Joe: The impeachment trial is scheduled to commence Monday. It is supposed to run all week, probably dominating the news. If former President Trump were in office, a conviction would remove him, which would obviously be a big deal. But he is not in office...
Ken: Alan Dershowitz wrote an op-ed published last week in the Wall Street Journal stating that in his opinion, an individual who is not the sitting president cannot be impeached under the provisions stated in the Constitution. The Constitution reads impeachment and conviction results in the president being “removed from office and disqualified from holding the office in the future.” Therefore, because Trump is now a private citizen, he is not subject to impeachment by Congress. Seems to me that wrangling over this point is likely to have to be adjugated in the courts and will potentially tie up Congress for an extended period even if the impeachment process is ultimately ruled to be constitutional. Also, from what we have heard so far, there likely will not be enough votes to provide the supermajority necessary for conviction.
Joe: As we write this, the GOP senators do not want a trial where the bad evidence of the Capitol mob scene and extensive property damage that left five people dead would be exposed. The “bad evidence” is probably best described by Mark Danner in the New York Review of Books: After his inflammatory speech to the mob on January 6, instead of leading the march to the Capitol, Trump “sat in the White House enjoying the spectacle’’ he had unleashed unfold on television. Unnamed sources described the president as ‘’bemused’’… he resisted desperate pleas to call his supporters off or to order in the National Guard…In fact there is little sign he ever did. At 6 p.m. with protesters still in the Capitol he posted this on his Twitter account, before it was suspended: … “Go home with love & in peace. Remember this day forever!’.”
With this type of evidence going in, it should be obvious why GOP senators would not want a trial where they would have to vote on impeachment. How would they explain a vote not to convict to their constituents and grandkids? It is much easier to take the coward’s approach of not deciding the case on the merits by raising the bogus legal argument that since Trump is out of office a trial is unconstitutional.
Anyway, my questions to you are these: Do you agree that on January 6 an impeachable offense was committed by Trump? Secondly, when an elected official screws up badly and does something terribly wrong, should not there be consequences?
Ken: I am pretty sure that at the time he was speaking to a crowd on January 6, Trump had no idea what was about to happen. But it’s been reported that somebody in the FBI who was monitoring internet chatter did. He had sent a warning to the Capital security that mob action might occur. However, for five months, there had been BLM-ANTIFA protests rife with violent behavior without any significant action by conservative groups, and possibly for that reason, there was a lack of preparedness on the part of the capitol police. (At least one ANTIFA instigator was arrested after the capital riot, and also there is evidence that the invasion of the Capital was planned un advance, before Trump spoke). In contrast to a federal court proceeding, it is glaringly apparent that impeachment is strictly a political tactic and has little to do with justice. If Donald Trump were being tried in federal court for inciting violence or insurrection, from what I have read, his words would not support conviction, partly because the meat of the matter is the difficult to prove intent. And even Trump is entitled to First Amendment rights. As far as impeachment in the Senate, it looks like as of today, January 29, the GOP senators have coalesced to the extent of preventing the constitutionally mandated two-thirds majority vote necessary for conviction. And there is still time to argue the fine point of constitutionality of the whole proceeding. After all, it’s all politics.
Joe: Sounds like you and the GOP senators, but not all, are content in merely letting private citizen Trump walk without any consequence or accountability in instigating the mob scene. The First Amendment and free speech does not mean you can speak and plan sedition. There exists the 1798 Sedition Act and other federal laws which make it a felony to utter sedition words disturbing the peace, inciting revolt or violence against lawful authority. On January 6 we had a guy at the top preaching election fraud disinformation that led to violence. You can read his speech and see the words he used on-line. From Mitch McConnell: “The mob was fed lies.” Even the Wall Street Journal stated his speech crossed a constitutional line. “It is impeachable” and they urged Trump to resign.
If I were speaking to a high school civics class before the trial starts, I would tell them this. This is a historic event. President Trump was “impeached” when the roll call vote in the House made it so. That part is done. What remains is a Senate trial regarding “conviction” and accountability. Since Trump is out of office the only “consequences” he would experience if convicted is being barred from holding public office ever again and the probable loss of a lot of perks (pension, office with staff, Secret Service protection etc.). Most GOP senators participating in this impeachment trial do not want consequences for Trump. If you agree with them it means that every president hereafter that loses reelection can do and say whatever, without fear of any consequence. He or she could make threats, incite violence or disturb the peace with a speech to mobs, organize a coup with no political penalty or consequence. You decide if this is the future you are comfortable with it.
Ken: “You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” – Rahm Emanuel, President Barack Obama’s Chief of Staff, Nov 21, 2008, Wall Street Journal.