Senators Grassley, Ernst, & McConnell Attempt to Justify Their "Not Guilty" Votes

"We do not have the authority to try a private citizen like former President Trump. Even if we did, he should have been accorded the protections of due process of law in his trial. And even if we assume he has been, the House Managers still did not prove that he committed incitement to insurrection, the specific crime of which he stands accused. This does not excuse President Trump’s conduct on and around January 6th of this year," Grassley said in a statement. "It satisfies my oath as a U.S. Senator in this court of impeachment. I therefore voted to acquit."--Sen. Charles Grassley

https://www.desmoinesregister.com/story/news/politics/2021/02/13/senate-what-does-impeachment-mean-trump-2024-election-how-iowa-voted/4477250001/

Senator Grassley's contentions above (and those of Senator Ernst below) attempt to provide a figleaf to cover their brazen political partisanship in voting to acquit Trump. Although its  a post-morten inquiry (the case is dead), I believe the the inquiry worthwhile not for the understanding it brings to the case, but the revalation it provides about the individuals who passed this judgement, in particular Grassley, Ernst, McConnell, and the remainder of the Republicans senators who voted against conviction. I will go through both Grassley's statement (above) and Ernst's (below). 

1. "We do not have the authority to try a private citizen like former President Trump." (Ernst and McConnell make similar contentions, see below.). This contention is wrong. The Senate has the authority under the Constitution. It has established  precedent. (The Senate has exercised its impeachment power after an office-holder (albeit not a president) has left office.) And the Senate voted to approve this procedure in this case. (N.B. Trump was not tried earlier because McConnell refused to allow it while he remained Senate majority leader, which was until after the Biden-Harris inauguration). The Supreme Court has not ruled on this issue, and in the absence of a Court decision, the Senate has the power and responsibility to interpret the Constitution and its application in the present case. Also, the lop-sided weight of scholarly supports the exercise this power under these circumstances. But why? The ulitimate authority is the text of the Constitution itself, something that "conservatives" who probably fancy themselves "originalists" or "textualists" might try reading. Here's what the relevant text of the Constitution provides: 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. [Emphasis added.]

          Article 1, sec. 3.  

The word is "and"--"removal from office, and disqualification to hold and enjoy any Office of honr, Trust, or Profit under the United States . . . ." Both are penalities, and that one penalty can no longer apply (removal) does not entail that the second aspect of the penalty cannot or should not apply. This argument, that the Senate had not the power and authority to try Trump is pure hokum. 

2. "Even if we did, he should have been accorded the protections of due process of law in his trial." What failure of "due process" (the requirement of a fair proceeding conducted by established rules) does Grassley refer to? Did anyone prevent Trump from coming to testify? Was the trial not conducted according to Senate rules? Was not an agreement about scheduling not reached by Leaders Schumer and McConnell? What utter horse hockey this allegation is! 

3. "And even if we assume he has been [given due process], the House Managers still did not prove that he committed incitement to insurrection, the specific crime of which he stands accused." First all Senator, really, you've been in Congress since 1975--you're an insider and ought to have read and understood with Constitution better than this. The accusasion of "incitement to riot" is not a "crime"in this instance; it's an impeachable offense. Trump could still be charged and convicted of this crimes (see the Article 1 quote above). And you can claim that the House managers didn't prove their case, but in what particulars? Fifty-seven senators disagreed with you, seven of which were your Republican colleagues, with the result of the most lopsided conviction vote on record for a Presidential impeachment vote. (We've now had four impeachment votes regarding a president, two of them generated by Trump's actions, the first arose from his attempt to shake-down the Ukraine to get them to aid his re-election campaign; and the second for his big lie about the election, attempting to influence the count in Georgia, and inciting the violence at the Capital (again, using the big lie of the "stolen" elelction.) 

4. "This does not excuse President Trump’s conduct on and around January 6th of this year." Yes, it does. To borrow from my wife the teacher: for misdeeds to provide lessons for future behavior, applicable to the perp and others who may come after him, there must be "consequences." Or, in the legal terms, punishment, even beyond the natural consequences of the act (such as a loss of prestige, honor, and so on--which of course has never influenced Trump's behavior). No, the 43 Republicans who voted against conviction (thus the failure to reach the required 2/3 vote) gives Trump and all who come after him a free pass for such rank and obvious misdeeds as we saw in this case.  So much for Grassley (or Ernst) ever saying anything about "law and order" or "legal technicalities" ever again. 

The one thing that I can say for Ernst is that she didn't attempt to put lipstick on her pig. She didn't vote to allow Trump's actions to go without reckoning and then attempt to condemn them, as did Grassley ("This does not excuse President Trump's conduct") nor the statements by McConnell and other Republicans who voted to give Trump a pass and then claim to have given him the equivalent of a dirty look. McConnell, along with Lindsey Graham, have moved political hypocrisy from a venial political sin to one worthy of the lowest rungs of Dante's hell, down with the fraudulant and the treacherous. (See below for McConell's finger-wagging at Trump after he acquited him.) Of course, McConnell is worried because the big Republican donors turned-off the money spiggots after the attack.The big donors realized that a majority of the Republican party would  follow their Pied-Piper and tear down the government of the United States. This drastic action didn't sit well with the moneyed interests that call the shots for the party on the issues that the party unites around: taxes and regulations. McConnell, as he is so wont to do, speaks out of both sides of his mouth. Grassley parrots him; Ernst, who seems to drink the Kool-Aid without a king's-x held behind her back, has no desire to provide even a cursory condemnation of Trump after this exoneration by the Senate. This honey-badger of a senator just don't give a @#$%. 

Ernst released a statement on Twitter saying in part: "The bottom line for this impeachment trial: Donald Trump is no longer in office, he is a private citizen."

Hypocrisy taken to new heights:  

At least five Republican senators suggested that Trump was indeed culpable for the Capitol riots, while voting to acquit him on constitutional grounds:

• Senate Minority Leader Mitch McConnell (R-Ky.) excoriated Trump’s conduct in a speech after the vote and even suggested that the former president might be held criminally liable.
• The No. 2-ranking Senate Republican, Sen. John Thune (S.D.), said explicitly: “My vote to acquit should not be viewed as exoneration for his conduct on January 6, 2021, or in the days and weeks leading up to it. What former president Trump did to undermine faith in our election system and disrupt the peaceful transfer of power is inexcusable.”
• Sen. Shelley Moore Capito (R-W.Va.) emphasized that her vote was “solely” on the constitutional question, while adding: “The actions and reactions of President Trump were disgraceful, and history will judge him harshly.”
• Sen. Dan Sullivan (R-Alaska) said: “I condemn former president Trump’s poor judgment in calling a rally on that day, and his actions and inactions when it turned into a riot. His blatant disregard for his own Vice President, Mike Pence, who was fulfilling his constitutional duty at the Capitol, infuriates me.”
• Sen. Rob Portman (R-Ohio) added: “I have said that what President Trump did that day was inexcusable because in his speech he encouraged the mob, and that he bears some responsibility for the tragic violence that occurred.”

Not all of these statements directly suggest a vote to convict but for the constitutional question. Republicans have often drawn a line between criticizing Trump for his actions — even quite strongly — and saying he technically incited the mob that stormed the Capitol on Jan. 6. 

But relatively few Republicans have actually vouched for or defended Trump’s conduct. Some put out statements that didn’t address the substance of the case at all, focusing instead solely on process issues or constitutionality. (This despite many legal experts saying that, because the Senate had voted affirmatively that it had jurisdiction, they had a duty to decide the case on the merits). Others faulted Trump less harshly than the above.

https://www.washingtonpost.com/politics/2021/02/14/trump-got-off-technicality/

For some additional insight, read this: 

https://www.washingtonpost.com/politics/2021/02/13/mcconnell-would-have-happily-considered-finding-trump-guilty-were-it-not-mitch-mcconnell/

Thoughts for the Day: Sunday 17 January 2021

 

Commanding Hope

Thomas Homer-Dixon

“No passion,” said Edmund Burke, the English statesman and philosopher, “so effectually robs the mind of all its power of acting and reasoning as fear.”

Commanding Hope

Thomas Homer-Dixon

Nothing is more frightful than to see ignorance in action.---Goethe.

Apologies to the Grandchldren

William Ophuls

That people can be persuaded by factual or scientific arguments to change their minds is demonstrably false. Confirmation bias—we take in information that supports our existing beliefs and mostly ignore or reject the rest—is only one of the many tricks the human mind plays on itself. Hence we respond to new facts in less-than-rational and often sub-optimal ways.

Buddha Takes No Prisoners

(William) Patrick Ophuls

First, the essential aim of all Buddhist practice is to develop undistracted awareness—that is, to arrive at the state of pure presence that the Buddha-to-be first experienced under the rose-apple tree as a child and that later became the key to his awakening.

Collingwood's the Idea of History

Peter Johnson

Collingwood wishes us to see that history is systematic knowledge. Its purpose is not to provide emotional satisfaction, but ‘to command assent’ (PH 73).

Impeachment

Cass R. Sunstein

At the same time, bad decisions, or politically objectionable decisions, are not sufficient grounds for impeachment, even if much of the nation is up in arms. The United States, unlike some other democracies, does not allow votes of no confidence.

The Shape of Ancient Thought

Thomas McEvilley

The history of philosophy transpired in this two-limbed kind of development in both Greece and India, despite the modern idea that Greek thinkers were primarily realistic and logical, while Indian thought was supposedly limited to transcendentalist and intuitive modes. In fact, neither of these ancient cultures was as limited as that. The Greeks quite as much as the Indians had philosophical schools with mystical and transcendentalist orientations; conversely, the various trends of pluralism, naturalism, empiricism, skepticism, and protoscientific rationalism unfolded in the Indian schools as well as in the Greek.

A Teachable Moment: A Lesson in Rhetoric, Proof, & Jurisprudence Arising from the Impeachment of Trump, by an Old Lawyer

The Senate trial of Donald John Trump for two articles of impeachment brought by the House of Representatives

Let's use all of the hullabaloos for a "teachable moment." I've taken a quote from a Facebook comment that relates to the current impeachment trial. Let's dissect it and see what we can learn. Here's what the person says:

"[W]ere there a truly constitutionally established impeachable offense committed by a POTUS, the timing should be immaterial. The problem here is that this impeachment is purely politically motivated and at best based on a difference of opinion or views which should be handled in the traditional manner of an election."

I believe that this paragraph is representative of what Trump supporters have been saying for some time now, although it's a bit behind the curve, as I'll discuss later below.

1. "This impeachment is purely politically motivated." First, let's take away the modifier ["purely"] and consider whether his impeachment is "politically motivated." This statement is undoubtedly true. While the law and a Constitution consist of political questions that have been answered at least for the time being and gain the force of law. The force of law means that someone who acts contrary to this decision may be subject to penalties imposed by the state through the judicial process; that is, the scope of any issue is narrowed when we make a political decision that results in a law. But the law can be changed, and if done legitimately, it's done through the political process. This applies to the Constitution as well as zoning or traffic laws. And like ordinary statutes, the Constitution has been subject to changes by courts and the legislative branch (via the amendment process) throughout its history. And how we interpret the Constitution, as we can see around us even today, remains the subject of intense political discussion. The impeachment of Donald Trump involves the power of the presidency, along with many other issues. Some of these issues must be resolved by the courts, but the legislative branch, as an equal branch of the government under the Constitution, also has the responsibility to interpret and apply the Constitution. Under the circumstances of the current impeachment, we see Democrats directing their appeals to the text of the Constitution, legislative precedents about impeachment, and the writings of the Founders--especially Madison and Hamilton--to establish their case for impeachment. Trump supporters (apparently all Republicans) have shown much less concern with precedents and legal procedures. (So much for "conservatism.")

2. Now let's put back in the "purely." To say that the House impeachment is "purely politically motivated" is intended to mean, I assume, that it's been undertaken only to gain partisan advantage in the next election. In other words, the impeachment mimics Trump's desire to coerce Ukraine to investigate the Bidens. The impeachment has no legitimate purpose other than to gain an advantage in the next election. I will stipulate for purposes of argument to the implicit assertion that all of the information gained in the impeachment may (and should) give Democrats an advantage against Trump in the next election. But to agree that impeachment will certainly give Democrats an advantage in the next election isn't (or at least wasn't) a foregone conclusion. Remember that the Republican impeachment of Bill Clinton backfired and cost them dearly in the 1998 election, and it cost Newt Gingerich his speakership. Also, John Bolton might have come forward and offered to exonerate Trump instead of confirming Trump's intention to coerce an investigation of the Bidens. And remember that the Mueller's Report that documented a prima facie (on its face) case of obstruction of justice against Trump went nowhere, contrary to the hopes of most Democrats. So if it was "purely political," it was a hell of a gamble. It could have ended up as a big-nothing sandwich, as did the Benghazi investigations of Hillary Clinton (acknowledging, as one must, that while of no substance, it helped damage her in the eyes of the general public. If evidence, truth, and justification of no consideration, anything goes.)

3. So how do we resolve the "purely?" business? I recommend the thought experiment that I posted on Facebook on 25 January. There, I suggested the following hypothetical oath to be taken (and followed) by all senators before voting on the two articles of impeachment. The text of my hypothetical oath:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

This, I maintain, is the standard by which we should judge each senator's final vote. "It's the standard that I want to be applied to all presidents, Democrat, Republican, Socialist, or Libertarian" each vote is saying. And then we the voters must judge their decision with whether it comports with our understanding of the Constitution and the rule of law.

And in some way, this is what each senator is doing because the precedent set by this decision will affect future presidents and senators. If it's okay for Trump, it's okay for the next Democrat president, too. Since Trump's defense has moved from "I didn't do that" to "Anything that I do is okay, including using my power contrary to the law [he did break the law with his action, but it's not a part of the criminal code]. It's lawful if I deem my reelection to be in the national interest--which of course it is!" (An eerie echo of Nixon's claim that "if the president did it, then it's not against the law.") So, yes, even if Trump stays in office (as we knew he likely would), the repercussions of this vote will echo for years to come. In some ways, impeachment law, especially the standard of "High Crimes and misdemeanors" may be usefully compared to the common law of negligence; the definition (of "negligence" or "High Crimes and misdemeanors") is broad and decision-makers (judges, jurors, or the Senate) must apply the concept on a case-by-case basis. Therefore, a precedent flows from each decision, although it doesn't necessarily bind the next decision-making occasion.

4. The assertion that "this impeachment is purely politically motivated," is a form of the ad hominem argument. Now your rhetoric or composition teacher may have taught you that this is a logical fallacy. It is, but then logic is a formal system, not an infallible guide to discerning human behavior. The ad hominem argument seeks to avoid the facts of the case by concentrating on the teller. In the law, we routinely make ad hominem arguments by impeaching (raising doubts about) the credibility of a witness. Indeed, every plaintiff and defendant in a case is biased and at least implicitly subject to impeachment. Each party maintains that his or her position provides a true account of the facts of the case and comports with the standard of law; therefore, judgment should be rendered in the party's favor. Other witnesses, especially expert witnesses, are impeached by asking who's paying them (most experts are paid for their "time"). The expert will claim that his or her opinions are based on sound science and nothing else. The astute cross-examiner will point out the expert testifies almost exclusively for plaintiffs (or defendants). It's then left to the judge or jury to sort out who's credible. So how should the final decision-maker (the judge or jury) sort out conflicting testimony given the often inherent bias of most witnesses who testify?

Here, as an example, is what a judge in a criminal case in Iowa tells a jury about how to address these issues:

100.7 Credibility Of Witnesses.  

Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. Try to reconcile any conflicts in the evidence; but if you cannot, accept the evidence you find more believable. 

In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. 

Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. 

There are many factors which you may consider in deciding what testimony to believe, for example: 

1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness's appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness's interest in the trial, their motive, candor, bias and prejudice.

In other words, consider all of the evidence, not just the background of the witnesses. Foolproof? Hardly, we're dealing with humans here, but this typical instruction provides a standard that you and I can use to judge the case of the impeachment of Donald John Trump (for we will ultimately judge this president and these senators when we enter the voting booth).

5. Conclusion

So to say that "this impeachment is purely politically motivated" provides us with no meaningful information and stands naked as an argument against impeachment. This simple assertion has no facts to clothe it. This failure to mount an argument upon facts and the constitutional text and precedents comports with the tactics of the Republicans in Congress, who, as we near the end of the impeachment, have left not even a fig leaf to cover Trump's shame. The defense, in the hands of the famous criminal defense lawyer, Alan Dershowitz, has disposed of any need for a fig leaf of facts that would cover-up Trump's abuse of power. According to Dershowitz, if the president wants to be re-elected, he can deem that purpose as in the national interest and thereby manipulate public funds and seek foreign involvement in our elections as he desires. Well, if standing against this conclusion and the facts (no longer seriously in dispute) that support a finding for removal is "purely political," then sign me on.

sng
31 Jan. 2020

Judging Impeachment: A Third Oath and a Criterion for Judgment--or "What of the Shoe Was on the Other Foot?"

I'm been thinking about how we could set a standard to allow Senators to return an appropriate judgment at the conclusion of the current impeachment trial. To begin, let's start with the oath that each senator takes when beginning their term of office. (See Below)

At the beginning of the current trial, each senator took this oath as well.
(See below)

Now, perhaps before returning a decision, each senator should take another oath. However, the oath would not be the same for each senator. Each senator would take the following oath before announcing the senator's judgment:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

So New York Senators Chuck Schumer and Kristin Gillibrand should take it as well as Senator Chuck Grassley and Senator Joni Ernst. All of them. And then the voters will determine if each one upheld the oath.

Of course, this isn't going to happen, but is it a bad idea? Moreover, isn't this the criteria--regardless of any oath--by which each of the 100 senators should be making her or his decision?

I welcome suggestions or rebuttals.

Bob Bauer Takes Down Dershowitz Impeachment Defense (Easy Pickings)

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. He wrote this piece for the Lawfare blog (an excellent source of legal analysis). It includes this concluding paragraph:

"In the coming Senate trial, McConnell and Dershowitz are helping each other set a very different precedent of their own, one in which, as a matter of norms (McConnell) or constitutional law (Dershowitz), there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office. And, under Dershowitz’s view, a president who is a murderer, a white supremacist, or a virulent misogynist, or who takes off for a year’s vacation in Rome, would also be free to serve out his or her term, or take into a reelection campaign the “vindication” supplied by a Senate acquittal."

Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

LAWFAREBLOG.COM

The Trump Impeachment and the Question of Precedent, Part II: The Trouble With Alan Dershowitz’s ‘Constitutional Argument’

Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

George Conway Takes Down the Trump Impeachment Defense

Lincoln Project supporter & lawyer George Conway.

Their arguments are wrong on the facts and wrong on the law, but that’s not the worst part.

WASHINGTONPOST.COM

Opinion | George Conway: The worst thing about Trump’s answer to the impeachment articles

Their arguments are wrong on the facts and wrong on the law, but that’s not the worst part.

Heather Cox Richardson on the Eve of the Senate Trial: The Non-trial Trial

From @HeatherCoxRichardson:

“For his part, Senate Majority leader Mitch McConnell (R-KY) is doing everything he can to make sure the public sees as little of the proceedings as possible. As conservative pundit David Frum put it: “No witnesses… No evidence… No time… No cameras.” As of Sunday night there had been not even “the most basic negotiation or exchange of information,” according to Senate Minority Whip Dick Durbin (D-IL), and this evening, less than 24 hours before the trial is supposed to start, McConnell revealed a four-page resolution establishing trial rules.

The rules leave open the possibility of simply ending the case immediately, which is unlikely to happen. They limit the arguments from each side to 24 hours over the course of two days each. This would mean a deluge of information too much for most of us to take in, even if significant argument didn’t happen in the middle of the night… as of course it would. The rules give the Senate the option of refusing to hear new evidence or testimony, and on the chance that the Senate does vote for testimony, the rules are arranged to prevent former National Security Advisor John Bolton—or anyone else-- to testify in public.”

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

HEATHERCOXRICHARDSON.SUBSTACK.COM

January 20, 2020 - Letters from an American

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

NYT & Professor Bowman Debunk Trump's Defense Brief

No lawyer sitting in the Senate should buy this baloney argument on Trump’s behalf. But if you don’t have the facts, argue the law—even if it’s a crap argument.

From the article:

“Mr. Bowman — whose scholarship on impeachment law is cited in a footnote in the Trump legal team brief — called the arguments in that brief “a well-crafted piece of sophistry that cherry-picks sources and ignores inconvenient history and precedent.” For example, he noted, it makes no mention of how the Hastings case involved allegations of abuses of power that were not indictable crimes.”

The president’s legal case would negate any need for witnesses. But constitutional scholars say that it’s wrong.

NYTIMES.COM

‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus

The president’s legal case would negate any need for witnesses. But constitutional scholars say that it’s wrong.