Sunday, January 17, 2021

Why Trump Shouldn't be Impeached

As best I can tell, while Trump is morally responsible for the recent riot he is not legally responsible, since everything he did that contributed to it was something he had a legal right to do. But requirements for impeachment, other than a majority vote in the House to impeach and two-thirds in the Senate to convict, are unclear, so that is not, in my view, the fundamental issue.

Our legal system has so far been pretty stable. One reason is an implicit rule: When power shifts, the winners don't punish the losers. Impeaching Trump after he has left office, as a punishment not a way of removing him from power, violates that rule. That would be a  dangerous precedent, one step further towards making political conflict something closer to a civil war. 

People will, of course, argue that this is a special case, that Trump is uniquely guilty. But once the precedent is established other people, in a polity already sharply divided, will find other special cases.

For the same reason I am bothered by people who gloat over the prospect that Trump, once out of office, will be prosecuted for things he did in business before he was president. Obviously having been president doesn't give legal immunity — anyone who wants to sue him will be, and should be, free to do so. But criminal prosecution is at the discretion of the prosecutor; Obama protected illegal immigrants who he didn't want arrested by instructing law enforcement not to arrest them. If Trump gets prosecuted by officials who are his political enemies for business dealings he did not get prosecuted for when they happened, it will be pretty clear that it isn't the dealings he is being prosecuted for. 

That again would be an unfortunate precedent.

18 Comments:

At 5:21 PM, January 17, 2021, Anonymous MithrilGear said...

Operation Paperclip was a noble project in my view, but part of the deal is that the losers accept that they lost. So, part of the (implicit) question before the Senate, in my view, should be whether his role in the riot constitutes a refusal to accept his loss. If so, then the very social contract you cite demands we drop the hammer on him.

 
At 7:00 PM, January 17, 2021, Blogger Benjamin Cole said...

"I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard," Trump said in his speech. "Today we will see whether Republicans stand strong for [the] integrity of our elections, but whether or not they stand strong for our country, our country. Our country has been under siege for a long time, far longer than this four-year period."

...

"If they don't fight, we have to primary the hell out of the ones that don't fight," Trump said. "You primary them. We're going to let you know who they are."

So, Trump called for peaceful protest, and voting.

---30---

The problem is if Trump can be prosecuted for inciting insurrection, then anybody can (if prosecutors prosecute evenly). You would be wise to never give a speech or blog, or even comment on a blog.

People are angry in America, largely the result of the neoliberal model, combined with continuous economic rents perpetrated by property zoning. I wonder what fraction of the people who occupied the Capitol are unemployed.

Maybe my comment here means I am inciting violence. Indeed, I think the employee-class in America should be steaming. Maybe this blog will be banned for tolerating my comment, even though I also call only for peaceful dialogue and voting.

Once we start banning people and commentary from the internet, where does it stop?











 
At 7:51 PM, January 17, 2021, Blogger Mark Bondurant said...

I disagree. There's more to this than just speeches. There were people working on the inside and orders were given at high levels. Let there be a trial. Let's see where it leads. And as far as punishing the previous administration, that's become a Republican plank. They've been working especially hard this time to erase Obama.

 
At 8:49 PM, January 17, 2021, Anonymous Anonymous said...

"When power shifts, the winners don't punish the losers."

If the Dems and GOP were two sides of the same coin, it is only rational not to punish the loser. With Trump something seems to have changed.

Trump is an outsider. He somehow managed to tap into something that had no other outlet to manifest itself. And as a result, a bumbling bull was sent into the ivory tower.

The establishment is now trying to purge Trump, but he is just someone that tapped into power. He is not the source, only a manifestation. Even if Trump is removed from the picture someone else will take his place.

 
At 12:21 AM, January 18, 2021, Blogger naivetheorist said...

Trump needs to be convicted (he's already been impeached - twice, in fact) in order to give Republicans in Congress a chance to vote to bar Trump from holding federal office. Those who fail to support such a bar will forever wear the badge of being 'Trumpites by choice' and in future elections they will be judged by their constituents accordingly.

 
At 3:53 AM, January 18, 2021, Blogger Thomas L. Knapp said...

"As best I can tell, while Trump is morally responsible for the recent riot he is not legally responsible"

Neither of which is relevant, since impeachment is a political, not moral or legal, instrument.

 
At 4:56 AM, January 18, 2021, Blogger SB said...

"while Trump is morally responsible for the recent riot he is not legally responsible, since everything he did that contributed to it was something he had a legal right to do."

Is that really the way the law works? (You work at a law school; I don't.) If I have a valid driver's license and registration on a car that I own legally, and then I use that car, without violating any traffic ordinances, as the getaway vehicle for a bank robbery that I helped to plan but didn't personally commit, am I "not legally responsible" for the bank robbery?

 
At 5:18 AM, January 18, 2021, Blogger SB said...

"When power shifts, the winners don't punish the losers. Impeaching Trump after he has left office, as a punishment not a way of removing him from power, violates that rule."

There are at least two good reasons to hold an impeachment hearing for Trump even after he's left office.

First, as somebody else pointed out, it enables the Senate to disqualify him from future Federal office. (Another way to do this is via the "insurrection" clause of the 14th Amendment, but I think that's a long shot: that clause was written to refer to active participants in the rebel side of the Civil War, and as heinous as the Capitol riot was, it was no Civil War. And convicting him of insurrection in a criminal court could be difficult, both because he didn't actually say the words "break into the Capitol building" or "take lawmakers hostage" and because no jury in the world could rule impartially on anything to do with Donald Trump.)

Second, it enables the Senate to say to future administrations, on the record and with legal force, there are things a President can't get away with. The impeachment clauses in the Constitution actually work, even for a President. When a President refuses to accept losing an election, to the point of inciting an armed mob to attack a coequal branch of government, that coequal branch can fight back, putting its prerogatives as a coequal branch ahead of party affiliation.

It might even provide a momentary reminder that Congress can act in a bipartisan way, something it's largely forgotten how to do in the past 25 years or so.

But it's a big gamble. The Senate might very well not say that, which sends the opposite message to future administrations: no, there aren't things a President can't get away with; inciting an armed mob to attack a coequal branch of government (and, a few days earlier, threatening an election official to get him to falsify election results) is OK as long as your party holds at least 1/3 of the Senate.

 
At 5:37 AM, January 18, 2021, Blogger SB said...

"If Trump gets prosecuted by officials who are his political enemies for business dealings he did not get prosecuted for when they happened, it will be pretty clear that it isn't the dealings he is being prosecuted for."

Largely, but not entirely. In fact, lots of people get away with crimes every day due to inadequate enforcement and "flying below the radar". Imagine that Trump hadn't won the 2016 election: simply running for President probably raised Trump's visibility enough, and prompted enough people to look into his finances, to make him more likely to be prosecuted for those things. And of course four years as President has made him even more visible, and prompted even more people to look into his finances.

In short, he could easily be prosecuted after leaving office for things that would have objectively justified prosecution before he took office, but either the evidence hadn't turned up yet or "there were bigger fish to fry" with a limited enforcement budget.

I expect that the Biden administration will try to keep any prosecution of Donald Trump scrupulously isolated from political influence, bending over backwards to do things "by the book" and justify every step more thoroughly than usual. Which will probably mean dropping some marginal charges that it might have pursued if he hadn't been a political opponent. And it still won't convince his worshippers that he hasn't been the victim of political persecution, but it might convince a jury and appellate courts.

 
At 1:36 PM, January 18, 2021, Blogger David Friedman said...

@SB::

U.S. law is particularly strong on freedom of speech issues. Driving the getaway car is a crime. Telling your friends that there is nothing wrong with robbing a bank and pointing out that a particular bank has very weak security, which is more than the equivalent of what Trump did, isn't. If it could be proved that he had actually planned out an illegal invasion of the capitol and told people to do it he would be in legal trouble, but he stopped well short of that, saying things all of which could be read as "have a peaceful demonstration, then primary Republicans who voted the wrong way."

 
At 2:39 PM, January 18, 2021, Anonymous Steve Brecher said...

I believe that Trump has: an insatiable appetite for wealth and power, without regard to how acquired; a large base of people who idolize him; and no understanding of the U.S. Constitution nor the values upon which it's based. Therefore, he has a cognizable chance of becoming an authoritarian danger to this country in 2024, if not before. The Senate should convict him and prevent him -- at least legally -- from holding future federal office.

On the free speech defense: Trump's speech on Jan. 6 was protected by the 1st Amendment since it didn't trigger any exception thereto. That is irrelevant to grounds for impeachment and conviction. "Conviction" in this context does not mean for a statutory crime.

 
At 12:31 PM, January 19, 2021, Anonymous Anonymous said...

Given the amount of blatant fraud in the election, we're already way outside the normal functioning of democracy.

>Trump needs to be convicted (he's already been impeached - twice, in fact) in order to give Republicans in Congress a chance to vote to bar Trump from holding federal office. Those who fail to support such a bar will forever wear the badge of being 'Trumpites by choice' and in future elections they will be judged by their constituents accordingly.

Well if the next election is actually free and fair, then those 'Trumpites by choice' will have an enormous advantage in them and those corrupt scumbags who voted to go along with blatant fraud who are likely to be punished. Of course, given the precedent set by 2020, the next election is likely to be even more fraudulent and thus constituents are going to be completely irrelevant going forward. In that case the only way ordinary people can actually influence the process is an application of the first paragraph of the declaration of independence.

 
At 7:57 PM, January 19, 2021, Anonymous Anonymous said...

https://www.politico.com/news/magazine/2021/01/10/trump-impeachment-articles-incite-insurrection-seditious-conspiracy-456937

 
At 5:46 AM, January 20, 2021, Blogger SB said...

David writes: "Driving the getaway car is a crime. Telling your friends that there is nothing wrong with robbing a bank and pointing out that a particular bank has very weak security, which is more than the equivalent of what Trump did, isn't."

Actually, I wasn't trying to make a close analogy between driving the getaway car and what Trump did on (and leading up to) Jan. 6; I was questioning your statement “he is not legally responsible, since everything he did that contributed to it was something he had a legal right to do”. The getaway-car driver, too, is doing things (s)he has a legal right to do, but in service of a crime, which makes it criminal. If a President were to pardon somebody in exchange for money, the pardon would be within the President's legal rights but would still constitute bribery. If he were to pardon somebody in order to prevent that person from testifying against him, the pardon would be within his legal rights but would still constitute criminal witness-tampering. Right?

 
At 5:51 AM, January 20, 2021, Blogger SB said...

I do think it’s a stretch to say that Trump’s statements at the Jan. 6 rally, or on Twitter in the preceding weeks and months, “could be read as ‘have a peaceful demonstration, then primary Republicans who voted the wrong way.’”

I’m looking at a transcript of his hour-long rally speech, and it includes the word “peace” ONCE. By contrast, the word “fight” appears 21 times, “fraud” 22 times, “illegal” 23 times, etc. There are lots of phrases like “never give up”, “never concede”, “won’t take it any more”, “fight much harder”, “somebody in there that should not be there and our country will be destroyed and we’re not going to stand for that.” “You will have an illegitimate president. That’s what you’ll have. And we can’t let that happen.”

There’s a strong suggestion that acts that might be viewed, on their face, as illegal are actually justified: "Let’s say you don’t do it. Somebody says, ‘Well, we have to obey the Constitution.’ And you are, because you’re protecting our country and you’re protecting the Constitution.... When you catch somebody in a fraud, you’re allowed to go by very different rules." All in all, I don't think there's any doubt that Trump was trying to whip up a crowd into a self-righteous, violent fury before sending them "down Pennsylvania Avenue" to the Capitol. Precisely what they should do when they got there, he didn't say, but it was going to be violent, and it was going to target Mike Pence and members of Congress.

 
At 5:04 PM, January 24, 2021, Anonymous Anonymous said...

One riot, the one person killed was incited to charge the cops by D party muscle on CNN, D party media. Bad, but not 600+ riots burning out poors to immiserate the voters because miserable voters are more likely to vote out the incumbent.

 
At 1:14 PM, January 25, 2021, Anonymous Anonymous said...

Except that one riot was a genuine expression of popular discontent, unlike the 600+ AstroTurfed ones. Thus, it actually represents a threat to the establishment.

 
At 4:39 AM, February 10, 2021, Anonymous Anonymous said...

So if I'm following along, burning neighborhoods down that are filled with poor minorities, killing hundreds is "mostly peaceful," therefore okay, but invading the Holy Place of the wealthy and powerful and killing three people is "insurrection," even though there was approximately zero chance of overthrowing anyone.

It is abundantly clear that there is one law for the Inside the Beltway crowd, and quite another law for the rest of us.

And yet there are people who are astonished at my cynicism regarding all things Federal.

 

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