I Know This Isn't Another Impeachment, But . . . .

 

The Select Committee is promising hearings some time this spring, to be shown on prime time TV.  And I think of family lore about my grandfather's second wife during the Watergate hearings.  She dropped out of society and spend all her time watching the hearings and shouting "Get him!  Get him!"  I am starting to understand the feeling.

I am old enough to dimly remember the time.  It had been so long since the last impeachment that news broadcasters had to explain how the process worked. The House was solely responsible for the investigation.  If the House found grounds for impeachment, then they would try it with the Senate serving as the court.

Look, I know this is not a third impeachment inquiry.  But somehow I can't help noticing that the inquiry is being handled entirely by the House.  Is that significant?

I can only see this turning into a third impeachment if members of the House very discreetly sound out Senate Republicans and find the votes to convict.  It seems most unlikely.

During the second impeachment, the obvious question was whether you can impeach an official who is no longer in office.  Obviously removal from office will be a moot point.  The important point is barring him from ever holding office again.  Jamie Raskin, the impeachment manager, made the argument that a rule barring the impeachment of ex-officials creates a January exception.  A President can do absolutely anything during his last month in office with complete impunity, at least with regard to holding future office.

By contrast, Trump's lawyer, Michael Van der Veen, denied any such exception and made four arguments, two of which, I remarked, were not only mutually incompatible, but served to create considerably more than a January exception.  Van der Veen's arguments were:

1. Impeachment is only possible for officials who are still in office.  The House unduly delayed and should have presented the trial to the Senate by January 20.
2. The impeachment violated Senate rules by not having separate counts.
3. Donald Trump was denied due process.  The House acted with undue haste by failing to make an adequate investigation before acting.
4. Trump's speech to the crowd was constitutionally protected free speech and did not meet the legal definition of criminal incitement.

I think we can safely ignore the second defense as something that no normal person could possibly care about.  But the other three are significant.  In fact, defenses (1) and (3) are directly opposed to each other.  On the one hand, the House had to do a full investigation into the facts of what happened.  Van der Veen's co-counsel, David Schoen, even said:

Speaker Pelosi herself on February 2nd, called for a 9/11 style commission to investigate the events of January 6th. Speaker Pelosi says that the commission is needed to determine the causes of the events. She says it herself. If an inquiry of that magnitude is needed to determine the causes of the riot, and it may very well be, then how can these same Democrats have the certainty needed to bring articles of impeachment and blame the riots on President Trump? They don’t.

Can we point out the obvious here?  There is no way to form a 9-11 style commission to thoroughly investigate the events of January 6 and have the results ready for trial before January 20.  To require the House to do both things in order to impeach a President would create window considerably longer than one month in which it was not possible to do both.  In other words, not just a January exception, but a December, November, and quite possibly October exception -- and maybe more than that.

At that same time, what has come out of the select committee so far has shown considerable merit to defenses numbers three and four.  The first impeachment, focused entirely on the January 6 violence, tended to assume that Trump incited it with rather thin proof.  Subsequent events make clear that neither Trump nor any of the rally organizers anticipated or intended a violent riot, although they may have intended the threat of violence to put pressure on Congress. In other words, Trump's speech on January 6 probably really was constitutionally protected speech and not criminal incitement.  

But that does not end the inquiry by a long shot.  The standard Republican line these days is to condemn the January 6 riot as of course a crime, but merely the work of a small number of rowdies and completely unrelated to anything else.  Mainstream Republicans definitely want to gloss over the possibility that there might have been anything illegal in all the other attempts to overturn the election -- say, by pressuring Georgia Secretary of State Brad Raffensperger to change the vote total, or by presenting false slates of electors, or considering having Homeland Security seize voting machines.  Republicans want to focus on the most dramatic and visible, but also most deniable attempt to overturn the election and pretend that the rest did not happen, or if it did that it was "legitimate political discourse."  

That is why Republicans like Ronna McDaniel are so angry at Representatives Cheney and Kinzinger.  Because they are not willing to treat the insurrection as an isolated incident by a violent mob, but as part of a much larger attempt to overturn an election involving many prominent and respectable Republicans.

And that is another reason impeachment would be the most appropriate remedy here, politically impossible though it may be.  

Attempting to overturn an election is a very serious political offense, as serious a political offense as there can be.  Indeed, it strikes at the core of our whole system of elective government -- that the loser of an election must accept the outcome.  But much of it is not necessarily a criminal offense, and for an obvious reason.  What is forbidden has been done. The truly unthinkable is never a crime because no one ever thought to forbid it.  Much of Trump's attempt to overturn the election, such as pressuring state legislatures to send alternate slates of electors, or pressuring Republicans in Congress to accept the alternate slates of electors, does not appear to have broken any laws.  And any action that was not a crime when done cannot be prosecuted US Constitution, Article I, Section 9, clause 3.*  

But it is more than ample proof that the offender is an intolerable threat to our political system and has no business holding office.  Which is to say, the hitherto unthinkable, and therefore not illegal, can be legitimate grounds for impeachment.  Especially when it places our entire political system in jeopardy.

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*Indeed, one can make a fair argument that pressuring a legislative body to take even illegal action is mere inappropriate lobbying and not a crime.