Congressional Democrats’ Exception to the Law

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The discouraging conclusion that one cannot avoid is that legal arguments — even rational arguments — don’t much matter in today’s America.  All that matters is giving enough color of plausibility to an action to prevent deliberately ignorant supporters from feeling like there is no excuse for behavior they support.  And so, one sees arguments like this, from the House Democrats’ statement as they handed their latest impeachment over to the Senate:

“There is no ‘January exception’ to the Constitution that allows a President to organize a coup or incite an armed insurrection in his final weeks in office,” the Democrats argued. “The Senate must convict President Trump, who has already been impeached by the House of Representatives, and disqualify him from ever holding federal office again.”

Of course there’s no “exception… that allows a President to organize a coup or incite an armed insurrection in his final weeks in office.”  Such an act would be a treasonous crime, however, and fall outside the auspices of a politically motivated legislative body.

The problem is that some politicians — Rhode Island’s Democrat Congressman David Cicilline prominent among them — think they are the exception when it comes to adhering to laws, standards, and basic good governance.  Of course, they would claim that President Trump led the way, but for good reason is it a cliché on the political right to observe that he is most notable for fighting them according to their own rules.

But even Trump didn’t come anywhere near the level of disregard for process and the rule of law that this second, purely political impeachment displays.



  • Rhett Hardwick

    Every “expert” I have heard, even Dershowitz, concludes that the action is completely unconstitutional. Be that as it may, it is so obviously political.

    • Mario

      “Even Dershowitz?” He’s been coming up with absurd legal theories to defend Trump for years. They are both “Friends of Epstein,” so I assume it’s related to that. The legal Hail Marys won’t work any better here than they did regarding the election itself; there is always a new theory, and the evidence to back it up is always due to come out “next week.” It’s Lucy with the football, every single time.

      • Rhett Hardwick

        I don’t know why it is an “absurd legal theory” that the Senate is not empowered to try a private citizen. Can you suggest any Constitutional provision which gives them that power?

        • Mario

          They aren’t trying a private citizen, they are trying a former President for abuses committed while in office. This isn’t something new, it has happened before to other officials. It was only 2016 when the same people pretending to be outraged now were clamoring to impeach Hillary for what she did while Secretary of State. And we know about Matt Gaetz happily reminding people that you can impeach former officials in 2019 when the subject wasn’t Trump. It doesn’t happen often, for obvious reasons, but it isn’t unprecedented. And, not that it matters, but he was impeached while in office, so he wasn’t even a private citizen yet when proceedings began.

          • Rhett Hardwick

            Give me an example of a successful impeachment of someone already out of office. I think it notable that a justice of the Supreme Court has refused to preside.

          • Mario

            If by successful you mean conviction, I don’t know of any, but it may have happened in some states. The original Virginia constitution didn’t allow impeachment until the governor was out of office, so the principle itself is long-standing. And it’s just basic logic, we can’t allow a situation where there is a two month interregnum where the loser President is allowed to do whatever he wants to try to stay in power and neither the government nor the people have any recourse to protect themselves. Obviously we can no longer pretend that civic virtue is enough to restrain the imperial impulses.

            As for the Chief Justice, I think he’s wrong to not take the job, or not to at least be explicit about his reasoning for refusing.

          • Justin Katz

            You’ve kind of given up the game with the reference to another state. We’re not talking about “impeachment” as a general concept, but in a particular body of law.

          • Mario

            That body of law is part of a tradition. The Supreme Court, if they get to hear a complaint about this (and I hope they do) will absolutely be looking for examples in practice from other states and from English history. That’s how this whole thing works.

            And, once again, this isn’t even a case where a private citizen was impeached. The sitting President was impeached. The only question is whether the Senate is obligated to dismiss once he relinquishes his office. In 1876 the question came up and the Senate voted to continue. I’m not saying that there is no ambiguity, but the case for continuing is almost as good as the case to convict.

          • Justin Katz

            Now you’re changing terms. You’ve brought up an example in the U.S. Senate, whereas before you said you didn’t have one. Your argument about Virginia, though, is weak. If one body of law has a section on impeachment that another does not, you don’t get to read the section into the latter just because the idea exists in principle.

          • Mario

            I said I didn’t know about a conviction. Belknap was ultimately acquitted, but the Senate chose to go through with his trial even though he was out of office.

            I’m not reading anything in. Certainly nothing says that a person who isn’t in office can’t be impeached (again, not that it’s relevant). The people saying that doing so is unconstitutional are the ones making the affirmative claim. The Constitution in fact doesn’t forbid it, it has been done before, and other places have done so exclusively. The power has only the restrictions set forth in the constitution, and “people still being in office” isn’t one. This would be a perfectly acceptable extension of that power (if it were what is happening here, which it isn’t).

          • Justin Katz

            The Senate can go through with any political chicanery they want. Yes, they can have some sessions under the name of “impeachment” and hope a beguiled nation will treat a conviction as if it has the force of law. In this case, he is not the president. Furthermore, the absence of the Chief Justice invalidates the entire exercise. And moreover, the notion that the American people should be forbidden from electing a person who is otherwise eligible but for the politicized impeachment process is a recipe for civil war.

            One would have to check the record to see whether the impeachment’s being invalid was one of the arguments for his acquittal.

          • Mario

            It was definitely one of the reasons why the vote failed, yes. But they need 2/3rds to pass, so the arguments for voting against don’t need to be very good, they don’t need to convince a majority.

            The idea that convicting Trump could lead to violence is cute, given that Trump-inspired violence is the entire reason behind the trial itself. It is certainly believable that a conviction could lead to further violence, but giving him a pass let to an attack on Congress itself, so what have they got to lose?

          • Justin Katz

            That’s a dangerously incorrect analysis, perhaps created so as to rationalize a desired action. If you’d pause and consider your fellow Americans as people trying to be guided to what’s right by their lights, you’d see why. People didn’t respond as they did on they 6th in a vacuum. a couple decades of escalating contempt against them led to that moment. One lesson of the 6th was that they didn’t get their way (and probably lost ground). The impeachment puts more fuel on the contemptuous fire.

          • Mario

            No, it was a few years of escalating lies and deliberate misinformation. Constantly telling people that they are under attack on all sides, are losing ground, and have to fight back has led to a movement where a not insignificant number believe that Hillary Clinton literally steals and eats the faces of children. The Republican party was actually prospering back in 2015 by any reasonable measure, and yet Trump took office by telling the people with the most power that they had the least, which just shows how successful the campaign to make Republican voters permanently afraid has been. Now the Republican party is floundering, and in their minds that only proves the original thesis instead of being good evidence that they have been led astray.

            I fully understand that Trump fanatics are only doing what they think is right, but I also know that pointing out where their moral compass is irreparably broken will do more good than letting them go further afield just to keep from seeming disrespectful.

          • Justin Katz

            Trump gave representation to voters who were already there. That’s how democracy is supposed to work. The GOP was doing well due to pushback against Obama, but Clinton was going to win that election.

            As to the rest of your analysis, I find it unduly reductive and inapplicable to the point at hand. A politicized, questionably legitimate, and unprecedented impeachment is not “pointing out where their moral compass is irreparably broken.” It is an insult and declaration of victory and oppressive intent. That is why the Democrats have militarized D.C. It does indeed reinforce the pre-Trump beliefs among Trump supporters and sympathizers.

          • Mario

            There is no way Clinton was going to win that election outside of a major misstep by the Republicans. In fact, I think it’s pretty clear that she lost despite them making that exact mistake. Both Clinton and Trump were extraordinarily weak candidates, the only people who could plausibly lose to them were each other. It was the stoppable force vs. the movable object.

            The latter point was describing my strategy, not that of Congress. I don’t speak for the Democrats; I wouldn’t even support them if my hand weren’t being forced. In any event, calling the impeachment politicized is a joke (what going through Congress could avoid the label?), and pretending it was a deliberate strategy makes no sense, since if that were the case they would have done it in November or December so that there would be time to achieve something worthwhile, or they would have jumped on his call pressuring the officials in Georgia to steal the election for him. They didn’t, because they weren’t planning to impeach regardless of the provocation. What they wanted was to flush the toilet and move on, but Trump wouldn’t relent.

          • Justin Katz

            You can tell yourself that, if you want. Personally, I believe the election to have been the fraudulent conclusion of society-wide destruction of our institutions in the name of fighting a boorish guy who was fictitiously declared a threat to democracy but who actually did quite a bit of good.

            It’s fine for you not to agree with that, but even putting it all aside, this ridiculously divisive impeachment (which is entirely in keeping with the ridiculously divisive actions of Fraud in Chief Biden separate and apart from it) is an obvious harm that succeeds only in indulging people who were encouraged to indulge their hatred of their fellow Americans with a final show that the Americans they don’t like aren’t acceptable.

            Note, for example, your phrase “irreparably broken.” That means irredeemable, which means cut off from their rights as citizens.

          • Mario

            I wouldn’t say “cut off from their rights as citizens,” more like unable to faithfully discharge their duties as citizens. They tried to overthrow the dang government, so that seems like an apt description. I know you don’t agree with that description, but that just goes back to “you have yet to reckon with what actually happened on January 6th.” You seem to be afraid to even accept the premise for the sake of argument. To me, most Democrats, most independents, and even a few Congressional Republicans, a small group of angry Trump supporters, at his direction, attempted to reinstall him as President after he lost the election. Prosecuting him for that isn’t not an attack on you or his voters, it’s a defense against him and people like him in the future. I don’t understand why you take his failures so personally.

          • Justin Katz

            The problem is the ridiculously vague and sliding scale that you display, and which plagues the speech of people more powerful than us. Just as you have no problem with the Democrats’ use of impeachment based on a questionable reading of the law, a small number of Trump supporters felt there was a legitimate path to addressing the obvious fraud via Congress. A much larger group just wanted to register their dissatisfaction at having been deprived of (in our view) a fair hearing of grievances. President Trump encouraged peaceful protest, and it is laughable to suggest that more than a handful of people actually thought they could overthrow the government. But the biggest problem is that it isn’t clear who is eligible for your declaration that they are “unable to faithfully discharge their duties as citizens.” Now that’s an apt phrase for inchoate fascism if ever I saw one! Not that it matters much, because many of us doubt that our nation will ever have a fair election again.

          • Mario

            Since your sole measure of fairness is whether your candidate wins or loses, I almost hope you’re right, but I know we aren’t that lucky.

          • Rhett Hardwick

            What you are implying is civil/criminal misconduct. There is a judicial system for that, it is not for the legislative branch. Regardless of what the Virginia constitution may, or may not, have prescribed; it is simply not relevant at the federal level. Why not simply refer to the quickly abandoned “Alien and Sedition Act”, that seems more your style.

          • Mario

            If I could put Trump on trial criminally I certainly would, but the Justice Department seems to believe that Presidents are above the law and Congress is unwilling to push the issue. If impeachment is the only kind of justice on offer, I’ll take it. It’s better than no justice at all, and setting another terrible precedent to boot.

          • Rhett Hardwick

            Bear in mind that is the same Justice Department that went along with the Russian Collusion fiasco, knowing from the outset that it was completely invalid. Isn’t that more of the “swamp” that Trump supporters complain of?

          • Mario

            OK, can we at least stick to one fantasy at a time? I’m having trouble getting people to acknowledge that Biden won the election, I can’t go back and deprogram every one of Trump’s lies, we’ll be here forever.

          • Rhett Hardwick

            You started with the fantasy of Trump “inciting to riot”. Have you even seen his speech? Do you even remember the name of the unarmed woman shot by the capitol police? Have you wondered why there seems to be no investigation? Why don’t you go join up with the pandemic people trying to close down King of the Hammers?

          • Mario

            It wasn’t just the speech, it was everything leading up to the speech as well. It was two months where he lied about the results, and then convinced them that they could show up on January 6th and make a difference. He organized the “protest” and personally invited the participants. He whipped the crowd into a frenzy before he even spoke that day.

          • Rhett Hardwick

            You’re reaching. Who was it that organized the 500,000 people to “protest” his inauguration? Plenty of destruction, cars burned, etc. Any prosecutions? Think of it this way. 74 million people voted for Trump, can you detect any effort here to unite them?

          • Mario

            You’re changing the subject, classic whataboutism. There is no limit to the kind of crimes you can justify ignoring through that tactic. The only important question is whether there was a crime at all, not if someone, at some other point, got away with something else. On the other hand, it is nice to see that you, unlike some others, don’t dispute the results of the election.

          • Justin Katz

            My recollection is that people wanted Clinton to go to jail… i.e., be tried in a court of law for criminal conduct. The allegations against Donald Trump wouldn’t have a chance in court, so instead, the Democrats are constructing a show trial, like tyrannical people have done throughout history.

          • Mario

            There were people calling for her to be jailed, too, but I would have said that if I meant it.

          • Justin Katz

            Well, then, it wasn’t “the same people,” but “some of the same people.” I’m not included in that group, so I’m not sure what the relevance is to my point.

          • Mario

            It wasn’t a response to one of your points. The question was whether a former official can be impeached at all, and people generally seemed to think the answer was yes when it was someone other than Trump. And, relatedly, the answer is yes, although, again, Trump wasn’t even a former official when he was impeached, so the question is moot anyway. The real question is whether a Senate Majority leader can single-handedly overturn a lawful impeachment by refusing to hold a session, but luckily there is no time limit, and the impeachment by the House doesn’t disappear if the person impeached attempts to flee.

          • Justin Katz

            Well, then, I look forward to the impeachment trials of Presidents Biden and Obama some day in the future.

          • Mario

            That’s what the Gaetz comment was about! You can’t pretend that the door has been opened now when back in 2019 one of the most shameless Trump sycophants was already floating the idea. And, for the record, Presidents should be impeached for their behavior a lot more often than they are. If they were held accountable more often they wouldn’t push the bounds of their office quite so far. We shouldn’t just be reserving impeachment for literal acts of treason.

          • Justin Katz

            I’m going to give you the benefit of the doubt that you’re just playing around. The difference between a politician floating an idea that has no chance of coming to fruition and a political party following through is the difference between holding up the key that sets off a nuclear bomb and actually inserting it and turning it. I don’t know who you actually are, but I’ve never taken you as this nakedly partisan.

          • Mario

            I assure you I’m not nakedly partisan, I still consider myself someone who would be a Republican under normal conditions. I was in fact, until 2016, but when only a dozen members of the Republican congressional delegation can stir themselves to rebuke a prominent Q nut, I don’t have any hope that the party will win me back anytime soon. If I were partisan by nature, I’m sure I’d be all in on the lunacy and conspiracy theories. Or at least I’d be a quisling never-never-Trump, “I don’t approve of how he expresses himself, but we must protect the doughy little man at all costs.”

            I’d love to be back to complaining about the Democrats, they are pretty awful, and I’m sure they’ll screw up the impeachment like they do everything else, by pandering to their own worst supporters rather than focusing on building a solid case that can reach the normals. But the difference between Democrat standard awful and what the Republican party has become is not something I can ignore, though Republicans thoroughly abandoning support for the free market hasn’t made that too hard.

            And I would suggest that the main reason why one case had no chance of coming to fruition and the other went through has a lot more to do with the strength of the case than the will of the parties. I’m sure there is a negative way to spin the bipartisanship of the impeachment votes, but some few people are crossing lines to hold Trump accountable, and I don’t think anyone is crossing lines to defend him. How do you even reconcile Liz Cheney’s vote with your perception of the rest of the impeachment? I know what Occam’s razor suggests.

          • Justin Katz

            You’re asking that question of an interesting person, and I’ll even open the door for a personal attack from you in order to answer. I was recalled from office on grounds that I know to have lies and distortions, and with the involvement of people who by every political measurement should have been on my side. We can go through their reasons, but suffice to say that there were multiple categories. It isn’t at all difficult to come up with reasons that people might vote for such a thing on stated grounds that are completely fictitious.

            As to the Democrat v. Republican thing, Democrats are observably less likely to break ranks (although Republicans are increasingly taking the example), and the party has now gone completely crazy, nearly to a totalitarian degree. At the same time, the cloud of lunacy facing Donald Trump was of historic proportions. He wasn’t an innocent in the matter, but his lack of innocence doesn’t somehow make the Democrats’ and Never Trumpers’ response any less lamentable.

  • Mario

    I know you have yet to reckon with what actually happened on January 6th, but your second sentence hits really close to the mark. It actually works so well to describe this whole post that it’s tough to see how it was meant to work in context.

    One thing that should be pointed out was that Democrats were extraordinarily reluctant to impeach for the last four years, frustratingly so from my point of view, and there is literally no political benefit to doing so this late. If you even briefly accept the premise that they didn’t want to go through an impeachment trial at all, let alone one that threatens to derail the first days of the Biden presidency (and the evidence for that is overwhelming), you would be forced to accept, at a minimum, that Democrats believed that what happened on January 6th was so inexcusable that they couldn’t just ignore it like they did most of everything else, and were forced to act against their own interest for the sake of the republic. You have to overlook that they are the only ones who will suffer a political cost for these proceedings (aside from the few sane Republicans left, like Romney and Cheney), because you can’t afford to believe that they are conducting them for a legitimate purpose. That is to say, the treason that he did. So you call it “political,” even though you can’t articulate the political gain anyone involved on the side of the good guys would receive.

    He tried to overturn the results of the election. He sent a mob to push the issue (getting a fair number of people killed in the process). You were rooting for him to succeed. Obviously you don’t want him (even mildly) punished for his crimes, because then you’d have to note your own culpability in letting it get so far, and either admit that he had you deceived, or that you only value things like the rule of law as far as they let you get what you want. That is the state of things.

    • Justin Katz

      I’m not sure there’s sufficient actual argument in your comment to make it worthy of much response, but I will say that it’s so simple of a matter to construct a counter-narrative that considers the Democrats’ political pressures and benefit that I’m fully confident that you could do the work yourself. As to your desire to assert knowledge of my inner mind, I won’t stoop reflect that strategy back at you.