House Impeachment Brief: Dems Make the Case
Nancy Pelosi and the House Managers at the signing of the Second Impeachment of President Donald Trump Office of Nancy Pelosi, [Public domain] via Wikimedia Commons
There’s one point in particular, however, that I think should be emphasized. From the intro (emphasis mine):
President Trump committed this high crime and misdemeanor amid his final days in office. Given the clarity of the evidence and the egregiousness of his wrongdoing, the House approved an article of impeachment for incitement of insurrection. Now, merely weeks later, President Trump will argue that it serves no purpose to subject him to a trial and that the Senate lacks jurisdiction to do so. He is mistaken. As we explain at length below—and as scholars from diverse viewpoints have long recognized—the text and structure of the Constitution, as well as its original meaning and prior interpretations by Congress, overwhelmingly demonstrate that a former official remains subject to trial and conviction for abuses committed in office. Any other rule would make little sense. The Constitution governs the first day of the President’s term, the last day, and every moment in between. Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term. The Framers of our Constitution feared more than anything a President who would abuse power to remain in office against the will of the electorate. Allowing Presidents to subvert elections without consequence would encourage the most dangerous of abuses.
This is a point I keep returning to. While I respect the opinion of those who worry this will just divide the nation further and/or allow Trump to claim exoneration, I simply cannot let what happened on January 6 slide.
It is long-established precedent that you cannot criminally prosecute a sitting president (although that has yet to be tested in Court). Impeachment is literally the only option we have for punishing, removing or debarring from office a sitting president. If we do not exercise this power when appropriate, we are saying that the president is beyond the reach of any responsibility or justice.
And that applies more now that Donald Trump is out of office, not less. If we say that a president cannot be impeached after he leaves office, we are saying that the lame duck period of a presidency — between Election Day and Inauguration Day — is a free-for-all, a time when the president can act in a lawless and unaccountable manner. We are saying that actions taken during that time have no consequences.
Anyway, read the brief if you feel like it. I think it makes the case very well, especially when talking about how this isn’t just about a speech but about the months and weeks preceding it.
There’s probably not much hope of a conviction unless testimony reveals something extremely bad. But it’s important that Trump’s culpability and criminality be laid out as clearly as possible for the American people. There’s a quote from Babylon 5 of which I am fond:
When others do a foolish thing, you should tell them it is a foolish thing. They can still continue to do it, but at least the truth is where it needs to be.
Letting Donald trump get away with inciting an insurrection is a foolish thing. I fully expect the Republicans to do that foolish thing. But if the impeachment does nothing else, it will put the truth where it needs to be.
house-impeachment-brief
William Blount and William Worth Belknap were both impeached and tried after they left office. Belknap’s trial is a trenchant precedent, as the Senate needed 40 votes to convict and thete were only 35, split largely along partisan lines. The Senate was unanimous that as Secretary of War, Belknap had taken bribes, but 23 acquittal votes were based (ostensibly) on the theory that Belknap had resigned in disgrace and it was unthinkable the public would ever trust him with power again, so a conviction was unnecessary.
Lessons learned:
1. Yes you can impeach someone who no longer holds office. No reason that’s not true for a former President.
2. No longer holding office offers partisans of the impeached defendant cover to vote to acquit despite the obviousness of the defendant’s guilt.Report
This is the most salient part of all this IMHO. Aside from a strong deterrent effect, it also makes clear – again – that we are a nation of laws and not men, which is particularly important in Mr. Trump’s case.
Its also becoming clear thanks to reporting by numerous outlets that planning to storm the capitol occurred weeks to months in advance, so that Mr. Trump’s pattern of behavior is very much at issue. Given the number of arrests and charges, its also clear the FBI and DOJ are taking this seriously, and I would not be surprised to see criminal charges charging in toward his inner circle as the weeks wear on.
As to the likelihood of acquittal – I am happy to make Republicans own that for the rest of my life. as a Party they have spent 4 or 5 decades laying the ground work that endangered the lives of their House and Senate colleagues that day. One hopes the sight of the Capitol Police Officer lying in Honor in the Rotunda today will give them further pause about what they wrought – but that presupposes a level of serious introspection I find spectacularly lacking in todays politicians.Report
” Given the number of arrests and charges, its also clear the FBI and DOJ are taking this seriously, and I would not be surprised to see criminal charges charging in toward his inner circle as the weeks wear on.”
Well then, there’s no need to rush this is there. Wait for the arrests of these folks and let the legal system convict them. Then come back and impeach him and convict. Why tie up the administration and congress on Biden’s first 180 days or more with this?Report
The entire stop the steal bs was aiming at something like this for two months. You couldn’t have written a more clear fictional story that wouldn’t seem to over the top. I mean “stop the steal” with a big rally that led directly to the coup attempt. Geez. It is also very hincky (read as smoking gun evidence) that the acting AG took away the DC NG abilities two days before the coup. Imagine something so out there that Barr wouldn’t go for it. And of course the R’s will fail except for Romney and maybe one other.Report
I believe the President can and ought to be impeached and disqualified.
On a quick skim of the doc, I think the outline is concise and accurate, but I’m less sanguine about the blow-by-blow descriptions which I feel are more like a twitter recap than a good argument of principles.
D. President Trump Incites Insurrectionists to Attack the Capitol …………………………………. 20
E. Insurrectionists Incited by President Trump Attack the Capitol ………………………………… 22
F. President Trump’s Dereliction of Duty During the Attack ………………………………………… 29
In particular, I think the drafters have made a huge strategic mistake in Section F (Dereliction of Duty) by calling out the Presidents Tweets during the riot where he urges them to avoid violence. I guaranty that people will follow the logic introduced by the drafters themselves that Trump was at least trying to do ‘something’ … the proper way to frame this was that he was PRESENT to incite, but while the Riot was escalating his dereliction of duty was manifest by ineffectually tweeting in ABSENSE. The tweets in the doc are treated as mitigating features that they downplay rather than prove actual dereliction. There’s also no discussion of the National Guard and it’s standing orders(?), Confusion during the Riot, and eventual deployment by ? (Pence? Schumer/Pelosi?). This will bite them in the butt, and is an unforced error.
Unfortunately a lot of the rest of the indictment reads like this… its a B- … trying to paint an emotional scence a’la Twitter and missing the simple facts that would illustrate Trump’s basic complicity and dereliction.Report
I suspect some of that will come out in the trial where it will make way more impact.Report
Maybe I’m cynical, but I don’t think the quality of the arguments actually matter one iota. They could have their kids draft this in crayon, or summon the best rhetoricians from history to painstakingly draft this document. It wouldn’t matter either way.
These decisions will be made based on political calculation, not on the quality of argument. This no doubt applies on “both sides,” although clearly I favor one side over the other and believe both facts and values are on “our side.” But still, this is fundamentally political.
In other words, the documents should be drafted in a clear and professional way, just insofar as they reflect on those drafting the documents. However, their actual content doesn’t really matter much, past giving political eggheads something to argue over.Report
Agree, the GOP will largely vote against it because they desperately need those Trumpaloo voters to maintain their viability as a party. But it’s a pretty good document for history and posterity. The Republican Party may have started as the party of Lincoln but now it’s the party of Trump and this impeachment vote will solidify that for history. Ol’ Abe must be spinning in his grave.Report
If Abe has a ghost who is seeing what’s going on, he’s doing the ghostly equivalent of crying in anger and throwing the good china around the bedroom in the White House that bears his name. But then, Abe’s ghost would have been pretty damn pissed off at the successors of his party since at least 1968 when Nixon adopted the Southern Strategy.Report
True dat.Report
Very well put. That’s the big flaw in this process.Report
I made it through the first half of the document, and I don’t see anything in it to persuade someone who wasn’t already convinced. It demonstrates thoroughly that Trump sought to subvert democratic institutions, but it’s supposed to document that he incited insurrection, which is a legal term whose conditions this incident failed to meet.Report
“It’s difficult to get a man to understand something when his salary depends on his not understanding it.”
~SinclairReport
You think I’m getting paid?Report
I’m referring to the GOP Senators and Congresscritters.Report
so short of him declaring a coup and ordering the army in what else would you need to get there from here?Report
My standard for inciting insurrection is the legal definition of incitement. As I’ve said, I think it makes the case that Trump attempted to subvert our democratic processes, and if the House had made that charge, this document would have done what it had to.Report
There simply is no requirement that an impeachment trial follow the statutory definitions of the accused crimes. Perhaps you think they should, but it is clear that they do not. In a theoretical sense, this follows from the separation of powers. There is no judicial review for impeachment, not any executive oversight. There cannot be. Congress decides impeachment, and they are 100% free to follow their own logic. An action is impeachable precisely because the house indicts and the senate convicts. That is all. There is nothing else.
Trump almost certainly could not be convicted in a court of incitement, as the legal definition of incitement is drawn narrowly. The reason to draw it narrowly is to limit government power. The state cannot convict you or I of incitement, except based on very clear and narrowly defined evidence. This is as it should be. An impeachment, however, is a different beast, and the word “incitement” has meaning beyond the definition in statute. Congress is within its right to use those broader meaning when acting to curtail abuses by the executive.
Trump very much incited violence. It’s plain as day.Report
Let me give an example. At the rally, Giuliani said this:
“Now, if they ran such a clean election, why wouldn’t they make all the machines available immediately? If they ran such a clean election, they’d have you come in and look at the paper ballots.
“Who hides evidence? Criminals hide evidence, not honest people. So, over the next ten days, we get to see the machines that are crooked, the ballots that are fraudulent. And if we’re wrong we will be made fools of, but if we’re right, a lot of them will go to jail.
“So let’s have trial by combat. I’m willing to stake – I’m willing to stake my reputation, the president is willing to stake his reputation, on the fact that we’re going to find criminality there.”
If you only saw the quote about trial by combat, you could call that evidence of incitement. The document presents it as such. But if you heard the whole passage, you’d see that it was a piece of rhetoric. Giuliani clearly wasn’t calling for review of ballots and machines, then medieval justice, then more review of ballots and machines. He was using passionate rhetoric, but not calling for violence.
The document stacks up a big pile of such examples. Incitement requires a specific threat though. If you want to use the term “incitement” more generally, then you can do so, but the fact that a impeachment is an official process means to me that the word should be taken in its most literal meaning. And the document does just that: when it doesn’t use the word “incitement”, it refers to the president’s actions as directly responsible for the riot.
I think they make the best argument they can, but ultimately the number of things they cite that don’t make the case highlight the fact that they don’t have the thing that would make it.Report
You clearly need to spend more time looking at how authoritarians work publicly. Rudy’s rhetoric is how they talk in rallies and public about fighting. Ditto Trump’s fighting for the country comments. They never directly tell their followers to go out and beat people or commit genocide to any such thing. Their supporters are all well aware of what’s being said, and act accordingly.
That aside, as we were all reminded ad nauseum last time, impeachment trials are political activities with legal trappings. The DOJ may well issue additional indictments regarding the insurrection (over and above what they have) and in that case the legal standard might be more appropriate. Applying it in an impeachment however, moves the goal posts into something that was never intended by the framers, never mind modern interpretations.Report
To Veronica and Philip – First off, I think we can agree that a president can be impeached for something that isn’t a crime. And there can be differences between legal language and common usage. An article of impeachment is an official statement, and is a legal document in the sense that it exists in accord with the Constitution, but it doesn’t have to use legal language.
Still, using a word with two meanings creates unnecessary confusion.
Further, the presentation (at least the first half; I still haven’t read the whole 80 pages) seems to use the word “incitement” according to its legal definition. It leads a narrative up to a dramatic moment, when Trump sets off the powderkeg. But it fails to describe that moment in any way that can be called incitement. It’s simply very common political rhetoric with the occasional prudent “peacefully” tossed in.
Philip recently pointed me toward a New Yorker piece on Andrew Cuomo. It contained this comment from the governor about Trump: ““He can’t have enough bodyguards to walk through New York City. Forget bodyguards—he better have an army if he thinks he’s going to walk down the streets in New York.” Obviously not a threat, not incitement. Is it much different from the excerpts from Trump’s speech? Not really.
You could characterize Trump’s speech as incitement, but I don’t see how you could do so using a definition that didn’t include Cuomo’s.Report
I think Cuomo is a dipshit, so don’t read this as defending him. However, I read his statement as an observation of how much people despise Trump. By contrast, Trump’s whole “The election is stolen. It’s stolen from you. This is doom. Proud Boys ‘stand by’ ” — of of that. Taken as a whole it was incitement.
To understand this requires observing patterns of behavior within context. It’s the difference between saying to a shop owner, “Hey a storm is coming. I hope your window doesn’t break,” compared to a mobster thug saying, “That’s a nice window. It would a shame if something happened to it.”
In isolation, those statements aren’t that different. In context, they are very different. The difference is obvious. While certainly a person could make pedantic arguments about how they are the same, I could not trust the good faith of someone who tried that. We all know the difference.
Trump repeatedly “joked” that he wouldn’t accept a loss in this election — and note, those were not jokes. When he lost, he lied repeatedly in the most irresponsible possible way, which drove his base into a paranoid frenzy. He did this over the course of months. It was not “incitement” in the limited sense, but it was incitement. He must be held responsible.Report
What if I don’t think the difference is obvious?
I talked about the Giuliani quote on this thread. Elsewhere, I’ve talked about the Proud Boys “stand by” quote, how I read is as clumsy phrasing about a group Trump clearly hadn’t heard of or couldn’t recall, rather than a statement of battlefield tactics. I truly don’t believe that anyone can make the argument that it meant something in good faith after consideration.
Maxine Waters told a crowd, ““Let’s make sure we show up wherever we have to show up. If you see anybody from that cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd, and you push back on them, and you tell them they’re not welcome anymore, anywhere.” How many positive things did Ted Wheeler say every day in the summer while every night there were riots? More generally, how many times an hour do politicians tell their followers to fight?
I haven’t watched Trump’s speech from that day. I assume that the most toxic quotes have been publicized. There’s nothing there that strikes me as outside the average.Report