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FOCUS: Why Jamie Raskin's Speech Resonated |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=25525"><span class="small">David A. Graham, The Atlantic</span></a>
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Wednesday, 10 February 2021 13:04 |
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Graham writes: "The House's lead impeachment manager framed the attack on the Capitol as a desecration of what Americans hold most sacred."
Representative Jamie Raskin of Maryland. (photo: Erin Schaff/The New York Times)
Why Jamie Raskin's Speech Resonated
By David A. Graham, The Atlantic
10 February 21
The House’s lead impeachment manager framed the attack on the Capitol as a desecration of what Americans hold most sacred.
 he emotional high point of Donald Trump’s second impeachment trial probably came in its first hours.
Closing out the opening presentation from the Democratic House managers, Representative Jamie Raskin of Maryland offered a powerful speech in which he choked back tears as he recalled the attempted coup of January 6. The speech was poignant for personal reasons—as members of Congress know, and as my colleague John Hendrickson wrote last month, Raskin’s son, Tommy, had died by suicide just days before the insurrection—and because, no matter how heartfelt it was, it is unlikely to have much effect on Trump’s expected acquittal. (Indeed, later in the afternoon, the Senate voted 56-44 to proceed with the trial—only one Republican having been swayed by the day’s argument to reverse his vote from an earlier procedural motion.)
But Raskin’s speech framed the attack on the Capitol fomented by Trump not just as a technical matter or a violation of law, but as a violation of something the nation holds sacred.
Raskin recalled the horror of January 6. “All around me people were calling their wives and their husbands, their loved ones, to say goodbye,” he said. But his focus was not on the fear he and others felt but on what was left after the riot. Raskin described two low points from that day. One was his daughter’s reaction. She had come to the Capitol and taken shelter under a table, fearing for her life. After the rioters were expelled, Raskin apologized and told her it wouldn’t be like this the next time she visited the Capitol.
“She said, ‘Dad, I don’t want to come back to the Capitol,’” he said. “Of all the terrible, brutal things I saw and heard on the day and since then, that one hit me the hardest.”
The other moment, he said, was “watching someone use an American-flag pole, with the flag still on it, to spear and pummel one of our police officers—ruthlessly, mercilessly tortured by a pole with a flag on it that he was defending with his very life.”
These two vignettes struck a tone that has been rarely heard in recent American political life. One essential theme of the Trump presidency was that practically nothing is sacred—not norms, not alliances, not the rule of law, not common decency. (President Joe Biden’s inaugural address traded in religion-inflected rhetoric that would have felt banal in the past, but that was bracing after four years of Trump.) Raskin’s expression of reverence for the flag is also unusual among today’s Democratic politicians, who tend to treat such overt paeans as jingoistic.
Yet the idea that an American citizen would be afraid of or repulsed by the idea of visiting the Capitol does strike against something sacred, as does the image of an officer defending that space while being attacked with the country’s flag. Raskin is not alone in this sense. In a video shot by the New Yorker writer Luke Mogelson, a Capitol Police officer, outnumbered, pleaded with rioters to leave the floor of the Senate: “I just want to let you guys know, this is, like, the sacredest place.” And in National Review, the former Trump-administration staffer Mario Loyola wrote, “That hallowed ground was violated today by an unspeakable sacrilege that will redound to President Trump’s shame for all time.”
The Capitol is not necessarily a pleasant place—angry exchanges and corrupt agreements happen there all the time. But it is intended to be a place that belongs to Americans, and one where battles are fought with words and not weapons. (There is a reason the historical exceptions to this are notorious.) The sanctity of the space matters because it is a physical representation of constitutional government.
In seeking to overturn the election and then inciting an insurrection, Trump attacked the physical forms and structures of American government. But the crowd that stormed the Capitol also struck at its intangible heart. If Raskin’s speech resonated with many who listened, it was because they shared his sense that what happened on January 6 wasn’t just a crime—it was an act of sacrilege.
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FOCUS: Trump's Lawyer Kicks Off Impeachment Trial by (Accidentally?) Suggesting Trump Should Be Arrested |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=44994"><span class="small">Bess Levin, Vanity Fair</span></a>
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Wednesday, 10 February 2021 11:46 |
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Levin writes: "It was one of the very few clear points Bruce Castor made over the course of his rambling, incoherent opening statement."
Bruce Castor Jr. (photo: Chip Somodevilla/Getty Images/Bloomberg/Getty Images)
Trump's Lawyer Kicks Off Impeachment Trial by (Accidentally?) Suggesting Trump Should Be Arrested
By Bess Levin, Vanity Fair
10 February 21
It was one of the very few clear points Bruce Castor made over the course of his rambling, incoherent opening statement.
 ello and welcome to day one of Donald Trump’s second impeachment trial. As you may recall, the 45th president struggled to find lawyers to represent him against charges that he incited an insurrection, and on Tuesday it showed. After Democrats used their opening statement to show a harrowing, graphic video featuring Trump’s own words and footage of the violence that took place on January 6, attorney Bruce Castor Jr. took to the floor to argue his side and it did not go well—unless he actually meant to deliver a rambling, nonsensical monologue that culminated in suggesting the Department of Justice should arrest his client, in which case, get this man a raise!
Giving off the strong impression that he started working on his opening statement at 2 a.m. only to wake up 10 minutes before he needed to be at the Capitol with his face stuck to a bunch of half-written pages and had to just shove whatever he had in his briefcase and and wing it, Castor kicked things off with a story about record players:
Then he tried out some material he’s apparently been working on for an open mic night at his next legal retreat, saying, for reasons probably lost on everyone in the room: “You know it’s funny, this is an aside, but it’s funny, you ever notice how when you’re talking, or you hear others talking about you, when you’re home in your state, they will say, ‘you know I talked to my senator, or I talked to someone on the staff of my senator.’ It’s always ‘my senator,’ why is it that we say ‘my senator’?”
Which was followed by a cautionary tale about what happened when Ancient Greece and Rome “devolved into such partisanship.”
(As an aside we’d like to remind the people watching at home that earlier in his career, Castor fought to let Bill Cosby go free while Trump’s other impeachment lawyer, David Schoen, was set to defend Jeffrey Epstein before the guy died in prison.)
At this point, Trump was reportedly on the verge of having an aneurysm while watching the proceedings from Mar-a-Lago. Perhaps sensing the acute danger, Castor snapped to attention, remembered where he was and what he was doing there, and threw out the argument that the only reason his client was being impeached was because Democrats are afraid of competing with him, saying: “Let’s understand why we are really here, we are really here because the majority of the House of Representatives does not want to face Donald Trump as a political rival in the future…. Nobody says it that plainly but unfortunately I have a way of speaking that way.” And then he noted that, despite what you may have heard for months from a certain extremely sore loser, Joe Biden did in fact win the election, and voters made a great decision in denying Trump a second term. “The American people just spoke, and they just changed administrations,” Castor said. “The people are smart enough in the light most favorable to them to pick a new administration if they don’t like the old one, and they just did.”
For his big finish, Castor concluded by telling the group assembled, of his client, “[If you] actually think that President Trump committed a criminal offense…you go and arrest him…. The Department of Justice does know what to do with such people, and so far I haven’t seen any activity in that direction.”
In other words, things couldn’t have gone worse if Trump had hired a bunch of Trump University School of Law dropouts to defend him, but don’t take our word for it! Here’s what one of the ex-president’s longtime allies had to say about the whole thing:
Of course, it doesn’t actually matter how comically terrible Castor was— he could literally tell the Senate “Trump should get life in prison” and it’s all but certain that Republicans would vote to acquit anyway. Yet while justice will very likely not prevail, it’s still good to know that should Trump one day face criminal charges, these are the only attorneys left who’ll work for him.
Team Trump: We meant for Castor to suck
It’s all part of the plan you see!
One Republican senator was swayed by Trump’s legal team’s argument
Swayed to the other side because of how bad it was, that is:
Sen. Bill Cassidy (La.), the only Republican senator to switch his vote Tuesday to support moving forward with Trump’s impeachment trial, criticized the meandering opening statements by Trump’s attorney as confusing and nonsensical. “It was disorganized, random,” Cassidy told reporters after Tuesday’s proceedings. "[Trump’s lawyers] talked about many things but didn’t talk about the issue at hand…. The issue at hand, is it constitutional to impeach a president who’s left office? And the House managers made a compelling, cogent case, and the president’s team did not.”
Cassidy said at one point that, as one of Trump’s lawyers was speaking, he leaned over, confused, to ask Sen. Ted Cruz (R-Tex.) if he was missing something. “If I’m there as an impartial juror, respecting my oath of office to uphold the Constitution of the U.S., and one side makes the argument, and the other side does everything but make the argument, then to live with myself, I make that vote. I’ve always said I’m approaching this as an impartial juror,” he said.
Equally unimpressed was Trump defender John Cornyn, who told reporters: “I thought the president’s lawyer—the first lawyer—just rambled on and on and on and didn’t really address the constitutional argument.” (That naturally did not stop him for casting a vote not to move forward with the trial.) Senator Lisa Murkowski, who did vote to proceed, was similarly unclear on the many meandering points Castor tried and failed to make, saying: “I couldn’t figure out where he was going—[he] spent 45 minutes going somewhere, but I don’t think he helped with us better understanding where he was coming from on the constitutionality of this.”
Republican senator: Who among us hasn’t tried to overthrow the U.S. government?
Mike Lee wants to live in a country where people get do-overs after these sorts of things.
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Make the Filibuster Great Again |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=58292"><span class="small">Al Franken and Norman Ornstein, The Star Tribune</span></a>
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Wednesday, 10 February 2021 09:45 |
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Excerpt: "Restore the procedure as a sign of minority passion and maybe, just maybe, compromise will follow."
Mitch McConnell. (photo: Getty Images)
Make the Filibuster Great Again
By Al Franken and Norman Ornstein, The Star Tribune
10 February 21
Restore the procedure as a sign of minority passion and maybe, just maybe, compromise will follow.
 n a Thursday evening in July 2009, one of us had just cast his last vote of the week on the U.S. Senate floor and wished a Republican colleague a good weekend by saying, "I'll see you on Monday!"
The colleague replied, "Oh, I won't be here on Monday. It's a cloture vote."
That's when the senator realized just how egregiously his Republican colleagues were abusing the filibuster. Mitch McConnell was well on his way to filibustering more of former President Barack Obama's executive branch nominees than had been filibustered in the previous 200 years. And yet, only one Republican would have to show up on Monday.
"Why do we have to come up with 60 votes to end a filibuster?" the senator thought to himself. "Why don't they have to come up with 41 votes to sustain a filibuster? That way I could work in my state on Monday. Or even better — fundraise!"
Later that weekend the senator talked to the other one of us, the political scientist, who explained how the filibuster was no longer serving its original purpose. Instead of giving the minority a chance to stop legislation it strongly opposed, the filibuster had become a tactic to eat up time.
It wasn't uncommon for McConnell to object to, say, an Obama appeals court or Cabinet nominee, forcing first a two-day delay to get a cloture motion to "ripen," and then spending days till Democrats finally got 60 votes (in July 2009, Ted Kennedy lay dying in Hyannis Port) and then waiting another 30 hours of "post-cloture debate" after which the nominee was confirmed — sometimes unanimously.
The strategy very often had nothing to do with principled opposition to a nominee, or in other cases, to a bill. It was only deployed to eat up hours and hours of Senate legislative time to bollix up the Senate and hurt Obama and Democrats.
Both of us had grown up in St. Louis Park where all the Republicans were reasonable, all the Democrats were civic-minded, and all the children were pro-Israel. The political scientist (OK, by now you should've out figured out that's Norm) had gone off to Michigan to get his Ph.D. in political science. The senator (Al) to New York for a degree in sketch comedy.
Now we were both in Washington, D.C. And it didn't take a Ph.D. in political science for Al to see that the Senate was all messed up. Both had grown up during the fabled civil rights era, when Strom Thurmond, Richard Russell and a legion of Southern segregationists had filibustered against civil rights and voting rights, taking to the Senate floor for hours (Thurmond once for 24 hours straight, with either a cast iron bladder or a catheter) to defend their position.
Not anymore. Why? The biggest reason was an inadvertent effect from a bipartisan change in the Senate rules in 1975. For many decades, the requirement to stop debate and move to a vote, in the Senate's Rule XXII, was two-thirds of senators present and voting. The Senate changed the rule to three-fifths of the entire Senate. On the surface, it was a change to make ending filibusters easier. But it actually raised the bar.
With a present and voting standard, the majority facing a filibuster could go around-the-clock, and minority senators would have to be there, waiting for the possibility of a vote. If, say, only 60 senators showed up, it would take just 40 votes to invoke cloture and move to a vote on the underlying bill or nominee. The burden was on the minority to be there.
And that meant that starting a filibuster could bring discomfort and stress to the minority. It also meant that the drama of an around-the-clock session would bring serious national attention to the issue, forcing the minority to explain why they opposed something widely popular with the public.
The change in the rule perversely put the burden on the majority. Want to go around-the-clock? The minority needs only to deputize one or two of its members to stay in the Senate in order to prevent a unanimous consent agreement to move to a vote. But the majority would have to stick around to make a quorum to stay in session. Meaning it was the majority senators who would have to sleep on lumpy cots off the Senate floor. But unless they had the 60 votes, that would serve no purpose.
Then came Mitch McConnell. And Barack Obama. Honeymoon? Hah. It is clear McConnell is ready to do the same mass obstruction to block all of President Joe Biden's, and Democrats', priorities in 2021.
What to do now? Flip the numbers. Instead of requiring 60 votes to end debate, require 41 to continue debate. Then, the majority leader could call votes any time the Senate was in session, and the minority would have to show up. Including for votes at 3 a.m. or 4 a.m., coming off their lumpy cots off the Senate floor. Around the clock. Including 87-year-old Chuck Grassley and both 86-year-olds Richard Shelby and Jim Inhofe. And soon-to-be-79-year-old Mitch McConnell. No Mondays off while only the majority had to be there. Weekends in D.C., including for the 17 Republicans up for re-election in 2022, who want to be back home campaigning.
This kind of simple change would not eliminate filibusters. In fact, it would restore their original purpose — for the minority to demonstrate when it really cares about something, maybe even leading to, oh, constructive compromises. It would take away the incentive to use the tactic on every bill as a delaying device and begin to limit its use to high profile legislation.
Joe Manchin and Kyrsten Sinema have made clear that they are adamantly opposed to eliminating the filibuster. OK. Great! They revere the tradition of a minority willing to go, literally, to the mattresses for something they believe deeply. So they should be enthusiastic about supporting a rule that provides just that.
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Why Trump Isn't Being Charged With Treason |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=54703"><span class="small">David S. Cohen, Rolling Stone</span></a>
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Tuesday, 09 February 2021 13:36 |
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Cohen writes: "Here we go again! After having two presidential impeachment trials in the United States' first 231 years, the Senate is now about to start its second trial of Donald Trump in just over 12 months."
U.S. president Donald Trump leaves after speaking during a Make America Great Again rally at Richard B. Russell Airport in Rome, Georgia, November 1, 2020. (photo: Brendan Smialowski/AFP/Getty Images)
Why Trump Isn't Being Charged With Treason
By David S. Cohen, Rolling Stone
09 February 21
A law professor answers the big questions about Trump’s second time on trial
ere we go again! After having two presidential impeachment trials in the United States’ first 231 years, the Senate is now about to start its second trial of Donald Trump in just over 12 months.
While we all developed great expertise from taking the 2020 class Trump Impeachment 101, there are all sorts of new issues for the 2021 version of the course. So let’s do a lightning round of the major constitutional issues that you need to know to be an expert and impress your friends at your next Zoom happy hour.
Donald Trump is no longer President. Can there be an impeachment trial after he’s left office?
This one is straightforward: Yes, he can be tried after he’s left office. The Constitution makes this eminently clear by the use of the word “all” in this sentence: “The Senate shall have the sole power to try all impeachments.” There is no equivocation in that sentence. President Trump was properly impeached by the House because he was the President at the time of impeachment. Thus, the Senate can try this impeachment. Any interpretation of the Constitution claiming that the Senate cannot try this impeachment reads the word “all” out of the Constitution.
Anyone arguing against trying Donald Trump now also ignores constitutional history. In 1876, the Senate tried former Secretary of War William Belknap after he resigned his office. Belknap argued that he couldn’t be tried because he was no longer in office, but the Senate rejected this argument. Belknap was ultimately acquitted, but the precedent was set that an official no longer in office can be tried by the Senate.
Why wasn’t Donald Trump charged with treason?
The allegation here is that the Donald Trump incited an insurrection against the United States government. That sure sounds like treason! However, the Constitution defines one crime (the rest come from federal or state statutes) and that crime is treason. It is strictly defined as follows: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
This is where a lot of disagreement emerges. Some scholars think that this clause requires helping a foreign enemy, so that there is no way what happened on January 6th could be considered treason. Others think domestic insurrection might also qualify, but one problem is an 1851 precedent that indicates that there needs to be an intent to overthrow the government to prove treason. Were the rioters at the Capitol trying to actually overthrow the government? Or were they merely trying to disrupt a government function? All of this gets very complicated and would almost definitely bog down the trial, which is probably why the House impeachment team decided not to bring a specific treason charge and instead relied on the catch-all “high crimes and misdemeanors” charge. That’s a much safer bet.
Does the First Amendment prohibit holding Trump accountable for his insurrectionist speech?
Trump’s lawyers are going to argue that the First Amendment protects him from being held accountable for his actions. After all, he himself didn’t storm the Capitol; he used his words to incite others to do so. There are indeed a small number of legal scholars who believe that the First Amendment protects President Trump; however, a bipartisan group of almost 150 lawyers and scholars circulated an open letter last week explaining why the First Amendment has no applicability here. (Full disclosure: I signed the letter.)
The basic argument is twofold. First, impeachment is a completely different penalty than a criminal law or a civil lawsuit. In fact, most of the things officials would be impeached for will be their speech — orders to another official, statements about policy, interactions with foreign officers. They aren’t being thrown in jail, which would violate the First Amendment. Instead, they would be removed from office and/or disqualified from further office. This is not what the First Amendment is about. Second, incitement to violence has always been exempt from the First Amendment. It’s not the same, but it’s along the lines of the idea behind the classic “screaming ‘fire’ in a crowded theater without justification” example. Some speech can be punished, and incitement to violence is one such example.
Can Trump be disqualified from office by majority vote?
Yes . . . but no. The Constitution is clear that it requires two-thirds of present Senators to vote for a conviction. Disqualification is covered in a different clause of the Constitution which says that judgments in impeachment trials “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.”
What history and agreed-upon interpretation tells us is that there are two separate votes. At a minimum, there needs to be a two-thirds vote to convict. Then, after the conviction, there can be a simple majority vote to disqualify from future office. Thus, it is correct that a simple majority is required to disqualify Trump from ever holding office again, but that is only after the much higher hurdle of a two-thirds conviction.
Can Trump be forced to be a witness in the trial?
If Trump were President, there would be a very serious question of constitutional law in having the Senate force the President to testify. If the Senate needed Presidential records at trial, there would be similar serious constitutional issues. However, at this point in time, Trump is a private citizen, and the Senate is not asking for any Presidential records. Thus, these serious constitutional issues just aren’t in play.
The Fifth Amendment also doesn’t help Trump here. Normally, criminal defendants don’t have to take the stand at their own trials. But by its text, the self-incrimination clause of the Fifth Amendment only applies to criminal trials, which an impeachment trial is not. Not only does the Fifth Amendment not give him cover from testifying, but he also can’t take advantage of the court-made Fifth Amendment rule that refusal to testify cannot be used against you.
The House impeachment managers asked Trump to appear at the trial, and he responded that he would not do so voluntarily. If the Senate wants to subpoena him to force him to appear, it could. However, the chances of this are slim because Trump would probably fight the subpoena, which could extensively prolong matters.
Here’s the constitutional bottom line: this post-Presidency trial is constitutional; a treason charge would be very complicated which is why it isn’t being brought; the First Amendment doesn’t stop Trump from being tried; he can be disqualified from office by majority vote but only after a two-thirds conviction; and he can be forced to testify (but probably won’t be).
If you’ve got all this, you’ve passed this year’s course, Trump Impeachment 102.
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s per usual, news on Haiti in the United States remains limited, except for during periods of “crisis.” As if on cue, U.S. media began reporting on Haiti’s “constitutional crisis” this week.
