Responding to the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt described December 7, 1941 as “a date which will live infamy.” That designation may be even more fitting for January 6, 2021, a date on which the President of the United States incited an angry mob to invade the Capitol, in a violent attempt to prevent the House of Representatives and the Senate from certifying Trump’s electoral defeat. In the end, the attack failed—Congress reconvened and the certification was accomplished—but the seditious insurrection will be a permanent and painful part of our history.
Certification of Joe Biden’s election brought to an end the attempted coup by Trump that I had warned of in early August: (Blogs No. 265 and 269, “The Coming Trump Coup:” [I]f President Donald Trump appears to be defeated in the coming November election, the prospect of an attempted coup to keep him in office is a realistic possibility.”) While the term coup would come to be widely applied to describe Trump’s maneuvers following the election, some academics have suggested that they did not technically amount to a coup attempt because they did not involve the seizure of power through military force. As one political scientist put it “In technical terms, it’s probably not a coup. But it is an illegal and authoritarian attempt to stay in power.” It was, in any case, a coup in spirit and purpose.
On Thursday, Trump issued a statement that offered no criticism of the violence at the Capitol but grudgingly promised an orderly transition on January 20th. Since Trump’s Twitter account had been shut down, the statement was issued through the account of White House aide, Dan Scavino. Later on Thursday, after his Twitter account had been restored, Trump provided a video statement in which, reading from a teleprompter, he finally condemned the assault on the Capitol (although he admitted no responsibility for it, or even any connection with the perpetrators). Trump made no mention of President-Elect Biden, let alone offer any congratulations, but for once he refrained from disputing the result of the election. He went on to speak of unity and claimed that “My focus now turns to ensuring a smooth, orderly and seamless transition of power.” It was almost presidential.
Both of Trump’s statements, and particularly the second, may have been intended to deflect growing calls for his immediate removal from office via the 25th amendment (presidential incapacity) or impeachment. Even the Wall Street Journal joined the chorus. While the Journal has sometimes criticized Trump on matters of style and substance, it has more often been an important source of support. On Thursday, the paper posted an editorial in which it warned:
If Mr. Trump wants to avoid a second impeachment, his best path would be to take personal responsibility and resign. This would be the cleanest solution since it would immediately turn presidential duties over to Mr. Pence.
My own view is that, while removal by either the 25th Amendment or impeachment would be amply justified, it is questionable whether either is practical, given the limited time remaining before January 20. The limited time, as well as Trump’s hemorrhaging loss of political support, may also minimize the further damage to the country Trump is likely to inflict before his departure. And an action seen as punitive rather than preventive, could distract from the mission of healing and unity that is the centerpiece of Biden’s approach to the presidency.
A summary impeachment by the House and conviction by the Senate, without giving Trump an adequate opportunity to prepare and present a defense, could do still more damage to our political system. A separate but related question is whether, after Trump leaves office, he should be investigated and potentially prosecuted for having incited the invasion of the Capitol. The U.S. Attorney for the District of Columbia, Michael Sherwin, who is investigating the riot, appeared to leave open this possibility. When he was asked whether his investigation could include Trump, he replied “We’re looking at all actors. If the evidence fits the elements of a crime, they’re going to be charged.”
A decision to charge Trump, or even to summon him to testify before a Grand Jury, would not be made by Mr. Sherwin. It would almost certainly fall to Joe Biden’s nominee for Attorney General, Merrick Garland, after his confirmation. A subsidiary question might be whether it would be appropriate to appoint a Special Counsel to handle the matter. Unfortunately, our experience with Special Counsels has not been a particularly happy one and selecting someone suitable for that responsibility would not be easy.
Whatever becomes of Trump personally, the stain he has left on America’s honor will remain and it will not be easily erased. Nor can we even be certain that this shameful event will serve as a vaccination to immunize us from future attacks on our democracy. To be sure, we can derive some comfort from Congress having insisted on the completion of its constitutional duty before dawn, patiently disposing of the spurious “objections” from die-hard Republicans in both chambers. But while we are entitled to a collective sigh of relief, it is not quite an occasion for celebrating the resilience of democracy or claiming that “the guard rails held.” Yes, they held this time, but will they hold another time if tested by an aspiring despot who is less clumsy than Trump in his approach?
In Trump’s case, the challenges to the votes of the Electoral College made in the House and Senate were patently groundless; they had already been made and rejected in dozens of courts across the country, often dismissed by judges appointed by a Republican president or by Trump himself, and, finally, by the Supreme Court. Apart from that unbroken history of debunking, the challenges suffered from another fundamental and fatal weakness. Under the 12th Amendment and the Electoral Count Act, the only responsibility of Congress, beyond the purely ceremonial, is to choose between completing slates of electors generated from a single state—and in 2021 there simply were no such competing slates. And still—still—despite those facts, and despite the shame that flowed from the insurrection, many of the Congressional objectors persisted. In the Senate, their ranks were reduced in the wake of the abortive insurrection, but there were still eight remaining members of the Sedition Caucus. In the House of Representatives, where shame had even less traction, 139 representatives—a majority of the Republican caucus—continued to support the bogus objections.
The January 6 performance of Congressional Republicans, particularly in the House, underscored the concern I expressed in Blog 274, that we might have just been lucky this time. Another time there might be competing slates of electors generated by one or more rogue state legislatures operating in the shadow of “rallies” such as the one Trump organized on Wednesday. (The authority of state legislatures with respect to elections is not as exclusive or as untrammeled as some would have it, but the boundaries are not well-defined.) Also, on some future occasion, both houses of Congress might be under the control of a political party determined to supplant the voters’ choice with its own. In short, the popular franchise is not necessarily as sacrosanct or impregnable as many believe. Blog No. 274 also noted the possibility of various reforms of election law to strengthen the guard rails of democracy, but under the prevailing atmosphere of polarization, it is difficult to be optimistic that any will be adopted in the near future.
One may hope that wide revulsion against Trump’s desperate ploys will discourage others from attempting a comparable coup. But that is a hope and not a certainty, and future plotters may study Trump’s failure as a primer on mistakes to avoid. Before that, however, we have the Biden administration to look forward to, and despite the staggering problems of the pandemic and the economy among others, there are grounds to believe that better days may lie just ahead.
Trump will almost certainly be impeached by the House — a badge of odium — and there is plenty of evidence to convict him of inciting an insurrection at the Capitol? (There is no defense to what he has done unless one accepts the crackpot theory of Alan Dershowitz that a president can do no wrong.) But will 67 senators vote to convict Trump, thereby barring him for life from holding any federal office? Georgia’s secretary of state must certify the results of the runoff to tip the balance of power in the Senate and 17 Senate Republicans must join 50 Senate Democrats to obtain a conviction. (Might it be possible for the Senate to continue impeachment proceedings after the president leaves office?)
Trump has severely endangered our democracy and should be held fully accountable. We need to lay down a precedent against future would be dictators. Come what may, I will sleep a lot better after inauguration day.
The events of January 6, 2021 certainly do put that day in the list of major days of infamy in US history. A major difference from most others is in the degree of unity that the events of the aggreiving day leave within the nation. The catastrophic events of December 7, 1941, and September 11, 2001 both left the nation strongly unified in its commitment to respond against those responsible, in those cases, foreign enemies. This time the enemies of our democratic system of government lie within our nation, a rogue, autocratic president and a number of extremist groups and indivuals marching under his banner and willing to desecrete the halls of Congress, in the attempt to overturn election results. The nation as a whole, however horrendous the assault, remains in a high degree of disunity. One of our major political parties waffles in its ability to react strongly and disaffiliate from the offending individuals and factions, and millions of Americans seem to endure, or even support, their stance. As much as Biden may be the ideal person to lessen the divisiveness and disunity, an experienced, clear-minded centrist politicia bearing the highest hopes of a majority of Americans, the tasks before him are so overwhelming that hopes for foreseeable success may be marginal at best.
Bill – Thanks for your terrific comment. I agree it is not Pearl Harbor day in America. But can Joe Biden bind the wounds inflicted by our maniacal president? A lot will depend on whether or not he can tame the Coronavirus and stimulate both economic growth and shared prosperity. He needs to focus on a realistic agenda and rally public support for that agenda, much the same as Dwight Eisenhower and John F. Kennedy. As they say, Rome wasn’t built in a day.
You state in paragraph 6 “ could distract from the mission of healing and unity that is the centerpiece of Biden’s approach to the presidency.” There are 74 million disenfranchised voters that are still awaiting answers on the happenings of the 2020 election. Until that happens, I cannot see how Biden could ever unify the country. His and the VP’s rhetoric on Thursday definitely didn’t help. Just my opinion.
Nicely said Doug. It’s too bad he can’t be impeached quickly. I continue to be amazed at the positions being taken by so many so-called Republicans. It’s hard to call a fascist a Republican Many legit Republicans, like you, have dropped out (As you know, I was a Republican When Nelson and Ike were in charge).. It’s tough to see what has happened to the Grand Old Party.
Tom
Well written discussion and opinion, Doug. I share your point of view in that there’s not enough time to impeach (as much as I’d like to see that happen) and Pence and the Cabinet will never invoke article 25 (much as I’d like to see that happen as well). I also do not believe the narcissist’s ego would ever allow him to resign, so we can rule that out as well (unless, of course, Pence agrees in advance to pardon him of his sins).
The one idea that I heard floated, and I LOVED, was having Congress pass a law prohibiting the Orange-haired liar of ever holding public office thereby keeping him from ever placing this country under his control again (although dictator-minded that he is, he’d certainly rally his base to try and make it happen illegally). So unless the Southern District Court goes after him as a private citizen, or the new AG decides to go after him for inciting sedition, he will use Air Force one to travel to Mar a Lago and hopefully drift off into oblivion, as much as I’d like to see the fullest extent of the law place him, along with his boys, in prison for the rest of their lives.
He needs to be held accountable in some way for the damage he reeked upon this country and its citizens, both those alive and those who died under his failed watch.
I don’t believe impeachment/25th are practicable, either.
What I do believe is practicable, and necessary – putting pressure on certain R. party elders to take ameliorative steps to squelch R. party’s racist and fascistic impulses. How does R. Party transform itself from the party of voter suppression, racial animus, fascistic performative governance? Cri De Coeur: Murkowski, Collins, Romney, etc.,: resign from the R. party, caucus as independents with Democrats.
Speech:
‘We do not agree with our Democratic colleagues on the role of the Federal govt., esp. when it comes to many aspects of economic policy-making, and we we will continue to fight for what we believe in, as Republicans: a limited government, an unfettered free market, a strong military, fiscal prudence . . . (I’m a D – yer words here!!) We are not becoming Democrats. We aren’t Democrats. But neither can we continue to be Republicans, not as the Republican party is so constituted and so directed.
The central issue of our time is this: should the powers of the state be used to suppress democracy or bolster democracy? Do we believe in our founder’s democratic ideals or do we wish to become something else, a fundamentally undemocratic country?
We believe that voter suppression and the racial animus that feeds it needs to be resisted, and that we can best do this outside of the confines of the R. party. We understand that this will perhaps permit the Democratic party, in the U.S. Senate, at the least, to hold onto the levers of power for more than two years. In that time we hope to see the following changes occur: we would like to see legislation be introduced onto the floor, repeatedly, exhaustively, for robust debate and amendment, and for eventual floor ‘votes’ (long list of procedural changes that could reintroduce, to our world, what it’s like for a governing body to actually deliberate and vote on shit . . . )
The Republican Party must find the courage to do what our party has not been able to do since the passage of the Civil Rights Act: fight for it’s existence and it’s growth sans the active participation and complicity of a racist flank of our citizenry, a population that must be denied, as best it can be – albeit legally, and justly – the ability to wield political power in the future.
If we deny ourselves a ‘home’ with this decision, it is only to see that home rebuilt; and when that home is rebuilt, we would like to return home to it; we believe we will help rebuild it, by leaving it.
I will be reviled and loathed by many of my fellow Republicans. I will probably not be returned to office again. But I will look at myself in the mirror from henceforth and see a Patriot who cares more about the values and purposes of his country than on pursuit of power on the part of party, and self-aggrandizement on the part of self.”
Mr. Trump should resign. I do not think that he will.
Richard Nixon ultimately resigned in connection with the Watergate scandal. He may have resigned because: (a) he carefully calculated the odds of surviving an impeachment trial, which there was plenty of time to conduct, and concluded that he would lose; or (b) he had enough love for the country and respect for its values, institutions, and traditions, to conclude that, while he had dishonored all of that, the best and most decent thing he could do as his final official act was to resign and retreat from the field; or (c) some combination of both.
Mr. Trump probably has figured out that there is insufficient time to bring impeachment to trial, so we can take that motivation off the table. Mr. Trump does not have any love beyond himself, and when it becomes clear that the country and he are, in fact, not the same thing, he has no love of country. He has made it abundantly clear that he has no respect for the country’s values, institutions, and traditions. So, we can take that motivation off the table, too.
What other motivations might he have to resign? A full and complete pardon from his successor would completely insulate him from criminal prosecution for violations of federal (but not state) laws. A self-pardon is of very doubtful efficacy. Enter Mike Pence. A resignation in favor of Mr. Pence in exchange for a pardon would give him a pardon that would stand up to legal challenge. So, will that motivate Mr. Trump to resign? Probably not.
Any substantial hope that Mr. Trump might have had that he could make a deal to resign in exchange for a pardon from new President-for-two-weeks-Pence appears to have burned up in a blaze of Trumpian rage at Mr. Pence, who committed the unforgivable sin of refusing to do what Mr. Trump directed him to do (i.e. illegally thwart completing the last, formal step in the election of Joe Biden). Mr. Trump’s belief in his own unlimited power, combined with the rift with Mr. Pence, make a resignation-for-a-pardon deal seem very unlikely.
Will the Twenty-Fifth Amendment be invoked? At this time, it seems EXTREMELY unlikely. There is no indication that the Vice President has any appetite for it. The recent resignations from the cabinet say more about the departing members desire not to be involved in that proceeding, than about their newly discovered political and moral integrity, and probably reflects the desire of the remaining cabinet members to avoid the issue. The truth is that the legislature would rather run out the clock, than remove the President from office using that device for the first time in history, with less than two weeks to go.
That leaves two possible courses of action. First, do nothing. While that would be typical of the legislature, the appetite of the Democrats to take action, and the fact that they control the House, means that inaction is not an option.
That leaves, second, impeachment. It will not be prosecuted to trial. The clock will expire. So, is it worth The effort? Absolutely. Worries that impeaching Mr. Trump will further alienate his supporters are really unfounded. What is a little more alienation, at this point? The best and most decent thing Richard Nixon did at the end was resign, as his last official act. Let Donald Trump fly out of Washington D.C. as an impeached President as the clock expires as his last official act. A cautionary tale, for all.
Ross E. Atkinson
Ross – Wow, thanks for your powerful narrative. I agree there is no downside to a 2d impeachment of our seditionist president. But I am not sure if a Senate trial on impeachment articles approved by the House next week would not be possible after the end of Trump’s term in office. There are several unlocked mysteries in Constitution — really just a brief outline for a new republic. Look at what the Supreme Court did to the Second Amendment.
Good point! Whether or not an impeachment trial after departure from office has a legal effect is somewhat arguable, since the (primary) point of impeachment is removal from office. On the other hand, (a) apparently there is some precedent for it in non-presidential impeachment; and (b) the secondary function is that conviction is a prerequisite for a subsequent simple majority vote to deprive of the impeached person of the ability to hold future office. Perhaps we will get to see!
Ross E. Atkinson
Dear Doug,
My comments are more personal than might be appropriate for your blog, but I wanted to comment.
My Republican dad died in December at the age of 95-3/4…but voted in October by mail/absentee-ballot for Biden against “the bum,” as my dad called Trump.
Of course, I braved COVID to travel to my hometown for the services, and as Trustee of my dad’s estate, to begin the estate paperwork, so I spent a week with my retired-teacher sister (who inherited my dad’s house) and her husband (a carpenter by trade), both of whom had resided for many years in CA until the end of this past summer.
I knew my sister was more conservative than I am (as was my dad) which is fine, but my brother-in-law proved to be a straight-up Trumpster…who spouted all the “stolen election” conspiracy theories promoted on FOX and far darker places. Whether or not my sister 100% agreed with the crazy-stuff, she didn’t say a word…and of course, my sensible Republican dad was gone. When I tried to counter with facts (e.g., that 50-60 courts had reviewed the allegations and rejected them as being without foundation), my brother-in-law’s reply was “you’re entitled to your opinion and I’m entitled to mine.” It was genuinely scary.
My only (probably incoherent) point in airing this unpleasant family laundry is merely to say that there are a lot of apparently-ordinary people in this country who aren’t active in politics, but who have accepted the ugliest Trumpisms as articles of faith…and when dealing with matters of faith, facts are irrelevant. An Atheist could no more argue facts against a believer than vice-versa.
I never expected to live in a country where most people share the same opinions, but can this country ever get back to a place where most people share the same reality?
Monica
Monica – so sorry for your loss of your dear old Dad. You can be thankful that it’s only an in-law who has drank the Kool-Aid. That being said, it seems to me there is not just one “reality,” anymore than one brand of soup. The problem is that so many Americans have been swept up by president Trump into believing in a hideous and cruel reality. Only time will tell if the fever ends after he leaves office. I think that’s a real possibility and certainly one we can help bring to pass. And I think it was Oliver Wendell Holmes who wrote, “The best way to let a bubble burst is to expose it to air.” All the best. -Roger
Over the course of the past 50 or so hours, I have come to essentially the same conclusion that you have in this entry, that there is too little time for either impeachment or the 25th Amendment. While Trump’s abject apology and prompt resignation would be helpful, there is no reason to expect it will occur. I fervently hope there is no censure from Congress because that would be the ultimate slap on the wrist, an insult to all except the 139 Republican representatives and 7 Republican senators who persisted in furthering Trump’s lying agenda in service to their personal ambitions even after his “base” that they so fear showed us exactly who they were on Wednesday. What a lesson in how evil a fundamentally silly-looking mob of fools can be, and what an indictment of those who aid and support them.
From a historical viewpoint, it is probably appropriate that our progeny in a century or so will be reading about the Republican Party’s failure to take any action whatsoever against a Republican president even after he incited a mob to assault and take over our US Capitol.
Comments are closed.