January 14, 2021

You would think having failed the first time the Democrats would have learned from their mistake.  Their failure to gain unanimity to impeach Trump in early 2020 was due to the fact that they based it on the content of a phone call that was open to interpretation as to its intent. Republicans in the House and in the Senate latched on to this and voted against impeachment.

Yesterday, I believe, the House made their second mistake by hitching their wagon in pursuit of a second impeachment to a specific accusation of “incitement of insurrection.” (The mistake emanates from the fact that the issue of incitement to commit violence has a very specific meaning and standard that must be met in the context of our free speech protections based on Supreme Court rulings.) In doing so they have given the Republicans a legitimate excuse to once again reject the premise justifying impeachment. Witness the relatively one sided 232 – 197 predominantly House Democrat vote to advance the one article of impeachment to the Senate.

It is true that the President in his refusal to accept the results of the last election created the opportunity for violence to occur following his rally on January 6^th. Neither did his “late to the game” exhortations to stop the violence do anything to quell the actions already underway by his more fanatical followers.

But can his rally and the words he used really be justified to levy the incitement charge?  After an examination of the specific words he used, I do not think so.

If anything, someone could argue (and I am sure the Republicans will) that  based on the actual words he spoke he was suggesting to his audience at the rally that they pursue democratic means to voice their objections to what he truly believes is a stolen election.

Here is Trump in his own words

“And you have to get your people (your representatives) to fight. And if they don’t fight, we have to primary (by voting them out of office) the hell out of the ones that don’t fight. You primary them.”

“…we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.” 

“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

“Today we see a very important event though. Because right over there, right there, we see the event going to take place. And I’m going to be watching. Because history is going to be made. We’re going to see whether or not we have great and courageous leaders, or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity they’ll be ashamed.”

“And you know what? If they do the wrong thing, we should never, ever forget that they did. Never forget. We should never ever forget.”

“I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.”

“So today, in addition to challenging the certification of the election, I’m calling on Congress and the state legislatures to quickly pass sweeping election reforms, and you better do it before we have no country left.”

“The Democrats are hopeless, they never vote for anything. Not even one vote. But we’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.”

“So let’s walk down Pennsylvania Avenue.”

The above words are certainly a call to action but not to imminently commit violence, which is the basis for the charge.

So once again, the Democrats have overreached. If they had simply focused on Trump’s violation of the public trust tied to his continued and unrelenting questioning of the validity of a duly and legitimately conducted election they might have been able to gain bipartisan support…something they will likely not achieve as they move the impeachment forward.

January 7, 2021

Calls for Trump’s impeachment started before he actually took office. And early last year those calls were heeded when the House, on a predominantly partisan basis,  delivered articles of impeachment to the Senate based on a phone call he made to the Ukrainian President. As we all know the Senate also on a predominantly partisan basis chose not to convict. There is no need to debate whether either action was right or wrong. But clearly, there was no unanimity at that time in moving forward to remove the President.

However, we are now at a different point in time. As a result of the assault on the Capitol on January 6th we have finally arrived at what is, in my opinion, a solid basis on which to impeach.

Moreover, I believe such an action would be supported by many on the Republican side, who are not fanatical supporters of the President, and appropriately result in a conviction. How did I reach this assessment?

First, impeachment is a political solution to hold to account someone who abuses their power. The offense in this case is his creation of an environment and, in turn, the opportunity which allowed a relatively small cadre of followers to launch an assault on the Capitol and threaten the lives of our representatives who were undertaking the constitutional obligation to accept the votes of the Electoral College.  In essence he undermined a democratic process, a clear violation of the public trust, which is consistent with the intention of the framers when they provided impeachment as a political solution to removing a public official and, specifically, the President.

Federalist 65 states “subjects of its jurisdiction ( the Senate acting as the court in an impeachment trial) are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Neil J. Kinkopf in an analysis prepared for the Constitution Law Center points out that “the Framers meant for the phrase ‘high crimes and misdemeanors’ to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue.”

Alternatively, some have called for the 25th Amendment to be invoked. Based on my understanding of this amendment that is not a practical solution because the intent of this amendment (which was passed after the Kennedy assassination) was to provide for continuity of government when the President is unable due to illness, disability or some other reason to carry out his or her duties.  It is also in some sense a cooperative process where the President might admit his lack of capacity and freely give over his power to the Vice President…something Trump will never do. 

He will likely also not resign, which is ideally the most efficient solution to this situation but, in my mind, letting him off easy. If he were to voluntarily resign it might allow him to re-enter the political arena at some future point which I believe would be bad for the country. ( While I support many of his policies and believe he did accomplish some good things while in office his most recent actions and demeanor in the aftermath of an election defeat is too much to be ignored or countenanced.)

Some argue that impeachment serves no purpose at this late date given the transition of power that will take place in a few days. I say, not so.  

Impeachment will serve as a condemnation of his complicity in creating the environment and opportunity for the violence that occurred beyond the right to protest.  I will always argue that his speech does not rise to the level of incitement required (under the Supreme Court’s interpretation of the free speech provision of the Constitution) to justify a criminal offense. That is where impeachment comes in…it is a political solution when there has not been a violation of a statute.

What will impeachment achieve? 

While impeachment may not be able to occur prior to his leaving office, if he is subsequently convicted by the Senate, in a separate disqualification action, they can vote to bar him from holding future office which, based on these recent events, would be an appropriate punishment in the public square. It would also render mute the rhetoric of his fanatical group of followers who could no longer hold out hope for his second political coming in four years.