Trump indictment: the third impeachment

 

Gordon L. Weil

Set aside the endless flood of punditry and look through the eyes of jurors at the indictment of former President Donald Trump for trying to seize his reelection based on false fraud claims and violations of election laws.

When the case finally reaches its conclusion, 12 jurors in Washington, D.C., will decide if Trump is guilty or not of the crimes with which he is charged.  For them, the case could turn out to be relatively simple.

Most of the indictment consists of a detailed recitation of events involving the effort by Trump, Rudy Giuliani and other associates in trying to nullify votes cast for Joe Biden in several states.  They claimed that votes for Trump had been fraudulently changed or discarded and asked state officials or legislatures to strip Biden of his victory and replace him with Trump.

This single list of facts is used to support all charges.  Anyone who has followed Trump’s efforts between the November 2020 election and the January 2021 inauguration would find little that is unfamiliar in this list.  But the indictment discloses new details about meetings and conversations that support what was already known.

A principal focus of the recounting is the efforts in several states to create false panels of presidential electors whose names could be sent to Congress along with the official electors.  The intention was to create enough confusion that Congress could not designate the winner and would decline to select Biden.  Presumably, those states could then officially change their votes.

Behind the recitation of facts must be witnesses who will testify as to the truth of what the indictment states.  It’s most likely that Special Prosecutor Jack Smith took the time to line them up to testify.

The first task for jurors will be to determine if the actions took place and if Trump was directly involved in them.  That looks to be a relatively easy job, because it would be difficult for Trump to show that he had little or no involvement.

The second task will be for the jury to determine if the actions by Trump and his co-conspirators amounted to violations of the laws cited in the indictment. 

To support the grand jury charge that Trump knew he had lost and resorted to lying about the election, Smith relies on the former president having been told repeatedly by many trusted and high-ranking officials, almost all his own appointees, that he had lost.

Trump is expected to argue that he sincerely believed that he had won the election and that he was doing everything possible to produce the correct result.  Given the magnitude of the damage to the country of placing in office the wrong man, he had to resort to extreme measures to halt the confirmation of Biden as the next president. 

Trump claimed election fraud had occurred though no courts or state election authorities, some of them his Republican supporters, would agree with assertions that lacked evidence. In the process, did he violate federal and state laws and try to induce or threaten others to do so?

If Trump honestly believed he won, would he be justified in violating the law in the pursuit of a fair outcome of a presidential election?  His personal advisors told him that to save the Republic, he could break the law.

The indictment provides a detailed record of his efforts to convince and then threaten Mike Pence, the Vice President, to halt the electoral vote count or simply throw the result to him.  If Pence testifies, he could provide proof that Trump had violated the law at the highest level of government.

The former president is also expected to claim that what he said is protected by the First Amendment, thus completely immunizing him.  But Smith carefully avoided charging him with incitement, sticking instead to his acts and orders.  Also, free speech rights do not protect words that ask or direct others to commit crimes.  That amounts to conspiracy.

Trump charges that Biden is politicizing this case to weaken his re-election chances. But Trump himself politicizes it to stir up support among his loyal core and to raise campaign contributions that pay his legal costs.

Trump may believe that his public outrage at the charges could intimidate the judge and influence her decisions on the timing of the case.  If he can delay it until after an election he expects to win, then he might assume a presidential mantle of immunity even if convicted.

The fourth indictment count charges Trump with conspiring “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States – that is, the right to vote, and to have one’s vote counted.”  That’s an impeachable charge.

Trump has been twice impeached and both times he has been acquitted by the Senate when Republicans refused to convict.  The indictment has become the third impeachment.

Those who will ultimately determine if Trump is guilty or not won’t be his Senate allies, but 12 average people.

 

Trump wants powers of America’s long-ago oppressor

 

Gordon L. Weil

Donald Trump’s critics sometimes compare him to a man whose name arouses a strongly negative reaction.

They usually refer to Nazi Germany’s Adolf Hitler, who used his 1933 democratic election to quickly end democracy. But Hitler was an historic monster, so that comparison goes too far.

The better parallel could see Trump as “The Man Who Would Be King,” told in Rudyard Kipling’s story about the failed hopes of a would-be ruler.

The king in question is King George III of Great Britain, a man we like to dislike. His despotic rule was rejected in 1776 by the 13 American colonies that created the independent United States of America.

Their Declaration of Independence is mostly a list of the king’s “repeated injuries and usurpations.” Some of those charges work for Trump.

“He has incited domestic insurrections amongst us.” Whether Trump is finally held legally responsible for causing the January 6 assault on the Capitol, his followers there believed he wanted them to overturn the presidential election by force. He “incited” them to insurrection.

“He has combined with others, giving his assent to acts of pretended legislation.” Agreeing to the illegal creation of counterfeit presidential electors in several states, who were meant to displace the legal winners on January 6, is a prime case of “pretended legislation.”

“He has obstructed the administration of justice.” When public officials, who had sworn allegiance to the Constitution, did not follow his orders, he either fired them (U.S. Attorney General Jeff Sessions, FBI Director James Comey) or threatened them (Brad Raffensberger, Georgia Secretary of State). He flouted a subpoena for presidential documents and hid them.

He was charged with “refusing to … encourage migration hither” to prevent population growth by new Americans. “Build the Wall!”

King George depended on his “divine right” to rule. The purpose of the Declaration and the Revolution was to replace the regal God-given authority with a government created by the people that could not be controlled by a single person.

The real Revolution was the democratic Constitution, created in a world almost totally dominated by countries under one person’s control. The balances struck between the federal government and the states and among the legislative, executive and judicial branches were meant to make royal-style rule impossible.

Now, Trump offers a different take on the Constitution. “I have an Article II, where I have the right to do whatever I want as president,” he said while in office.

Article II of the Constitution states: “The executive power shall be invested in a President of the United States of America.” It does not say “all power” belongs to the president.

Article I states: “All legislative powers ... shall be vested in a Congress of the United States....” Congress makes the federal laws. Period. Article II requires the president “to take care that the laws be faithfully executed.” That falls far short of “the right to do whatever I want as president.”

If elected in 2024, he proposes to act as if he has unlimited power. He has made clear that he would overrule the independent judgment of the Justice Department and regulatory agencies, refuse to spend money appropriated by Congress and replace thousands of civil service positions with his political appointees. And he would open an investigation of President Biden.

It seems that he expects to have a compliant Congress go along with his plans. If he and a Republican congressional majority are elected in 2024, he will take their joint victory as a sign that the public approves of his plans. That’s why he is stating his intentions now.

In effect, Trump’s intentions would amend the Constitution. While Congress has delegated many of its powers to executive agencies, it retains the right to define their authority and displace or eliminate them. None exists without congressional authority.

The former president’s view reflects the “unitary executive theory,” which would give him complete control over every agency of government. The theory has been around as long as the Constitution. President George W. Bush was a believer. Ignoring Congress and the courts, he signed new laws while saying parts of them were unconstitutional and he would not enforce them.

This form of government may fall just short of absolute royal power, so long as there are regular, free elections. Those in charge may change; today’s dominators may be tomorrow’s dominated.

As for free elections, Trump has claimed that he should be able to serve more than the constitutional two terms. Was it a joke? A trial balloon? Regal presidential status?

In more practical terms, Trump’s plans directly raise the issue of authoritarian versus democratic government. Should presidential elections give us leaders who do “whatever” they want or are subject to checks and balances? That could be the big question on the 2024 ballot.

Dems pulled to center by GOP right

 

Gordon L. Weil

Bernie Sanders is no longer a democratic socialist.  He has dropped that label on his website.

President Joe Biden has gone out of his way to say he is not a socialist, contrasting himself with Vermont Sen. Sanders.   The label has proved to be a political liability.

When Biden ran for president in 2020, he first defeated Sanders for the Democratic nomination.  Sanders was the leader of the left wing of the Democrats, while Biden ran as a moderate.  Now Sanders backs him.

That shift reflects the gradual move to the right of American politics.  In my last column, I focused on the Republicans as they have become more conservative.  This time, it is possible to see how the GOP’s apparent appeal may be drawing the Democrats away from the progressive left.

The Republicans have almost abandoned moderate positions, while the Democrats have moved somewhat more to the center, leaving progressives with the choice of accepting Biden’s practical politics or continuing with what may be self-defeating insistence on their positions.

Biden has scored some liberal wins, but the Democrats have accepted moderate policies in order to preserve their remarkable unity.  They protect the liberal democracy threatened by the hard right wing that now dominates the Republicans.

In his first two years, with a Democratic congressional majority, Biden gained victories on Covid relief, infrastructure, and the Inflation Reduction Act.  He received some GOP support.  In his third year, a Republican House majority harasses him and votes as a bloc against anything he proposes.

He has split the Republicans on support for Ukraine and challenged Democratic progressives by authorizing the sale to Ukraine of cluster bombs, outlawed by much of the international community.  He has not closed a major tax loophole benefiting the wealthy and or provided a competitive public option for Medicare.

The Democrats’ election vulnerability stems from its feeble responses to the GOP and Biden’s lack of charisma.  Their strength comes from Biden’s legislative activism and their unity, caused by the threat of a second Trump presidency. 

Conservative Republicans won’t compromise with the Democrats, because they believe their policies will prevail in 2024.   Pragmatic Democratic moderates believe they can succeed through policies that increase middle class incomes and potential gains among disaffected Republicans.

Maine Gov. Janet Mills may be the model of the right-of-center Democrat who can cater to some GOP interests without losing progressives.

On the progressive side, her advocacy of easing abortion restrictions has wide appeal and is taken as a sign of the state’s liberalism.  She supported paid family leave including a payroll tax increase, displeasing business, because she knew it would win if it went to a referendum.

Mills opposed allowing Maine’s Indians to enjoy federal benefits, even opposing her party’s legislative leadership and showing some innate conservatism.  Similarly, on off-shore wind power development, she was willing to allow labor unions, the Democrats’ natural allies, a preferential shot at only about half the jobs.

And she was lukewarm about the development of a public defender system for poor defendants and did not allow the Legislature to send out the public power to referendum, leaving it up to a people’s petition.  In effect, she moved away from traditional Democratic positions.

Mills and Second District Rep. Jared Golden may be the wave of the future for Democrats. Last week, Golden was only one of four Democrats to join House Republicans in voting for a military spending bill containing a provision designed to cut back on Defense Department outlays for abortions, though the version of the budget will not pass.

Clearly, Mills often takes positions favorable to business, based on the claim that they promote economic development and outside investment.  They include her support for the major new electric transmission line, coolness to public power and her stance on wind generator labor.

The Democrats may not have ceased being liberals, but they increasingly reach out to business interests traditionally associated with the GOP.  That’s one big reason the president has taken to campaigning about the success of “Bidenomics.” 

As they move to the right, the Republicans may put into play traditional economic allies, which care relatively little about the conservatives’ wedge issues compared with their traditional concerns about regulation, taxes and the state of the economy.

Biden may also have an eye on the No Labels movement, which could run a third-party candidate in the presidential election.  It claims to be centrist, taking pro-business positions, while opposing some Democratic policies.  If West Virginia Sen. Joe Manchin joins No Labels and some fellow Democrats follow, it could enhance Trump’s chances.

If 2024 will be a test for the Republican right’s faith in wedge issues and Biden attacks, it will also test if Democrats can maintain and expand their moderate-progressive unity.