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. 

 

 

 

 

 

 

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

Rick Santorum, Natural Law, & Evangelicals

This thoughtful article caught my eye, and I should give it some brief consideration. Santorum bases much of his thought on concepts of natural law. The natural law tradition is a great and important tradition. Indeed, even the great positivist legal hphilosopher H.L.A. Hart brings it in the back door in his work The Concept of Law. In the Catholic Church, the article notes, naturual law came in recent times (by Church standards!) to serve as a preferred philosophical model. When you think of it, it allows us to consider what is "natural" as the guide to what is moral. Fine, so far. Unfortunately, what is "natural" becomes preferred over what is human (varied cultural practices). Thus, somehow, homosexuality, which seems nearly universal and in many cases perhaps genetic (which is a tricky question in itself, but certainly beyond individual choice), gets defined out of "natural", while celibacy--quite unnatural to my mind--gets defined in. (If God hadn't wanted us to engage in sex, God wouldn't have given us so much ganas (as we high school Spanish students dubbed it). (I will spare you the other colorful terms that we can dub this phenomena--you choose.)

So while natural law gave some good directions, and it proved of use in the Middle Ages (it allowed Aristotle in the back door), it was left behind for a reason, reasons that seem lost on Rick Santorum, among others.