Impeachment: A Third View

Contents

Executive Summary
Presidential Oath
Summary of Trial Lawyers' Arguments
Minority Leader McConnell's Reaction
The Article in 2nd Impeachment
Reaction to Articles in 1st Impeachment
Was Speech Text "Incitement"?
The Speech in Context
What Was Trump's Impeachable Offense?

Executive Summary
Many "Articles of Impeachment" of presidents itemize a specific act or two, e.g., Trump's first impeachment, pressure on Ukraine government; Trump's second, his Jan. 6 speech. This blog post endeavors to build a case for a preeminent Article when a president's actions, whether with intent or effect, constitute an attack on democracy itself, as embodied in the Columns of Democracy, i.e., the essential foundational institutions that support and make possible our democracy, e.g., the peaceful transfer of power after inclusive, free and fair elections, or a respected, free and factual mass media.

[here are adjacent examples of both from Trump's Jan. 16 speech: "[O]ur election was so corrupt that in the history of this country we've never seen anything like it. And you know what else? We don't have a free and fair press. Our media is not free, it's not fair. . . . It's become the enemy of the people." Brian Naylor, "Read Trump's Jan. 6, Speech, A Key Part of Impeachment Trial," npr, Feb. 10, 2021, text and video https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial].

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"I do solemnly swear (or affirm) that I will faithfully execute the Office of President f the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

U.S. Constitution, Art. II, Sec. 1, Clause 8

Introduction

President Trump's lawyers -- and supporters in and out of the House and Senate -- argue he should not be found to have engaged in "high crimes and misdemeanors" because (a) his January 6 Ellipse speech did not "incite" the violence that followed, (b) it is unconstitutional for the Senate to hold an impeachment trial of a former president whose term has expired (he cannot, by definition, be "removed" from an office he no longer holds), (c) Senate rules require separate charges be in separate Articles, (d) it would violate his First Amendment rights to punish or forbid such a speech, and (e) it would be further divisive of an American population desperately in need of unity.

Following the Senate Trial vote Feb. 13, Minority Leader Mitch McConnell spoke. He first excoriated former President Trump and his behavior, and then explained his "not guilty" vote, citing Constitution Article II, Sec. 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." McConnell argued that to convict Trump he would have to be, at the time of the conviction, "president," which he was not; it would also be impossible for him to "be removed from Office."

The House impeachment managers, with Representative Jamie Raskin as lead manager, argue that (a) Trump did incite the crowd to storm the Capitol (4 years of telling his "big lie" -- "landslide" "stolen" election victory -- statements; selection of place, date and time of Congress' certifying electoral votes; his support of prior crowd violence; refusal to order support for Capitol police or tell insurgents to stop; and statements of participants that they were following Trump's orders), (b) a Senate trial of an impeached former president no longer in office is constitutional (language of Constitution, English practice that influenced drafters, their remarks, majority of legal scholars), (c) First Amendment does not protect speech triggering seditious insurrection, (d) for the Senate not to convict would set a precedent for future presidents, and (e) accountability (of Trump) was essential to putting this behind us (thus, presumably, contributing to unity).

Something like that.

As a former U.S. Supreme Court law clerk, law professor, and occasional constitutional law prof, I was overwhelmed with the creativity, quality, effectiveness and delivery of Rep. Jamie Raskin and the other House Managers. (Full disclosure: I had shared some undertakings with his late father, Marc; my first memory of Jaimie was watching his participation as a child in a White House demonstration.) I could not have done it as well as they did. I have no suggestions as to how they could have done it better, and certainly no "criticisms."

Thus, what follows is not about their presentation of the House's Article (by which they were to some extent bound), but some reactions to the theory and wording of that Article.

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A Third View
The Article of Impeachment, "Incitement of Insurrection," [H.Res. 24, 117th Cong., https://www.congress.gov/bill/117th-congress/house-resolution/24/text] consists of five paragraphs.

Following the title ("Incitement of Insurrection") the first paragraph contains the allegation that, "Trump engaged in high Crimes and Misdemeanors by inciting violence."

The second paragraph mentions the House and Senate Joint Session "to count the votes of the Electoral College" and Trump's "statements that, in context, encouraged -- and foreseeably resulted in -- lawless action at the Capitol."

The two-sentence third paragraph refers to Trump's "prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election," and his "phone call on January 2, 2021, [to] the secretary of state of Georgia."

The fourth paragraph reads in its entirety, "In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States."

The concluding, fifth paragraph asserts that "he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law."

My reaction to this text is similar to my reaction to Article I in Trump's first impeachment [Articles of Impeachment Against Donald John Trump, H.Res.755 — 116th Congress, Dec. 18, 2019], emphasizing his interactions with the Ukrainian government:

What the House Democrats should have emphasized for a confused public (and Republican Senate), is why Trump's impeachment, and Senate conviction, should be a slam dunk. It is because, unlike other behavior that has, or has not, been found to be impeachable during the 62 impeachment hearings in the House since 1789, what Trump has been doing is something the drafters had experienced, caused them great legitimate concern, and they specifically tried to prevent: namely, foreign interference in our politics, government, and especially elections, whether sought from within or imposed from abroad.

"Impeachment: What the House Should Have Said; Trump's Conviction Should Have Been A Slam Dunk," FromDC2Iowa, Jan. 21, 2020, https://fromdc2iowa.blogspot.com/2020/01/impeachment-what-house-should-have-said.html.

(See also, "Understanding Impeachment," FromDC2Iowa, Nov. 11, 2019, https://fromdc2iowa.blogspot.com/2019/11/understanding-impeachment.html; and Articles of Impeachment Against Donald John Trump, H.Res.755 — 116th Congress, Dec. 18, 2019, [https://www.congress.gov/bill/116th-congress/house-resolution/755/text], Article I: Abuse of Power/"President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection . . . Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.")

Article I is headed, "Incitement of Insurrection." The first paragraph charges "Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States." The second paragraph asserts, "Shortly before the Joint Session commenced, President Trump, addressed a crowd [where he] willfully made statements that . . . encouraged -- and foreseeably resulted in -- lawless action at the Capitol."

Taken out of its context, it is difficult to find within the text of Trump's Jan. 6 11,153-word, hour-plus speech an "incitement of insurrection." [Brian Naylor, "Read Trump's Jan. 6, Speech, A Key Part of Impeachment Trial," npr, Feb. 10, 2021, text and video https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.] He did not suggest the mob hang the Vice President and shoot the Speaker of the House, attack the Capitol police, leave bombs at the DNC and RNC headquarters, break windows and bang on doors, or other of the horrific things that happened. What did he recommend be done with senators and House members who do not support him? "You primary them." What else did he say? "[W]e're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women;" "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."

In context, however, the January 6 speech was but part of a year-long chain of "incitements" for which it was the last; without those early links Trump's speech might never have produced the disaster it did.

There were lines and phrases in the Article that hinted at some of the links in that chain. The House Managers did their best to include them in their story, but such efforts did little to establish that Trump's January 6 speech, standing alone, constituted "incitement of insurrection."

Here are some examples:

• "President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people . . .."


• "he reiterated false claims that 'we won this election, and we won it by a landslide.'”


• "President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.


• Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia . . .."


• "President Trump gravely endangered the . . . institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power . . .."


• "Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution"

The common theme in Trump's behavior was the design of a no-lose strategy; a desire to hang onto the presidency come what may. If he received the most electoral votes he would win. If he did not he had a number of potential paths to retained power. He tried them all. For months prior to the election he repeatedly fed his base the lie that American elections are "fraudulent" and "rigged." Mail-in ballots were not to be trusted. He argued that he would, of course, have the support of the majority of voters, and that, therefore, if he was not proclaimed the winner the results were obviously dishonest. Election night, early returns sometimes went his way. Later, as the mail-in ballot returns came in and the lead shifted, Trump insisted that was proof the election had been stolen from him. When recounts only confirmed his loss, his next step was to file lawsuits challenging the vote. He lost 61 of them. He then turned to speaking directly to electors, county auditors, state secretaries of state, legislators and governors in an effort to get them to change their state's electoral vote count. By late December he was becoming desperate. His last hope was to reverse, stop, or delay the congressional certification of the states' electoral college votes.

That is the context. That was the playing out of his scheme. The Jan. 6 speech, and the insurrection by a mob he had brought to anger over months, was not his initial desire. Stopping the final certification of the Electoral College vote was his last chance. It was only the last domino to fall at the end of a months' long chain.

In other words, the gravamen of Trump's impeachable "high crimes and misdemeanors" was not his speech, it was his attack on our democracy itself; in this case, our system of voting described in another part of Article II (Sec. 1, clauses 1-3), and Amendment XII, that describe the Electoral College system.

In my book, Columns of Democracy, I make the point that a democracy can be neither created, nor sustained, standing alone. It requires a foundation of supporting "columns," such as a respected free and independent media, and, in this case, a system of voting that is respected and trusted by the citizenry as inclusive, easy to use, accurate and honestly administered. Such a system makes for the smooth transfers of power that distinguish democracies from authoritarian dictatorships. Attacking that system, weakening it, threatening the voters trust in it, failing to support peaceful transfer of power -- that should be the impeachable offence.

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Democrats’ ‘Bridge Too Far’

Struggling Democrats Must Build More Bridges

Nicholas Johnson
The Gazette, Feb. 10, 2021, p. A6
Linn County Auditor Joel Miller says, “to run for statewide office may be a bridge too far if the Democratic Party cannot broaden their appeal in rural Iowa.”

He’s an optimist. The reality’s worse.

Color Iowa’s 99 counties red and blue. Six went for Joe Biden (the three with state universities, plus Linn, Polk and Scott); 93 for the former president – 94 percent.

That’s even worse than the national map: 83 percent of the nation’s counties are red; 17 percent are blue. [Photo credit: U.S. Bureau of Land Management]

Yes, I know. We don’t vote by county. Besides, half of the country’s population lives in only 143 of those counties (5 percent) – enough to make Joe Biden president.

But a political party that relies on the east coast for money and the left coast for votes is not a national party. Democrats shouldn’t be surprised to discover they’ve alienated voters in that 83 percent of U.S. counties who feel ignored and have understandably turned anti-establishment.

It doesn’t have to be this way. There was a time when it wasn’t.

An oft-told story bears repeating.

As Ken Burns tells it, “When FDR's funeral procession went by, a man collapsed; he was so overcome. A neighbor picked him up and said, 'Did you know the president?' And he responded, 'No, but he knew me.'"

Few presidents since have made that connection. President Biden has a chance.

President Franklin Roosevelt’s legacy was a Democratic Party tent sheltering those in abject poverty, the working poor, union members, small farmers, and lower middle class. Had the party nurtured that coalition instead of Wall Street, knocked on their doors and listened, it would today control most city councils and state legislatures -- plus the U.S. House, Senate and White House.

Two Texas Democratic Party officials asked me, a college student, to run for the Legislature. Stunned, I explained I was an Iowa boy, with two part time jobs, a heavy course load and knew few Austin voters.

They responded with a story of another recruit. He mumbled while talking to his shoes and asking voters, “You wouldn’t vote for me would you?”

Now understanding their standards, and decidedly less flattered, I asked, “How’d he do?”

“He won,” one replied. “He knocked on every door in Travis County – and won.” I took a pass on that opportunity.

But I remembered the lesson during the 1962 Pat Brown-Richard Nixon gubernatorial race, door knocking in an unorganized county where I knew fewer voters than I’d known in Travis County, Texas. If they were willing to door-knock I’d assign them an area and move on.

Could the Democratic National Committee find at least one experienced campaign organizer to work each of the 2500 counties now painted red? Of course. And it must if it is to be a national party representing more than 5 percent of America’s counties and 50 percent of its people, building bridges well within Joel Miller’s reach.
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Nicholas Johnson of Iowa City held three presidential appointments and is the author of Columns of Democracy. Comments: mailbox@nicholasjohnson.org

SOURCES
Joel Miller. Gage Miskimen, “Linn County Auditor Considers Run for Secretary of State,” The Gazette, Feb. 2, 2021, p. A3; https://www.thegazette.com/subject/news/linn-county-auditor-may-run-for-secretary-of-state-in-2022-20210202

Republican counties. Iowa Trump 93 Biden 6 (Black Hawk, Johnson, Linn, Polk, Scott, Story, https://www.politico.com/2020-election/results/iowa/

Republican counties U.S. “The Biden and Trump data in the posts appears to match the information reported by the Brookings Institute on Nov. 7. On Dec. 8, the think tank updated the report to say Biden had won 509 counties and Trump 2,547 counties, according to ‘unofficial results from 99% of counties.’” [Me: 509+2547=3056] https://www.reuters.com/article/uk-factcheck-votes-counties-election/fact-check-clarifying-the-comparison-between-popular-vote-and-counties-won-in-the-2020-election-idUSKBN2931UY

143 counties, half population “U.S. Census Bureau, population is not homogeneously distributed across the country. In 2017, out of a total of 3,142 counties and county equivalents more than half of the population inhabited just 143 counties. https://www.reuters.com/article/uk-factcheck-votes-counties-election/fact-check-clarifying-the-comparison-between-popular-vote-and-counties-won-in-the-2020-election-idUSKBN2931UY

“But he knew me.” Google search [“did you know" no "but he knew me"] turns up dozens of sources where quoted/told, but in sample none discovered with a citation to an acceptable academic or journalistic source. Maybe Ken Burns’ is the best for authenticity: Bob Fisher, “Ken Burns Spends 14 Hours with ‘The Roosevelts,” Documentary Magazine, Sept. 12, 2014, https://www.documentary.org/online-feature/ken-burns-spends-14-hours-roosevelts

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Governor Kim Reynolds and Involuntary Manslaughter

"A person commits involuntary manslaughter . . . when the person unintentionally causes the death of another person by the commission of an act in a manner likely to cause death or serious injury."
Source: Iowa Code, Title 16, Sec. 707.5, https://www.legis.iowa.gov/law/iowaCode

"Iowa Gov. Kim Reynolds on Friday [Feb. 5] lifted Iowa’s partial face mask mandate, public health restrictions on businesses and limits on public gatherings. . . .
Starting Sunday, the day of the Super Bowl:
• Iowans will no longer be required to wear face coverings in public when around other people for at least 15 minutes.
• Businesses will not be required to limit the number of customers or keep them socially distanced.
• No limits will be placed on the number of people who can gather in public.

Source: Erin Murphy, "Gov. Kim Reynolds lifting Iowa mask rules, limits on businesses and gatherings starting Sunday," The Gazette, Feb. 8, 2021, p. A1, https://www.thegazette.com/subject/news/health/iowa-covid-restrictions-lifted-mask-mandate-gatherings-gov-kim-reynolds-20210205

BREAKING NEWS! IT'S WORSE THAN WE THOUGHT
Can we now still say this is just a violation of the spirit behind the criminal law of involuntary manslaughter?

"Gov. Kim Reynolds did not consult her own public health department before lifting Iowa’s remaining COVID-19 mitigation strategies, including its partial face mask mandate . . .. Iowa Department of Public Health Director Kelly Garcia told the legislators the department was not consulted on the decision — that the governor made that decision on her own . . .."
For the full story see, Erin Murphy, "Gov. Reynolds did not consult state health department before lifting COVID restrictions, Iowa Democrats say," The Gazette, Feb. 9, 2021, p. A1

In some ways the most powerful evidence of the folly of her decision is that many restaurant/bar owners are, notwithstanding the voluntary reduction in their income, continuing to follow CDC standards (and common sense) rather than put the health of their customers, and other members of their communities, at dangerous risk. They are sending Governor Reynolds a sort of "Thanks, but no thanks."
"Christina and Mitch Springman, owners of The Map Room . . . in Cedar Rapids, said their employees’ health is at the core of their decision-making and they will keep their pandemic practices in place. 'They’re the ones interacting with the public. They’re the ones putting themselves at risk. . . . We expect our customers to respect our staff, and during a pandemic that means wearing a mask when within six feet and up and about.'” For the full story, see Gage Miskimen and Lee Hermiston, "Many Linn and Johnson County restaurants will practice COVID safety despite looser restrictions; Dozens of businesses have shared their plans on social media about maintaining mask rules and social distancing," The Gazette, Feb. 9, 2021, p. A1.

--------------- When it comes to managing this coronavirus global pandemic during 2020 the U.S. was one of the worst countries on Earth. With 4 percent of the world's population (328.2/7674 million) we managed to kill 20 (19.9) percent (459,895/2,303,322) of the world's COVID dead.

And among the U.S. states, Iowa is one of the worst for coronavirus deaths per 100,000 population (17th from the bottom) [Becker's Hospital Review, Feb. 5, https://www.beckershospitalreview.com/public-health/us-coronavirus-deaths-by-state-july-1.html]. Iowa's comparative ability to administer the vaccines it has received is even worse (at 59.26 percent it's 15th from the bottom of all states [Becker's Hospital Review, Feb. 5, https://www.beckershospitalreview.com/public-health/states-ranked-by-percentage-of-covid-19-vaccines-administered.html]. Oh, and let's not forget that Iowa's percentage of those tested that are positive ranges between 20 and 30+ percent -- compared with New York's earlier standard that schools would not reopen until the percent positive dropped below 3 percent -- and that it now has people who have tested positive for a varient of the virus that may not be stopped by current vaccines. And that our governor wants to make teachers and students go back to school, based on the CDC's statement that it's safe -- but without mentioning the CDC's conditions (masks, social distancing, improved ventilation, vaccines) which have been neither funded nor otherwise made available.

To repeal all of the mandates and suggestions from the Centers for Disease Control regarding control of this virus so that Iowans can gather together to watch the Super Bowl game, while infecting each other, may or may not prove to be good politics when she runs for reelection less than two years from now. But it will certainly leave her with fewer constituents.

The Iowa Code chapter dealing with "Homicide and Related Crimes" does not require that the defendant intended to kill a specific, named individual -- or unknown people in general in a mass shooting. It also deals with defendants who were engaged in behavior that they knew, or should have known, might result in the death of others. Whether what Governor Reynolds has just done violates the letter of Code Section 707 provisions I will leave to Iowa's criminal law attorneys and judges. Clearly (to me) it violates the spirit of these "right to adult life" protections.

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P.S. If you'd like to see the fabulous Janet Schlapkohl playing the role of Governor Reynolds explaining her decision, look for the video she posted on Feb. 6, 2021, at about 10:00 a.m., on her Facebook page: https://www.facebook.com/janet.schlapkohl