Not surprisingly, Republican senators have already decided they have no interest in addressing the January 6 Trump-inspired attack on the U.S. Capitol in an effort to steal the election from Joe Biden. Most of them have voted that it is unconstitutional to entertain impeachment since Trump has left office. The English translation of this is that “impeachment ceases to be available unless it can be brought and tried before the president leaves office so anything he does, no matter how serious, in the closing weeks of his presidency, is immune.” More on that in a moment.
The Supreme Court appears to have added its imprimatur, without explanation or noted dissent, to the extraordinary proposition that violations of the emoluments clauses are also unavailable after a presidency ends even if suits were initiated during the presidency.
If all that is correct and it is also not lawful to indict the president for crimes during the presidency, as the Department of Justice has twice opined (wrongly, in my view), we have effectively overturned the balance of power created by the constitutional framers when they created the three branches of the federal government with separate counterbalancing powers. The imperial presidency, as declared by Trump (“I have an Article II, where I have to the right to do whatever I want as president”) has arrived.
If so, the country is in the most dangerous place since the period just before the Civil War. This raises the question of what the United States government should do if Trump’s supporters, emboldened by what they believe was a victory at the Capitol, return to attack the government again. I address this specifically at the end.
But first, as I write, the Republican leadership of the House and Senate are meeting with Trump in Mar-a-Lago. No one will ever know what they are discussing, but, given recent events and the continued obeisance of Republican legislators to Trump’s dominance, it is not outlandish to suggest that they are considering further steps to overthrow the government. Trump representatives, enablers and acolytes meanwhile are aggressively promoting false narratives that the violence on January 6 was led by “antifa” and other infiltrators and, despite overwhelming video and other evidence, Trump and his people are faultless.
Let’s begin with a short lesson in the applicable law.
“Sedition,” or more fully, “seditious conspiracy,” means,
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to ,,, oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years or both. [18 USC 2384] [bolding mine]
As with most legal matters of import, this is more complicated than it first appears. As noted in https://criminal.findlaw.com/criminal-charges/sedition.html,
Simply advocating for the use of force … in most cases is protected as free speech under the First Amendment. For example, two or more people who give public speeches suggesting the need for a total revolution “by any means necessary” have not necessarily conspired to overthrow the government. Rather, they’re just sharing their opinions, however unsavory. But actively planning such an action (distributing guns, working out the logistics of an attack, actively opposing lawful authority, etc.) could be considered a seditious conspiracy. Ultimately, the goal is to prevent threats against the United States while protecting individuals’ First Amendment rights, which isn’t always such a clear distinction.
Of course, there are lawyers who will argue that nothing that happened at the January 6 Trump rally was outside the protection of the First Amendment. There are others who strongly disagree, me included. See https://bit.ly/39vCK80
The critical point here, in my view, is this: Donald Trump was not just another angry man voicing his grievances to a like-minded audience. If he were just that, the First Amendment would likely protect him. But, no, Trump was President of the United States and still subject to the oath of office he took in 2017 to “faithfully execute the office of President of the United States, and … preserve, protect and defend the Constitution of the United States.”
Trump therefore had an affirmative duty to act to prevent and defend against any action that would interfere with the execution of Congress’s official constitutionally-mandated duty to validate and count the Electoral College votes. He also had an affirmative duty to protect federal property. He did not so act, and for that reason alone should lose any protection that might arguably arise from the First Amendment for his speech that preceded, for the most part, the January 6 attack. I say “preceded for the most part” because there is evidence that some of the assaulting force was already at the Capitol when Trump began speaking at noon.
Continuing with our over-brief summary of the law, “conspiracy” is also complicated but not terribly so:
A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. A person may be convicted of conspiracy even if the actual crime was never committed ….
… an agreement may be implied from the circumstances…. [such as attending a meeting to plan the crime]
… individuals in the conspiracy must intend to agree, and all must intend to achieve the outcome.
… at least one co-conspirator [but only one] must take some concrete step in furtherance of the plan.
Finally, “felony murder” is chargeable when in the commission of a felony (which breaching the Capitol & attacking Capitol Police were) someone is killed, all of the felons are guilty of felony murder even if they had no specific role in the killing. Illustration: you and your buddy rob a bank. He goes in, you merely wait for him and drive the get-a-way car, he shoots and kills a bank teller. You are guilty of felony-murder.
Now to the known facts.
As reported at https://bit.ly/3rdBtJ,1 and elsewhere, the night before the January 6 attack on the U.S. Capitol, a private meeting assembled in Trump’s private residence at the Trump International Hotel in Washington. Reporting indicates that the following people attended the meeting:
Donald Trump Jr., eldest son of the president
Eric Trump, second-eldest son of the president
Michael Flynn, former National Security Advisor to the president
Peter Navarro, Assistant to the President, among other things
Corey Lewandowski, 2016 Trump campaign manager
David Bossie, 2016 Trump deputy campaign manager
Adam Piper, executive director of the Republican Attorneys General Association
Tommy Tuberville, United States senator from the State of Alabama
Rudy Giuliani, personal attorney to the President of the United States
Kimberly Guilfoyle, girlfriend of Donald Trump Jr
Michael Lindell, Trump donor and MyPillow CEO
Charles W. Herbster, National Chairman of the Agriculture and Rural Advisory Committee for the Trump administration
The meeting was confirmed in an attendee’s Facebook post late on January 5 that ends with “TRUMP WILL RETAIN THE PRESIDENCY!!!”
Senator Tuberville claims he was not at the Trump Hotel on January 5, but an Instagram photo of him at the hotel with two other people indicates otherwise. We can only wonder why the Senator would mislead about his presence.
To be clear, there is no report thus far that Donald Trump attended the meeting in person or by phone. Trump’s whereabouts that night would almost certainly have been noted by the White House media if he had been driven to his hotel. It beggars the imagination, however, to believe that this cast of characters was working independently of the president, given all the circumstances and what occurred the next day.
The primary report notes:
Not only does this meeting appear to confirm that Trump’s team helped orchestrate the events of January 6, but that it participated in the calibration of those events to exert maximum “pressure” on members of Congress in the midst of them executing a grave constitutional duty. Moreover, it participated in that calibration in the presence of a member of the United States Senate, who was therefore—we can now conclude, from the reporting of the Omaha World Herald—working in private with the president’s team to advise Trump on how to generate that maximum pressure on his Senate peers….
While we cannot know if these co-conspirators discussed the possibility of violence on January 6, that they contemplated the crime that most of the January 6 insurrectionists have now been charged with—Unlawfully Entering a Restricted Building—is all but certain, as is the fact that the purpose of such entries was to put improper pressure on government officials to reverse course on a government action.
In simpler terms, the purpose of the January 5 meeting at the Trump International Hotel in D.C. was arguably seditious conspiracy—as it appears to have been intended to promote and incite criminal acts by a mob whose purpose was to intimidate federal officials engaged in the certification of a democratically elected branch of government.
Much of the article cited above is speculation, but what seems clear is that many of Trump’s closest confidantes, including his attorney Giuliani, attended a meeting away from the White House for the apparent purpose of discussing how to pressure Congress in a last-ditch attempt to stop the election certification and award it to Trump. One attendee reportedly claims they were just there to watch the election returns come in from the Georgia senate runoffs. Believe what you wish about this.
The New York Times reported that the day before the rally,
“If you are not prepared to use force to defend civilization, then be prepared to accept barbarism,” a member of the Red-State Secession group on Facebook posted …
Beneath it, dozens of people posted comments that included photographs of the weaponry — including assault rifles — that they said they planned to bring to the rally. There were also comments referring to “occupying” the Capitol and forcing Congress to overturn the November election that Joseph R. Biden Jr. had won — and Mr. Trump had lost. [https://nyti.ms/3r4ZAJy]
Still earlier in January,
the extreme fringes of Trump supporters — including the Proud Boys and other groups known to incite violence, as well as conspiracy groups like QAnon — were exploring what they might do on Jan. 6 in Washington. On dedicated chats in Gab they discussed logistics of where to gather and what streets they would take to the Capitol. The Red-State Secession Facebook page even encouraged its 8,000 followers to share the addresses of “enemies,” including those for federal judges, members of Congress and well-known progressives.
At the rally on January 6, Donald Jr, preceding his father, flatly stated that the Republican Party was now “Donald Trump’s Republican Party,” the kind of claim that a banana-republic dictator would make, the meaning of which is “if Trump tells you to do something, you will do it.” The speech was replete with grievances against the Democratic leadership but also against “establishment Republicans” who were portrayed as weak and essentially traitors to the cause of “America First” and Trump’s own set of grievances.
The further events of January 6 are well-known. Video shows Trump urging the crowd to walk to the Capitol where he contended Congress was about to confirm the election he said was stolen. Among other remarks, Trump said:
“We will never give up,” he said. “We will never concede. It will never happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore.”
He went so far as to say he would be with the crowd at the Capitol, but that was a lie. In any case, the crowd walked the mile-plus to the Capitol, confronted the grossly under-prepared Capitol Police, stormed the building through smashed windows and doors, screaming in rage that they could not find the members of Congress who had been moved to safe-rooms. The building was vandalized, a police officer was killed, and many were injured in a multi-hour battle against the vastly larger force of invaders. Others also died as a direct or indirect result of the attack. The Pentagon leadership working under Trump failed to send timely help.
Those events have inspired House Democrats to impeach Trump a second time. It’s the only “remedy” over which they have any real influence. Republicans, of course, overwhelmingly leapt to Trump’s defense, voting that the impeachment of a president after he leaves office is somehow unconstitutional. https://wapo.st/2YkPW9x Having refused to even hear evidence and witnesses at Trump’s first impeachment, the Republican Party completed its obeisance to Trump by essentially declaring that whatever he may have done, no sanction is justified. As a result, Democrats now are also considering a censure, a fallback proposed by Sen. Kaine of Virginia, because an impeachment trial will delay consideration of critical elements of President Biden’s plan to combat the COVID crisis.
A censure, even if adopted over Republican opposition that is certain to occur, will be nothing more than a slap on the wrist for a man who believes he is immune from the law. Republicans have every incentive to drag out the trial because, in addition to supporting Trump’s every act, they want to impede Biden’s efforts to boost the economy and restore the health of the country.
I don’t doubt Senator Kaine’s sincerity in arguing that a censure resolution is “a potentially more politically palatable alternative to convicting Trump and barring him from future office” while also arguing that “his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment.” Kaine argues further that “It’s more than just a censure, saying, ‘Hey, you did wrong’ ….It makes a factual finding under the precise language of the 14th Amendment that would likely put an obstacle in Donald Trump’s path if he were to run for office again.”
Kaine’s further argument is that “Just as the question of impeachment after you’ve left office is not ironclad one way or the other, this one is not ironclad, It leaves the door open for folks to make arguments down the road,”
That is, I think, plainly wrong because its premise is wrong.
The argument accepts that there is a legitimate constitutional objection to impeaching a president after he leaves office. The “immune after exit” position leaves open the possibility that in the closing days of a presidency, the president could engage in blatantly unlawful criminal activities and escape being called to account by impeachment. He could still be indicted and tried, but as a matter of principle, the position of no impeachment after office seems inconsistent with the framework established by the Constitution — just stall long enough and escape an otherwise justified political accountability.
Impeachment, in any case, whether during or after the presidency, is insufficient to address the magnitude of the January 6 insurrection. While Republicans like John Cornyn of Texas are all so happy to “just move on” and “not live in the past,” claiming that impeachment now is “retroactively” punishing ex-officeholders,” even moderate Sen. Manchin of West Virginia understands the gravity of this situation which has no precedent in modern times. And, by the way, to Sen. Cornyn and others who subscribe to his view: all punishments, whether political like impeachment or criminal, are about past behavior. The notion that impeachment now is somehow wrong because it refers to past conduct is beyond moronic. And you can quote me on that.
So, where do we go from here? Political stalemate seems certain in Congress’ attempts to call Trump to account. The evidence of seditious conspiracy is, however, overwhelming. Do we let Trump skate? Do we ignore a blatant attempt to overturn the election and, in effect, declare Trump dictator? I think not.
Republican leadership in the House and Senate is now running away as fast as possible from early statements indicating grave concerns about Trump’s role in the insurrection at the Capitol. https://wapo.st/3a4Qd5G Both of them have rushed to Mar-a-Lago to meet privately with Trump. Why do you suppose they’re coordinating with him now? Why is House Minority Leader McCarthy now trying to place blame for January 6 on “all Americans” and other similar nonsense rhetoric? Why is McCarthy handing out choice committee assignments to QAnon conspiracy advocates like Rep. Marjorie Taylor Greene (R-Ga.), who has previously endorsed violence against Democratic leaders and who has claimed that the Parkland/Sandy Hook school massacres were staged along with the 9/11 attack and the January 6 assault as well? As noted in the article cited above,
For party leadership and top election strategists, video of protesters pummeling Capitol Police officers or chanting for the death of Vice President Mike Pence has proved less germane to current considerations than the potential to quickly return to power. They have been calling for more party comity, even with those holding extremist views.
Operating from Florida, Trump’s advisers have been encouraging party leaders to move on from impeachment and refrain from further criticism of the former president, even as they plot retribution against Republicans who opposed Trump’s final effort to overturn the election. Trump campaign advisers have commissioned and circulated to GOP lawmakers polling that shows him as still formidable in their states and made clear that he would seek revenge for votes against him.
The political reality is that the Senate is evenly divided between the parties, House Democrats have a small majority, and, despite Trump’s overwhelming defeat, Republicans gained governorships and control more than 60 percent of state legislatures. At least two Democratic senators are uncertain allies to aggressive positioning by their party.
WAPO reports that polling shows a staggering 79 percent of Republicans still approve of Trump’s conduct of the presidency and 57 percent saying the Republican Party should follow his leadership even after the attack on the Capitol. Some GOP party groups are embracing the fantasy claim that the January 6 attack was actually staged by Trump’s enemies. Some Republican Party strategists refer to the attack as “extremely unfortunate” and Republican National Committee Chairwoman Ronna McDaniel claimed that it was Democrats who were trying to “sow division and obstruct” while “Republicans will keep fighting for the American people.” If this were a TV show, it would be the Twilight Zone, but it’s the reality of where America now sits. The Republican Party really does belong to Trump and no longer adheres to fundamental democratic principles.
If you think I’m overstating it, WAPO reports that there is “speculation that the president’s daughter-in-law, Lara Trump, might run for the open North Carolina seat or that the president’s daughter Ivanka Trump might mount a primary challenge to Sen. Marco Rubio (R-Fla.).” A few Republican voices in the wilderness remain – Mitt Romney flat out said Trump “incited the insurrection” on January 6, — but their influence against the Trump Red Tide is limited at best.
While the Republicans continue to focus only on their political prospects going forward and how to align themselves with Trump’s base, evidence continues to mount that the January 6 attack was not just a spontaneous response to Trump’s words. The Washington Post, for example, reports that so-called militias in three states beginning planning to challenge the election by force in November. https://wapo.st/39pblEB US prosecutors have asserted,
Three self-styled militia members charged in the Jan. 6 breach of the U.S. Capitol began soliciting recruits for potential violence within days of the 2020 presidential election, later training in Ohio and North Carolina and organizing travel to Washington with a busload of comrades and a truck of weapons….
The report is quite detailed with communications among the parties charged as conspirators. Many other reports show that multiple January 6 participants are being charged with federal crimes of varying severity, depending on what the preliminary evidence shows they actually did at the scene of the invasion. It is reasonable to expect many more arrests as prosecutors work through the videos, recordings and social media posts of participants. The New York Times published an article with multiple videos revealing parts of the fight between police and the insurrectionists screaming “I will f*cking kill you!” https://nyti.ms/3ahHP2P That is what the Republican Party is defending.
The Acting Chief of Capitol Police is so concerned about the continuing threat to the Capitol that she is recommending permanent emplacement of unscalable fencing, possibly topped with barbed wire, around the perimeter. Mayor Bowser, thankfully, is opposed but consider what this means for the state of the nation’s politics.
So, where do we go from here?
After long reflection, my view is that nothing short of the indictment and arrest of Donald Trump can adequately begin to redress the harm done to the country. We are on the precipice of the collapse of the rule of law. Washington, DC remains an armed camp protected by thousands of National Guard due to reports of further armed attacks on the government. Failing to bring real and serious criminal charges against Trump will be seen by his acolytes as further proof that he was the victim of multiple hoaxes and a fraudulent election, despite the overwhelming evidence to the contrary. Postponing the day of reckoning while Trump reorganizes his political forces is a recipe for catastrophe from which the country may not recover. The time to deal with this is now, when the evidence is fresh and the focus is clear.
There can be no rational doubt that Trump summoned the mob to come to DC for the pre-insurrection rally, that his words called for the mob to go to the Capitol for the purpose of stopping the Electoral College vote count, that there was almost certainly planning activity in advance, not only by mob participants but by members of Trump’s inner circle of family and other advisors. People died during the attack, an outcome entirely foreseeable. The case for seditious conspiracy and felony murder is compelling.
Political accountability through impeachment will accomplish nothing of substance. Criminal liability, on the other hand, while facing a higher standard of proof, will bring the evidence before a carefully selected jury of Americans. If they decide that Trump is not guilty, so be it. There will, at least, be no basis for complaint that political vendettas were being accomplished. The far greater likelihood is that a properly presented case against Trump will lead to his conviction.
If it were up to me, I would include in the indictment charges related to Trump’s obstruction of justice in the Mueller investigation, including perjury, and likely also the incident in which Trump attempted to leverage Ukraine’s president to interfere in the U.S. election. It is time, in other words, to call the question on Trump’s claim that he is above the law. If this fails, our democracy may well be doomed, as conspiracy theorists like MJ Greene, Lauren Boebert and other Republican fantasists remain in power in subservience to Donald Trump who, elected or not, will become de facto dictator as long as he lives.
No doubt, the bringing of criminal charges will further enrage Trump’s already deranged supporters. If they decide to attack the Capitol, no amount of fencing and barbed wire will stop them. The government must be prepared to make the most aggressive response, including overwhelming deadly force against those who seek to bring down the government by violent assault. This conflict cannot be resolved by negotiation, and it is virtually certain Trump will continue to assert his false grievances to a willing audience of true believers. If so, the nation has no choice, in fact has a solemn duty, to defend itself and its democracy with every means at its disposal.