Trump Must Be Removed From Office: Now!
President Trump must be removed from office, as soon as possible, before he can do more harm to law and order, justice, and political discourse. Trump incited the mob that stormed the U.S. Capitol on Wednesday [Jan. 6, 2021: a date that shall live in infamy] just as Congress was about to complete the process of electing Joe Biden as president and confirming Trump as the loser in 2020 election.
My home state of Tennessee faced a similar dilemma in 1979 in dealing with an out-of-control lame-duck chief executive as evidence emerged that Gov. Ray Blanton was selling pardons through his counsel to convicted felons. The U.S. attorney in Nashville worked with Democratic legislators to cut off the pardon-selling scheme by helping engineer the installation of the Republican governor-elect Lamar Alexander three days before the scheduled inauguaration..
Trump has already engaged in a pardon-issuing binge and is reported to be considering many more in his final days in office, including possible pardons for son-in-law Jared Kushner and even a legally dubious pardon for himself. Trump's enablers and apologists need to take steps now to prevent any further debasement of the presidential pardon power and any further damage to the constitutional order.
My former Tennessean newsroom colleague Keel Hunt detailed the Tennessee story in his masterful book, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal (Vanderbilt University Press, 2017). As Keel tells the story, the successful effort to thwart further debasement of the governor's office required acts of political statesmanship by the state's Democratic leaders and the then U.S. attorney, Hal Hardin, who started the ball rolling by calling Alexander with word that Blanton had more pardons set to be issued.
With similar statesmanship here in Washington, Republican leaders and the interim U.S. attorney Bruce Sherwin could combine to make it untenable for Trump to remain in office for the ten days that remain in his four-year term. As the federal prosecutor for the District of Columbia, Sherwin could and should state that Trump's speech on Wednesday morning urging the mob toward the Capito is enough to charge him with the federal crime of incitement.
Sherwin raised this possibility by telling reporters on Thursday [Jan. 7] that his office is considering possible criminal charges against "all actors, not only the people who went into the building." Under questioning, Sherwin left open the possibility that Trump could be included among the targets. "We're looking at all the actors," Sherwin repeated, according to the account in The New York Times. "If the evidence fits the elements of a crime, they're going to be charged." The next day, however, prosecutor Kenneth Kohl batted the suggestion away. "We don't expect any charges of that nature," he told The Washington Post.
Here, for anyone needing a bill of particulars, is the federal law that prohibits incitement 18 U.S.C. §373. The law makes it a crime for anyone to "solicit[], command[], or induce[]" another person to "engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States . . . ."
The Supreme Court, in the leading case of Brandenburg v. Ohio (1969), held that the First Amendment does not protect from possible prosecution speech, such as Trump's, if "directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." Trump's speech to a throng that numbered in the thousands clearly satisfies those requirements. He directed the placard-waving crowd m to march toward the Capitol and exhorted them to show strength. "You will never take back our country with weakness," he said.
The timing of the march needs to be stated clearly: Trump spoke around the noon hour as Congress was set to convene, imminently, at 1 PM to count the Electoral College votes that would verify Biden's election and confirm his own defeat. In effect, Trump was exhorting a lynch mob to march into the courtroom just as the jury was about to return a verdict. And, in fact, the mob's successful entry into the Capitol forced Congress into recess, delaying the eventual certification of Biden's victory past midnight.
In contrast to the amorphous situation in Tennessee four decades ago, the U.S. Constitution sets out two procedures for removing Trump from office before his term expires: removal by impeachment and conviction in Congress or invocation of the Twenty-Fifth Amendment based on a finding by his own Cabinet that he is "unable to discharge" the duties of the office. Either of those procedures is problematic, but Republicans interested in reclaiming a measure of the party's integrity could provide the votes needed for conviction in the Senate or the support needed to persuade Vice President Pence to join in invoking the Twenty-fifth Amendment.
At this writing, Pence is said to be opposed and, in fact, he declined to take a call on Thursday from House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, who wanted to ask him to take that step. Leading newspapers joined last week in editorially endorsing whatever steps are needed to remove from Trump from office now: not only The New York Times, but also USA Today and the solidly conservative Wall Street Journal. As the Times put it, Trump's "potential to wreak havoc is enormous," even if his remaining time in office is short. USA Today's editorial cited Trump's incitement of the assault on the Capitol as evidence that he has "forfeited his moral authority to stay in office.
Posted by Kenneth Jost at 8:56 AM No comments:
Trump Diehards Sow Disorder in Contesting Election
Disorder and even violence are in the forecast for Washington this week as President Trump's diehard supporters take to the Senate floor and the streets to try to overturn Joe Biden's decisive victory in the 2020 presidential election. Their efforts promise tense confrontations in D.C. streets between Trump's paramilitary shock troops from the white supremacist Proud Boys and pro-democracy counter protesters from liberal and progressive advocacy groups.
With 11 Republican senators now committed to challenging Electoral College votes from several Biden states, their efforts promise a drawn-out debate on the Senate floor and perilous votes for Republican senators in what is normally a purely ceremonial opening of envelopes and counting of votes.
The defeated president is encouraging the disorder on his Twitter feed by urging supporters to mass in Washington on Wednesday [Jan. 6] as the Senate prepares to count the electoral votes. The effort is doomed to fail because electoral votes certified by the states cannot be rejected except by a majority votes in both chambers of Congress. With a Democratic majority, the House of Representatives is certain to reject the Trump-backed challenges; with a narrow Republican majority, the outcome in the Senate itself is uncertain since some GOP senators have said they will vote to confirm Biden's victory.
A Biden spokesman dismisses the Senate protests as political theater. "This stunt won't change the fact that President-elect Biden will be sworn in on January 20th," spokesman Mike Gwin said. Gwin went on to note that Trump's "baseless claims" of fraudulent voting and vote counting have been dismissed by "Trump's own attorney general, dozens of courts, and election officials from both parties."
Indeed, the Trump campaign and Republican officials in key battleground states have failed in every effort to overturn Biden's popular vote victories by five- or six-figure margins, unlikely to be overturned even after the most thorough of election audits. In an effort to give substance to the Senate maneuver, Texas's senior senator Ted Cruz fashioned a proposal calling for a special commission to conduct what he calls "an emergency 10-day audit of the election returns in the disputed states."
Texas's Republican attorney general Ken Paxton had already tried but failed with a "Hail Mary" legal maneuver to get the Supreme Court to consider overturning election returns in four Biden-carried states: Georgia, Michigan, Pennsylvania, and Wisconsin. The Court kicked Paxton's unprecedented suit, Texas v. Pennsylvania, in a three-sentence order [Dec. 11] that correctly concluded that Texas had no "judicially cognizable interest in the manner in which another State conducts its elections."
Missouri's Josh Hawley was the first of the Republican senators to say he would challenge the electoral votes on the Senate floor. Cruz added Arizona and Nevada to the list of disputed states and gained the support of ten other GOP senators for his harebrained scheme of a special election commission to audit the results. All of the senators but one represent states that Trump carried handily: Marsha Blackburn, Tennessee; Mike Braun, Indiana; Steve Daines, Montana; John Kennedy, Louisiana; and James Lankford, Oklahoma, Also backing the plan is Wisconsin's Ron Johnson, who in effect is seeking to overturn Biden's victory in his own state.
Four of those backing the plan are senators-elect due to be sworn in as the new Congress takes office: Bill Hagerty, Tennessee; Cynthia Lummis, Wyoming; Roger Marshall, Kansas; and Tom Tuberville, Alabama. But some veteran Republicans have strongly criticized the effort, including Pennsylvania's Patrick Toomey, Nebraska's Ben Sasse, Utah's Mitt Romney, and South Dakota's John Thune, an assistant Republican leader. "In the end, I don't think it changes anything," Thune commented, in a remark that drew a critical tweet from Trump urging the state's Republican governor to challenge Thune in the 2022 election. [530]
Cruz and the others are defying the Senate's Republican leader, Kentucky's Mitch McConnell, who had urged the GOP caucus to sit back and allow electoral votes to be cast and counted without challenge. The floor debate and roll-call votes on any individual challenges will put some Republican senators in a tricky political situation of avoiding offense to the millions of Trump voters who believe the president's bogus claims of voter fraud.
Nonpartisan election watchers warn that the doomed-to-fail effort poses a longterm threat to public confidence in elections and to the Biden presidency as well. In the short term, however, the threat to civic order is more concrete. In an interview with the pro-Trump Newmax, Texas's Republican congressman Louie Gohmert openly described "violence" as the only remaining alternative to challenge Biden's election after a federal court rejected Gohmert's suit aimed at forcing Vice President Mike Pence to discard some of Biden's electoral votes. Gohmert backpedaled later by claiming that he did not intend to incite violence in Wednesday's planned demonstrations.
Trump's post-election challenge is all but unprecedented in U.S. history. The closest precedent perhaps is the refusal of southern states to accept Abraham Lincoln's election in 1860: For Pence, his role as vice president in presiding over the Senate has clear precedents in recent history. As vice president, Richard Nixon had the duty of confirming John Kennedy's election in January 1961; Al Gore had the same role in January 2001 in confirming George Bush's victory and followed the parliamentarian's advice in refusing to recognize a challenge to Florida's electoral votes.
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Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.
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