Category Archives: Law

Trump Trial #2 – sine die

US Senate

And so it is over. The second trial of Donald J. Trump, the only president to have been impeached twice, has adjourned. And Trump is now also the only president to have been found not guilty twice by the U.S. Senate. In the final tally, 57 senators, including 7 Republicans, found Trump guilty of high crimes and misdemeanors for inciting the mob that went on to breach and vandalize the Capitol, and to injure and kill law enforcement personnel. Forty-three senators found Trump not guilty. A supermajority of 67 being constitutionally required for conviction, the result was not guilty.

But only a handful of Trump’s most loyal supporters rushed to the cameras to proclaim that their leader had been exonerated by what goes down as the most bipartisan impeachment in history. The senators, and the world, saw the video of senators and members of the House fleeing for their lives during the attack on January 6th. They saw the Vice-President, Mike Pence, and his family being ushered away from the senate chamber by the Secret Service. They viewed Trump’s tweet of rage following Pence’s refusal to attempt an unconstitutional coup by rejecting of the voter’s will saying, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” They heard testimony that Trump had sent that tweet moments after receiving word that the Vice-President’s life was at risk.

Poor Mitch

It was too much even for Mitch McConnell, the Kentucky senator who, as Republican leader, had been solidly behind Trump for four years. Following the vote, McConnell took the the floor to declare that Trump was “practically and morally responsible” for provoking the Capitol riot. He added: Trump “did not do his job. He did not take steps so federal law could be faithfully executed and order restored.”

I felt a momentary pang of sympathy for poor old Mitch. But after a second, two at the most, it passed. For unlike the seven Republicans who voted to impeach, Mitch voted “not guilty.” And he did so with his usual display of hyprocracy, stating that it was unconstitutional to try a president after his term of office had ended.

I have discussed before why this argument is without merit. But just to point out the latest addition to that list of arguments consider that before beginning the formal trial, on Tuesday, the Senate spent the entire day debating this very issue. It finally voted, 55-45, that the proceeding was constitutional and should proceed. So the Senate itself made the decision in the manner determined by its own rules. And the hypocrite McConnell, who claims he is the guardian of the Senate’s rules and traditions, proved once again that he will ignore procedure and precedent when it suits him.

McConnell complained that the House, which impeached Trump which he was still in office, had failed to deliver the impeachment to the Senate in time for a trial. But in fact, the secretary of the Senate had informed House Speaker Nancy Pelosi that the Senate was on recess and would not return until January and, while on recess, would not accept the House’s papers. McConnell was in effect saying ‘the only time we could have convicted Donald Trump is when I prevented it.’ So McConnell delayed the trial until Trump was out of office and then said he couldn’t vote to convict because Trump was out of office. Talk about trying to have his cake and eat it too. I suppose it keeps some of the big Republican contributors from fleeing completely.

As for the trial, it was obvious that Senators’ minds had been made up. Several obnoxiously ignored Senate rules by ignoring or even boycotting the proceedings. Trump’s third string lawyers, several more prominent attorneys having resigned prior to the trial, argued the big lie that Trump had really won the election. It is a lie Trump, the liar in chief, will be telling for the rest of his days.

A Little History

Just a little history. Six (later) senators impeached Clinton in the House but acquitted Trump: Blunt, Portman, Thune, Crapo, Moran, and Wicker. Five senators voted to convict Clinton but they acquitted Trump: McConnell, Graham, Grassley, Inhofe and Shelby. Consider, is lying about oral sex is worse than insurrection?

McConnell did suggest the Trump could still face criminal charges as a result of the riot. There is some support for such a move. I have mixed emotions on the wisdom of what would be seen by many as an unprecedented partisan action. It will be interesting to see if Attorney General Merrick Garland, who Mitch McConnell so famously snubbed, pursues the matter.


And About Trump

In the end, McConnell did not do any better with Trump than Pence did. Trump issued a statement responding to McConnell, “Mitch is a dour, sullen, and unsmiling political hack, and if Republican Senators are going to stay with him, they will not win again,” Trump wrote in a statement released by his political action committee. He later added: “The Republican Party can never again be respected or strong with political ‘leaders’ like Sen. Mitch McConnell at its helm.”

First Pence, then McConnell. And of course the seven Republicans who voted guilty. And don’t forget the ten Republicans in the House who voted to impeach. There will be very little room left under the bus once Trump is finished throwing Republicans under it.

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The Second Trial of Donald Trump

Been there. Done that.

It seems like just yesterday the Senate tried Donald J. Trump for High Crimes and Misdemeanors. It was in January, 2020. He was acquitted.

This time it is different. The House of Representatives sent over only a single charge, accusing Trump of inciting insurrection in a speech to supporters before the deadly attack on the Capitol. They voted for impeachment without hearings or witnesses, using only the former president’s own words against him. And unlike the first time, where the impeachment was passed on a party-line vote, this time ten Republican members of the House stood with their Democratic collogues.

Another difference is that there was little in the way of defense. About the best Trump’s congressional supporters could do was argue that Trump hadn’t actually told people to stage a riot and kill policemen. That is true. But he did say “we’re going to walk down … to the Capitol…. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.” Death and destruction followed.

The other argument was that with only days left in Trump’s term in office, a proceeding designed to remove him from office was a waste of time. In fact it now appears this will be a principal argument at the Senate trial, defenders saying with Trump now out of office, an impeachment trial doesn’t matter and is therefore unconstitutional. That theory has been pushed with great vigor by Rand Paul, the “other” nutcase foisted upon the Senate by the people of Kentucky.

Why It Matters

The Constitution is a wonderful thing. Written in 1787, it was the first written specification for a representative form of government enacted by the governed themselves. To find even an unwritten representative government you would have to go back to the Roman Republic. But as remarkable as it was then it was not perfect. It contained omissions and ambiguities and made compromises which haunt us to this day.

The authors made it clear they saw the Constitution as a work in progress, allowing for amendments to its text and creating a judiciary to help interpret its meaning. On the procedure for trying an impeached officer of the United States they wrote:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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.

Article I Section 3

There is nothing here that addresses the factual situation we currently face, with a president impeached during his term of office but coming to trial after that term has expired. There is nothing in the scant notes of the debate or in other writings on the Constitution itself that the framers considered this question. But I would argue that common sense alone is sufficient to defeat the notion that a president could commit as heinous a crime as one could imagine in his last few days in office and be immune from prosecution by Congress. That would be one hell of a get out of jail free card.

Obviously one cannot remove from office a president who is no longer in office. And while it is true that the impeachment process is a political function, not as judicial one, judicial bodies are not inclined to render verdicts in cases where the verdict will have no effect. Courts tend to dismiss such cases as “moot”. But that is not the case here. There is a second part to the judgment clause, the disqualification of the convicted from holding federal office in the future. It is doubtful Trump’s accusers are comfortable at the thought that he could seek a second term. For that reason alone, the trial is not without consequence and is clearly Constitutional. Not only that, this situation has been faced as far back as 1797, when the Senate tried one of its own members on an impeachment after he had been expelled.

What’s With John Roberts?

And now, with a great deal of pain, I admit I find myself in some agreement with one of the arguments of Senator Paul and others. It has been announced the John Roberts, the Chief Justice of the United States, will not preside at the second trial of Donald Trump as he did over the first. Senator Patrick Leahy, the president pro tempore of the Senate, will be in the chair.

Why?

Leahy’s office put out a statement indicating this was not Leahy’s choice. Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell apparently made the decision. Leahy would normally preside over the trial of any other federal officer. In an interview with MSNBC’s Rachel Maddow, Schumer said:

The Constitution says the Chief Justice presides for a sitting president. So that is not going to be—so it was up to John Roberts whether he wanted to preside with a president who’s no longer sitting, Trump. And he doesn’t want to do it. So, traditionally, what has happened is then the next in line is the Senate Pro Tem. That’s the most senior Senator on the Majority side and that’s Senator Leahy, who is a very experienced man and a very fair man.

Yes but. In the first place, Schumer is misquoting. the word “sitting” does not appear in the Constitution. It just says, “President of the United States.” Trump is no longer president. But he was president when he was impeached. One of those pesky little ambiguities I mentioned earlier. In the second place, I’m not sure where this situation made it Robert’s choice to preside or not “preside with a president who’s not longer sitting….” I would think that is a decision for the Senate to make.

No matter how experienced and fair a man Leahy is, he is also a juror and it just doesn’t look right for him to be presiding over the trial. This is a most solemn business. The Chief Justice of the United States owes the people the value of his expertise in presiding over the trial. To do any less delegitimizes the proceedings and in so doing Roberts shirks his responsibilities. These are delineated in his own oath to, “faithfully and impartially discharge and perform all the duties incumbent upon me as _ under the Constitution and laws of the United States. So help me God.” (Dec. 1, 1990, 104 Stat. 5124.)

Roberts should be in that chair, like it or not.

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trump’s attempted coup – THAT WAS the week that was

The Week is Over

The cliché says that journalism is the first draft of history. We shall have to wait the verdict of historians several years down the road to craft a title for the tumultuous events of the last week and put them into perspective. For now it shall suffice to note that the FBI is calling on citizens to help identify members of the violent mob of Donald Trump supporters who attacked the United States Capitol on Wednesday in an attempt to stop Congress from tallying the Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president.

It was the first time since the Constitution was ratified on June 21, 1788, that a President of the United States attempted to overturn the results of an election and remain in office after the election of his successor had been certified by the states and the District of Columbia.

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trump’s attempted coup – Day 5

January 7 – Insurrection

A violent mob of Donald Trump supporters, urged to action by Trump himself, Wednesday attacked the United States Capitol in an attempt to stop Congress from tallying the certified Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president of the United States.

In that, they failed.

But for hours they laid siege to the seat of the American government, marauding through the halls, vandalizing offices, occupying the chambers of the Senate and the House of Representatives, and preventing the members from attending to the business of the day. Before the insurrection was quelled, shots had been fired inside the Capitol and on the grounds, tear gas and flash bangs had been utilized, and four people had died.

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trump’s attempted coup – Day 4

US Senate
(January 6 – Georgia and the Senate)

Pinch me.

Awww…. Not so hard.

We will not know for sure until the official certification. But as of this writing, it looks as if the people of Georgia have come through and elected two Democrats to the United States Senate. That would make the Senate evenly divided, 50 Democrats and 50 Republicans. And in case of a tie vote, the tie is broken by the President of the Senate. “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided” (U.S. Constitution, Article I, section 3). And the President of the Senate is, drum-roll please, the Vice-President of the United States. And the Vice-President of the United States is, rim-shot here, Democrat Kamala Harris!

What does this mean? First and foremost, it means Kentucky Republican Mitch McConnell will get a new title. Minority Leader. And as minority leader, he will be able to control, insert cymbal crash here, absolutely nothing. With the election results still unofficial I am afraid of jinxing something. But I would love to be able to get into McConnell’s face and congratulate him on his new found impotence.

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trump’s attempted coup – Day 3

(January 5 – U.S.D.C. Court)

They are battening down the hatches at the White House. But before we get to that, we have another extraordinary court decision to contemplate.

Yesterday the United States District Court for the District of Columbia denied still another request for an injunction seeking to stop Congress from counting the Electoral College ballots declaring Joe Biden the 46th President when it meets tomorrow. The opinion handed down by Judge James E. Boasberg pulls no punches in describing the scope of the plaintiffs’ complaint:

Plaintiffs’ aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President.

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trump’s attempted coup – Day 2

(January 4 – The Georgia Telephone Call)

No sooner had I posted the first installment of this series of columns when events overran its contents. Yesterday the Washington Post released the audio recording of a sixty-plus minute telephone conversation Donald Trump had the day before with the Secretary of State of Georgia, Brad Raffensperger. Raffensperger, a Republican, and Trump have been at odds for weeks. Trump insisting that he won the vote in Georgia but was the victim of massive vote fraud and Raffensperger, noting that he supported and voted for Trump, certifying that Biden was the victor by a margin of 11,779 votes.

Please, listen to the audio and read the transcript and make up your own mind.

When I heard it, my thoughts immediately turned to the first time I heard Richard Nixon’s voice on a recording discussing the Watergate break-in. He was considering having the CIA block the FBI from investigating the connection between the burglars of the headquarters of the Democratic National Committee and the Nixon reelection committee.

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