Monday, February 15, 2021

Mitch McConnell, the Impeachment, and the Republican Fissure

Mitch McConnell, the Minority Whip in the current session of Congress, given as Donald Trump's ongoing refusal to acknowledge his defeat and the following January 6 insurrection brought the Democrats into power through the Georgia runoffs, issued, this extraordinary statement following the impeachment vote on January 13.  

You must keep in mind here that McConnell voted "not guilty" on the charges against Donald Trump.

January 6th was a disgrace.

American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like.                           

Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President.

They did this because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he’d lost an election.

Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty.

The House accused the former President of, quote, ‘incitement.’ That is a specific term from the criminal law.

Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day.

The people who stormed this building believed they were acting on the wishes and instructions of their President.

And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.

The issue is not only the President’s intemperate language on January 6th.

It is not just his endorsement of remarks in which an associate urged ‘trial by combat.’

It was also the entire manufactured atmosphere of looming catastrophe; the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-President.

I defended the President’s right to bring any complaints to our legal system. The legal system spoke. The Electoral College spoke. As I stood up and said clearly at the time, the election was settled.

But that reality just opened a new chapter of even wilder and more unfounded claims.

The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.

Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally.

This was different.

This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.

The unconscionable behavior did not end when the violence began.

Whatever our ex-President claims he thought might happen that day… whatever reaction he says he meant to produce… by that afternoon, he was watching the same live television as the rest of the world.

A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.

It was obvious that only President Trump could end this.

Former aides publicly begged him to do so. Loyal allies frantically called the Administration.

But the President did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.

Instead, according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!

Even after it was clear to any reasonable observer that Vice President Pence was in danger… even as the mob carrying Trump banners was beating cops and breaching perimeters… the President sent a further tweet attacking his Vice President.

Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.

Later, even when the President did halfheartedly begin calling for peace, he did not call right away for the riot to end. He did not tell the mob to depart until even later.

And even then, with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.

In recent weeks, our ex-President’s associates have tried to use the 74 million Americans who voted to re-elect him as a kind of human shield against criticism.

Anyone who decries his awful behavior is accused of insulting millions of voters.

That is an absurd deflection.

74 million Americans did not invade the Capitol. Several hundred rioters did.

And 74 million Americans did not engineer the campaign of disinformation and rage that provoked it.

One person did.

I have made my view of this episode very plain.

But our system of government gave the Senate a specific task. The Constitution gives us a particular role.

This body is not invited to act as the nation’s overarching moral tribunal.

We are not free to work backward from whether the accused party might personally deserve some kind of punishment.

Justice Joseph Story was our nation’s first great constitutional scholar. As he explained nearly 200 years ago, the process of impeachment and conviction is a narrow tool for a narrow purpose.

Story explained this limited tool exists to “secure the state against gross official misdemeanors.” That is, to protect the country from government officers.

If President Trump were still in office, I would have carefully considered whether the House managers proved their specific charge.

By the strict criminal standard, the President’s speech probably was not incitement.

However, in the context of impeachment, the Senate might have decided this was acceptable shorthand for the reckless actions that preceded the riot.

But in this case, that question is moot. Because former President Trump is constitutionally not eligible for conviction.

There is no doubt this is a very close question. Donald Trump was the President when the House voted, though not when the House chose to deliver the papers.

Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion.

But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted. The President, Vice President, and civil officers.

We have no power to convict and disqualify a former officeholder who is now a private citizen.

Here is Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Now, everyone basically agrees that the second half of that sentence exhausts the legitimate grounds for conviction.

The debates around the Constitution’s framing make that clear. Congress cannot convict for reasons besides those.

It therefore follows that the list of persons in that same sentence is also exhaustive. There is no reason why one list would be exhaustive but the other would not.

Article II, Section 4 must limit both why impeachment and conviction can occur… and to whom.

If this provision does not limit the impeachment and conviction powers, then it has no limits at all.

The House’s ‘sole power of Impeachment’ and the Senate’s ‘sole Power to try all Impeachments’ would create an unlimited circular logic, empowering Congress to ban any private citizen from federal office.

This is an incredible claim. But it is the argument the House Managers seemed to make. One Manager said the House and Senate have ‘absolute, unqualified… jurisdictional power.’

That was very honest. Because there is no limiting principle in the constitutional text that would empower the Senate to convict former officers that would not also let them convict and disqualify any private citizen.

An absurd end result to which no one subscribes.

Article II, Section 4 must have force. It tells us the President, Vice President, and civil officers may be impeached and convicted. Donald Trump is no longer the president.

Likewise, the provision states that officers subject to impeachment and conviction ‘shall be removed from Office’ if convicted.

Shall.

As Justice Story explained, ‘the Senate, [upon] conviction, [is] bound, in all cases, to enter a judgment of removal from office.’ Removal is mandatory upon conviction.

Clearly, he explained, that mandatory sentence cannot be applied to somebody who has left office.

The entire process revolves around removal. If removal becomes impossible, conviction becomes insensible.

In one light, it certainly does seem counterintuitive that an officeholder can elude Senate conviction by resignation or expiration of term.

But this just underscores that impeachment was never meant to be the final forum for American justice.

Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.

Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were “still liable to be tried and punished in the ordinary tribunals of justice.”

We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.

I believe the Senate was right not to grab power the Constitution does not give us

And the Senate was right not to entertain some light-speed sham process to try to outrun the loss of jurisdiction.

It took both sides more than a week just to produce their pre-trial briefs. Speaker Pelosi’s own scheduling decisions conceded what President Biden publicly confirmed: A Senate verdict before Inauguration Day was never possible.

This has been a dispiriting time. But the Senate has done our duty. The framers’ firewall held up again.

On January 6th, we returned to our posts and certified the election, uncowed.

And since then, we resisted the clamor to defy our own constitutional guardrails in hot pursuit of a particular outcome.

We refused to continue a cycle of recklessness by straining our own constitutional boundaries in response.

The Senate’s decision does not condone anything that happened on or before that terrible day.

It simply shows that Senators did what the former President failed to do:

We put our constitutional duty first.

Most, but not all, Democrats have reacted with disdain for McConnell's remarks, and not without some justification.  Trump's impeachment trial could have occurred when he was still in office, contrary to what McConnell has asserted, but it would have required McConnell to bring the Senate back into session.  It would have also required the Senate to put together rules for impeachment, and the like, which would have been difficult, to say the least, for  a body that doesn't move quickly and which is mostly made up of older people. The late, if you will, delivery of the Articles of Impeachment has been regarded as a  pure political move by McConnell in some quarters, and there's merit to that view.  In effect, McConnell may have orchestrated events so that Trump would be impeached after he left office, saving Republicans from really having to throw in in for, or against, the President.

It's clear that McConnell detests Trump, and apparently he has all along.  He's used Trump, as the GOP did, and now that's a problem he's trying desperately to deal with.

McConnell has now declared is that Donald Trump's actions were in fact impeachable offenses, but you can't impeach somebody who isn't in office.  That's the sole reason that he was voting against conviction, he claims.  Having orchestrated a late impeachment trial, perhaps, relying on it being late may be hypocritical, or not.  It's certainly problematic, however.

This doesn't mean that the argument that you can't impeach somebody who has left office is wrong.  I frankly think he's correct on that.  This impeachment trial came down to an argument on that point, and it seems most scholars disagree, but as a textualist, I can't see how this provision of the constitution can be stretched to mean anything else.  Indeed, at least some of those seeking to stretch it are doing so by noting that as impeachment is political, it's solely the Senate that decides what it means.

That argument, I feel, is completely erroneous.  Armchair legal scholars may believe that because there's no "appeal" to the United States Supreme Court from impeachments, that there's no way to take the question to court. There is.  That would have required a petition for a special writ to the court, which the court may have declined, but it might not have. And had that gone to the United States Supreme Court, which is where such a petition would go, my guess is that the court, probably on a five to four basis, would have held that the text doesn't allow for impeachment of private citizens.

None of which gets McConnell off the hook here, or even close to being off the hook.

I've already noted here that there's something really, really desperate going on inside the GOP, and all this plays out in that background.  And here's where McConnell, routinely argued to be a master political strategist, and indeed, somebody who really seems to be one, has made a critical error.

I think he knows that too.  Indeed, I'm certain that he does.

Which is in part why his speech is frankly brilliant, but also why it will have very little impact.

The insurrection on January 6 was a Trump loyalist deal.  Not every Trump loyalist, obviously, but McConnell is 100% correct on what occurred and how it came about.  The election was not stolen.  Starting well before the election Donald Trump plotted to take the Oval Office by judicial storm if he lost.  Faced with states going over to mail in balloting and guessing correctly, maybe, what that meant for his chances, he started a campaign against it, and indeed he may have used his office to directly attempt to impede it.  The Atlantic, pretty much the last great remaining opinion journal in the United States, completely predicted what Trump would attempt to the last letter, and before the election had occurred.

As McConnell notes, not only did Trump attempt this, but he lied to his base and the country at large about having won, and he gave tacit and even overt support, through his statements to radicals who were willing to use force to keep him in office, believing as he did that his loss of power was either impossible and therefore due to some nepharious conspiracy, or that any vote for Biden was philosophically invalid.  It all seemed so unlikely that it just wasn't possible, but it was.

And we now know that even after the insurrection had started Trump didn't seek to intervene at first, and even gave tacit support to the insurrectionist.

So why did McConnell delay and what now, and does it matter?

Answering the last question first, it really does. This is now a full scale Republican disaster.

McConnell may have delayed, ever the tactician, as he is fully aware that over the past four years the Republican Party brought in large numbers of disaffected blue collar and disaffected middle American voters who idealize Trump and hugely credit them. These people were not in the party before. Their presence changed the party massively, however, which was never the intent.  A good example of this is the  Wyoming GOP.  Four years ago, it was a uniquely Wyoming conservative party that often took unique stands.  There were hard right members in office from it, but few.  Now the party itself has gone completely over to the Trump wing of the GOP and has moved from center right libertarian to the hard alt right.  When it censured Elizabeth Cheney for voting to impeach, it asserted that Antifa and BLM had been involved in bringing about the insurrection, which is simply untrue. But now this wing of the party, which didn't even exist four years ago, is running the local party.  And not just here, but in many places.

But the old established party, which ironically Lummis, Barrasso and Cheney are all from, still exists.  Cheney had the courage of her convictions and has been receiving criticism.  Lummis, likely angling for a position in a hoped for Ted Cruz Administration, is tacking to the Trump wing of the party.  Barrasso is too.  Cruz, of course, is fishing for the Trumpites in what is likely a highly cynical attempt to get their support for 2024 when he'll run again for President.  He has no choice as he'll lose that year if he runs again against O'Rourke.

In the meantime, it's now the case that traditional Republicans are abandoning the GOP in droves.  Some would say "where will they go" cynically, feeling that as the GOP is the conservative party they have no other home.  But a lot of them are going into the Democratic Party.  

That may seem counterintuitive, but it should be remembered that regionally there were highly conservative Democrats up into the 1990s . The Democratic Party in the American South was more conservative than any other political party in the United States from the 1930s through the 1960s.  The Democratic Party in the West, including Wyoming, was full of conservatives. Today there are at least two major Republican figures in Wyoming who are regarded as extremely conservative who were Democrats all the way into the late 1990s, if not the 2000s.

The Democratic Party itself started to lose this feature when Reagan intentionally angled for the conservatives in the Democratic Party who were disaffected with it.  It was a singularly effective strategy that held all the way up until January 6, 2021. It then started to crack apart, and the first crack became a fissure in Georgia.

It's perfectly possible that many leaving the GOP now will register, tentatively, as Democrats.at first.  They won't like everything in the party, but they'll start to influence it quickly.  

Moreover, the assault on January 6 likely had the impact of permanently impacting the views of some of those voters.  Urban Republicans who are fiscal conservatives but who went along with the party on matters like gun control because they were fiscal conservatives have likely reassessed their view following January 6. I'd be surprised if on the national scale feelings on that issue haven't moved enormously over the past month.

Indeed, it's really the social issues, such as matters regarding abortion, general issues, and "wokeness" that have kept a lot of conservatives in the GOP.  And they still might.  But for lots of traditional Republicans a new issue has been added, and that's support for democracy.   And that, for many of them, will be the defining issue.  They'll feel that they can take their values into the Democratic Party and dissent there, in a party that right now stands for the rule of law, or as independents, rather than remain in a party which seems welded to, in the words of Ben Sasse, "one dude".

Indeed, it's likely that McConnell, by delaying, missed his chance.  Had he taken up the impeachment immediately and whipped his party, as Majority Leader, towards impeachment, there'd be howls of Trumpite protest, but the Trumpites would likely have been broken as a force.  It seems, rather, that delay has cemented them in place.  Trump is now angling for a 2024 run.  Lots of local parties are in full denial that anything blameworthy occurred on January 6.

So now what?

On the cover of the Sunday Trib, the paper noted that Wyoming's delegation had "diminished" influence.  Both Senators criticized the impeachment process, Lummis most strongly.  Lummis complained that the Senate was engaged in the impeachment trial as a sideshow, and not focusing on issues that matter to Wyoming.

Diminished influence?  How about no influence whatsoever?

The Democrats are the majority party and control both houses.  Republicans are leaving the GOP in floods.  By 2022 chances are this disarray will not have been repaired and the party will go into the election highly divided, and maybe divided in fact.  Its the Democrats who will benefit from that.  With a party that's splitting apart as their opposition, why would the Democrats care at all what the Republicans wish for, let alone what Republicans in Wyoming think?

The back story, moreover, is that the Democratic Party in 2022, and 2024, is likely to be more conservative than it is now.  That may be the start of a subtle change. The Democratic Party has shown in the past the ability to modify its stance on issues when it feels there's an advantage to doing so, which the Republicans right now aren't showing at all.  A good example of that is gun control, which the Democrats have intentionally not pushed for decades.  As this is about to come up soon, we'll soon see where the part is on this now.  More than one Democratic figure this past election suggested that the party's position on abortion really ought to be abandoned.  Will there be room to contest abortion within the Democratic Party?  Right now there isn't, but we'll see if it wakes up to opportunity and goes back to a "freedom of conscience" position it had at one time.

And truth be known, while social conservatives have lots of issues with the Democrats, now that they've taken a beating from their own party through its fanatic allegiance to a single person, they're likely to simply shelve some of them in order to retain the remainder.  A good example of this, once again, are the Southern Democrats. They never liked desegregation but they got over it pretty quickly when it became an unsustainable position in order to retain their other values, like them or not.  For that matter, the Republican Party got over isolationism pretty quickly following the fall of China in 1947.  Deeply held convictions are hard to but on back burners, and for good reasons, but then social conservatives who are moderate on other matters are undoubtedly highly uncomfortable with their fellow travelers right now.

And indeed, this problem has existed, and in both parties, for a long time.  There's no real reason to believe that dedicated opponents of abortion aren't also environmentalists, or diehard opponents of the death penalty.  Indeed, quite a few abortion opponents are indeed opposed to the death penalty. And its a safe bet that a lot of urban women who march in opposition to abortion are sympathetic to gun control.  Wyoming Republicans who have sided with the "Stop the Steal" assertions of the Trump wing of the party may be staunchly on the right wing side of every issue, but frankly average Wyomingites are not, and if this is true in the most "pro Trump" state in the union (a claim which I have my doubts about), it's true everywhere.  The GOP's Trump wing right now feels its vindicated and "right", but my suspicion its moment in the sun is over.

All of which is to say this.  Mitch McConnell is the real head of the Republican Party.  Donald Trump  remains the leader of the Trumpite wing and an internal wrecker.  Figures like Ted Cruz are so focused on their ambitions they're willing to allow the wrecking to continue as they don't realize that it will wreck the party itself.  Lots of Senators, like Lummis and Barrasso, are sitting on the fence as they know that if they go with reality they'll also face a big backlash at home.  Back at home the Trump wing of the party is listening only to itself and convinced what its telling itself is correct, and that everyone who is right thinking agrees with them.

But nationwide, they don't.  If this keeps up, by 2022, there will be hundreds of thousands fewer Republicans, assuming the party survives, and it's position will be cemented in the extreme right, which will be distasteful not only to Democrats, but also to Independents.  2022 will see Democratic gains.  The 2024 election will be the one that Republicans really feared, the one in which a real liberal gains the White House.

McConnell has on his plate trying to prevent that.  If he does, he'll be regarded as one of the greatest political tacticians of all time.





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