And so it is over. I watched every minute of it, bored, transfixed, outraged, delighted, and again bored. The result was better than I had expected. Seven Republicans rather than five, including North Carolina’s very own Richard Burr. The only thing that could have changed the outcome would have been a dramatic statement from Mike Pence. Good luck with that.
I have a handful of random observations about the
experience.
First of all, I really loved the fact that in the end Trump
had to go with a Philadelphia lawyer who specializes in personal injury cases.
My guess is that lawyer has more experience than high-class lawyers in dealing
with clients who stiff him for his fees so maybe he will get paid something in
the end. At one point, those of you who watched it all may recall, he said
something so ridiculous that the senators laughed. Somewhat startled, he
responded “I do not know why you are laughing.” It reminded me of that
delicious moment when Trump addressed the United Nations, indulged in one of
his usual bits of braggadocio, and was surprised to get a round of laughter
from the delegates.
I spent a great deal of time quite literally shouting at the
TV to the distress and astonishment of my wife. The cause was the complete
inability of virtually everybody to remember the simple fact that Trump was not
then being impeached, he was being tried. Raskin pointed this out once or twice
but he did not hammer it home in a way that would stop the brainless
commentators from repeatedly talking about whether a president could be “impeached
after leaving office,” totally oblivious to the fact that he had in fact been
impeached when in office. I toggled between MSNBC and CNN and I do not think I
heard a single high paid commentator who could get this simple fact into his or
her brain. Well, as you can see, I am still yelling at the TV.
The day after the trial ended the commentators seemed
obsessed with the question whether the Democrats had “folded like a cheap suit”
for failing to call witnesses. This, it was somberly opined, was just one more
example of the inability of the Democrats to fight like Republicans. This all
struck me as mindlessly stupid. There was a serious question whether Kevin
McCarthy would confirm the reports of a shouting match with Trump. There were
indications that if the Democrats called witnesses and the trial dragged on
they would lose the vote of Sen. Richard Burr. There was no reason at all to
suppose that calling witnesses would change anybody’s vote from not guilty to
guilty. Since everybody agreed that the House managers had done a brilliant
job, why could not the commentators trust their judgment in this matter?
Finally I come to Mitch McConnell’s extraordinary speech.
McConnell made a big point of noting that Trump was still criminally liable for
everything he had done the past four years, assuming, as he was careful to
point out, that the statute of limitations had not run out. Since McConnell is
not stupid one must assume that he was deliberately obfuscating the central
point, which of course is that the purpose of impeachment and trial by the
Senate is to remove from office someone who has not yet left that office and
also, by a subsequent vote, to prohibit him or her from ever holding office
again. Hauling Trump into a court of law, charging him with a felony,
convicting him, and putting him in jail cannot bar him from running for the
presidency again. Nothing can do that save impeachment, conviction, and
disqualification. It is worth remembering that Trump could perfectly well run
for president in 2024 even if, as I devoutly hope, he is then in jail. Let me
remind those of you who are a little bit dim on socialist party history that
Eugene V. Debs ran for the presidency on the Socialist ticket in 1920 while in
jail. He got 3.4% of the vote. Those
were better days, sigh.
I leave you all with a question which has been lurking in
the back of my mind: is Mike Pence in a witness protection program or will he
someday resurface?
42 comments:
I appreciate that lawyers aren't required to be consistent, that they represent their clients. But there is this interesting (to me) little bit from the Wikipedia entry for van der Veen:
"In August 2020, Van der Veen represented a client suing then-President Donald Trump, alleging that Trump's attacks on the U.S. Postal Service were unsupported by evidence.[7][8] The suit alleged: "These actions... arise in an environment subject to repeated claims by President Donald J. Trump that voting by mail is ripe with fraud, despite having no evidence in support of these claims, and lawsuits filed by the Trump campaign to stop mail-in voting in states such as Nevada and Pennsylvania."
I thought I heard something about that. I love it!
I was pleasantly surprised to note that your Senator Richard Burr voted that Trump is guilty. As a North Carolinian, can you tell us how this came about. Along with Senator Cassidy, is this a good sign about southern Republicans?
Pence gets Secret Service protection for at least six months. Given that his demise was part of Trump's decapitation venture, I'll assume he wants and has been advised to keep a very low profile.
Professor Wolff: "The democrats folded like a cheap suit." They would have folded anyway; as the outcome was never in question. But a serious question is: was it a strategical error to force the matter (impeachment) in the first place? For they have given the loathsome creature and its minions yet another "win"!
Now they must have supposed that the cost of presenting the rabble mob with another "win" would be outweighed by the presumed benefit, in the longer term, of drawing a line, as it is said, and further "educating" the public. But I perceive they figured incorrectly.
The fraction of the public which in fact was receptive to further elucidation in respect to the particular relation between this creature and the rabble mob, the minutiae of his rhetoric, his appointment book on any given day, etc. -- so that they might revise or otherwise update their view of the suitability of such persons to occupy high office -- that fraction is known to be a vanishingly small number. Put it the other way around: they whole exercise was understood from the beginning to be nothing but preaching-to-the-choir.
I.E. Rabinovitz,
If I understand your point correctly--that it was a mistake for the Ds to impeach Trump--I disagree. It was, from the D point of view, a big victory. Admittedly, not as big a victory as I would have liked, but a victory just the same. Raskin et al did a magnificent job of laying the case out and discrediting Trump seriously. The trial gave the Ds the chance to be the adults in the room, and the Rs, with 7 exceptions, the whining children. It also sharpened the split among the Rs, a result that can only benefit Ds. From a strictly PR point of view, I see it as a huge success for the Ds.
David -
I saw no honest alternative, but for them to take the stand and prosecute!
But I trouble over the consequences; which will not be known for some time, granted.
In the short-term it appears to create a state of bizarre exhilaration in the mob. And the mob is by no means remotely likely now to take its "honors" and retire. Quite the contrary. The appetite for further mischief and demagoguery has only been stoked. The Raskins and the rest of us had better be prepared. That is not an idle worry. Pride in the good-sense of the "better argument" wins blue-ribbons at the high-school regional debate; or even the national contest. But it doesn't put the mummy back beneath its mound.
If in the short term, the Republicans have been split, I fear it means that they have been split from their apparent constituency (which is the one they have led along these years to arrive at precisely the crux where they now stand). If they are split from their constituency, that constituency will replace them with ever-more loathsome actors. So long as there is no third party to at least buffer against the revanchist pathology, the disease will fester from one irruption to the next.
Section 3 of the 14th Amendment prevents anyone holding public office who has engaged in insurrection. If Trump is convicted in D.C. of incitement, that is arguably grounds to prevent him from every running for office again.
As to Mike Pence, he is apparently homeless.
Mike Pence Homeless
I think that you can very plausibly make the case that the impeachment trial just gave Trump a week or so of free publicity. Remember that Trump is the guy, according to his own observations, who could murder someone on Fifth Avenue in broad daylight and would not lose
any political support (not an exact quote). His supporters don't care what crimes he committed and see him a hero who dares to stand up to the corrupt Washington elite: a rightwing Robin Hood.
If I were the Democrats (and I'm not), I'd talk less about Trump and his crimes and get on with vaccinating people.
Regarding whether Trump can run for President even if he is convicted of a felony, technically yes, since the Constitution does not preclude it. Practically, if he is still incarcerated in 2024, it would be difficult to run a campaign and inspire his supporters from a jail cell. Moreover, depending on where his residence is (his residence may differ from the location of the prison), his state of residence may preclude him from voting.
Regarding 14th Amendment, Sec. 3, it is curious that he provision specifically mentions elector of President and Vice President, but not President. It could be argued that the omission does not apply to President, although it does refer to “or hold any office, civil or military.” It also provides that the disability may be overcome by a 2/3 vote of each House.
Regarding van der Veen having previously represented a client who sued Trump, the issue is not one of consistency. Lawyers are allowed to plead inconsistent positions in their pleadings, but at some point they have to choose which position they are going to take in court, otherwise the inconsistency can be used by the opponent to impeach his client. Here the issue is not inconsistency, but conflict of interest. An attorney is prohibited under the Rules of Professional Conduct to represent a new client whose interest conflict with those of a former or current client. Whether there exists a conflict would be a function of how a favorable outcome for the new client would affect the interests of the current or former client. If there is a conflict, an attorney may not represent the new client unless the current or former client is informed of the conflict and waives the conflict in writing.
Regarding van der Veen’s mispronunciation of “Philadelphia,” was his odd pronunciation one used in Philadelphia, and if not, what explains his blunder? Nerves?
Regarding the decision not to call additional witnesses, it was not worth the candle. The Democrats obtained the most they could hope for by placing Rep. Buetler’s statement in the record. Depositions would not have been conducted live in the Senate, but would have had to be scheduled to take place in a House office later in the week. It would have delayed the final decision, and may have resulted in actually losing the potential votes of some Republican senators. As House manager Plaskett said over the weekend, they didn’t need more witnesses; they needed more Republican senators with spines.
I agree that the House managers did a phenomenal job in organizing and presenting their case. I also agree with Dave Palmeter that it was imperative for the House to impeach Trump, and move forward with the trial, the political consequences of an acquittal be damned.
S.C. "Regarding van der Veen . . ." I don't see that you added anything substantial to R McD's initial pointer to that Philadelphia case. But you did add a whole lot more words.
Anonymous (whoever you are),
I can always count on you to take potshots at any comment I submit, just for the sake of taking potshots.
R. McDonald was asserting that it appeared that by representing Trump, van der Veen was taking a position inconsistent with a prior position he had taken with regard to a former client, and assumed that that was permissible, since attorneys are allowed to take inconsistent positions. As I tried to explain (which apparently went over your head), the issue is not one of inconsistent positions, but of conflict of interest. They are not the same.
Where are all the inflammatory orators of yesteryear?
Instead of presenting a case- the Republicans care not a whit for justice or truth- humiliate them and vilify the Republican collaborators and conspirators- make them squirm- hector them rather than vector them- the straight lines of law mean no more to them anymore than they care about modus ponens- the democrats ought to have given the bastards hell- but I guess that rhetoric is a dying art
" the democrats ought to have given the bastards hell"
What they do instead? They argue minutely how the actions of a demagogue and his rabble mob are ... shocking; contrary to our better nature.
Which stinks of sweaty timidity, of fear.
Brecht is on the money here:
"And it also takes courage to tell the truth about oneself, about one’s own defeat. Many of the persecuted lose their capacity for seeing their own mistakes.... For it will not do to grant that goodness must be weak as rain must be wet. It takes courage to say that the good were defeated not because they were good, but because they were weak."
When in prison Trump like his fuhror and forebear Hitler ought to write a book- Hitler had Mein Kampf- Trump can call his magnum opus: Make Trump Great Again- put him in jail with Chapo- give him the knaut, force him to dig for Gold in a mine in South Africa- and have a live camera stream his misery online- this is the only way we can save Trump's soul- pain and suffering builds character
I'm not interestedin an argy bargy or nit-picking with you or anyone else, S.C.,but here is what R McD actually said:
"I appreciate that lawyers aren't required to be consistent, that they represent their clients.
Check it out. And make of that what you will. have a nice day.
A lot of second-guessers commenting today. I don’t know what trial they watched, but I heard a lot of great oratory from the House managers during the trial, particularly by Jamie Raskin and Joe Naguse. Great oratory, however, can only get you so far. It will not persuade the deaf, nor the recalcitrant. Great oratory did not get Daniel Webster, John C. Calhoun, or “Cross of Gold” William Jennings Bryan elected President.
And when did literary writing such as this move the masses:
“So it is: the nobles lament and the servants rejoice. Every city says: Let us drive the strong from out of our midst. The offices are broken open and the documents removed. The slaves are becoming masters.
So it is: the son of a well-born man can no longer be recognized. The mistress’s child becomes her slave girl’s son.
So it is: The burghers have been bound to the millstones. Those who never saw the day have gone out into the light.
So it is: The ebony poor boxes are being broken up; the noble sesban wood is cut up into beds.
Behold, the capital city has collapsed in an hour. Behold, the poor of the land have become rich.
Behold, he who had not bread now possesses a barn; his granary is filled with the possessions of another.
Behold, it is good for a man when he may eat his food.
Behold, he who had no corn now possesses barns; those who accepted the largesse of corn now distribute it.
Behold, he who had not a yoke of oxen now possesses herds; he who could not obtain beasts of burden now possesses herds of neat cattle.
Behold, he who could build no hut for himself now possesses four strong walls.
Behold, the ministers seek shelter in the granary, and he who was scarcely permitted to sleep atop the walk now possesses a bed.
Behold, he who could not build himself a rowboat now possesses ships; when their owner looks upon the ships, he finds they are no longer his.
Behold, those who had clothes are now dressed in rags and he who wove nothing for himself now posses the finest linen.”
What does it mean? Would words like these have succeeded in persuading the Republican senators to convict, where the House managers’ oratory failed? I think not.
I should have added, look at the context. A legal position wasn't being argued.
Really. Then what point was R. MacDonald making? She appeared to be making the point that lawyers are hypocrites, because they take inconsistent positions. But that is not how the law sees it. They are allowed to take inconsistent positions up to a point, at the risk of exposing their clients to impeachment of their credibility by their opponent. What they are not allowed to do is betray the trust of their current or former clients by committing a conflict of interest. That is the point I was making, which seems to have escaped you.
Mr. Chase:
"The doctrine of judicial estoppel serves to prevent litigants from asserting claims in a court proceeding that are directly contrary or inconsistent to a prior statement made in a previous proceeding."
By the way, the person who comments here is R McD., not R MacDonald.
I assume that that's an honest mistake, not an attempt at a slur.
I.E. Rabinowitz,
Judicial estoppel precludes an attorney from taking contradictory factual or legal positions before the same or different courts for the same client, i.e., the same attorney cannot claim before one court that the value of Trump Tower is $30 million, and before another court, for the same client, that Trump Tower is next to worthless. Or, an attorney cannot argue before one court that inflammatory speech before an angry mob constitutes incitement, and before another court, for the same client, that it does not constitute incitement.
That is not what Mr. van der Veen (whom I nonetheless think is a pompous ass) did. In fact, his positions in the two different legal venues were not even inconsistent, the premise of this whole comment thread. For one client, whom he represented against Trump, he argued that, contrary to Trump’s insistence, there was not evidence of fraud in the vote by mail system. Before the Senate, he argued that nothing Trump stated on January 6 constituted incitement to riot. Given the number of scholars, logicians, and philosophers who read this blog, it should be obvious that these two positions are not inconsistent. They are different positions on two totally unrelated issues.
As I indicated above, however, they could constitute a conflict of interest, if by defending Trump in the Senate a fact was disclosed which was contrary to the first client’s legal position. To avoid such a conflict, van der Veen would have had to have advised his first client of the potential of a conflict and asked for a waiver. We have no idea whether this was, or was not, done. For example, judicial estoppel only applies to positions taken with respect to the same client. In the value of the Trump Tower above, an attorney could take one position on behalf of one client, and the other positions on behalf of a different client. Judicial estoppel would not preclude this, since they are different clients. Nor would it be unethical – again, because they are different clients. But it would most certainly constitute a conflict of interest, which would require a waiver, since the claim that Trump Tower is worthless would be contrary to the interest of the first client, for whom the attorney was arguing that Trump Tower was worth $30 million.
By the way, Mr./Ms. Rabinnowitz, since it appears you are yourself an attorney, you should already know this.
Post-script:
A grammatical error in the frenzy of composition – it should be “who I think is a pompous ass,” since the verb “think” is intransitive.
No, s. wallerstein, I did it intentionally with the intent to slur.
Who the hell is R. Macdonald, and why would that be a slur? There is an R. MacDonald, an army captain who was convicted of killing his wife, but I referred to R. McD as a woman. Please explain.
Well, Samuel Cheeseburger, Ronald McDonald is a clown used to sell junk food.
Re the question about Burr above: he's not running for re-election but is retiring. (Ditto for Sen. Toomey of Pa.)
s. wallerstein,
Ha, ha, very funny.
But you will have to get up earlier in the morning to catch me in a faux pas – MacDonald ≠ Macdonald. They are two totally different clans, with different coats of armor.
Uh oh, I just noticed I misspelled I.E. Rabinovitz’s name. This was entirely unintentional and not meant as a slur, since I.E. Rabinowitz is serving a life sentence for having killed his accountant. My apologies Mr./Ms. Rabinovitz.
I just read that Congressman Bennie Thompson of Mississippi has filed a lawsuit against Trump and Giuliani alleging that they violated a federal statute by conspiring with the Proud Boys and Oath Keepers to interfere with the election.
https://www.cnn.com/2021/02/16/politics/capitol-lawsuit-trump-giuliani-proud-boys-oath-keepers/index.html
The lawsuit is based on 42 U.S.C. §1985(1), which states:
“(1)PREVENTING OFFICER FROM PERFORMING DUTIES
If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;”
The lawsuit will most undoubtedly fail, because Rep. Thompson does not have “standing” to bring it. There are only two individuals who would have standing to file such a lawsuit – Pres. Biden and/or Vice President Harris. That’s it, period. The lawsuit will be dismissed as soon as Trump’s/Giuliani’s attorneys bring a motion under Fed. R. Civ. P. 12(b)(1) to dismiss it for lack of standing.
It angers me that any lawyer would bring such a frivolous and ludicrous lawsuit, which will only make the Democrats look foolish and embolden Trump’s supporters.
Mr. Chase:
"since I.E. Rabinowitz is serving a life sentence for having killed his accountant."
Unless you provide evidence to substantiate this claim, I think, let me put this charitably, you are caught in a faux-pas! Perhaps the day is getting on.
I.E. Rabinovitz,
As I say, I.E. Rabinowitz is incarcerated in an unidentified prison. Either he exists, or he does not exist. If he exists, then what is he going to sue me for, defamation? Truth is a total defense. Who will represent him? You? If he does not exist, he does not have standing to sue. I have nothing to fear.
Mr. Chase:
Somewhere along the line I thought these people were out-of-line for picking on you; you are such a fine raconteur. But I begin to see what they were getting at now.
There's surely a psychiatrist conveniently located, whom you are cheating of a good living!
I.E. Rabinovitz,
Calm down, before you have a coronary. I’ve already spoken to my psychiatrist regarding why I behave as I do. I told him, "I need the eggs." He understands.
Thompson arguably has standing as do any of the other Senators and Representatives as well as former VP Pence. Hopefully the court agrees as discovery should be interesting.
I don't see how either Biden or Harris would have standing.
aaall,
I understand why you believe that Thompson and other members of Congress would have standing under 42 U.S.C. 1985(1), on the basis that the insurrection caused by Trump/Giuliani prevented them from performing their constitutional function of certifying the states’ electors’ votes. A federal court may agree with you, however, I believe that is a bit of a stretch. President Biden and VP Harris definitely do have standing, since the insurrection was intended to “prevent, by force, intimidation, or threat, any person from accepting or holding any office … under the United States.” The insurrection was intended to, and did temporarily, prevent them from being declared President and Vice President of the U.S.
Personal injury lawyers, as a general matter, work on contingency, not hourly or flat fee.
Perhaps the problem is our ridiculous path to getting a president and vice president. When did they become "elect?" While the Jan. 6 session was ministerial which is why Pence was powerless to do anything for his Master, were Biden and Harris actually in a position to be "prevented" in the sense intended in the statute prior to the certification as part of the certification process is entertaining objections that need to be resolved? Ditto for the actions in the legislatures and executive offices of the several states.
You may be correct or I may be but that a possible ambiguity exists that can be weaponized seems a problem.
aaall,
Such issues of interpretation are the unavoidable complications of language. Language is not as exact as calculus. There is some degree of vagueness and ambiguity in all statutes. Here, however, I believe the ambiguity regarding the standing of President Biden and V.P. Harris is minimal, after all, the insurrection did interfere with their “accepting [and] holding” the offices to which it was ultimately determined they had been elected.
In addition, my criticism of Thompson’s lawyers may have been overly harsh. The riot did in fact force the Representatives and Senators to run for their lives, thereby forcing them “to leave … [the] place where [their] duties as … officer[s] are required to be performed ..”
Dr. Wolff,
Woody Guthrie had a great song titled Philadelphia Lawyer. The lawyer was in Reno “making love to a Hollywood maid.” Her husband, a cowboy, finds out and ...
“Now tonight back in old Pennsylvania
Amongst her beautiful pines
There's one less Philadelphia lawyer
In old Philadelphia tonight”
There must be a songwriter out there who can rework the words for the occasion.
I am cynically waiting to read that a state bar assoc. has sanctioned even one of many Trump attorneys who, in bad faith, filed frivolous lawsuits filed in bad faith. I’m open to being surprised.
One last observation - the letter Rep. Kinzinger received from a family member lays bare the demented state of the christian right. It is a great document to use in a social theory class.
To try to clarify a number of points:
First, my surname is not McDonald, MacDonald, or any other variant thereof. (Since persons with my surname took the wrong side in late 13th C political conflicts and since the descendants of the victors still hold some power, my safety depends on my not divulging it.) Neither, by the way, is my first name anything like “Ronald.”
Second, I am and have been male for my 80+ years on Earth and I have no inclination or intention to change that.
Third, when I wrote, “I appreciate that lawyers aren't required to be consistent, that they represent their clients,” I was not making any sort of legal pointregarding consistency. As some Anonymous tried—rather ineptly (sorry, Anonymous)—to suggest. I was trying to indicate that van der Veen has not been entirely consistent politically. But perhaps no one is. (This last remark may also be taken as an invitation to contemplate that it isn't, perhaps, just the Christian right that is demented.)
R McD,
My apologies for mangling your name.
Are you a descendant, then, of William Wallaee? If so, surely the descendants of Robert the Bruce, who betrayed you to the forces of Edward I at the Battle of Falkirk, are not still pursuing you? Can they be that relentless?
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