Final Day of Impeachment

The final day of the impeachment trial was a vast improvement over its predecessor.  It began with the sides arguing over whether to have witnesses. The impeachment managers argued to take depositions of one witness.  Van der Veen has two main emotional states -- flat and furious.  In this case, he was furious, outraged at the House's inadequate preparation, and saying if the impeachment managers were allowed to take the depositions of one witness, he would take hundreds, in his office in Philadelphia.  Everyone laughed.  Van der Veen was not amused.  Extended bustling about ensued and culminated in allowing the impeachment managers to read the statement into the record.  Van der Veen later made clear he was not stipulating that the statement was true, only that Herrera-Buetler said it.

The impeachment managers then did their recap.  Raskin began by arguing that anything Trump did or did not do after the insurrection broke out was relevant to show his state of  mind, just as what an accused arsonist does after the fire starts is relevant.  Cicilline gave what I thought was the best timeline of the insurrection yet, good precisely because it was not too long or detailed.  He showed that Mike Pence had been removed from the Senate floor on live TV twelve minutes before Trump, the inveterate TV watcher, sent out a tweet denouncing Pence.  On second thought, if I wanted to do a highlights of the impeachment trial, I would probably do Cicilline's timeline of the attack, with a few of Plaskett's video presentations to add emphasis. I do have one criticism, which is Cicilline's emphasis on the rioters reading Trump's tweets by bullhorn, showing that they were aware what he was tweeting.  I know of no evidence, however, that Trump knew his tweets were being read to the rioters.  Madeleine Dean showed evidence of incitement going back for months, and Nerguse explained the difference between impeachment and a criminal trial.  Aside from the bullhorns, my main criticism of the trial was that I thought the Democrats were too willing to dismiss Trump's lawsuits to overturn the election as permissible.  Granted, the lawsuits were not illegal.  But they were utterly without merit, many of them sanctionable as frivolous, and a serious threat to one of the basic foundations of our system of government -- that the loser accepts defeat.  Trump truly does not understand why that is important.

Van der Veen then hammered on his four defenses that he had been stressing over and over throughout the proceedings, saying that you agreed with any one of them there were grounds to acquit.  And, of course, hammering on partisan themes like "constitutional cancel culture," accusing Democrats of a double standard for not impeaching anyone over endorsing Black Lives Matter, and that threat that only Democrats will have freedom of speech.  His four defenses were:

1. It is unconstitutional to impeach an official after he leaves office;
2. The impeachment was a violation of Senate Rules by not having separate counts;
3. Insufficient due process; and
4. Freedom of speech.

And by listing them out so neatly, it became apparent the reasons one and three are mutually incompatible.  Granted, it is not unheard-of for a defense lawyer to offer alternate and mutually exclusive reasons to acquit, although it usually does not go over well with a jury.  But it is quite another thing for two mutually exclusive reasons to acquit to preclude any possible prosecution in any case, but that is effectively what Van der Veen did here.  

 The House unduly delayed in sending over the impeachment. If they wanted the Senate to try the case, they should have sent the impeachment over before January 20.  The Senate cannot convict because the trial is unconstitutional.

The House unduly rushed its impeachment and sent it over without fully investigating. The House should have launched a full 9-11 commission style investigation before referring an impeachment.  The Senate cannot convict because the rushed investigation did not give the President due process.

Raskin kept warning about creating a "January exception" to impeachment -- that no matter what the President did in January he could not be impeached because there would not be time to try him before he left office.  Naturally the defense team denied such an exception.  But the only possible way to read Van der Veen's defense that there is, indeed, a January exception -- and quite probably a December or even November exception as well.  No matter how outrageous the President's conduct, Congress must both (1) conduct a full, thorough investigation (a process that can take months) and (2) get the articles of impeachment over to the Senate in time to try by January 20.  Two mutually contradictory demands on the House create and effective January exception!

Then, of course, came the vote which, as we all know, was 57-43, insufficient to meet the two-thirds threshold for impeachment.  It was actually quite impressive that the presentations managed to sway two Republican Senators. Most people expected the vote to be 55-45.

Day 4: Question and Answer

And now a word about the Q&A session.  Yeacch! 

The Senators were not trying to elicit useful information.  They were (mostly) not even trying to embarrass the other side.  They were just asking highly rhetorical questions of their own side to give them an opportunity to make a speech.  The advocates responded by reiterating what they had already said.  The impeachment managers emphasized various points they had already made.  The defense team was briefer and generally tried to turn the subject to the inadequate investigation by the House managers, which denied their client due process.  And Ted Cruz tried to draw an equivalence between Trump's speech to the crowd before they marched on the Capitol and Kamala Harris donating a fund that paid bail for Black Lives Matter rioters.

There were a few worthwhile questions.  Susan Collins and Lisa Murkowski asked the defense team when Trump learned of the breach and what he did about it.  The defense team said they didn't know; the investigation was inadequate. Senators Edward Markey and Tammy Duckworth directed the same question to the impeachment managers, who said of course he knew, it was all over TV and he didn't send in reinforcements.  Mitt Romney asked the defense team if Trump knew of Mike Pence's danger and they gave much the same answer.   

Bernie Sanders asked by far the best gotcha question when he asked the defense team if they recognized Biden's victory as legitimate.  Van der Veen dodged the question, saying that his opinion on who won was not relevant to the issue at hand and changed the subject.  Oddly enough, he did not see it as irrelevant to ask, say whether it was impossible for Trump to be anti-Semitic given his support of Israel.

"The Senator from Wisconsin" (not clear which one) also asked a pretty good gotcha question -- if the violence was predictable and foreseeable, why weren't further security measures taken. Naturally Van de Veen gave his usual answer -- not enough information because there was not enough investigation.  And Stacey Plaskett, normally excellent in her presentation, did her own share of skipping and dodging here -- emphasizing the signs that violence was imminent and avoiding the question of why Congress did not raise security.  She gave a better response to Senator Manchin, who asked if Trump would have been briefed on the dangers and gave good reasons to believe he had been.

Other than that, the production was worthless and definitely a total waste of time.

Do I want to subject myself to the final day of the trial?

Day 4: The Defense Case

So, what would I say about the Trump defense presentation?  It went only only three hours and isn't really worth a blow-by-blow account, especially since a large part of the presentation consisted of showing the same videos over and over.  Their basic defense was that Trump gave a perfectly innocent speech calling on his followers to support voting reforms and primary challenges and that for inexplicable but definitely unrelated reasons a bunch of dangerous people attacked the Capitol at the same time.  

Also significant -- the Trump defense was a blatant appeal to partisanship. Lead counsel Micheel Van de Veen began:

The article of impeachment now before the Senate is an unjust and blatantly unconstitutional act of political vengeance. This appalling abuse of the Constitution only further divides our nation, when we should be trying to come together around shared priorities. Like every other politically and Joe motivated witch hunt the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence, and the interests of the American people.

There were references to "constitutional cancel culture," the "Democrat Party," and accusations that Democrats only object to challenging an election when Republicans do it.  There was also a concerted effort to tie Democrats to violence and disorder throught the Black Lives Matter riots and emphasize Trump's peaceful intentions by his frequent invocations of law an order.  The Trump team had three members -- Bruce Castor, David Schoen, and Michael Van der Veen, who did not participate in the jurisdiction argument.  All three showed a montage of Democrats making somewhat aggressive speeches supporting Black Lives Matter, juxtaposed against Trump endorsing "law and order."  At least two showed Democrats in Congress protesting Trump's 2016 victory and Biden gaveling them down.  And to prove that there was nothing sinister in Trump saying  “If you don’t fight like hell, you’re not going to have a country anymore,” they played an endless montage of Democratic politicians using "fight" in speeches.  The difference -- the Democrats were not giving directives to an angry mob!

The defense team did make a few substantive points as well.  Schoen argued that Trump had been denied due process.  The impeachment team presented footage they had not allowed the defense team to see and used hearsay from news stories, neither of which would be allowed in a criminal trial.  Castor advanced the argument further, saying that the minimal-to-no investigation done by the House did not meet even the minimal standards for a grand jury.  Schoen even accused the impeachment managers of doctoring tweets.  

And I am inclined to agree.  The impeachment introduced evidence that would not be admissible at a criminal trial. But other things were happening as well that would not be allowed at a criminal trial.  For one thing, almost all the "jurors" were also witnesses, which would never be allowed at an ordinary trial.  And some members of the Senate actually met with the defense team to plot strategy, a thing that in a conventional trial would land all parties in jail.

Van der Veen also continued the free speech argument.  He argued that the First Amendment applied to the proceedings.  I do not understand that at all.  He cited two Supreme Court cases holding that elective officials have free speech rights under the First Amendment.  Wood v. Georgia involved a sheriff being investigated by a grand jury attempting to sway them in ways that sounded very much like jury tampering, but the Supreme Court upheld his actions.  The other overruled the Georgia legislature's refusal to seat a member who encouraged burning draft cards.  I would need to read the decisions to know if Van der Veen is citing them accurately, but it seems a safe assumption that neither involved speaking to a mob that then attacked either the grant jury or the Georgia legislature.  Both Van der Veen and Schoen leaned heavily on Brandenberg v. Ohio, which sets the rules for when speech is considered criminal incitement. The speech  must (1) explicitly or implicitly encourage violence, (2) be intended to encourage violence, and (3) occur in a way that makes violence likely.  

Again, I don't know what sort of precedent has grown up surrounding Brandenberg, but clearly in the case of the Trump speech, context matters.  He had spent the last two months in an unprecedented attempt to overturn an election -- filing and encouraging outrageous lawsuits, asking state legislatures to overrule the popular vote, pressuring the Georgia Secretary of State to "find" enough votes to change the outcome, pressuring Congress to block swing state votes, and pressuring Mike Pence to take part. At the same time, he was warning his followers of the direst consequences if he were to lose.  His own team actually showed Trump boasting that he was unlike other politicians in that he did not concede but kept on resisting.  And telling an angry mob,  “If you don’t fight like hell, you’re not going to have a country anymore" really doesn't sound like encouraging his supporters to press for election reforms and mount primary challenges against any Republicans who do not support them.  It sounds -- especially in the context of the two previous months -- like a call to do something more immediate and urgent.  Something that would keep Donald Trump in office even as Congress was preparing to certify his defeat.  Brandenberg clearly allows months and months of agitation, so long as speech does not incite immediate violence.  Again, what I don't know is whether Brandenberg, or decisions following Brandenberg allow taking months of previous agitation into account.

And I suppose it should not come as a surprise that the Trump defense team made blatant appeals to partisanship, while the Democrats studiously avoided the subject.  Everyone knew that all Democrats and probably about five Republicans were going to vote for impeachment, while most Republicans would vote no.  The appeal was to the twelve most persuadable Republicans.  As we know, the impeachment team persuaded two.

Next up: Question and Answer session.

Impeachment Hearings, Day 3

 

I did not find the second day of the Democrats' presentation as  gripping as the first,* and for a surprising reason.  Not enough logos!  If the jurisdictional arguments showed that pure logos unmixed with ethos and pathos is really dull, this day showed that appeals to ethos and pathos if not backed by specific fact become too abstract to be meaningful and degenerate into vapid platitudes. On the other hand, Raskin, who mostly sat out on the first day of presentation, had his opportunity to shine.

The day began with Diana DeGette showing how the insurrectionist clearly believed they were authorized by Trump and following his commands, with numerous quotes to social media and news stories.  She also said something I did not know -- that when Trump told the rioters to go home, half-hearted as his video was, they actually did begin going home. The shaman in particular told the others that they had won and could leave.

Raskin then gave an excellent presentation showing Trump's prior incitement and condonation of violations with clear specifics.  Violence at his 2016 rallies that he encouraged.  Applauding Gianforte for beating up a reporter.  Encouraging two instances of Michigan militias storming the Michigan capitol and refusing to condemn a plot to kidnap the governor.  All of this, he argued, showed that Trump had a longstanding practice of encouraging violence and should have foreseen that this, too, would turn violent.

Ted Lieu followed, first pointing out that Trump did not condemn the assault on the Capitol, and then to quote numerous Republican officials condemning his actions. I found this argument to authority rather less impressive.  DeGette, Cicilline, and Castro then followed with discussions of the harm caused by the attacks, which seemed rather self-evident.  Castro's discussion of the damage to US standing particularly tended to descend to abstraction and platitude.  The most effective, I thought, was Cicilline giving actual personal accounts by people in the besieged Capitol.

Finally, the impeachment managers went on to rebut Trump's lawyers' legal arguments.  Raskin got his second opportunity that day to shine.  He pointed out that things that are constitutionally protected free speech in a private citizen, such as advocating secession or totalitarianism,** can be grounds to fire a public employee, and certainly would be a violation of oath of office and impeachable in a President. He also pointed out that inciting a riot is not constitutionally protected free speech.  

Lieu addressed the issue of due process and Raskin discussed what high crimes and misdemeanors are.  Both made the point that an impeachment is not the same as a criminal trial and that different standards apply.  Nerguse had his best moment of the trial summing up the evidence to argue that (1) violence was foreseeable, (2) Trump encouraged violence, and (3) Trump acted willfully.  And Raskin gave an emotional closing speech that descended to platitude.

When i look up the full presentation on You Tube, You Tube also offers highlights.  So if I wanted to offer highlights, what would I include?  

From the first day it would be easy.  I would have Raskin's warning that saying former presidents cannot be impeached would create a "January exception" to accountability, even though the transition is the most dangerous time.  And what would that look like?  Followed by his video of the insurrection.  No more would be needed.  If absolutely necessary, I might include some of the historical examples of ex-officials being impeached.

Day two would be hard.  Everything was so good!  It is important for context to include Trump's pre-election claims that he could only lose by fraud, his post-election claims, and his attempts to use the machinery of government to overturn the results.  As mentioned before, I would not put it in that order, but would put pre-election claims of fraud; post-election use of lawsuits, pressure on states, pressure on Congress, and pressure on Pence to overturn the outcome; and then inciting followers by falsely claiming fraud.  These could probably be edited to show just highlights.  Stacey Plaskett's account of all the signs of impending violence I would include in its entirety.  If necessary, the whole account of the siege could probably be omitted in favor of the twelve-minute montage.  Or you should do shorten the account, just to give a general ideal of the sequence of events.

The final day might be reduced simply to Raskin's two tour de force speeches, about Trump's past association with violence, and the limits of the First Amendment.  Nerguse's summing-up of the evidence was also strong.  I would have to look at transcripts at length to decide exactly how to edit.  Maybe someday I will look at highlights and see what I think.

Next up:  The defense presentation.

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*The first day of the impeachment trial was taken with arguments over jurisdiction. So day 2 of the impeachment trial was the the first day of presentation and day 3 of the trial was the second day of presentation.

**Raskin also mentioned taking an oath of allegiance to a hostile foreign power.  Is that legal?

Impeachment Hearings, Day 2

All right, after watching day 2 of the impeachment hearings, I must say logos, ethos and pathos were the last things on my mind.  Boring it was not!  It had me sitting on the edge of my seat in rapt attention.  So what happened?

It began again with Jamie Raskin, saying that the issue of jurisdiction was now over and we were on to facts, and briefly explaining that inciting a mob is not constitutionally protected free speech. Nerguse then gave a roadmap of what would be presented that day.

And then it began, first setting out to show that Donald Trump had been inciting for months ahead of time.  Joaquin Castro began, describing how well ahead of the election Trump as preparing the ground, insisting that if he lost it could only be because of fraud, and how he continued crying fraud in the immediate aftermath of his defeat.  Eric Salwell took up the theme, discussing how Trump continued to cry fraud and run ads saying there was fraud long after the vote was certified and even after electors were chosen, and to push for the rally the date the election was to be certified.  Both men pointed out that everyone present had the experience of running for office and understood the importance of everyone respecting the results.  Castro also commented that many members had probably experienced come-from-behind victories before (or defeats).  Imagine if the candidate who was ahead got to stop the count if it started to turn the other way!  Only after these two presentations di Madeleine Dean proceed to show all Trump's attempts to use government machinery to overturn the election, first by lawsuits and then by pressure on state legislatures and election officials to overturn the results.  Ted Lieu took up the thread, discussing pressure on the Department of Justice to find fraud, Congress not to certify, and Vice President Pence to throw out the results.  One thing he did not mention was Michael Flynn's proposal to declare martial law and redo the election, presumably because the evidence of that conversation was weak. Lieu went out of his way to emphasize Mike Pence's heroism in resisting this pressure, which looks like a bid to appeal to Republicans.

I must say, though, I probably would not have gone in that order.  Why?  Because beginning by quoting Trump tweets on election fraud without context lends them some degree of legitimacy.  I would probably have begun with Castro showing how Trump began even before the election making clear that he would not accept defeat as legitimate and claiming fraud.  Then I would have put on Dean and Lieu to show Trump's attempts to overturn the election through the machinery of government and emphasized each time that each method failed because there was no fraud.  I would have hammered on the election being fair over and over.  Only then would I have taken up Trump's simultaneous attempt to stir up his supporters to bring pressure on government officials and shown his resort to the mob was a last, desperate attempt to block a legitimate outcome.  

Next on was Stacey Plaskett, who was the true star of the day.  And she was not even a Representative.  Plaskett is a Delegate from the Virgin Islands.  Delegates are elected from U.S. Territories and are allowed to speak for their territories, but not to vote.  Plaskett began with that critical question -- what did the president know and when did he know it. She discussed his usual approval and encouragement of violence, from telling the Proud Boys to "stand back and stand by," to applauding attempts by supporters to run a Biden bus off the road.  She pointed out that the previous "Stop the Steal" rally in Washington, D.C. (December 12, 2020) had ended in violence, so he must at least of been aware of the possibility.  She then noted that Trump worked with the same rally organizers (Women for America First) for his January 6 rally, invited some of the same speakers who incited violence, moved the date from post-Inauguration to the more provocative date of certification, and changed the plans from a stationary rally to a march to the Capitol.

But all of this could be put down to extreme negligence.  More seriously still, social media was abuzz with various protesters planning a violent assault on the Capitol. This was public enough the Fox reported on January 2 that the Proud Boys would be showing up. The Capitol Hill police warned that Congress might be targeted on January 3.  The Washington Post and NBC reported chatter on January 5.  The FBI also warned of threats of violence on January 5, and the Mayor of D.C. warned residents to stay out of the downtown area because of possible violence.  Several arrests were made ahead of the rally.

The obvious question is, how much of this would Trump be aware of and how much is simply what is obvious in hindsight.  Clearly, if mainstream press outlets were picking up social media chatter, it could not have been all that secret.  With any other president, I would say that if it was in the Washington Post and NBC, he would have known.  But Trump is famous for not reading mainstream journalism. Presumably he would at least have been aware of the Fox report about the Proud Boys showing up and the D.C. mayor's warning.  But I suppose he could argue that he did not assume the mere presence of Proud Boys automatically meant violence, and that the mayor was simply trying to avoid clashes between protesters and counter-protesters.

Plaskett quotes an unnamed insider quoted in the British newspaper The Independent as saying that the Trump operation monitored pro-Trump websites, some of them quite far into wingnut territory.  That seems most plausible, but I would still like to see better confirmation than a single anonymous insider. 

Finally, Plaskett quotes one of these sources as saying that the president can order the National Guard to stand down, but does not control the Capitol Police.  That is good insider information an accurate.  So far, though, the impeachment managers have not presented any evidence that Trump did order the National Guard to stand down. 

Next, Madeleine Dean put on a presentation about how incendiary Trump's January 6 speech was (no quarrel there), and how upsetting the experience was.  Then a break.

After the break, Plaskett and Salwell gave an account of the actual attack, with times, places, and video.  It was interesting, although I would have to read a timeline and see a diagram to full absorb it.  The account did refute the claim that Trump could not have incited the insurrection because it began before he finished his speech.  People started heading over the the Capitol well before he finished. (Not an unusual situation).  The mob breached the outer fence at 12:53, about 12 minutes before the joint session began.  The police put up extraordinary resistance and it was not until 1:45 that the mob broke into the Capitol through the west door.  The west door is the door facing the White House. The mob broke in on the first floor (of course).  Congress meets in the second floor.  As Officer Gene Goodman went to meet the mob, he saw Mitt Romney in the hall and warned him to get inside. Goodman then (famously) led the mob away from the Senate chambers to where reinforcements were ready.  The mob on the video does not look like anyone you want to mess with.

Mike Pence was evacuated from the Senate around 2:14, but remained hidden, with his family, near the chamber.  Nancy Pelosi was evacuated, not just from the House, but from the Capitol grounds at 2:15.  Both chambers attempted to continue without their leaders. Lest you take offense at this sort of privilege, recall that both Pence and Pelosi were prime targets for the mob.  Both bodies recessed and started evacuating around 2:30 as the mob reached their outer doors.  

The Ashli Babbitt shooting apparently took place during the siege of the House. Members were in the process of evacuating, but had not finished.  In particular, due to COVID distancing rules, many members who were not voting at the time were in the gallery, along with journalists and a few other visitors.  It is very difficult to see what is happening in the video. It shows heavily barricaded glass doors with wooden frames and a man behind them holding a gun.  The rioters smash windows and try to break down the doors.  Then the man with a gun steps forward and fires and we see someone, apparently Babbitt, fall. It appears she was trying to lead a charge through a broken window.  It will take a good deal more than the video to determine whether the shooting was justified.  Evacuation of the House finished only minutes before the mob overran it.  

The violence continued long after Congress had been taken to safety.  Salwell finished with graphic footage of violence against law enforcement, much of it long after Congress was gone.  In particular, the infamous footage of an officer crushed in a door, screaming in pain was taken at 4:30, an hour and a half after the House was fully evacuated.

Impeachment in Retrospect: Day 1

It may see a waste of time to go over the impeachment trial now, after Trump has been acquitted.  But the acquittal was a foregone conclusion and I was too busy at work to watch hours of hearings.  Besides, reviewing the impeachment after the fact can offer a certain perspective.  So here goes Day One.

In my comments on the last impeachment trial, I said that in these polarized times it is extremely difficult to appeal simultaneously at the level of logos, ethos, and pathos because the ethos and pathos of both sides are so far apart.  I therefore recommended sticking as much as possible to logos and attempting at least to find a common ground in facts.  This second impeachment trial is an exception to that general rule.  In this case, all the senators/juror were witnesses to and potential victims of the crime being tried.*  This gave them and the impeachment managers a common ground in pathos. It permitted the impeachment managers to appeal at all three levels.

The first day was addressed to whether the Senate had the power to try a former official at all.  Jamie Raskin, the head manager, began. He argued first that if the Senate cannot try the impeachment of an ex-President, it creates a "January exception" to the rule that the President is impeachable for any misconduct in office and creates a month of immunity.  And what would that look like?  He then played a twelve-minute montage of the January 6 insurrection.  You-Tube put up a warning, both because of the graphic violence being depicted and the language of some of the rioters.  It was a gripping presentation -- so gripping that I found it quite jarring when we returned to the Senate Chamber and Raskin speaking.  I had all but forgotten that I was watching an impeachment trial!  (The Senators presumably did not forget.  But as witnesses and potential targets of the violence, it must have had an even stronger impact on them).  He went on to explain that the transition of power is the most dangerous time, the time with the greatest temptation to a President to hold onto power by unlawful means. He then gave historical examples to show that impeachments of former officials were accepted at the time the Constitution was adopted.  The fact that Constitution authorizes impeachment and does not bar impeachment of former officials must mean that it allows such impeachments.

Joe Nerguse then followed to address historical examples and scholarly treatises for the proposition that the Senate could try former officials.  It was an argument based on pure logos and shows why pure logos is not sufficient to be persuasive.  It get dull.  David Cicilline then followed with an appeals at all levels.  He argued that Trump violated his sacret oath of office, that he poses an intolerable threat to democracy, and made a point-by-point rebuttal to defense arguments.  Raskin followed up with an appeal to pure pathos -- his own experiences during the insurrection, including that his daughter and son-in-law were present, and his daughter never wanted to come back.

After that came Bruce Castor's rambling, widely-panned performance.  What can I say about it.  Donald Trump was said to have screamed at the TV while Castor was talking.  Fox and Friends apparently made the comment that if that had been their lawyer, they would have screamed too.  Newsmax found the whole thing so embarrassing that it cut away to ask Alan Dershowitz what he was trying to achieve and Dershowitz said he had no idea, he could only assume Castor was buttering them up.

Castor's official story was apparently that he made a rambling, incoherent presentation on purpose to lower the emotional temperature after a very intense presentation. After listening, I can say that I actually can see what Castor was getting at.  He was making a standard defense lawyer argument in a case that has graphic evidence of the crime, but leaves room for doubt as to whether the defendant committed it.  (Contrary to Perry Mason, this constitutes a distinct minority of criminal trials).  It may also show why a prosecutor should not take a defense lawyer's job.  Castor has doubtless seen any number of criminal defense lawyers give this speech or some variation on it.  Criminal defense lawyers probably have a standard version in their computers and can plug in details.  A decently done version would go something like this:

I have viewed the footage of these riots along with the rest of you and I understand the outrage every one of you must feel.  Let there be no mistake.  These are heinous crimes.  I feel the same horror and repugnance as any of you.  You will not hear me or any member of my team defend or minimize what happened on that terrible day.  It is only natural after watching this footage for you to want to punish whoever is closest at hand for these horrific acts.  

But that is precisely what you must not do. Lashing out at the person nearest at hand may satisfy a primitive desire for vengeance, but it does nothing to protect our community.  Unthinkingly venting your anger on the nearest target will only imprison [disqualify] an innocent man while the real offenders remain at large to threaten us all.  You can protect our community only by setting aside the emotions that the prosecutor is attempting to stir and looking, calmly and deliberately, at the evidence and asking -- does the evidence point to this particular defendant?  The law has entrusted you, the jury, with this deliberative function in order to ensure that this court does not dispense unthinking vengeance, but justice.

I an ordinary trial, the defense lawyer would then proceed to point out the various holes in the case against his client.  in case of an impeachment trial before the Senate, the defense lawyer could make some of the same points that Castor was trying to make in a more succinct manner.  He might say:

The law has entrusted this deliberative function to you.  And I can think of no better place to entrust it than -- as the Senate likes to say -- the world's greatest deliberative body.  The Founders of the Constitution created a Senate and gave them a six-year term to protect this deliberative function from popular and party passions.  And there has never been a time when it was more important to set aside passion, set aside popular pressure, and set aside party, than now.

That is a shorter, clearer, more succinct attempt to turn down the emotional temperature that defense lawyers use as a matter of routine.  I am not even a criminal defense lawyer and it took me about fifteen minutes to write that.  Castor took over 45 minutes of incoherent rambling to say much the same thing.  He then introduced David Schoen to do the heavy lifting.  A an equally effective approach, really, would have been to skip Castor altogether and go straight to Schoen.

What can I say about Schoen?  I didn't think he was all that bad, really, at least not at the level of logos.  He made an extended appeal to law and precedent to argue that impeachment of former officials was not allowed, that Trump was denied due process, and that the Chief Justice should preside.  It seemed rather mind-numbing, but then again, I was watching it late at night and may not have been as clear-headed as one could wish.

You can just vote him out of office

It was at the level of ethos and pathos that Schoen was troubling.  His appeal to ethos and pathos was a blatant display of partisanship.  Castor made some of the argument as well.  Castor argued that if the people dislike their leader, they are always free to vote him out of office.  The people did just that and it worked perfectly well.  In that he ignored the little matter of the insurrection that put something of a glitch in the smooth workings of the election.  He then argued that it was unfair to bar Trump from running for office again because it denied 74 million people their preferred candidate.  Schoen made much the same argument but pushed it further.  Allow the impeachment of former officials, and Congress may use impeachment as a blatantly partisan tool, to bar the most promising potential candidate from running.  Indeed, he warned, Democrats may use impeachment to bar anyone from running who does not share their ideological viewpoint. 

This argument ignores the bleeding obvious.  The people got tired of Trump and voted him out of office, but it did not work just fine.  Quite the contrary, it led to sixty meritless lawsuits, pressure on state legislatures to overturn the results, an attempt to rig the election in Georgia, and a GODDAM FUCKING INSURRECTION!  The Constitution already puts restrains on who the people may vote for.  If the people want to elect Arnold Schwartzenegger as President, that is too bad.  The Constitution bars it because he is not a natural born US citizen.  It the people want to choose Alexandria Ocasio-Cortez in 2024, the Constitution will again bar it because she is too young.  And it is eminently reasonable to bar 74 million Americans from choosing Donald Trump in 2024.  After all, what if he loses?  We have seen all too clearly how he responds to defeat.  It is legitimate to bar from running a candidate who responds to defeat by INCITING A VIOLENT INSURRECTION.  Or even one who files sixty meritless lawsuits, urges state legislatures to override the results, and pressures state officials to rig the outcome.  Our whole system of elective government depends on the losers accepting the outcome.  

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*Needless to say, this would disqualify them from serving on a jury in any conventional trial.

 

What to Do About Fox (and Friends): Sue

When I reviewed Daniel Ziblatt's book Conservative Parties and the Birth of Democracy, I endorsed his basic hypothesis -- that the success of democracy depended on a strong democratic conservative party that could reign in anti-democratic elements on the right, but with a major reservation.  Ziblatt discusses at length what makes a party strong and how a strong party serves as a gatekeeper to keep out the enemies of democracy.  But he never seriously analyzes who these enemies of democracy are or how they arise.  In other words,  Ziblatt discusses at length what sort of party is needed to contain threats to democracy, but not what these parties are containing.

Looking at Germany and, to a lesser extent, the United Kingdom, Ziblatt appears to see what parties are containing are three main alternate power structures -- media outlets, rich donors, and special interests.  If any of these entities usurp the role of political parties, Ziblatt appears to warn, then democracy is in trouble.

But, while Ziblatt warns about dependence on interest groups and wealthy donors, his biggest emphasis appears to be media.  While Hitler was the ultimate beneficiary of the breakdown of democracy in Germany, media magnate Alfred Hugenberg laid the groundwork with his media empire by stirring up the radical right.  Ziblatt describes two contemporary British media magnates -- Lord Beaverbrook and Viscount Rothermere --who attempted to play a similar role in Britain, but were thwarted by a strong Conservative Party that was fully committed to the democratic rules of the game.  

All of this has very disturbing implications for US democracy.  We have our own Hugenberg/Beaverbrook/ Rothermere.  His name is Rupert Murdoch.  Rupert Murdoch has given us Fox News, which has been stirring up outrage and paranoia, abetted by talk radio, for nearly a quarter century.  Outrage and paranoia are highly addictive drugs and, like other addictive drugs, need stronger and stronger forms to produce the accustomed high.  For those who Fox no longer offers enough kick, there are now alternatives in Newsmax and OANN.

 The US has a strong tradition of protecting freedom of the press.  This means, among other things, that it is not illegal to publish lies and call them news. Only defamatory lies are actionable.  A media outlet that is so inclined may say that the earth is flat, the moon is made of green cheese, Elvis is still alive,* snow is a plastic imitation,** and pigs can fly so you should never go out without our sponsor's patented brand name steel umbrella.  All of that would be perfectly legal because it does not defame anyone.  You could also accuse HAARP of faking the snow, or the Department of Agriculture of concealing all those flying pigs with legal impunity because government agencies are not allowed to sue for defamation.  But as soon as you accuse an individual or a private organization, things become different.  Because individuals and private organizations can sue.

There are difficulties with suing.  "Public figures," a category that includes all government officials and anyone else who is famous enough to be much in the news, must prove not only that the story is false, but that the news organization published knowing that it was false, or at least with serious doubts.  A private person only has to prove knowing falsehood to collect punitive damages. but most private citizens do not have the resources to sustain protracted litigation against a major media company and ultimately end up being bought off by a sum that is a fortune to the individual concerned, but chump change to a major news station.  The station drops this particular libel and moves on to the next.

But in the aftermath of the 2020 election, Fox, Newsmax, OANN and others went too far.  They published outrageous lies about two election software companies -- Dominion and Smartmatic.  These companies do have the resources to sustain protracted litigation against a major media company.  The lies hurt their bottom line enough to make for the sort of damages that can make even Fox pay attention.  And the lies were so obvious, so blatant, and so defamatory as to make for a clear-cut case.

So, faced with suits that could seriously hurt their bottom lines, Fox and Newsmax hastily retracted their stories and read the retractions on air.  They have banned any further discussion of the issue.  This led to Mike Lindell of My Pillow fame being shut down on Newsmax and Lou Dobbs being fired from Fox.  OANN has not made a public retraction, but it has quietly taken down the accusations.  And, we must assume, they have all learned a lesson.  Don't defame a powerful corporation with resources to sue.

So what good does that do for ordinary private citizens who still don't have the resources to take on any of these companies?  Well Bruce Bartlett is always urging liberals to do what conservatives do -- find a rich sugar daddy to finance a whole ideological infrastructure, including media infrastructure.  But liberals don't want to build a left-wing equivalent of Fox News.  Liberals prefer mainstream sources that at least attempt to be objective.  And in any event, it is not clear this country could survive a left wing noise machine to counter the right wing noise machine.  

So here is my suggestion.  Instead, have sugar daddy finance lawsuits against the right wing media.  The right wing noise machine has made plenty of real, undisputed libels against private citizens, like accusing Seth Rich of stealing the DNC e-mails. And Alex Jones at Infowars had said even more outrageous things, like accusing victims of school shootings of being crisis actors, or Comet Ping Pong Pizza of running a child trafficking ring.  Private citizens have sued, but, again, they have had to settle for a payment and retraction of one particular story, which in no way deters the next slander.  Private citizens simply don't have claims for the sort of money that makes a large company hurt.  

The typical procedure for a lawsuit of that type is that defendant asks the court to dismiss on the grounds that the suit does not meet the legal definition of libel.  No matter how obvious the libel, it is worthwhile for a company like Fox to make that argument to wear out its opponent and exhaust its opponent's resources.  If the case survives motions to dismiss, the next step is "discovery," in which the parties ask each other written questions, obtain documents, and take depositions.  The goal of an ordinary plaintiff is to get to the discovery phase and expose all sorts of embarrassing information about the company.  But a large corporate defendant can fight it every step of the way and make it extremely slow, difficult, and expensive.  It is at this point that they offer a large settlement and the exhausted plaintiff agrees.  

A liberal billionaire financing suits against large media companies can make this process affordable and expose a lot of dirty secrets.  And maybe this, if nothing else, can shut down the lies.

_______________________________________________

*No, seriously, people believed that.
**No, seriously, some people believed that too.

What Would a Sensible Center-Right Party Look Like?

In 2008, the Republican Party lost the election and multiple levels and responded to defeat by making the clear, calculated decision to go insane.  That decision was made at the top, in the well-thought-out belief that going insane was a winning electoral strategy.  And it did, indeed, prove highly successful.  Republicans won sweeping victories in the House of Representatives in 2010 and won unified control of many state governments.  In 2014, Republicans won control of the Senate and further sweeps in the House and at the state level.  In 2016, the craziest Republican candidate was elected President.  In 2020, Republicans held fast to state legislatures and made gains in the House.  Insanity worked!

But Republicans lost the Presidency in 2020.  And they have responded to defeat by getting even crazier.  This time the decision was not made at the top, or in a rational or calculated manner.  The decision was made by the party rank-and-file, and the leadership had little choice but to go along or be swept away.

 Just to be clear, I do agree that having a strong democratic conservative party is essential to the health of democracy.  This is a serious problem in the United States today because I see no space in our political spectrum for a sensible center-right party that respects democratic norms.  Nonetheless, let us consider what such a party would look like.

And after giving the matter some thought, I have truly concluded that the issues are not the issue.  A democratic conservative party could take a wide range of positions on a wide range of issues, but that is not what is truly important here.  What is truly important is having a party that respects election results.

And what does it mean to respect election results?  Well, to take the obvious, a democratic conservative party would not respond to defeat by inciting a violent insurrection.  But it takes more than that.  Respecting election results is compatible with asking for a recount when an election is very close.  It is compatible with not conceding defeat until the recount is complete.  It is compatible with suing to block changes in election rules before an election  takes place.  It may even be compatible with suits over election procedures after the fact in a few extraordinary circumstances.  It is not compatible with filing vast numbers of lawsuits with no merit whatever.  It is not compatible with trying to change the rules after a vote takes place, or with making clear ahead of time that you will sue to overturn the results if you lose.  Respecting election results means conceding defeat once the result becomes apparent and telling your supporters that you lost fair and square.

But Republican behavior is showing that more is needed than that.  Of course, it is perfectly reasonable for a defeated loyal opposition to vote against legislation that they oppose. It is acceptable for the party that controls the legislature to pass legislation opposed by the President, and to override the President's veto if there are the votes to do it.  It is acceptable for legislative committees to investigate the President and his officials.  It is acceptable for the opposing party to sue to block actions they consider unconstitutional.  It is acceptable when party rule switches hands for the incoming party to undo or modify what its predecessor has done.

It is not acceptable to make sudden, large-scale changes in the rules of the game when the other party wins (as Republicans have done in several states when a Democrat was elected governor), or to block all legislature regardless of merit, or threaten to hurt the country to force over legislation when you don't have the votes to overcome a veto, or to whip up hysteria with apocalyptic warnings, or to set out to hurt the country for political gain.  In the end, the party that loses elections has to accept, not only that it has been defeated, but that the winning party will adopt policies that the the losers do not like, and that doing so is simply politics as usual.

The Republican Party has made it more than clear that it does not intend to accept any defeat as legitimate, and that it has no compunctions about hurting the country to advance its fortunes.  

I do, nonetheless, intend to do some posting on particular positions a sensible center-right party  might hold on specific issues 

Whither the Post-Trump Republican Party?

But her e-mails!

I don't know if Donald Trump will be the Republican Party's candidate for President in 2024.  Certainly he looks like the most likely prospect today.  But things might come up.  He may be to old and feeble to run by 2024.  Or loss of his Twitter account my turn out to by like Sampson losing his hair. Or he may lose his luster when out of power, or just lose interest.  

But even if Trump is the 2024 candidate, he will be term-limited out by 2028.  And if he somehow overcomes that, he will most likely be too senile and decrepit to take seriously by 2028.  And even if he is still in the running in 2028, sooner or later he will die.  All of which means that sooner or later, the Republican Party will have to figure out what to do post-Trump.

My own guess is that a post-Trump Republican Party will not be patrimonial in the same way that Trump is, but that it will be authoritarian.  Specifically, it will want to establish a one-party state -- not a de jure one party state like a Communist or fascist country, but a de facto one party state like Mexico in the heyday of the PRI.  In other words, it will not attempt to outlaw the Democratic Party, but it will attempt to rig the system to ensure that Democrats cannot win the Presidency or a majority in either house of Congress.  Republicans will most likely concede some states to Democrats, but try to establish one-party rule in as many states as possible.

Presumably Republicans will justify this to themselves by arguing that Democrats' big government ways are such an intolerable threat to liberty that we will just have to abandon democracy and rig the system to protect freedom.  Or maybe they will argue that we are a constitutional republic rather than a democracy and therefore states are allowed to run elections any way they like, including in ways that rig the system.  Or maybe that votes for Democrats are illegitimate by definition because Democrats illegitimately bribe minority voters with government benefits and thereby enslave them.  (Republicans appear to sincerely believe this).

So, how will Republicans go about it?  I do not expect any more violent insurrections, and false reporting of election results seems to be a bridge too far.  But Republicans are widely seeking to restrict voting access by Democratic voters.  They are gerrymandering federal and state districts to ensure that Republicans will always control federal and state legislatures.  They may seek to have state legislatures, rather than voters, choose presidential electors.  And no doubt there will be other attempts to rig the system at the state level.

At the federal level, I do not expect the next Republican President to be a patrimonialist like Trump, but I do expect him/her to continue and expand Trump's violations of the Hatch Act, which forbids the use of government resources to advance political campaigns.  Trump and his appointees routinely used federal resources for political purposes and shrugged off any complaints as inside baseball that no one outside the beltway cared about.  We may be confident that if a Democrat violates the Hatch Act, Republicans will raise holy hell about it and make sure that people outside the beltway do know and care.  I would also expect Republicans in Congress to aggressively investigate and publicize any scandal, however insignificant, involving Democrats, while blocking any investigation of Republican scandals.  And I would expect a Republican Department of Justice to pursue actions to obstruct voting by Democratic voters and be highly partisan in its prosecutions.  But the Hatch Act is the biggie.  I expect our next Republican President to be more competent than Trump, and less patrimonial.  That means that I do not expect the next Republican President to treat the federal government as his/her personal property, but I do expect our next Republican President to aggressively subvert the Hatch act and endeavor to turn the federal government into an instrument for advancing the fortunes of he Republican Party.

And to the extent that the attempt is successful, I would expect it to be profoundly subversive of the Republican Party's stated goals and ideology.  After all, if the Republican Party is successful in turning the federal government into an instrument of its political power, it will lose all incentive to shrink the federal government.  Who would shrink the source of their power?

Furthermore, I get that the Republican Party had considerable success this last election by denouncing all government services as mere stepping stones to a Communist dictatorship, and promised to free its voters from the burden of government to succeed or fail on their own. But that message is always more popular as an abstract principle than in the flesh and blood. People who profess to see all government services as a form of enslavement are nonetheless very eager to get their $2,000 COVID checks, and generally eager to see COVID relief of all kinds.  And even if we dismiss this as an extraordinary reaction to extraordinary circumstances, there is a longstanding tradition in this country of opposing all government services except mine.  

For right now, Republicans may be able to maintain power by raising hysterical fears of the Democrats and what they would do with power.  But the longer and more strongly Republicans are able to consolidate their one-party state, the less menacing that threat is going to look.  And in order the maintain their power, Republicans will have to buy off constituents with some sort of goodies.  You know, what they see Democrats as illegitimately doing.  

In short, one party systems invariably either split into rival parties or become corrupt patronage networks due to the lack of challenge and accountability.  I do not expect the Republican Party to become big enough to split at any time in the foreseeable future.  I can only assume, then, that if Republicans successfully turn the US into a de facto one party state, we will end up just as corrupt and patronage-based as any other one party state.