Forgive & Forget About Donald Trump--Now!--Or Not: My Thoughts

                                   Dante leads the way to a consideration of what to do with Trump
 

In Dante’s tale of his pilgrimage through the afterworld as a living man, he descends into Inferno (hell) with his guide, the shade of the great Roman poet Virgil. After plumbing the depths of hell, Dante and Virgil ascend into Purgatorio (purgatory), a mountain that Dante and any would-be entrant into Paradiso (paradise) must traverse before gaining entrance to the final heavenly reward. The journey up the mountain serves to purge the pilgrim of his sins. And in the ninth canto (section), Dante awakens from his sleep to find himself at a locked gate guarded by an angel with a flaming sword, and in front of Dante lie three steps up to the gate. The first consists of white marble polished to a reflective shine. The second step is deep, dark indigo, rough, with a deep fissure running both its length and width. The third and final step before reaching the angel with the flaming sword, is a deep red, the color of venous blood. The Mandelbaum translation: 

“Come forward, therefore, to our stairs.” 

There we approached, and the first step was white marble, so polished and so clear that I was mirrored there as I appear in life. 

The second step, made out of crumbling rock,

rough-textured, scorched, with cracks that ran across its length and width, was darker than deep purple. 

The third, resting above more massively, appeared to me to be of porphyry, as flaming red as blood that spurts from veins. 

And on this upper step, God’s angel— seated upon the threshold, which appeared to me to be of adamant— kept his feet planted.

Alighieri, Dante. Purgatorio (La Divina Commedia) (Kindle Locations 3634-3663). Random House Publishing Group. Kindle Edition. 

Each step allows the pilgrim Dante to continue on the path to purging his sins, and each step represents an essential element required to continue the path. Translator Michael Mandelbaum’s notes explain the process and the symbolism: 

This first of the three steps corresponds to the first of the three parts of the sacrament of penance-confession— contrition of the heart. The clear polish of the marble reflects the sinner’s true image, so that he can recognize his sinfulness. The second, made out of dark crumbling rock, corresponds to the emotional upheaval that comes with confession by the lips, the second part of penance; and the third step of “porphyry, / as flaming red as blood that spurts from veins” corresponds to satisfaction by works, the third stage of penance. The bloodred color suggests both the blood Christ shed to redeem the sins of mankind and the zeal needed to shun future sins.

Id., Kindle Locations 24696-24701. 

So what relation does a snippet of text from a long medieval poem have to do with whether to pursue the removal and disqualification process against Donald Trump? Bear with me. 

These few lines from Dante’s masterpiece came to mind from reading and hearing opinions pro and con about pursuing the case against Trump for his role in the attack on the Capitol.  I realized that much of my reaction and analysis of this issue stems from what I’d experienced hundreds of times in my decades as a lawyer involved in hundreds of criminal cases, from traffic tickets to serious felonies. And as you may know, most criminal cases that get beyond the preliminary stages are resolved by a guilty plea or a guilty verdict, either to the original charge or to a related charge. And what does a guilty plea entail? First, an admission by the defendant that he or she (but a lot more “he”) has in fact committed a crime. This often requires the defendant to describe the crime committed. And, in the hope of receiving a more favorable sentence--less of a fine, less probation time, less jail time, or even less prison time-- the defendant is given an opportunity, preferably in-person, to address the judge directly and express remorse for his actions and make assurances that any leniency will not be abused by further violations. The sentence passed by the court will often not only include a prescribed form of punishment (which is the prerogative of the state), but also some form of satisfaction or atonement. For instance, the payment of restitution (similar money damages in a civil case) to the victim of a crime who suffered a measurable monetary loss, or perhaps some form of community service. Sincerely expressed apologies to the Court and to victims also can play a role. There is all manner of variations on this outline according to the varying practice of each jurisdiction, but in general,  this is how it works. (I’ve experienced this process in four different jurisdictions, Federal, Iowa, Illinois, and Maryland--as an attorney!) 

I hadn't realized it before now, but all of these instances were variations on a theme described by Dante, who wrote from medieval Italy!

I’ve heard from a variety of sources--some highly partisan (Republicans) and some definitely not Trump supporters--that we should not pursue the impeachment process against Trump because it will continue and perhaps worsen partisan divisions (the primary Republican argument) or that we should immediately put Trump in the rearview mirror and concentrate on the future. In fact, it’s a post by a friend on Facebook that has led me to record these thoughts. My friend wrote: 

No one is happier with the personnel change in our federal government . . . that took place today than I am.  HOWEVER, it is time to stop the anti-DJT, et al, rhetoric and focus on working to ease the unrest he showed us is there.  It is time to put the words peaceful, respectful dialogue into our political vocabulary and to understand that the answers to most issues are in the term, moderate, (versus far-left or far-right).

 

On one hand, I couldn’t agree more with this sentiment. Politics in a democracy requires a commitment to certain principles, some formal and written, as in the Constitution, and some informal, such as norms of courtesy and civility in public discourse. Those who don’t share a commitment to democracy and liberty--in the sense of freedom of speech and the ability to participate in the public square--take themselves outside of politics as such when they violate these norms and resort to violence (threatened or actual). Speech that leads to action taken by a political body after due deliberation is the essence of politics. (In this train of thought I follow the insights of Hannah Arendt.) And the goal of a democratic polity should be to bring as many possible persons into the decision-making realm as possible, persons who are willing and capable of engaging in civil discourse. We can also imagine our nation as a “society” in the sense of a group of persons coming together for a joint undertaking. In doing so, we seek to transform areas of “non-agreement” into areas of “agreement” via a “dialectical process” that’s based upon persuasion and led by a spirit of cooperation. Conversely, society should work to minimize areas of “disagreement” that are reinforced by an “eristic process;” to wit, the use of arguments in which one side or the other prevails.  I’m taking this line of thought from R.G. Collingwood, the early 20th-century British philosopher. It’s worthwhile to quote Collingwood’s words at some length below to appreciate his perspective that I’m endorsing and using: 

24. 58. What Plato calls an eristic discussion is one in which each party tries to prove that he was right and the other wrong.

 

24. 59. In a dialectical discussion you aim at showing that your own view is one with which your opponent really agrees, even if at one time he denied it; or conversely that it was yourself and not your opponent who began by denying a view with which you really agree. 

 

24. 6. The essence of dialectical discussion is to discuss in the hope of finding that both parties to the discussion are right, and that this discovery puts an end to the debate. Where they ‘agree to differ’, as the saying is, there is nothing on which they have really agreed.

 

 

27. 92. In a dialectical system it is essential that the representatives of each opposing view should understand why the other view must be represented. If one fails to understand this, it ceases to be a party ‘and becomes a faction, that is, a combatant in an eristical process instead of a partner in a dialectical process.

 

 

28. 17. An ‘eristic’ (24. 58) political process can go on without discussion. Aiming as they do at victory, the parties to it may very well use force (20. 5) or attempts at force; for each tries to crush the rest, and this is best done not by discussion but by violence: that is, by civil war among the rulers. 

 

28. 18. A ‘dialectical’ (24. 59) political process, aiming not at victory but at agreement, might certainly go on without discussion in words, if a language of gesture or other nonverbal language was once fairly established; but, as it is, verbal discussion is the only kind which men can extensively use for political purposes.

 

 

29. 52. Dialectic is not between contraries but between contradictories (24. 68). The process leading to agreement begins not from disagreement but from non-agreement. 

 

29. 53. Non-agreement may be hardened into disagreement; in that case the stage is set for an eristic in which each party tries to vanquish the other; or, remaining mere non-agreement, it may set the stage for a dialectic in which each party tries to discover that the difference of view between them conceals a fundamental agreement.

29. 6. Granted that these ‘conflicts’ (non-agreements, not disagreements) are inevitable, how are they to be dealt with? 

 

29. 61. There are two possibilities. They may be dealt with dialectically: that is by a process leading from non-agreement to agreement; or they may be dealt with eristically, that is, by hardening non-agreement into disagreement and settling the disagreement by a victory of one party over the other. 

 

29. 62. To adopt the second alternative is to make war. To regard the second alternative as the only one available in such cases is to think of war as the only possible relation between bodies politic; to think that every body politic is permanently at war with every other.

 

29. 63. War is a state of mind. It does not consist in the actual employment of military force. It consists in believing that differences between bodies politic have to be settled by one giving way to the other and the second triumphing over the first.

 

Collingwood, R. G.. The New Leviathan. Read Books Ltd.. Kindle Edition. 

 

In short, we can either attempt to work together or go to war. Of course, in some circumstances, “war” in the guise of an eristic argument may be justified. For instance, in a judicial setting, a trial is a forum where eristic arguments are the norm and the parties may be said to be involved in a “war of words.” But note that the law courts and legal process quite different from legislatures and the political process. The courts of law resolve disputes within parameters established by the Constitution (or “constitutions,” as each state has its own constitution) and the laws adopted by the legislature. Thus, fights are contained and constrained when they reach the courts. For instance, if the legislature passes--and the executive branch approves--a law against inciting a riot, that law will be enforced by the courts. The eristic element is constrained by the parameters of the law adopted. Thus, in this example, the issue isn’t whether one should be allowed to incite a riot, but whether a person intentionally did in fact incite a riot. 

 

All this is to say that while we should seek agreement wherever we can, we will still have disputes and differences that entail argument and not simply efforts at accommodation. 

 

Now to the orange elephant in the room--or more accurately, in Mar-a-Lago. I cannot agree more with President Biden (and my friend quoted above) about addressing our differences and healing our divisions. We can disagree about policies: the role and effectiveness of government, the most appropriate level of immigration to allow; the most appropriate form and level of taxation; the best way to address climate change; and so on. These policy issues, and about every other policy issue, appropriately give rise to differing opinions. Also, interests vary. Values vary. This is why a commitment to values of process is so crucial in a democracy, values such as a commitment to the peaceful resolution of conflicts and the peaceful transfer of power. 

 

But where a serious allegation of wrong-doing against anyone, even a president, is based upon good-faith evidence that meets the standard of probable cause that a crime has been committed, that allegation must be addressed, even if it raises the specter of further partisan division. (This also applies to “high crime or misdemeanors,” although such allegations need not necessarily constitute a violation of the criminal law.) 

 

To walk away now from the issue of former President Trump’s culpability for the January 6 attack on Congress would prove an egregious mistake. Perhaps more than a third of the Senate will not find Trump culpable for inciting an insurrection. Perhaps there will be enough senators who will doubt that Trump formed any requisite intent or that “incitement” is too vague a term. And some senators will certainly make a decision based solely on their sense of how their vote will play with their home-state voters. But to allow Trump to hold this highest office ever again and to allow him to reap the rewards of post-presidency without any reckoning-- without any confession or contrition for his actions--is an insult to we the victims of his wrongdoing. (Yes, I’m claiming wrongdoing on his part--his lies, his sowing of dissension, his attempt to corruptly influence election officials,  his refusal to honor the democratic process--even if some do not believe that his actions rise to the level of high crimes and misdemeanors.) 

We, the American people, as much as the institution of Congress, are the victims of the January 6 attack. We should not expect or request that the American people simply forgive and forget the assault promoted by Trump, (as I contend it was). We should not ask the American people to simply forgive and forget any more than we should expect the victim of an assault--a spouse, a child, a friend, or even a stranger--to pretend that they should simply “forgive and forget” the actions of an utterly unrepentant, utterly remorseless perpetrator. The Senate must pass judgment for us to achieve a sense of justice and an opportunity for reconciliation. It may seem harsh, it will likely prove divisive, but without it, we won’t achieve the reckoning and reconciliation that we want and need. And finally, if we fail to act by giving this matter the full consideration and judgment that it deserves, will fail those to whom we are passing on this democratic republic. As President Biden noted in his inaugural address, “We have learned again that democracy is precious. Democracy is fragile. And at this hour, my friends, democracy has prevailed.” But “this hour” alone should not satisfy us. How we act--or fail to act--will echo deep into the future and will define the course of our nation for the decades to come. We mustn’t do the convenient thing, we must do what the times require of us. We must leave the legacy that will allow future generations to enjoy the fruits of a democratic republic. 

 

 

 

 

 

 

My Letter to Colorado Senator Cory Gardner (R-CO) About Filling the Ginsberg Seat Before the Next Presidential Term

 21 September 2020

Dear Senator Gardner: 

I’m writing to you about whether it would be appropriate to fill the Supreme Court seat left vacant by the death of Justice Ginsberg before the beginning of the next presidential term. I read in the Washington Post that “The Colorado GOP senator said in 2016, after Justice Antonin Scalia died, that “I think we’re too close to the election. The president who is elected in November should be the one who makes this decision.” (https://www.washingtonpost.com/politics/2020/09/18/gop-senators-who-will-decide-ginsburgs-vacancy/ & the link to the original quote in the Denver Post https://www.denverpost.com/2016/02/18/cory-gardner-hardens-stance-on-supreme-court-obama-should-not-pick/ ). I trust that the Denver Post quoted you accurately. But much more importantly, I hope that you made that statement in good faith and with a sincere belief that this was in the best interest of our republic. I know that for me and for millions of other Americans, if the Senate approves a nominee before the inauguration of a new term for President Trump or the beginning of a term for President Biden, it would be a slap in the face to we voters. Further, it would provide additional grounds for Americans to disbelieve whatever any politician says, all to the degradation of our democratic system. Also, as a lawyer, I’m deeply concerned about the legitimacy of the Supreme Court.  This type of midnight appointment would further cripple the esteem upon which the legitimacy and efficacy of the Court depends. 

American voters were told four years ago by Republicans that even early in an election year, they--the voters--should have a say in the selection by waiting to fill a vacancy until after the beginning of a new presidential term. Now some of your colleagues want to rob the voters of this prerogative because they fear losing power as a result of the upcoming election and hope to maintain control by ramming through a judicial nomination that will be opposed by so many. 

While many of your Republican colleagues are doing an about-face,  thereby making themselves out to be the more than just typically hypocritical, but downright craven and abject. But not all of them are supporting this rather desperate and shocking grasp at raw power (in the face of what they fear is a sinking ship). I want to point out that your colleague (and my former senator), Charles Grassley, seems to be sticking to his principles. If he continues to do so, along with Senators Collins and Murkowski, you would be in good company. Perhaps others would stand for principle. 

In the end, if you and enough of your colleagues choose the high road, it will benefit the Court, the Senate (as an institution), and yourself.  

Thank you for your consideration of this matter. I will eagerly watch for your decision. 

/s/ 

Stephen N. Greenleaf

Better Know the Impeachment Process 12.02.19

Each Senator sitting in judgment at the trial of articles of impeachment must take an oath as provided by Senate Impeachment Rules of March 2, 1868 (involving President Andrew Johnson). If President Trump is impeached by the House, each Senator will pledge to act in accord with this oath: 

Form of oath to be administered to the members of the Senate sitting in the trial of impeachments: I solemnly swear (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment of ______________, now pending, I will do impartial justice according to the Constitution and laws: so help me God.

While I'm confident that each senator will take the oath, I fear that too few will honor its requirement. 

Charles Grassley, Charles Grassley

Some time before 40-plus years in Congress

Charles Grassley and I go back a long way. I don't know Senator Grassley personally, but I've known of him for a long time. My acquaintance goes back to the late 60s or early 1970s when I was still an ardent young Republican. Grassley began his career as a politician in 1959 (when I was six years old), serving in the Iowa Legislature from Bremer County and surrounding regions. Grassley quickly became a prominent voice in the Iowa Republican Party, which was divided between moderates, such as Bob Ray and Fred Schwengel, and conservatives like the incumbent Congressman from Grassley's part of the state, H. R. Gross, and Gross’s protégé, Charles Grassley. Gross and others like him (such as ol’ Ben Jensen in my Seventh District), had served in Congress since the New Deal and were still busy trying to repeal it. They were known for their staunch anti-government and anti-Communist agendas. (Well, anti-government unless it involved farm programs.) This split in the Republican Party between moderates and conservatives had festered for a long time, but the split became acute in 1964 when Barry Goldwater wrestled the nomination away from moderate Republicans, which would have included even Richard Nixon, who seems almost a Communist by current Republican standards.

I recall making some disparaging or belittling remark about Grassley in front of our family friend, Bob Tyson, who had served in the 1960s as the executive secretary of the Iowa Republican Party, and who later served in Bob Ray's gubernatorial administration. Bob knew pretty much everyone and everything about the Republican Party in Iowa. He cautioned me against taking Grassley too lightly. Remarking that while Grassley may appear simply as a bumpkin just off the farm, in fact, he had a master’s degree in political science from UNI and had begun work toward a Ph.D. at the University of Iowa (which I was attending at the time as a political science major). Well, I’ll be darned!  Grassley never played that up. As most Iowans know, Grassley has a friendly, awe-shucks demeanor with a voice and delivery that comes awfully close to that of mimicking Huckleberry Hound.

Fast forward now to 1974, when just married, I was living in Cedar Falls and the off year elections were just coming up. Richard Nixon had just resigned as president, and it was not looking to be a good year for Republicans. H.R. Gross decided to hang it up that year, and the Republicans nominated Charles Grassley to replace him. On the Democrat side, they nominated a bright young attorney from Waterloo, Stephen Rapp, who, as I recall, was reported to have shared rides with Grassley down to legislative sessions in Des Moines. By this time, I was starting to wander away, step-by-step and vote-by-vote, from the Republican fold (and not because I had just married a pretty Democrat). So, this election gave me my first opportunity to vote against Charles Grassley, and I did so—to no avail. And not for the last time. Grassley eked out a very narrow victory over Rapp and began his stint in Congress that has now run over 40 years.

Eventually, Grassley moved on to the Senate, where he initially served with a guy named Roger Jepsen, a vain and unimaginative senator, and together they were dubbed “Twiddle Dee and Twiddle Dumber”. However, based on the insight from many years before that I'd received about him, I knew this was an unfair assessment of Grassley, as many have learned since. Charles Grassley is dumb like a fox. Anyone who has survived in politics as long has known how to do things right [sic], at least in the minds of Iowa voters. During his time in the Senate, I heard Grassley speak both in person and in the media, and his low-key demeanor—if not persuasive—is at least not off-putting. Also, I had the opportunity to observe him in casual situations. On trips to visit our daughters living on the east coast, we would see him at the Cedar Rapids airport flying back and forth from Washington DC. He traveled alone, without an entourage, without flourish, and he could have gone totally unnoticed but for the occasional newspaper and television images of him that would have tipped off an observer that a member of the Senate was amongst them. Also, because we had a daughter who played on the club volleyball circuit in high school, we saw Grassley at a large tournament one weekend in Cedar Falls. One of Grassley’s sons is a prominent volleyball coach in the area, and there was Senator Grassley tootling around the gymnasium complex just as if he was another grandpa to watch a granddaughter's matches, quietly shuffling along with the crowd. (Maybe he had a granddaughter playing, I don’t know.) I have to admit that no one could accuse Grassley of putting on airs.

Also in the early 1990s, Grassley surprised a lot of other people and me when he voted against President George H.W. Bush’s resolution to attack Iraq to take back Kuwait from Saddam Hussein. Of course, Grassley was on the losing end of that vote, but it seemed to me a courageous thing to do, bucking the trend that a majority of Republicans and Democrats, along with his Republican president. It suggested to me that Grassley had a genuine streak of independence and judgment about him.

But now we come to recent time. After his election in 2008, President Obama looked to the Senate Finance Committee in an attempt to work out a health care reform proposal that could gain acceptance from at least some on both sides of the aisle. He hoped to work with Grassley. After all, Obama knew that his plan was essentially that of the conservative Heritage Foundation and Mitt Romney, who sponsored a similar program when he was governor of Massachusetts. But when the Obama Administration came knocking on Grassley's door, Grassley refused to answer. Indeed, virtually all Republicans refused to answer, apparently taking their cue from Mitch McConnell, who described their job as one of making sure that Obama would only be a one term president, (That worked well, didn’t it?). I'd never call Charles Grassley enlightened, progressive, or nonpartisan, but I thought he would negotiate to reach some agreement on this important issue. Instead, Grassley went on the hustings and countenanced talk about “death panels”.  My begrudging admiration for Grassley took a plunge equivalent to that of the stock market in 2008. Grassley was now displaying the type of partisanship that has destroyed the public's confidence in Congress, which currently receives a whopping single-digit approval rating. This same extreme partisanship continues to poison the well of political debate. I was disappointed with his intransigence, especially because Grassley had never lost an election and seemed more than safe to keep his seat until he retires or croaks (at age 82 you need to be frank about this possibility). But I underestimated his attachment to keeping a Senate seat and the fear that he developed about the growing Tea Party (or alt-right) wing of the Republican party that was taking down incumbent senators and representatives— some dyed-in-wool conservatives—as too moderate. The extremists were on the move, and they obviously scared Grassley.

During the Obama administration, Grassley has only grown worse. Now as chairman of

The Grinch of the Supreme Court

the Senate Judiciary Committee, he’s shirking his constitutional duty to act upon a presidential nomination to the Supreme Court. Grassley has refused to do his job. His excuses for doing so, including “leaving it to the people" by shunning his duty until after the next election. The argument is weak to the point of being farcical. It is an unalloyed act of partisanship that indicates he wants Donald Trump (more on this guy later) to fill this current Supreme Court vacancy. Despite the unimpeachable credentials of President Obama's nominee Merrick Garland, a moderate and sensible jurist praised by Grassley upon his approval for the US Circuit Court of Appeals, Grassley actively collaborates with the obstructionist leadership of the Republican Party to keep the Court partially vacant rather than approve another Obama appointee.

I thought my estimation of Senator Grassley could not go lower, but I learned that it could. He supports Donald Trump. And he has attempted to excuse Trump's racist remarks about a U.S. District Court Judge (Curiel). Of course, this is only the one instance of a non-stop eruption of offensive and demagogic nonsense that issues from Trump’s mouth (or Twitter account). Grassley, seeking re- election this year, is buying into it, excusing it, and even promoting it.

The term “Vichy Republicans”, which alludes to the French government that collaborated with the Nazis, has become a hashtag on Twitter and represents the attitude of Republicans who know (and admit to knowing) a demagogue when they encounter one. One can argue that this is an overblown metaphor, but it captures the level of capitulation that Republican leaders, which ought to include Grassley, have sunk in accepting the demagoguery of Donald Trump. It’s obvious that more than the welfare of the Republic, Grassley wants reelection. He believes that by joining in the politics of resentment and nativism cultivated by Trump, Grassley can avoid the wrath of the extremist right and win reelection. He’s counting on his good name and reputation—and the lassitude of most voters—to overlook his bargain with the devil. Damn the consequences of a demagogue like Trump to the nation, damn the judgment of some courageous Republicans like Senator Ben Sasse of Nebraska and Max Kirk of Illinois, who have repudiated Trump—to retain his position and power for another six years, Grassley is willing to aid and abet the politics of Trump. Charles Grassley wants reelection at age 83 more than he cares about the integrity of our politics. He’s sold us out.

So again in 2016, I’ll vote against Charles Grassley, as I have on every occasion available to me since my first effort in 1974. Senator. Grassley has always been able to convince a majority of voters that he's the better choice, but now it’s no longer simply a matter of likeability, “common sense”, or sound judgment. Charles Grassley's has destroyed our ability to attribute those virtues to him. He no longer deserves to serve in the U.S. Senate.