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Thread: Impeachment 2: Impeach Harder

  1. #1

    Default Impeachment 2: Impeach Harder

    News Story:
    WASHINGTON — The House impeachment managers on Tuesday laid out their case against Donald J. Trump, asserting that he was “singularly responsible” for the deadly assault on the Capitol last month and must be convicted and barred from holding public office.

    In an 80-page brief filed on Tuesday, the managers outlined the arguments they planned to make when the Senate opens Mr. Trump’s trial next week, contending that the former president whipped his supporters into a “frenzy” as part of a concerted campaign to cling to power. Spinning a vivid narrative of a harrowing day when lawmakers were forced to flee as a violent pro-Trump mob breached the Capitol, the prosecutors also reached back centuries to bolster their case, invoking George Washington and the Constitutional Convention.


    “The framers of the Constitution feared a president who would corrupt his office by sparing ‘no efforts or means whatever to get himself re-elected,’” wrote the nine House Democrats, led by Representative Jamie Raskin of Maryland, quoting directly from the 1787 debate in Philadelphia. “If provoking an insurrectionary riot against a joint session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”


    In Mr. Trump’s own shorter filing, specked with typos and stripped of the former president’s usual bombast, his lawyers flatly denied that he had incited the attack and repeatedly argued that the Senate “lacks jurisdiction” to try a former president. They repeatedly urged an immediate dismissal of the single charge against him, “incitement of insurrection.”


    “The Senate of the United States lacks jurisdiction over the 45th president because he holds no public office from which he can be removed, rendering the article of impeachment moot and a non-justiciable question,” the lawyers, Bruce L. Castor Jr. and David Schoen, wrote in their 14-page response to the charge.


    Their other broad argument was that Mr. Trump’s remarks on Jan. 6 and in the weeks before were constitutionally protected. While they did not argue explicitly that Mr. Trump had won the 2020 election, as some said he wanted his legal team to do, the lawyers sought to shroud his false claims of widespread voter fraud in free-speech arguments.


    They effectively argued that Mr. Trump believed he “won it by a landslide,” and therefore was within his First Amendment rights to “express his belief that the election results were suspect.” His claims could not be disproved, they added, because there was “insufficient evidence.”


    President Biden won the election by about seven million votes, according to results certified by every state. Dozens of cases Mr. Trump brought alleging voting fraud or improprieties were tossed out or decided against him, many times by Republican-appointed judges, for lack of evidence.


    The impeachment filings provided the clearest preview yet of the legal strategies that are likely to shape a politically fraught impeachment trial of Mr. Trump — his second in just over a year — that is scheduled to begin in earnest in the Senate on Tuesday. They indicated that both sides expected drawn-out debates over the constitutionality of a trial, as much as Mr. Trump’s culpability for what took place.


    Despite their initial criticisms, a majority of Republican senators now appear to be lining up once again to acquit Mr. Trump. But the arguments could determine the difference between a near-party-line verdict like the one that capped the former president’s first trial in 2020 or a more bipartisan rebuke that could constrain any future political ambition he harbors.


    Though senators have yet to agree to a final set of rules to govern the proceeding, both parties appear to share an interest in an exceedingly swift trial, without new witnesses or fact-finding, that could conclude as soon as Saturday, Feb. 13. That would be far shorter than any presidential impeachment trial in history. But Republicans are eager to turn a page on a divisive former president, and Democrats are impatient to turn to advancing the agenda of the current one.


    If Mr. Trump’s lawyers were trying to reassure Republican senators that they could dismiss the case without confronting its merits, the House managers were aiming instead to force them to confront the terror of the Capitol riot with an unusually visceral prosecution. They have compiled hours of footage from Parler, Twitter and elsewhere that they plan to play from the well of the Senate next week to compel Republicans to face Mr. Trump’s conduct head on, rather than retreating behind arguments around the process.


    The approach was evident in their legal brief, which was more dramatic in parts than a typical courtroom filing. It follows Mr. Trump from his early-summer warnings about a “rigged” election up to his last, futile attempts to target Congress’s Jan. 6 counting session to snatch victory away from President Biden.


    All the while, the managers argued, Mr. Trump was issuing a “call to mobilize” to his supporters to “stop the steal.” He invited them to come to Washington in early January. Then used a speech on the Ellipse outside the White House just before the attack to urge them to “fight like hell” and march to the Capitol to confront members of Congress and Vice President Mike Pence.


    The calls incited the mob to action, they argued, citing videos posted on social media in which supporters of Mr. Trump can be heard yelling “invade the Capitol building” after he urges them to “show strength.”


    “He summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue,” the managers wrote.


    Unlike the first impeachment case against Mr. Trump, which centered on his pressure campaign on Ukraine, this one has bipartisan support and the prosecutors appear poised to make frequent use of Republicans’ own criticisms of Mr. Trump. Their brief quoted Representative Liz Cheney of Wyoming, one of 10 House Republicans who voted to impeach, as well as Senator Mitch McConnell of Kentucky, the minority leader, who said publicly that Mr. Trump “provoked” the mob.


    In making constitutional arguments in favor of Mr. Trump’s conviction, though, they reached hundreds of years further back, arguing that Mr. Trump had not only prompted violence but threatened the tradition of the peaceful transfer of power begun by Washington. They also cited debates by the founders about who would be subject to impeachment and when, as well as a 19th-century impeachment trial of a former war secretary, to assert that the Senate clearly had a right to try Mr. Trump even after he left office.


    “There is no ‘January exception’ to impeachment or any other provision of the Constitution,” the managers wrote. “A president must answer comprehensively for his conduct in office from his first day in office through his last.”


    They also insisted that the First Amendment right to free speech could not shield Mr. Trump from responsibility for inciting violence that would seek to do harm to the Constitution, undermining all the rights enshrined there, including free speech.


    The president’s filing was narrower by design, with a lengthier, more detailed brief due from his lawyers early next week. Still, the contours of their defense were becoming clear.


    The lawyers said Democrats had misinterpreted Mr. Trump’s actions and his intent, denying that he was responsible for the Capitol riot or that he intended to interfere with Congress’s formalizing of Mr. Biden’s win. They said his words to supporters on Jan. 6 — “if you don’t fight like hell, you’re not going to have a country anymore” — were not meant as a call to violent action, but were “about the need to fight for election security in general.”


    “It is denied that President Trump incited the crowd to engage in destructive behavior,” they wrote. In another section, they denied that Mr. Trump had “threatened” Georgia’s Republican secretary of state or “acted improperly” when he demanded during a January phone call that the official “find” the votes needed to overturn his loss in that state and vaguely warned of a “criminal offense.”


    The lawyers reprised an argument against the constitutionality of the trial popular with Republican senators. They asserted that a plain reading of the Constitution — which does not explicitly discuss what to do with an official impeached but not tried before he leaves office — does not permit the Senate to try a former president.


    But they also said that Mr. Trump “denies the allegation” that his claims that he won the election were false. If that argument plays a central role in the trial, Republican senators could quickly find themselves painfully wedged between a conspiracy theory they fear could do lasting damage to their party and millions of their own voters who believe it.


    Mr. Trump’s response appeared to be somewhat hastily assembled after the former president shook up his legal team just 48 hours before the brief was due; the response, for example, was addressed to the “Unites States Senate.”


    In an interview later, Mr. Schoen pointed to another potential argument that could help Mr. Trump: that at least some of the Trump supporters who stormed the Capitol planned their attack in advance, suggesting that the former president was not the inciting force.


    “I have no reason to believe anyone involved with Trump was in the know,” he said of the violence that unfolded at the Capitol. Still, he conceded the heart of the defense would lie elsewhere.
    Source


    Trial Brief

    Trump's Defense Response

    Notably:



    He didn't even get lawyers successful enough to afford a modern spellchecker. He must be really confident that the facts are on his side to have put such a miserable effort into his defense.

    ------------

    edit: After reading his response, I think my favorite aspect is how he's going with the defense that he's not responsible for what he said because he believes he won the election, and he can't be tried for it because he knows he lost the election.
    Last edited by Wraith; 02-03-2021 at 06:18 AM.

  2. #2
    He might have a point on the suitability or constitutionality of an impeachment trial after he has already left office. But the trial is going ahead and other than that he really hasn't got a leg to stand on.
    Quote Originally Posted by Ominous Gamer View Post
    ℬeing upset is understandable, but be upset at yourself for poor planning, not at the world by acting like a spoiled bitch during an interview.

  3. #3
    Senior Member Flixy's Avatar
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    Quote Originally Posted by RandBlade View Post
    He might have a point on the suitability or constitutionality of an impeachment trial after he has already left office. But the trial is going ahead and other than that he really hasn't got a leg to stand on.
    There's precedent, right?
    Keep on keepin' the beat alive!

  4. #4
    Quote Originally Posted by RandBlade View Post
    He might have a point on the suitability or constitutionality of an impeachment trial after he has already left office. But the trial is going ahead and other than that he really hasn't got a leg to stand on.
    It'll be a travesty if that defense works, but it's really the only one with any chance of working. If it does somehow work, then in any sane world that would imply that presidential immunity reaches an absolute end the moment the term is up, since there is no mechanism to strip it from him if you can't impeach a president after they've left office. In any sane world.

    I don't think it's an argument that should be allowed to work in Congress. If it's a valid one, then the only place to argue it would be in the place that has the sole power over matters of Constitutional interpretation: the Supreme Court. If it were tried there, and the R-appointed Judges didn't bend the knee, then I'm pretty confident the appeal would be ignored or decided against. Putting aside that we've already had a senatorial vote that decided that this was valid (historically, not Rand Paul's point of order), there's just too much stuff in the US government that would start to fall apart if it weren't valid. There are laws and rules around impeachment that would create a Kafkaesque scenario where anything the Senate does would break some rule or law, even if they do nothing. Worse, it would create a legal hole that the Executive branch could abuse to end any checks and balances against them.

    Relevant Text:
    Quote Originally Posted by Constitution
    Article I
    The House of Representatives ... shall have the sole Power of Impeachment.

    ...

    The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.


    Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

    Article II

    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.
    Disqualification to hold office is an explicitly mentioned punishment, which can still be validly applied. It also says that the House of Representatives has the sole Power of Impeachment, and they've already decided that it's valid, so it is.

    If approached from a systems view, then nobody gets to question the House's decision on this matter - the rules are what they say they are. If you go at it from a strict constructionist view, there is no provision against it even though there are defined limits on who can be impeached, so it's valid. For Intentionalists, the Founding Fathers were all about punishing the abuse of power. For Originalists, by limiting the punishment to such an extent when the government was much more free-range and taking miles when given inches, the original understanding would clearly have been that the allowed punishments are always on the table. For Structuralists, there's legal structure built on top of this being valid, and the structure becomes unstable due to Presidential Immunity if it's not valid, so it's too late to dismantle it now. I can't think of any way to approach this other than "wishful thinking" and/or "subversion of the system" that would conclude that it's not legal.

  5. #5
    Shown in the Senate today:

    https://www.c-span.org/video/?c49445...-opening-video

    “Humanity's greatest advances are not in its discoveries, but in how those discoveries are applied to reduce inequity.”
    — Bill Gates

  6. #6
    Not gonna post the clips but I'm not sure whether that really is the lawyer known as Bruce Castor, or a passable Bruce Castor impersonator they dragged in from the street and paid a few bucks to ad lib some... stuff.
    “Humanity's greatest advances are not in its discoveries, but in how those discoveries are applied to reduce inequity.”
    — Bill Gates

  7. #7
    President's lawyer acknowledging that his client lost, and basically daring the feds to arrest him
    “Humanity's greatest advances are not in its discoveries, but in how those discoveries are applied to reduce inequity.”
    — Bill Gates

  8. #8
    Will still be acquited. Stupid system.
    Quote Originally Posted by Ominous Gamer View Post
    ℬeing upset is understandable, but be upset at yourself for poor planning, not at the world by acting like a spoiled bitch during an interview.

  9. #9
    Quote Originally Posted by RandBlade View Post
    Will still be acquited. Stupid system.
    Ok, I'll bite. How would you propose changing it? Lower the number of senators required to convict, or what?

  10. #10
    Elect better senators.
    Hope is the denial of reality

  11. #11
    Quote Originally Posted by Loki View Post
    Elect better senators.
    You aren't RB but then I take it you have no qualms with the system in place, just the voters?

  12. #12
    Quote Originally Posted by RandBlade View Post
    Will still be acquited. Stupid system.
    If the Senate makes it an anonymous vote, he'll be convicted. If they split the issue into two questions ("Can we impeach an ex-president?" and "Is he guilty of sedition?") then there's a reasonable chance he'll be convicted. There's also a chance that Trump's lawyers make such asses of themselves that the party decides they need to distance themselves from him. The Senate might force Trump to take the stand now that he doesn't have an office to hide behind like he did last time (he's already refused to be questioned, but they have the power to compel him), and just try to imagine how he'd fare under hostile interrogation - the guy couldn't even handle pointed press questions.

    There's a lot that could happen. I'm not making any bets yet.

  13. #13
    Quote Originally Posted by Lewkowski View Post
    You aren't RB but then I take it you have no qualms with the system in place, just the voters?
    I don't think any system would make up for having this many partisan cowards. The system matters, but politics isn't going to improve while people continue to vote for the Cruzes and Pauls of the world.
    Hope is the denial of reality

  14. #14
    I'm just catching up on the impeachment trial today. Is the entire legal defense seriously resting on refusing to read an entire sentence? That's not a period after the first of the two listed allowed punishments. Though that is pretty in character - I don't think Trump could ever finish reading an entire sentence that didn't have his name in the first 14 words. He must've really had to hunker down and focus to make it past 10.

  15. #15
    Quote Originally Posted by Loki View Post
    I don't think any system would make up for having this many partisan cowards. The system matters, but politics isn't going to improve while people continue to vote for the Cruzes and Pauls of the world.
    I'll dispute this. If we ditched our first-past-the-post system for something better, we wouldn't have this many partisan cowards. Of course, the partisan cowards are the ones who get to decide how our system works, and they probably won't be too keen on fixing the system when they rely on it being broken to stay in power.

  16. #16
    Not just impeachment going on.

    Quote Originally Posted by Ominous Gamer View Post
    ℬeing upset is understandable, but be upset at yourself for poor planning, not at the world by acting like a spoiled bitch during an interview.

  17. #17
    Graham will hopefully have a very unpleasant year.
    “Humanity's greatest advances are not in its discoveries, but in how those discoveries are applied to reduce inequity.”
    — Bill Gates

  18. #18
    Quote Originally Posted by Wraith View Post
    I'll dispute this. If we ditched our first-past-the-post system for something better, we wouldn't have this many partisan cowards. Of course, the partisan cowards are the ones who get to decide how our system works, and they probably won't be too keen on fixing the system when they rely on it being broken to stay in power.
    While I'm in favor of ditching first-past-the-post for electoral votes, I don't exactly see what kind of better system you see for that for Congress, that would reduce the number of partisan cowards. Dumping local representation for at-large party lists is not going to be an improvement structurally for a country this. . . broad and it's definitely not going to help with partisanship. It'll also INCREASE the cowardice (the depth of the Congress-critters' fear now is already remarkable and unrealistic considering the strength of the incumbency advantages they've crafted for themselves)
    Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"

  19. #19
    Quote Originally Posted by LittleFuzzy View Post
    While I'm in favor of ditching first-past-the-post for electoral votes, I don't exactly see what kind of better system you see for that for Congress, that would reduce the number of partisan cowards. Dumping local representation for at-large party lists is not going to be an improvement structurally for a country this. . . broad and it's definitely not going to help with partisanship. It'll also INCREASE the cowardice (the depth of the Congress-critters' fear now is already remarkable and unrealistic considering the strength of the incumbency advantages they've crafted for themselves)
    I don't want to switch to a parliamentary system, just a single transferable vote system. So you don't have to vote for the least bad of only two choices. It'd make the politicians less beholden to their parties, since losing the primary would no longer be the death knell it is right now.

  20. #20
    Ah, my mistake. I misinterpreted your use of "system" as asking for a structural change away from "winner takes all," when you just meant adding some flex into the current structure.
    Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"

  21. #21
    Quote Originally Posted by Wraith View Post
    I don't want to switch to a parliamentary system, just a single transferable vote system. So you don't have to vote for the least bad of only two choices. It'd make the politicians less beholden to their parties, since losing the primary would no longer be the death knell it is right now.
    You'll still vote for the lesser of two evils as your #2 choice (most people also wouldn't even bother with a #2 choice based on what I've seen). From what I've read from people smarter than me, as long as you had single member districts, you'd face the same problem. Switching to multi-member districts would help, though I can't recall how much.
    Hope is the denial of reality

  22. #22
    Quote Originally Posted by Loki View Post
    You'll still vote for the lesser of two evils as your #2 choice (most people also wouldn't even bother with a #2 choice based on what I've seen). From what I've read from people smarter than me, as long as you had single member districts, you'd face the same problem. Switching to multi-member districts would help, though I can't recall how much.

    I considered the multi-representative district possibility myself before writing that first reply to Wraith. The first issue which jumps out is the way it would ramp up the numbers in Congress. We're in a bit of a lose/lose situation there IMO. I think the House is already a bit too large of a body to work well, personally, while at the same time districts are too large/populated for individual representatives as well. The other issue is that it's the product of a kind of perspective fallacy, one whose name is escaping me. Yes you are increasing granularity but when you alter perspective a bit you realize you're just obfuscating things with an additional layer. We actually already HAVE that, it's just the multi-member "districts" are in fact the 50 individual states.
    Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"

  23. #23
    Quote Originally Posted by LittleFuzzy View Post
    Ah, my mistake. I misinterpreted your use of "system" as asking for a structural change away from "winner takes all," when you just meant adding some flex into the current structure.
    Yeah, I actually prefer having our politicians represent specific areas and groups of people instead of representing specific ideologies so I don't want proportional representation either. I just want the parties to have less of a say in who we vote for, more choices, and removal of the inherent structural incentives to pander to your party's extremists. I'm increasingly convinced that George Washington was right and political parties are destructive - I don't want any system where you vote for a party instead of a person.

    Quote Originally Posted by Loki View Post
    You'll still vote for the lesser of two evils as your #2 choice (most people also wouldn't even bother with a #2 choice based on what I've seen). From what I've read from people smarter than me, as long as you had single member districts, you'd face the same problem. Switching to multi-member districts would help, though I can't recall how much.
    Eventually once you've worked through the candidates that you've liked, sure, you'd be left with choices between candidates you disliked the least. No system is going to guarantee that you'll like all the candidates. I'd still be pretty excited to get to vote for a candidate I liked for once, though.

    The main impact would be how it takes away power from the parties to decide who we get to vote for. If Candidate A is the preferred candidate for 60% of the population but only 40% of their party, and Candidate B is preferred by 60% of their party but nobody outside of their party likes them, the current system gives us two Candidate B's to choose from. That's shit. Any sort of single transferrable vote system would help fix that and slowly erode party loyalties as it changes the incentives to reward those with broader voter appeal.



    As for multi-member districts, I'd be curious what that would look like. The impact would vary depending on the implementation details. What's the version you like?
    Last edited by Wraith; 02-12-2021 at 12:39 AM. Reason: Clarifying first sentence

  24. #24
    Think the first question is whether or not any of these purported benefits have been realized in the places where STV has been implemented over the past decade.
    “Humanity's greatest advances are not in its discoveries, but in how those discoveries are applied to reduce inequity.”
    — Bill Gates

  25. #25
    You're really going to challenge me on this? Set your goal posts then. What makes a non-transferable system better for a non-parliamentary representative democracy?

    All countries that use STV currently are parliamentary.

  26. #26
    Quote Originally Posted by LittleFuzzy View Post
    I considered the multi-representative district possibility myself before writing that first reply to Wraith. The first issue which jumps out is the way it would ramp up the numbers in Congress. We're in a bit of a lose/lose situation there IMO. I think the House is already a bit too large of a body to work well, personally, while at the same time districts are too large/populated for individual representatives as well. The other issue is that it's the product of a kind of perspective fallacy, one whose name is escaping me. Yes you are increasing granularity but when you alter perspective a bit you realize you're just obfuscating things with an additional layer. We actually already HAVE that, it's just the multi-member "districts" are in fact the 50 individual states.
    I've seen arguments that the House is too small. That if we make it significantly larger, not only will that help with representation, but gerrymandering will be all but impossible. Doing this would require enforcing even tighter discipline though. A lot depends on what role you see the House serving.

    Most of the bigger states can have 3-4 member districts. Once the district size is above two, either the Dems or GOP have to appeal to the middle or a third party has a good shot at the third seat (especially if you combine this with a single transferrable vote). Having 50 states doesn't create the same kind of incentives.
    Hope is the denial of reality

  27. #27
    Quote Originally Posted by Wraith View Post
    You're really going to challenge me on this? Set your goal posts then. What makes a non-transferable system better for a non-parliamentary representative democracy?

    All countries that use STV currently are parliamentary.
    Congress is Parliamentary isn't it?

    Your executive isn't, but nor are the French or many other executives. But Congress is. Your House of Representatives has the same electoral system as the House of Commons.

    Transferable votes tend to make parties more important not less. Your parties, while important, perversely because of their dominance and your primary system are actually much weaker than many parties this side of the pond. In countries with transferable votes you'd rarely find John McCain and Donald Trump in the same party. Your parties already, especially in the Senate, are effectively glorified caucuses.

    I think your Senators tend to show more independence from the party whip than the Representatives do and that's probably for two reasons.
    1: They only face elections every six years, not every two. Making every other year an election year means your Representatives never switch off from electioneering. Already your Representatives know that next year is an election year and in a few months time they'll be facing primary challengers potentially.
    2: There's fewer Senators who are higher profile so the likes of Romney and McCain etc can build effectively their own 'brand' that ties with but is separate too the party label, allowing them to diverge more from the party.

    If you want serious reforms I'd start with changing the House elections to every four years instead of every other year, before changing the voting system. Let people get a couple of years of serious action done before election year comes around again.
    Quote Originally Posted by Ominous Gamer View Post
    ℬeing upset is understandable, but be upset at yourself for poor planning, not at the world by acting like a spoiled bitch during an interview.

  28. #28


    The Democrats have rested their case. No witnesses. I get the reasons, but I'm still disappointed. I wanted to watch Trump have a publicly televised meltdown under questioning. I wanted to watch all the color slowly migrate from Giuliani's hair to his face. I wanted that bit of hope that the witnesses would change the public perception enough to so that Senate Republicans would stop cowering in fear of what the insurrectionists would do to them and finally stand up to Trump and his brownshirts.

    I think this is going to be an acquittal.

  29. #29
    I wanted to see Police officers take to the stand as witnesses. A series of Capitol Police officers detailing what they went through.
    Quote Originally Posted by Ominous Gamer View Post
    ℬeing upset is understandable, but be upset at yourself for poor planning, not at the world by acting like a spoiled bitch during an interview.

  30. #30
    Quote Originally Posted by RandBlade View Post
    Congress is Parliamentary isn't it?
    The US uses a presidential system. There are stricter boundaries between the people in power. Compared to parliamentary systems they also have a strong enough tendency towards fewer viable parties that we should just admit it's a feature of it.

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