momentous decision to linguistic gibberish. 

The prosecution’s case was powerful, and should be viewed if you missed it. The defense presentation was so incoherent as to be almost entirely irrelevant. The defense arguments that the trial was too early, then that it was too late, are self contradictory; the latter argument is especially disingenuous as it was the Republican Majority Leader who refused to conduct the trial before the end of Trump’s term, insisting it was the next Senate’s job to do so under newly elected Democratic control.

Just as Watergate created standards of Presidential behavior, guardrails that even Trump was convinced to respect, so will the result of this trial. So the Republicans in the Senate have a choice, and it is binary. They can vote to convict Donald Trump of High Crimes and Misdemeanors under the Constitution, and make it clear for the future that this type of assault on the Constitution is not acceptable, and that a President who commits such acts will be removed and barred from office. Or they can vote to acquit, and establish a standard that this behavior IS acceptable for a future President, a truly horrifying result.

If the Republicans are so afraid of Trump and his electoral base that they must hang their acquittal votes on bizarre Constitutional interpretations, then what do they expect to happen when Trump runs for President in 2024? And since he is already out of office, Trump would only care about conviction and banishment from future office if he is planning to run again in 2024.  If he does, and if he is elected, what can we expect President Donald Trump to do in his second term to secure his position, after observation of his failed efforts to do so in his first term?

The Republican Party has remained for decades in a fantasy of libertarian regulatory policy; supply-side economics; ruthless subjugation of the working class; and “originalist” Constitutional interpretation.  Now they have created a fantasy interpretation of impeachment under the Constitution, and are following a large electoral base organized by on-line misinformation, with a violent citizens militia. The Republicans not only share a party-wide abdication of responsibility under the law and the Constitution, but are on the verge of a complete detachment from reality.  They currently have the opportunity to remove a clear and direct threat to the American Republic, and they are unwilling to do so. This represents the final stage of the complete intellectual and moral corruption of the Republican party; the logical end result of their libertarian ideology. 

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