Tuesday, January 19, 2021

Impeachment Trial Anyway

President Trump has been impeached, again, but it appears that his Senate trial will not take place until he has left office in the ordinary course. That has caused some to question not only the wisdom of a Senate trial, but also its legality. So, the question presented is whether a trial in the Senate will be proper, and, if so, will it be in any way effective.

It shouldn’t be surprising that eminent legal scholars differ on this point. [1] The Constitution doesn’t seem to answer the question directly. But although the issue is challenging the best legal minds, your humble servant will take a stab at it, hopefully without too much hubris.

One thing we can get out of the way at the onset is that there is little likelihood that the Supreme Court will weigh in on the matter. In the 1990s one Walter L. Nixon, Jr., a former federal judge, asked the Court to rule that the Senate trial that removed him from office was conducted improperly. But the Court held that it is up to the Senate how it conducts impeachment trials, and that the federal courts have nothing to say about it. [2] And, as a practical matter, armed with that precedent, it is unlikely the Supreme Court will come within a hundred miles of this case.

What’s more, impeachment proceedings against a person who has left office has historical precedent. In 1876, William Belknap, President Grant’s notoriously corrupt Secretary of War, raced to the White House to hand Grant his resignation just minutes before the House of Representatives was scheduled to vote on impeachment articles against him. The House went ahead anyway, and, after the articles were sent over, so did the Senate, which decided it retained jurisdiction over the matter. As it turned out, the Senate didn’t convict him, but it wasn’t because Belknap had already resigned. [3]

Now the immediate effect of conviction on an impeachment is removal from office. [4] That seems pointless at this juncture, that is, since the Senate isn’t going to try him before Joe Biden takes office. But there is one other thing that can happen. Trump can also be disqualified from holding any federal office in the future. That’s not automatic. But if the Senate decides to go that route, it can, after conviction, take a further vote on the question. And while conviction itself requires a two-thirds supermajority, a judgment that Trump is disqualified from holding further office would require only a simple majority.

So, there is a practical reason to go ahead with a Senate trial on Trump’s impeachment, and there doesn’t appear to be a prohibition against doing so. And inciting a mob to riot at the Capitol seems a sound reason to keep him away from governmental power in the future.  

Thursday, January 14, 2021

Somebody Has To Say It

Suppose you discovered that votes for your favored presidential candidate had been thrown out or otherwise suppressed by a nationwide cabal of powerful people determined to impose a government upon you against your will, and that their preferred candidate will lead an effort to deprive you of your constitutional rights. How would you respond? Some might passively accept the new situation, and make plans to stay out of trouble. But a good number of us Americans might just march on the Capitol to visit harm on the conspirators.

We’ve done it before. Our nation was founded in revolution, and we, of all people on earth, have no legitimate basis for saying that violent revolt is always and everywhere an illegitimate response to governmental action. It should never happen where there remain peaceful alternatives, of course. But if what President Trump and his media acolytes were saying about the 2020 presidential election was true, what peaceful remedy would be available for that? Massive civil disobedience might be the most effective remedy in the long run, but it isn’t to be expected that a majority of Americans share that view.

It thus appears that President Trump and other dispensers of purported information to the general public were giving a rendition of contemporary affairs that was likely to incite rebellion against the United States government. Knowing that he had a loyal following, Trump told them that republican government was on the line, and that powerful conspirators were engaged in an operation to render their votes ineffectual.

That wasn’t true, of course. It was a lie, and a profoundly serious one. And he had help in the media and even in Congress. The intent, clearly, was to be believed, and to get people to act as if the disinformation was true. Reasonable people understand that many were likely to respond with violent revolt.

Why was this allowed to get so far? We have a very strong tradition in the United States supporting freedom of speech and the press. That is a good thing in the main, but even something that we consider so sacred can get out of hand. Lies that incite misguided rebellion is freedom of speech that is entirely out of hand. And we must stop it before it does more damage.

Sir William Blackstone, the great expositor of the common law, and whose Commentaries on the Laws of England provided the conceptual backdrop of much in the American Constitution, said, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press, but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” [1] But we have changed freedom of speech and the press into a libertinism. The outcome of our folly should now be manifest to all.

There has been much handwringing of late over the prospects of our country coming together again. The elephant in the room has been that we cannot achieve national unity if there is no agreed set of facts; and we can’t have an agreed set of facts if a substantial portion of the population is believing lies. Speech or writing, then, that is known to be false by the disseminator, or is disseminated with reckless disregard of its truth or falsity, and is of a nature to deceive the public into misguided political action, should be criminal. We cherish our democracy. But democracy can’t work if the people are victimized by disinformation.

Lies can harm society. Therefore, some lies should be prohibited.

Yes, there is a danger that governmental agents will abuse such a law. That’s true of most laws. For example, government agents can plant evidence in a variety of criminal cases, yet that is rarely, if ever, put forward as a reason to not have a criminal justice system.

But we have a safeguard that most countries do not: juries. Juries aren’t government agents, obligated to state superiors. They are drawn from the general citizenry, and it is they who will ultimately pass on the truth or falsity of statements. One day we will learn that it is the jury system that is the true guardian of our liberties, not prophylactic rules that inadvertently provide loopholes for the mischievous and cunning.

We have laws against lying to cheat people out of money. It’s time to have laws against lying to misdirect people politically. As we have just seen, lying of that kind can bring about serious social harm, and should not be considered protected speech.

There. I said it.

Thursday, January 7, 2021

He Needs To Go Now

It appears that administration “officials have started discussing the possibility of invoking the 25th Amendment to remove President Trump from office, according to a source familiar with the matter.

“Officials have exchanged calls and messages about the extraordinary measure, which would require a majority of Cabinet officials plus Vice President Pence to declare to Congress that Trump is unable to fulfill his duties as president.” [1]

Your humble servant suggested this very thing on another occasion [2], but inciting insurrection might convince the responsible officers that the time has come.

Why now? His presidency will end on January 20th, just a few days hence.

But the problem is, he will be president until January 20th. While he isn’t likely to get the cooperation of the military in his yen to seize power, he nonetheless controls a massive governmental apparatus. Given that he appears to be completely off his rocker, it’s probably not a good idea to allow him to retain possession of it for even a short time. It would be bad for national security for the ship of state to be essentially rudderless until Joe Biden’s inauguration.

There may be too many sycophants in his administration to pull off any 25th Amendment action, however. If so, there is another way.

No law prohibits a president from being impeached twice. And this time, Trump really did it.

Section 2383 of Title 18 of the United States Code provides that whoever “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” [3] That seems to cover Trump’s behavior pretty well, and committing a federal felony is a legitimate ground for impeachment.

It’s also a legitimate ground for conviction on an impeachment.

But would there be enough Republican senators to convict? Mitch McConnell, for one, seems to have reached the end of his tolerance for Trump’s shenanigans, and he is in a position to be persuasive.

But we have to get this guy out of there. Now. Today. It might be difficult to come up with something crazier than inciting insurrection, but do we really want to test it out?