Grievous Constitutional Crimes

Donald Trump’s impeachment trial, the second one, was about to begin, even if he had been voted out of office, and that seemed to be all that everyone and anyone was talking about. Senate Republicans have the votes to acquit him, again, so they will. But they won’t. They’ll say that he had been a bad boy, but that doesn’t matter now. He’s binge-golfing in Florida now. Let him be. He’s harmless now. Democrats, however, are still outraged. He whipped up his people and they stormed that Capitol to stop the final formalization of the vote and to hang Mike Pence and assassinate Nancy Pelosi – a bullet to the brain one said. Others wanted to beat her to death. But nothing came of that. They just trashed the place and left. They did beat a Capitol Hill cop to death. That was something. But they didn’t take over the government and install Trump as president for life. Republicans say the impeachment trial is pointless now. Democrats say this cannot stand. No one can shrug at this!

Yes, they can. Joe Biden can. Politico looked into this. Biden has work to do:

The Biden team has shut down question after question about where Biden stands on this week’s trial, even with its massive historical, constitutional and political ramifications. On Monday, press secretary Jen Psaki wouldn’t even say whether the president would receive daily updates on the trial’s progress.

It’s a remarkable bit of messaging discipline driven by a simple political calculation. Biden’s presidency rests on whether he can drive down Covid numbers, reopen the economy and get kids back in schools. He needs his Covid relief package to do that, not the banishment of his predecessor from future public office.

“It just makes no sense for Biden to weigh in on the impeachment,” said one source familiar with the White House’s thinking. “He’s already said that he thought [there] were grounds for impeachment but he has to stay focused on helping people in this crisis.”

Several other people familiar with the White House’s thinking say the Biden team sees no upside in Biden weighing in on impeachment, either. His remarks would surely not move votes on the Republican side, they say. Even the slightest comment about Trump at a press briefing would blot out anything else they do that day.

In short, Biden will stay in his lane. Which might be wise. NBC News covered the squabbling:

House impeachment managers responded to the final pretrial brief from Donald Trump’s legal team on Monday, saying the former president’s defense – that such a trial is unconstitutional and that he quickly moved to suppress the violence during the Capitol riot last month – is “wholly without merit.”

“The House denies each and every allegation in the answer that denies the acts, knowledge, intent, or wrongful conduct charged against President Trump,” the Democratic managers wrote. “The House states that each and every allegation in the article of impeachment is true, and that any affirmative defenses and legal defenses set forth in the answer are wholly without merit.”

They had to say that:

The response comes after the president’s legal team argued, as it has in prior filings, that the impeachment trial should be dismissed, saying it is unconstitutional because the president is no longer in office. Trump’s lawyers also argued the then-president did not incite the Jan. 6 riot at the Capitol with his speech beforehand, which they argued was protected by the First Amendment, and that he moved quickly to suppress the violence.

Many Senate Republicans have coalesced around the first argument, saying that a former president cannot be tried by the Senate after leaving office. A number of prominent legal experts disagree with that assessment, however, and many have pointed to the Senate impeachment trial of Secretary of War William Belknap in 1876, which took place after he resigned from office, as proof that a post-departure impeachment trial is valid under the Constitution. Additionally, Trump was still president when he was impeached.

Trump, however, did not publicly call for the rioters to leave the Capitol until hours after the ransacking had begun – something Republicans who voted to impeach him cited as part of their rationale.

This won’t be pretty:

“The article of impeachment presented by the House is unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal,” the former president’s lawyers wrote. “Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our republic, democracy and the rights that we hold dear.”

In their response, the Democratic managers said evidence Trump incited the riot and failed to take action after it was underway “is overwhelming.”

“He has no valid excuse or defense for his actions,” they wrote. “And his efforts to escape accountability are entirely unavailing. As charged in the article of impeachment, President Trump violated his oath of office and betrayed the American people.”

“His incitement of insurrection against the United States government – which disrupted the peaceful transfer of power – is the most grievous constitutional crime ever committed by a president,” they continued, calling the president’s conduct “categorically unacceptable” and saying they seek to prove he “merits conviction and disqualification” from holding future office.

So, was this a moot nothing or a grievous constitutional crime? Expect many days of this:

The rules released Monday by Senate Majority Leader Chuck Schumer, D-N.Y., allow for 16 hours over two days for the arguments made by House managers and the same period of time for the former president’s counsel. If managers decide they want to call witnesses, the Senate would vote on that.

Slate’s Dahlia Lithwick sees this:

As the night before the second impeachment trial of Donald J. Trump falls, the mood is decidedly gloomy. While impeachment managers want to call witnesses and put on a proper trial, reports indicate that Chuck Schumer and Nancy Pelosi have ordered up a quick and dirty affair. This makes a certain amount of sense given that there are other urgent priorities at hand and any hope of picking off the 17 GOP votes needed to convict has fully withered and died. No matter what case Democrats present, Republicans are almost certainly going to stick together and protect the former president. The weeks between the House vote and the Senate trial have only worked to ensure that this comes true.

So what exactly is the point of this impeachment effort? If there is no chance of garnering a conviction, why bother?

But she answers her own question:

Republicans have opted, once again, to be the party of Trump and violent incitement and that his efforts to overturn both the vote and the Constitution are just fine… but there is another vitally important message that will be conveyed this week, no matter the outcome. That message is less a political signal about the difference between the two parties so much as it is a five-alarm warning about how representative democracy is working for Americans right now. Because in spite of the certainty with which I can predict that Trump won’t be convicted, recent polling shows that the majority of Americans want to see him convicted. ABC polling released on Sunday shows 56 percent of Americans saying that Trump should be convicted and barred from holding office again. Only 43 percent say he should not be.

That means that most Americans watching any part of the impeachment trial could reasonably ask themselves why, um, yet again, 56 percent of the country is held hostage to a 43 percent minority. This is not representative democracy working well.

But wait, there’s more:

This isn’t just about minority rule. Because beyond possibly reconsidering the archaic constitutional strictures that require a 2/3 majority to convict the president, Americans might reasonably look at the disastrously malapportioned Unites States Senate and try to understand why this sober deliberative body intentionally distorts the will of the people even as it purports to represent the will of the people.

And that means those same people who might scratch their heads in an effort to understand how the Republican Party that has morphed from the Party of Lincoln to the Party of Space Lasers could also reasonably wonder why it is that views that don’t command even a minority of the minority views of most Republicans seem to be privileged on the Senate floor over the rational conservative values they themselves espouse.

They might, for instance, wonder why the GOP is condemning Liz Cheney while offering a standing ovation to Marjorie Taylor Greene. And they wouldn’t be totally insane if they then started to think about what minority-rule structures and incentives systems have brought them here.

It seems there are bigger issues here:

In addition to using this impeachment trial to create an historical record of four years of GOP support for a president who tried to violently overturn an election, this impeachment can also stand as a record of how staggeringly broken electoral politics is when the preferences of the clear majority of Americans are being subordinated by the very systems of government itself.

The GOP isn’t just committed to ignoring the insurrection at the Capitol this week. It’s also increasingly committed to ignoring the majority of Americans who found the insurrection abhorrent. This, then, is what minority rule looks like in political theater form: A Senate trial in which the clear will of the people can be sidelined because the clear will of the people does not determine who governs, or what those who govern must do.

But if so, what does determine who governs? That’s easy. Might makes right. It’s the guns. The New York Times’ David Kirkpatrick and Mike McIntire have explored that thinking:

Dozens of heavily armed militiamen crowded into the Michigan Statehouse last April to protest a stay-at-home order by the Democratic governor to slow the pandemic. Chanting and stomping their feet, they halted legislative business, tried to force their way onto the floor and brandished rifles from the gallery over lawmakers below.

Initially, Republican leaders had some misgivings about their new allies. “The optics weren’t good. Next time tell them not to bring guns,” complained Mike Shirkey, the State Senate majority leader, according to one of the protest organizers. But Michigan’s highest-ranking Republican came around after the planners threatened to return with weapons and “militia guys signing autographs and passing out blow-up AR-15s to the kiddies on the Capitol lawn.”

“To his credit,” Jason Howland, the organizer, wrote in a social media post, Mr. Shirkey agreed to help the cause and “spoke at our next event.”

Shirkey knew which way the wind was blowing, and now everyone does:

Following signals from President Donald J. Trump – who had tweeted “LIBERATE MICHIGAN!” after an earlier show of force in Lansing – Michigan’s Republican Party last year welcomed the support of newly emboldened paramilitary groups and other vigilantes. Prominent party members formed bonds with militias or gave tacit approval to armed activists using intimidation in a series of rallies and confrontations around the state.

That intrusion into the Statehouse now looks like a portent of the assault halfway across the country months later at the United States Capitol. As the Senate on Tuesday begins the impeachment trial of Mr. Trump on charges of inciting the Jan. 6 Capitol rioting, what happened in Michigan helps explain how, under his influence, party leaders aligned themselves with a culture of militancy to pursue political goals.

That does seem to be the latest thing:

Michigan has a long tradition of tolerating self-described private militias, which are unusually common in the state. But it is also a critical electoral battleground that draws close attention from top party leaders, and the Republican alliance with paramilitary groups shows how difficult it may be for the national party to extricate itself from the shadow of the former president and his appeal to this aggressive segment of its base.

“We knew there would be violence,” said Representative Elissa Slotkin, a Michigan Democrat, about the Jan. 6 assault. Endorsing tactics like militiamen with assault rifles frightening state lawmakers “normalizes violence,” she told journalists last week, “and Michigan, unfortunately, has seen quite a bit of that.”

And one thing leads to another:

Six Trump supporters from Michigan have been arrested in connection with the storming of the Capitol. One, a former Marine accused of beating a Capitol Police officer with a hockey stick, had previously joined armed militiamen in a protest organized by Michigan Republicans to try to disrupt ballot counting in Detroit.

The chief organizer of that protest, Meshawn Maddock, on Saturday was elected co-chair of the state Republican Party – one of four die-hard Trump loyalists who won top posts.

Ms. Maddock helped fill 19 buses to Washington for the Jan. 6 rally and defended the April armed intrusion into the Michigan Capitol. When Representative Rashida Tlaib, a Michigan Democrat, suggested at the time that Black demonstrators would never be allowed to threaten legislators like that, Ms. Maddock wrote on Twitter, “Please show us the ‘threat’?”

“Oh that’s right you think anyone armed is threatening,” she continued. “It’s a right for a reason and the reason is YOU.”

The message was clear – You know I could kill you right here, and right now, and I just might, and there’s not a damned thing you can do about it.

This is the situation now:

The lead organizer of the April 30 armed protest, Ryan Kelley, a local Republican official, last week announced a bid for governor. “Becoming too closely aligned with militias – is that a bad thing?” he said in an interview. Londa Gatt, a pro-Trump activist close to him was named last month to a leadership position in a statewide Republican women’s group. She welcomed militias and Proud Boys at protests, posting on the social media site Parler: “While BLM destroy/murder people the Proud Boys are true patriots.”

Prosecutors have accused members of the Proud Boys of playing a leading role in the Jan. 6 assault.

And so it goes:

Two weeks after the Statehouse protest, Mr. Shirkey, the Republican leader, appeared at a rally by the same organizers, onstage with a militia member who would later be accused of conspiring to kidnap Gov. Gretchen Whitmer.

“Stand up and test that assertion of authority by the government,” Mr. Shirkey told the militiamen. “We need you now more than ever.”

After the riot in Washington, some argue such endorsements endanger the future of the party. “It is like the Republican Party has its own domestic army,” said Jeff Timmer, a former executive director of the Michigan party and a vocal Trump critic.

But that may be the point:

A quarter-century before the mob rampaged through the U.S. Capitol, a paramilitary leader from Michigan sat in the same building and delivered an early warning shot.

Norman Olson, founder of the Michigan Militia, appeared in June 1995 before a Senate committee investigating the growth of the anti-government movement after the Oklahoma City bombing that April. Dressed in military fatigues with a “Commander Olson” patch on his shirt, he spoke with contempt.

“We stand against oppression and tyranny in government,” Mr. Olson said, “and many of us are coming to the conclusion that you best represent that corruption and tyranny.”

For many Americans, it was jarring to listen to self-appointed defenders of the Constitution justify taking up arms in a paranoid vision of government overreach. But back in Michigan they were used to it.

Ah, those were the days:

In the early 20th century, the Black Legion, a paramilitary group that included public officials in Detroit and elsewhere, began as an offshoot of the Ku Klux Klan and was linked to numerous acts of murder and terrorism.

Timothy McVeigh and Terry Nichols, who killed 168 people in the Oklahoma City bombing, were reported to have associated with militia members in Michigan, though Mr. Olson said they had been turned away because of their violent rhetoric. In the aftermath, militias were largely exiled to the fringes of conspiracy politics, preparing for imagined threats from the New World Order.

But in recent years, as the Republican Party has drifted further to the right, these groups have gradually found a home there…

And that closes the circle:

Mr. Shirkey, the Michigan Senate leader who came around to work with the militias, declined to follow the movement behind Mr. Trump all the way to the end. Summoned to the White House in November, Mr. Shirkey refused the president’s entreaties to try to annul his Michigan defeat.

But in an interview last week, the lawmaker said he nonetheless empathized with the mob that attacked Congress.

“It was people feeling oppressed, and depressed, responding to what they thought was government just stealing their lives from them,” he said. “And I’m not endorsing and supporting their actions, but I understand where they come from.”

Everyone understands where they come from now. That’s what this second impeachment trial is about. Nothing is moot now.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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