Time for the Annual Pointless Impeachment Trial

A year ago, the pointless impeachment trial was meant to say, “Even though we can’t find a single crime, even a misdemeanor, that this President has committed, we think he’s awful and should be removed from office.” That was the essence of the prosecution, which of course went nowhere once they sent it to the Republican-led Senate. So it was posturing, nothing more.

This year, the pointless impeachment trial has actually included a crime—just not one the former President committed. And they’re saying the action, which he didn’t commit, was done a mere two weeks before inauguration. They held the trial just days before the President was leaving office. And they failed to deliver the Article of Impeachment to the Senate until well after inauguration.

I’m not a lawyer, but I can play one as well as the next blog writer. So here’s my analysis.

The founders didn’t want elected officials to have to spend their time in office defending themselves against lawsuits and various accusations. It is the nature of politics that there are things they will do in office that opposing factions will find just wrong, even though not technically unlawful. For policy issues that may actually violate the law, lawsuits can be brought against the government, rather than personally against the official.

But when it is the official who personally does wrongdoing, rather than a typical court trial, the remedy is an impeachment trial. In our Constitution, the limit of such a trial is to remove the person from office. The founders wanted to prevent the uncivilized practice of executing or imprisoning political enemies. If there was a criminal act, that could then be handled in a criminal trial—for example, say a president murdered his secretary of state in a fit of anger. The House would bring charges in an impeachment trial, and if the House found the president guilty, they would pass the articles of impeachment (the charges and the prosecution’s case) to the Senate, where the actual trial would be held. If the Senate found him guilty, he would be removed from office. That’s the limit of an impeachment. But the president—or a justice or other officeholder subject to impeachment—would thereafter be a private citizen, subject to criminal proceedings, and murder, as you know, has no statute of limitations.

A year ago, when we were talking about this, I explained, 

While an impeachment is not exactly a court trial, it is analogous to think of the impeachment articles, and all that was done in the House, as the prosecution’s case. When they pass along the articles of impeachment, that is akin to the prosecutors saying, “The prosecution rests its case.”

When the Senate takes up the case, they have a couple of options beyond holding a further trial. One is to look at the evidence and say, “No, the evidence does not show beyond a reasonable doubt that the defendant [the president] is guilty of these charges,” and they could rule not guilty.

Or they could look at the evidence and say, “He may have done these things he’s charged with but still not be guilty of something requiring his removal from office,” and they could rule not guilty.

Beyond that, of course, if they were to find him guilty, they could remove him from office, which, of course, they didn't do.

But this year, the trial is against a private citizen already out of office. The Congress doesn’t have the authority to legally pursue a private citizen, even a former officeholder. The Democrats don’t care, however. But that explains why Justice Roberts will not be overseeing the impeachment trial as constitutionally required; this is not a legal impeachment trial.

If the Senate trial were to find the former President guilty, they can’t even remove him from office. Obviously. The assertion is that they can at least attach the additional impeachment punishment of preventing him from ever running again. Now, seriously, in four years Donald Trump will be 78, practically as old as Joe Biden is now. While his health and energy are far better than Biden’s right now, handling a presidency between ages 78 and 82 might not be what he wants to do—or what the American people want him to do at that time. Democrats seem to assume others are as power hungry as they are, and as incapable of retiring from their power mongering. But if you look at someone who hasn’t lived his life accruing political power, you might find other life purposes altogether. Who knows?

However, if Donald Trump wants to run in 2024, he can run, regardless of what the House proclaims in a nonofficial “impeachment” trial. If he does, the House can take him to court, to see whether they had any legal authority to punish him by removing permission to run. But their saying “You can never run for anything again,” when they had no authority to do so is nothing more than slamming the door after someone leaves, and then saying, “And take that!” If they could, they would simply hold an “impeachment” trial of any political foe they never wanted to face and put up that roadblock. In a legal court of law, such a punishment couldn’t stand.

They also want to claim he shouldn’t be allowed to have a presidential library. A good question would be, why do they care? It’s a private thing, built with money from private donors. Not taxpayer dollars. And no one is forced to go to it. Just as Congress has no power to prevent other private citizens from building libraries, or other buildings of whatever purpose, they do not have the power to declare that a former president cannot build a library related to his life and his time in office.

This impeachment isn’t going anywhere for one large additional reason: the Democrats do not hold a 2/3 majority in the Senate, where they need to convince all Democrats plus around 17 Republicans that the President committed the crime they are accusing him of.

As with last time, it’s hard to know whether the Senate will even bother to try the case. With a split Senate, and possibly a few Republican defectors, they will likely look at the charges, and spend some time posturing. But they cannot convict. So it is a waste of taxpayer time and money.

There are some other legal issues related to this impeachment we ought to mention. Like we said, the House brought the single article of impeachment. That is the prosecution’s case. Done. They took only a few hours to discuss and even fewer pages to write up their case. They voted on that in a frenzied hurry.

And then they changed the article of impeachment, added to it, after the vote. This week they offered up what they’re calling a “memorandum” on the impeachment. And it isn’t what the House voted on.

Law vlogger and defense attorney Robert Gruler compared the original article of impeachment to this new memorandum. He reviewed what he said a couple of weeks ago, where he had shown the pertinent charges: that President Trump incited violence at the capitol with his speech, and they cited certain words from that speech. Here’s a screenshot of what was included:

Robert Gruler shows the main points of the Article of Impeachment
screenshot from here

You might note that, speaking untruths about election fraud is something the former President could defend himself on by showing that there was a whole lot of election fraud. They’re claiming that saying that basic fact, which they call untrue, incited violence at the capitol. The other things they’re saying incited violence are two quotes from his January 6^th speech. Plus, not shown on that page is also the Raffensberger phonecall, which Gruler says was simply a settlement discussion in a litigation suit, perfectly legal, even if the President’s words were not precisely elegant or helpful. It was certainly not something they could impeach him on, nor did they consider doing so prior to the events of January 6^th. In other words, that was just thrown in but wasn’t an impeachable charge.

Gruler draws the scope looking like this, inside the blue circle. Plenty of things exist outside the circle, but they are all outside the scope of the case.

The scope of the case includes only what is in the blue circle.
screenshot from here

 

What does he mean by scope? An example he gave was, if you were arrested for stealing a candy bar, and you face your day in court on that charge, referring to what you did on a certain day, a certain place, doing a particular thing—and then suddenly on the day you get to defend yourself in court, they say, “Oh, by the way, we’re also charging you with the theft of that TV.” What? That has nothing to do with what you were charged with. That’s not what your attorney prepared to defend you on. Not only that, it’s not what they presented evidence to prove. We have due process to prevent that sort of thing.

Here he shows what additional “outside the scope of the case” stuff they are suddenly putting in that memorandum. 

Gruler shows how the memorandum stuffs all kinds of things
into the scope of the case that are not in the Article of Impeachment.
screenshot from here

He lays it out this way:

My high-level take on all of this is, the old narrative, the old theme of this case was, “Trump’s irresponsible rhetoric on January 6th was the direct cause of (incitement of) the Capitol Hill Insurrection.” That narrative is now changing. It’s now, “Trump’s irresponsible rhetoric before, during, and after January 6th was the direct cause of (incitement) of the Capitol Hill Insurrection and is a continuing threat to America.”

It’s even worse than that; he didn’t just cause what happened on Capitol Hill, but he’s also now a continuing threat to America. So you see how the scope sort of changes a little bit. And I read through most of the 80 pages. I read through Donald Trump’s response. And that’s just sort of how I synthesize it into the Democrats’ argument, that they’re expanding the scope, and they’re now saying that a lot of Trump’s behavior, before, after, during, his response after the Capitol Hill riots, was all inappropriate, and it’s all impeachable now as a result. So the scope—it gets much bigger, as we’re going to see.

He goes on to say why they couldn't leave it at "Trump's speech incited a riot." You see it spilled by Alexandria Ocasio-Cortez earlier this week. She claimed that she was getting text messages about a threat on January 6^th as early as a week before. Add to that some things we’ve known for a while. There was a letter put out by Pelosi herself, I believe, refusing any additional help from the feds. Chief of the Capitol Hill Police Steven Sund brought concerns to the attention of the Sgt. of Arms of both chambers of Congress, but they flatly refused to use any additional help. Gruler says,

So, if they knew this was going to be a problem, and they undersecured the facilities, is the government negligent? Are they contributory? Is their negligence contributing to this entire debacle? Or was this all just Donald Trump? Because that’s what the original allegation has been.

At least it was that for a while. Then Alexandria Ocasio-Cortez said, no, Ted Cruz tried to murder her. So it’s not just Donald Trump; it’s Donald Trump and Ted Cruz who tried to murder her, literally; she said that on Twitter. We covered that.

So, you’re seeing how the narrative is just unraveling just a little bit.

You can’t have it both ways: Trump incited violence on January 6^th, or there was pre-planning that didn’t involve Trump, but he’s somehow responsible for that too.

Evidence keeps coming out about the pre-planning. Much of it appears to be done by non-Trump supporters. It’s looking more like a setup. They hoped there would be a problem they could blame Trump for. Maybe Democrats even colluded to make that happen; if I were the investigator, that’s what I’d be looking into. But of course Democrats won't be investigating themselves.

But now we’re supposed to believe Donald Trump is guilty of insurrection for questioning a voting process with more evidence of fraud than we have ever seen in a US election. And we’re supposed to believe saying so—which I have done and continue to do on this platform—is inciting insurrection. And it was all put over the top by a speech, in which the President called for peacefully cheering on those who challenged the electors, and never called for violence—and never has before or since either. And the words they claim incited violence weren’t even spoken before the violence began miles from where he was speaking.

Incitement has a legal definition as well, which they’re ignoring. It has to be actually calling for violence to happen imminently. It can’t be hinted at, or words construed to mean that. And you certainly can’t incite violence by calling for peace, as the President did, before, during, and after.

So this is all a sham. It seems designed to label everyone who believes there was election fraud as an insurrectionist. And beyond that, anyone who voted for Trump is, by association, an insurrectionist.

It’s hard to believe this is America. A question for a future post is, is the current dictatorship more like a banana republic or a communist regime?

In other words, don’t worry about President Trump’s impeachment trial. He’ll be fine. But the country, if left in the hands of these lawless power mongers, will not.

Ironies and Analogies on Impeachment

I’m wondering whether what I’m about to write about will be moot by the time we get through the day and I get this posted. Still, I’m going to comment—on the impeachment, and then on Nancy Pelosi’s threat not to pass the articles of impeachment along to the Senate.

President Trump at rally while House votes to impeach
screenshot from here

Yesterday, for the third time in history, the House voted to impeach a US President. For the first time in history, the House voted to impeach a president without there being an underlying crime that the president may have committed.

What happened the other two times?

There were 11 articles of impeachment against Andrew Johnson in 1868, but the main charge had to do with the violation of the Tenure of Office Act—a bill he had vetoed, but that the legislature had overruled. It was designed to protect a particular Secretary of War. Andrew Johnson dismissed the man and replaced him anyway. This was during the contentious post-Civil War era, when, granted, there was a lot of division. Add to that, Johnson had come to office replacing Lincoln, after the assassination, and was of the opposite party of Lincoln. Lincoln had chosen him to help bring people together. But it’s hard to imagine that sort of setup today—mainly because you’d need to worry about assassination. Not that Johnson had anything to do with that, but you can see the motive.

By the way, Johnson was not removed from office by the Senate.

According to the Wikipedia article on that impeachment, here’s the takeaway: 

The impeachment and trial of Andrew Johnson had important political implications for the balance of federal legislative–executive power. It maintained the principle that Congress should not remove the president from office simply because its members disagreed with him over policy, style, and administration of the office.

A hundred and thirty years later, there were two articles of impeachment against Bill Clinton: lying under oath and obstruction of justice. This was the case in which several women had accused him of sexual assault, and he lied under oath in a court of law. Somewhere during his testimony in that trial was when he famously equivocated by saying, “It depends upon what the meaning of the word 'is' is.” He also lied directly to the American people about his affair, in the White House, with intern Monica Lewinsky, saying, “I did not have sex with that woman,” which of course semen stains on the blue dress he had given her proved was a lie. He did both the literal crimes and the heinous acts. For lying under oath, he lost his law license. Still, the Senate did not vote to remove him from office, reframing the lying and abuse of power as, his sex life is his private business and has nothing to do with running the country.

The takeaway is that, if the Senate wants their president to stay, there’s almost no limit to the wrongdoings they will justify for him.

The other time there was almost an impeachment was with Richard Nixon, in the 1970s, who stepped down rather than put the country through the ordeal of an impeachment. There was a break-in at the Watergate Hotel, into Democrat Party headquarters. The thieves were caught. It turned out they had been hired by members of the president’s re-election campaign. The president had been unaware, and not approving of any such break-in, but he did participate in the coverup in order to distance his campaign from the crime. That didn’t work out so well. That was in fact obstruction of justice, and it’s likely he would have been both impeached and removed.

Ironically, the Nixon re-election campaign was doing well without the information the crooks were trying to obtain. Add to that, if Nixon had told the truth, that he didn’t know about the scheme, and if he had then disavowed anyone involved, he’d have probably survived the scandal. Truth is better.

There are a couple of things that make this current impeachment historic. First is that there is no underlying crime that the president has committed; it is a purely partisan political maneuver.

House Speaker Nancy Pelosi, following impeachment vote
screenshot from here

Second, the articles of impeachment have been voted on; the impeachment has happened. Except that the Speaker of the House is hesitating to pass the articles of impeachment along to the Senate. She’s insisting that the Senate run their hearing on whether to remove the president from office based on Democrat-led House demands. She wants the Senate to go by the House’s rules. She’s saying, “Unless you do as I say, I’m not giving you the articles of impeachment.” (That’s a summary, not a verbatim quote, of course.)

This is odd in so many ways. Let’s try a couple of analogies to clarify.

I follow a lot of bills when the Texas legislature is in session, as it was this past January to June. I keep a list, and update whenever there’s been movement. Every bill goes through several stages, but the simplest version is, it goes through the originating body, House or Senate, and when that body passes it, it goes on to the other body. If it passes there, but with amendments, it goes back to the first body for reconciliation. And finally, if passed by both chambers, it is sent on to the governor for signature or veto.

So, it’s a significant movement when the bill passes in, say, the House and gets sent to the Senate. I tend to think of this passing from one body to the other as automatic. But sometimes it takes a day, or maybe even two, for the bill to actually appear in the Senate to be dealt with. But it never fails that the bill does get sent.

There is no possibility that a bill gets passed in the House and doesn’t get sent on to the Senate. The House is required to send it on. And it would be both a pointless and unlawful betrayal of the House and the people the House represents to take their votes and pocket them. If it were up to any individual member of the House to “table” the bill following a lawful vote, wouldn’t such an individual be tempted to do that any time it suited him or her? It. Can’t. Happen.

Yet that is what Nancy Pelosi is doing. All of the representatives are now on record for whether they think the president should be removed from office; for some, that is a political risk, because they’re in districts that elected this president. But she doesn’t care; she’ll just withhold the articles, because she wants to use them as leverage.

Except, that’s not really how leverage works. As Senator Ted Cruz, an actual constitutional scholar, puts it,

Her threat to the Senate is, “Do exactly what I want or I’m not going to impeach the president; I’m not going to send over the impeachment articles.” My attitude is, OK, throw us in that brier patch. Don’t send them. That’s all right. We actually have work to do. 

Yeah, pretending they didn’t impeach the President makes Republicans chuckle, not shake in their boots.

One more analogy. Let’s say there’s been suspicion of a crime. Between the investigating officers and the district attorney’s office, there is a case built. Say the prosecutor announces, “We’re pressing the following charges—” and then lists them. But then he doesn’t actually file the charges. The accusation is out there in the media, possibly hanging over the accused, but it doesn’t go to court. It’s nothing but words.

That is similar to what Nancy Pelosi is doing. She is announcing the pressing of charges, but she is not presenting any of the charges to the court. As far as the court is concerned, then, there are no charges. Until they are delivered to the Senate, there can be no impeachment trial.

Each body of the legislature is entitled to set up its own rules. What incentive is there for the Senate to bow to this demanding Democrat-led House to conduct their business against their own interests?

Nancy Pelosi has no power to do what she’s attempting to do. No right to do it. And no rationale for doing it.

Nancy Pelosi is trying to usurp power—that is, take power that has not been granted to her. That is an abuse of power—what the House has accused the president of without showing he has actually abused his power. She is literally abusing power and obstructing Congress.

So many ironies. Let’s add one more.

Another option for the House would have been to censure the President. This would have held no legal standing, but it would have sent the message, “We don’t like what you said in that July phonecall, because it could be misinterpreted, so we censure you for not being more careful with your speech when officially representing our nation.” It’s possible that there would have been no Democrat defectors for that (there were two nays joining all the Republicans, plus one abstention, in yesterday’s vote), and maybe even a Republican or two would have been willing to send that message. This would not have required passing anything along to the Senate, where there is virtually zero chance of the President being removed from office.

It would have saved face without any betrayal of House members. It would have been essentially the same outcome as voting to impeach but then not delivering the articles of impeachment—without any embarrassing lawbreaking on Pelosi’s part.

My guess is that this wasn’t done because the radical base of the Democrat party has insisted on impeaching the President since before his inauguration.

It’s inconceivable, simply because of its lawlessness, that this holdout will continue. I expect Pelosi will give in, with some sort of speech about how much she cares about the Constitution—more irony—and eventually deliver the articles of impeachment. We’ll see.

But one thing to consider is, if the Democrats are accusing someone of some wrongdoing, it is highly probable that they are committing that very wrongdoing. I’d sure like to see the truth laid bare for the world to see on every one of their collusions, quid pro quos, obstructions, and lies.

One more analogy. We recently used a pressure washer to clean the bathroom tile, and got rid of twenty years of ground in grime, hairspray, and whatnot. It's like new again. Our government could use a good pressure washing like that. Then we could get back to thriving with greater freedom, prosperity, and civilization.