25th Amendment, Capitol assault, Capitol riots, Constitution, election 2020, election challenge, election integrity, Im-Politic, impeachment, incitement, Joe Biden, Mike Pence, Mitch McConnell, obstruction of justice, Trump, Trump rally
These last few days have been a great example of the adage that timing is everything. I was in full politics mode early this week because of the run-up to the eagerly and anxiously anticipated Georgia Senatorial runoff elections on Tuesday, and therefore decided to post Wednesday morning on the likely (and indeed eventual) results and the impact of the Democratic sweep on Republican Party politics.
I put up the post in the very early afternoon, and then almost immediately afterwards came the assault on the Capitol Building. Ordinarily, I’d have followed up with commentary on that outrage on Thursday or Friday. But as known by RealityChek regulars know, I focused instead on the new official U.S. foreign trade figures that came out on Thursday and the official U.S. jobs report issued Friday. In part I wanted to spend my time away from politics because I was trying to think of something original to contribute to the torrent of thoughts and emotions that followed the Capitol chaos, but also because to such an extent I’m an economics type, and the economy and its various problems haven’t gone away.
So it wasn’t until late-ish Saturday afternoon, as the news continued its own assault, that I’d collected my thoughts and reviewed the available evidence sufficiently to start writing on what has emerged as the question of the moment: What should the American system of government do about President Trump? More specifically, since (reportedly, at least) Vice President Mike Pence has ruled out using the Constitution’s 25th Amendment to remove the President from office (and rightly, in my view), should Mr. Trump be impeached again?
My answer: No. Let him to serve out his term. But before making the case for that course, here’s one idea suggested by a friend yesterday (and that I subsequently found out also has been suggested here and here): Mr. Trump’s best option for Mr. Trump would be resigning as part of a deal in which new President Mike Pence would pardon him, and thereby shield him from prosecution for any crimes he might have committed as President (more on which below).
Such a pardon would still leave Mr. Trump vulnerable to civil and criminal indictments by state and local law enforcement authorities (described here). But even though there are no signs that President-elect Biden wants to pursue the possible Presidential offenses, foreclosing this option entirely would clearly leave Mr. Trump much better off than leaving it open.
As for impeachment, it’s important that Mr. Biden hasn’t yet endorsed such an effort. But he hasn’t opposed it, either. I hope he will, for the following reasons:
>The Senate trial that would follow an affirmative vote by the Democratic-controlled House of Representatives would further deepen and enflame national passions that clearly are more than deep and enflamed enough already, thank you very much.
>Reportedly, Republican Senator Mitch McConnell of Kentucky, who is still the upper chamber’s majority leader, has sent out to his colleagues a schedule for a possible trial that serves as a reminder that, under existing Senate procedures, no such event could even start until January 19 – the day before Inauguration Day – without the consent of all sitting Senators. Since the President retains fairly substantial support from the Republican side, this means that the Senate vote required to approve the impeachment would take place after Mr. Trump has left office – an action that could easily be portrayed as one of pure vengeance, and that would further intensify political divisions.
>At least as important, for those claiming to be worried (as they should be) about the possibility of hostile foreign powers moving to capitalize on U.S. political turmoil, a full impeachment and trial would significantly lengthen this window of danger. It’s true that America’s adversaries have held back so far, but why increase the odds of a crisis, especially after the President is gone from the White House?
>Similarly, a full impeachment process would represent a major and completely unnecessary distraction for the federal government at a time when major distractions, even leaving aside national security considerations, are exactly what America doesn’t need right now. In case you’ve forgotten, a second (or third?) CCP Virus wave is still mounting, the economy remains in the toilet, and even with a major new stimulus/relief bill, months more of widepread suffering for many individuals, households, and businesses seems certain.
You don’t need to believe that the Trump administration excelled at dealing with the pandemic’s arrival to recognize that the previous impeachment effort preoccupied the attention of both the Executive and Congress for many critical weeks. Would the likely benefits of indicting President Trump and then seeking to remove him from office (at a Senate trial that would certainly take place after Inauguration Day) really outweigh the risks? And outweigh them significantly? Even though my belief has always been that any political leader or government worth its salt needs to be able to handle multiple challenges at once, I can’t see the wisdom of adding unnecessary challenges.
>One argument for impeachment and conviction is that the latter would prevent the dangerously unstable Mr. Trump from ever again holding public office at any level. That’s an understandable goal for those viewing the outgoing President as an incorrigible menace to America’s democracy and way of life. But even for such Never Trumpers, is it a goal consistent with democratic principles?
I’d answer “Yes,” if smoking gun-type evidence existed for Trumpian offenses. But as explained further below, based on what’s currently public knowledge, I don’t see a viable case. And in its absence, shouldn’t the final verdict on the President’s political future be left up to the American people? Don’t opponents trust in the electorate’s judgment? And in their ability to keep Mr. Trump away from official power-wielding via politics?
As for the Wednesday events themselves, and the issue of the President’s responsibility and the case for other instances of criminality during the last weeks of his presidency (which Constitutionally can be prosecuted once he’s out of office):
I watched the entire video of his speech to the rally that morning and have now examined the transcript. The only phrasing I heard that could even by the wildest stretch of the imagination be considered “incitement” was the President’s single use of the word “fight” and statements like “We’re just not going to let that [a final Congressional certification of the Electoral College vote] happen.”
In addition, on December 20, the President sent out this tweet: “Statistically impossible to have lost the 2020 Election. Big protest in DC on January 6th. Be there, will be wild!”
I agree with Fox News talker – and generally strong Trump supporter – Tucker Carlson that these remarks were “reckless,” because national passions are running so hot. But terrible judgment alone is almost never criminal according to both common sense and the American legal system.
Further, the above remarks were accompanied by Trump statements like “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard”; and ”[W]e’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country”; and “We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
In other words, the only explicit instructions or advice or whatever you want to call it given by Mr. Trump to the crowd entailed peaceful, not violent, behavior. And anyone seizing (in isolation) on the use of “fight” needs to ask themselves if they’ve never heard a politician exhort his followers with that verb? Or characterize a campaign as a “battle”? That’s why the only reaction justified by the “fight charge” is “Oh, please.” The same goes for his claim that neither he nor his followers should ever accept the election results. That’s a far cry from recommending that they commit violent acts.
Regarding the December 20 tweet – which was sent out weeks before the Capitol attack – the “wild” reference was clearly meant as a description of the anticipated rally scene, and used to convey boisterousness, excitement, etc. Good luck contending in a court of law that this amounted to a request or demand to act in an out-of-control, much less illegal, manner, and using it as a basis of an incitement charge.
>Arguments have also been made that the President’s phone calls to the Georgia state officials and especially his January 2 declaration that he “just wanted to find 11,780 votes” amounted to solicitation of election fraud or participating in a conspiracy against people exercising their civil rights.
Ironically, though, one of the President’s best defenses harkens back to one of Special Counsel Robert Mueller’s explanations for why there was no airtight case for charging Mr. Trump with obstruction of justice based on the evidence he uncovered in his probe of the so-called Russia collusion scandal: The President arguably had no criminal or corrupt intent because he genuinely believed he was being framed. Similarly, Mr. Trump’s phone call was motivated by a sincere belief that the election had been stolen. (See Volume II, p. 89 here.)
The election fraud etc argument is also ironic because of all the pre-Capitol riots talk of indicting the President for obstructing justice based on the Mueller probe’s findings. Even Mueller wasn’t terribly confident about Mr. Trump’s culpability on this score.
The only caveat to this analysis that needs to be kept in mind is that the standards for determinations of guilt in civil law suits are lower than for criminal prosecutions. So in principle, those kinds of legal avenues are plausible, and convictions might obtained in at least some cases – even though these procedings won’t do wonders for the cause of reasonable national unity, either.
But overall, just as genuinely good options are usually awfully difficult to find during hot messes like that which the United States faces now, options that satisfy everyone or even a majority of Americans will be scarce at best, too. So permitting the Trump presidency to come to as normal a possible end seems the best of an unsatisfactory lot – provided of course that new news shocks don’t shake up an already disturbingly settled national scene over the next ten days.