Impeachment’s Indictment is Insurrection’s Incitement: Part I
TLDRUpFront: A mega-mullet of the key issues: charges, evidence, procedures, and Constitutionality arising during President Trump’s Senate Trial. But if you want to skip to the end, just watch for the Senate vote on a Secret Ballot. That alone will probably determine his fate. Part I of II.
Did the President incite the Insurrection and was he derelict in his duty in suppressing it?
FullContextInTheBack:
The two-part mega-mullet consolidates analysis on eight key questions readers may have regarding the Senate Trial of former President Trump beginning this week.
- What are the Charges and Opening Arguments in the Trial?
- What is the Schedule for the Trial?
- Is the Senate Trial Constitutional?
- What are the Key Procedures and Concepts of the Senate Trial?
- Did the President attempt to ‘subvert and obstruct’ certifying the 2020 Presidential election?
- Was January 6th an Insurrection?
- Did the President incite the Insurrection?
- Was the President derelict in his duties?
In Part I, I cover questions 1-4 and cover questions 5-8 in Part II.
But at the end of the day, the outcome of the Senate Trial likely comes down to one seemingly innocuous, procedural vote. Will balloting on Conviction and Penalties be secret? If the ballot votes are secret, Republicans are freed to vote their conscience rather than their cowardice. And a recent secret ballot vote in the House to remove Representative Cheney (R-WY) from her leadership position after voting for Trump’s Impeachment suggests that at least 70% of Republicans were unwilling to do that.
What are the Charges and Opening Arguments in the Trial?
The Impeachment proceedings against former President Trump by the House consist of three main charges:
- President Trump attempted to subvert and obstruct the Presidential 2020 Election certification, including threatening a Secretary of State of Georgia if he didn’t overturn election results.
- President Trump incited the January 6th Insurrection through prior conduct and the January 6th Ellipse Rally.
- President Trump then failed in his duty as Commander in Chief to secure the Capitol and Constitutional procedures of the Electoral College certification.[1]
Noteworthy to this observer is that charge #3 has shifted from what was an expected seditious behavior of “giving aid and comfort” during and after the Insurrection itself to a more black and white charge of dereliction of duty. All of these charges that are broken out above all co-exist within the single combined single charge submitted by the House to the Senate that will be decided at Trial.
The three charges lay out four key time windows during which the President’s actions will be reviewed during the Trial:
- The President’s behavior related to overturning election results, especially the Secretary of State Raffenberger Call
- The Rally before the Insurrection
- The President’s non-public activities in the White House during the Insurrection
- The President’s public activities from the White House during the Insurrection
The case of the House Impeachment managers takes 80 pages in full. It lays out a damning statement of facts. Still, it spends over half of its length arguing three key issues: President Trump committed high crimes and misdemeanors, there is no defense of President Trump’s conduct, and the Senate has the Constitutional authority to try the Trial.[2] These arguments are key because President Trump’s attorneys’ defense does not really attempt to defend his behavior.[3]
In a 78-page submission that mirrors the House Impeachment format but not its legal quality, the President’s defense is presented. As has been common over his term, President Trump’s attorneys are more concerned with impressing their boss with bombast and scoring hits than providing solid legal defense. Almost the entirety of the defense rests on the premise that whatever the President said, it was free speech, Democrats are evil, a Senate Trial is unConstitutional because former President Trump is now out of office. Thus, any Trial of him constitutes an unlawful Bill of Attainder, and if you didn’t know already, Democrats are evil. I hope these new attorneys, brought in at the last minute to replace the first team when they resigned a week before the Trial was supposed to start [4], cash their checks faster than Rudy did. [5]
What is the Schedule for the Trial?
First Key Vote: Constitutionality of Impeachment TUE FEB 9th
Under a joint agreement by Senator Schumer (D-NY) and McConnel (R-KY), the Trial has a compact schedule. For now.[6] The Trial begins on February 9th and proceeds without interruption on any other business or ability to debate or modify Impeachment Rules until after a vote on witnesses. The Trial’s first day will argue the Constitutionality of the Senate putting on Trial a President no longer in office. Both parties will have 2hours a piece to make arguments on either side. The Senate will then move to what is in effect a vote of summary dismissal. Suppose the Senate votes in the majority. A President cannot be impeached after leaving office. In that case, the charges are dismissed, and the Trial ends. Having set another reckless precedent of removing Constitutional checks on power for purely partisan gain, the Senate can get back to the business of racing each other to partisan authoritarianism. If the vote fails, however, the rest of the trial proceeds.
Because of a Democratic majority, the vote is likely to pass, and the Trial proceeds. The question will be how many Republicans vote with the Democrats. Although a previous vote by the Senate resulted in a 55-45 split, with all but 5 Republicans voting against the Constitutionality, some hope this outcome may be different. The previous vote, conducted when Senator McConnel was still the Senate’s Majority Leader, came as a surprise. The GOP had just concluded a closed-door lunch session where a legal professor, Johnathan Turley, made the case against former officials’ Impeachment. Having heard no opposing view and unable to consult any other authorities, GOP members were then asked to vote on the motion. Having some time to think it over and being presented with additional arguments while considering the ramifications of an unaccountable Presidency now that they are in the Minority again, this vote may be more bipartisan. The vote may also serve as a good proxy of how many Republicans are willing to confront the President while the vote remains public.
Trial Motions: WED FEB 10th
With that issue settled, the Trial will proceed in a workmanlike fashion until the next key vote. All motions by either the prosecuting House Democrats or President’s attorneys have until Wednesday at 9am to file motions. Any responses must be filed by 11am. The Senate will then hear arguments on the motions beginning at 12pm and vote on all motions until they are concluded.
Opening Arguments: WED FEB 10th thru MON or TUES FEB 14th/15th
As soon as the motions are handled, or if no motions are filed, opening arguments begin. Each party, the House Impeachment managers, and the President’s attorneys will have 16hours over 2 days to present their opening arguments. The Senate Trial may, or may not pause, for the Sabbath beginning Friday at 5pm and continuing through 2pm on Sunday. The request to respect Sabbath was originally made by one of President Trump’s attorney. Having been granted by the Senate, the attorney then withdrew the request indicating other arrangements had been made. After opening arguments, senators have 4 hours to ask the House Impeachment managers and President’s attorneys’ questions. Neither the arguments nor questions that follow need be limited to the issue of Impeachment itself. Expect most of the grandstanding to happen here. President’s attorneys may try to drag in election fraud claims or whatabout arguments involving Democrat actions during the summer BLM protests. This is the first time in nearly four days Senators will get to Senator and grandstand, so expect some of that.
Second Key Vote: Witnesses TUES or WED FEB 15th/16th
The second key vote of the Trial occurs after opening arguments, and it concerns witnesses. The entire schedule is thrown into question if witnesses are called, which has ripple effects on President Biden’s agenda, including COVID19 relief and confirmation appointments of key cabinet positions. But witnesses may be the key to obtaining a conviction, as discussed further in the procedures section below.
An earlier position was that the President wouldn’t mount much of an affirmative defense, relying instead on the question of Constitutionality and a Reeked Republican party to avoid conviction. Democrats likewise wouldn’t feel the need to call witnesses to an event most Senators lived and with plentiful public evidence. But the charge of dereliction of duty was contested by the President’s defense. And those activities all fall within the crucial Window #3 consisting of the President’s private behavior and actions during the Insurrection itself before making his public statements and Tweets.
Third Key Vote: Secret Ballot & Secret Proceedings (Immediately Following Witness Vote)
Because of the joint agreement, Senators cannot vote to modify the Impeachment Rules until the Witness vote is held. However, once the Witness vote is held, the floor’s open to modifying Impeachment Rules. This is where, if the Democrats want any hope of obtaining a conviction, they will make a motion and pass the Secret Ballot provisions as described below. This is also where further deliberations of the Senate, as they debate the validity of evidence, witnesses, etc., can all be made Secret as they were in President Clinton’s Impeachment.
Evidence absent Witnesses: Schedule TBD
At this point, the schedule is hard to predict as it will depend on whether the Senate calls witnesses. If there are no witnesses, both the House Impeachment Managers and the President’s attorneys must submit the evidence they have based their arguments on. This must be done on a strict schedule allowing both parties to review the evidence submitted by each other. As the trier of fact, the Senate can accept or deny any piece of evidence on a majority vote. This is where Secret Deliberations and Secret Ballots will first be felt if they are passed.
Witness Testimony: Schedule TBD
If the Senate votes to call witnesses, the Evidence absent Witnesses section is ignored. A new schedule will emerge based on the Senate’s time to issue subpoenas, resolve any court challenges to the validity of subpoenas, depose witnesses, and then do some more grandstanding. Most importantly, just like in the Evidence section, the Senate can hold deliberations and vote, after deposition, on whether any deposition materials or live testimony by any witness will or won’t be allowed.
Closing Arguments: Schedule TBD
After all evidence or witness testimony is concluded, the Senate proceeds to closing arguments. Taking a mercifully short 4hours split between both parties.
Conviction & Bar from Office Votes: Schedule TBD
After closing arguments or the next business day after closing arguments, the Senate votes to convict the President or not. This vote requires 2/3rd’s passage and without a Secret Ballot (see below) is unlikely. However, if convicted, a subsequent vote on barring President Trump from Office only takes a majority to pass.
Is the Senate Trial Constitutional?
Although aspects of this were covered in a previous InfoMullet on President Trump’s first Impeachment, given the importance of the Constitutionality question that starts the Trial, it’s worth reviewing again. I’m relying heavily on my go-to for Constitutional authority, Yale Law Professor Akhil Reed Amar, whose book America’s Constitution: A Biography is a must-read for anyone interested in better understanding the Constitution.
Sole Power
The first key concept, “sole Power,” applies to both House Impeachment and Senate Trial procedures, and since a key part of President Trump’s defense amounts to the “House is doing it wrong” or “the Senate will do it wrong,” this is worth reviewing. The term originates from the Constitutions clauses on Impeachment, emphasis added:
“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” (ART I, Sec 2)
“The Senate shall have the sole power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.” (ART I, Sec 3)
That’s it. The phrase “sole Power” language of the Constitution is unambiguous. As separate bodies of Congress, itself an independent branch of government from the Executive and Judiciary, neither the House nor Senate has an obligation to conduct an Impeachment or Trial respectively in any other way than they individually see fit.
Trump Was in Office When Impeached
Amar’s first argument is a simple technical analysis oft-overlooked by other commentators. It pulls the first line of the quote above that the “Senate shall have the sole Power to try all Impeachments.” Amar points out that the President’s status being “Impeached” is not contingent on the Senate Trial and is already an established fact. Simply put – the President was in Office when Impeached by the House exercising its ‘Sole Power.’ The duty of the Senate then is to try individuals so impeached.
Most Important Duty of Senate in Trial is neither Conviction nor Barring, but Judgement
Amar also argues that the Senate’s most important duty in conducting an Impeachment Trial is not to remove someone from the office or even bar them from holding office again. Instead, the most important duty of the Senate, according to Amar, is to establish the precedent for future Presidents on whether the behavior by President Trump is considered permissible or not. [7] In this way, the Senate’s duty is like to the Supreme Court, which is the final authority on the Constitutionality of legislated laws. The Senate is the final authority on permissible Presidential behavior. This is one of the few areas of the Constitution where a vehicle outside an election where an instrument other than an election can determine whether a qualified individual may hold office.
Although these arguments apply to the current situation, Amar covers some hypotheticals to explore the Constitutionality of Impeaching officials no longer in office.
Resignation Under the Gun
The first hypothetical is “resignation under a smoking gun.” This occurs when an officer facing Impeachment proceedings resigns days, hours, minutes, or even seconds before the House’s Impeachment vote. Although hypothetical today, there is a historical case that represents this exact scenario. In 1876, Secretary of War Belknap was under Impeachment proceedings for the Trader Post Scandal.[7] Having appeared before the House’s investigating committee on March 1st, Secretary Belknap then resigned his position on March 2nd to President Grant. And although this was reported to Congress at 11:00am, the House continued to proceed and voted on Impeaching the Secretary, even after he was no longer in office. the Impeachment went to Senate Trial, where the Senate determined that Belknap, now a “private citizen,” could still be subject to Senate Trial for Impeachment. [8]
Misconduct occurs late in the term
The Belknap case shows that even if someone is no longer an officer before Impeachment charges are filed, they may still be charged and subsequently tried. This is because of the ‘greater duty’ that Amar refers to of the House and Senate to set a precedent on public officers’ permissible and impersimmisble behavior.
Amar suggests another scenario, where misconduct occurs so late in a term that it is unfeasible for the House, let alone the Senate, to meet. This is certainly close to the case on January 6th. Suppose President Trump attempted to interfere with the inauguration by having President-elect Biden arrested before he attended the ceremony or using Federal forces to disrupt the ceremony. Even if the efforts ultimately failed, President Biden was sworn in, should President Trump receive a pass because the House and Senate could not meet and conduct both an Impeachment and Trial that was fair in the hours available of such an event?[7]
Misconduct occurs early, but evidence arrives late
Another scenario raised by Amar consists of when the Presidential misconduct occurs early in the term. Still, the evidence proving it arrives late in the term. Or even after the term. A President failing to adhere to established norms has considerable ability to obstruct, conceal, and delay proceedings that uncover evidence of their wrong-doing. This is why most major Presidential scandals occur in their first term but become political footballs in their second term. The evidence just isn’t available. As an example of President Trump’s extensive delaying practices, the President faced Constitutional concerns over the emoluments clause within the first few days of holding office. But the court proceedings around the investigation of a violation of the emoluments clause were so delayed by the President that they had not concluded by the end of his first term when the Court found them now moot.[9]
Presidents should not be encouraged to hide skeletons, whether abstracted or real, in deep enough closets that the revelation of evidence of their perfidy is so far removed from their office they no longer face the judgment of history.
But what about the Chief Justice Presiding over the Impeachment
Another lesser, Constitutional concern is that Chief Justice Roberts is not presiding over the Senate Trial. The language seems specific: “When the President of the United States is tried, the Chief Justice shall preside…” (ART I Sec 3). Some have used this to raise the issue that the proceedings are unConstitutional. Amar notes that the origin of the Chief Justice role in the Impeachment of a currently serving President has more to do with the Vice President, who would normally be the Senate’s Presiding Officer. It wouldn’t make sense for the Vice President to preside over a trial that could elevate the Vice President to the highest office in the land if the defendant is convicted. Especially considering that from the Constitution’s ratification to the passage of the 12th Amendment, the Vice President was often the President’s political opponent, having received the second-highest total of Electoral College votes. [7] However, as noted above, the President is both Impeached and not a currently serving President. This makes the Chief Justice’s role optional, an option Chief Justice Roberts has exercised.[10] And it is the President Pro Tempore, currently Democratic Senator Lahey, who presides over all other Impeachment Trials before the Senate.[11] This situation does not create the Constitutional crisis that some are making it out to be. The three branches of government each have their individual powers, and as the Chief Justice cannot be compelled to do something he is not required to do, nor can the Senate be compelled not to do something it has been granted both the ‘Sole Power’ and duty of performing in trying the former President.
What are the Procedures of the Senate Trial?
We covered all this in detail in a previous InfoMullet on President Trump’s first Impeachment. Much of the material below is repurposed form that post. But here are some highlights to keep in mind as the Trial unfolds.
Sole Power
The first key concept, “sole Power,” applies to both House Impeachment and Senate Trial procedures, and since a key part of President Trump’s defense amounts to the “House is doing it wrong” or “the Senate will do it wrong,” this is worth reviewing. The term originates from the Constitutions clauses on Impeachment, emphasis added:
“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” (ART I, Sec 2)
“The Senate shall have the sole power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.” (ART I, Sec 3)
That’s it. The phrase “sole Power” language of the Constitution is unambiguous. As separate bodies of Congress, itself an independent branch of government from the Executive and Judiciary, neither the House nor Senate has an obligation to conduct an Impeachment or Trial respectively in any other way than they individually see fit. An Impeachment Trial is different from a criminal trial, or really any other judicial activity.
Inherently Political
In Federal courts, Judges are not subject to review and accountability for their personal behavior during trials except in egregious behavior. Their rulings may be reviewed and overturned by other courts. Still, the Judges themselves are not on Trial in a normal proceeding. But this is not true in a Presidential Impeachment and Trial, where the President, but the House, Senate, and both Parties are in effect “on trial” in the court of public opinion and its consequences in political elections.
This is what is meant by the ‘inherently political’ nature of Impeachment. Having granted ‘sole power’ to the House and Senate, the Constitution implies that any misuse of this sole power is left to the election process to remedy. And because of this hidden check, nothing needs to be “fair” because at the end of the day, it’s all about the politics, both within the Trial and externally within the system the Trial takes place in. This ‘inherently political’ also extends into potential punishments in the Constitution, quoted below with emphasis added:
“Judgment in Cases of Impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law. “(ART I, Sec 4)
I’ve highlighted the secondary part of the punishment. In addition to Constitutionality, the President’s defense rests in part that he is already out of the office and cannot be removed a second time. The Trial thus amounts to a law that cannot be fulfilled. But because of the additional clause, the Senate may, in its “sole Power,” choose to convict the President and having convicted on a 2/3rd’s majority then on a simple majority vote to disqualify him from holding any other Office.
Senators Can Acquit Based on Politics, but they can’t Convict
The inherently political nature of the proceedings does have one important caveat. By precedent, practice, and understanding, the Constitution forbids conviction based solely on politics. However, it does allow acquittal for the same reason. This means Republicans may believe the President is guilty, but because of their constituents’ political consideration, vote to acquit. Democrats, on the other hand, cannot, or at least should not, vote to convict on the same premise. As Amar described, the reason is that the Constitution assumes that when people vote for an elected office, they do so with the knowledge of who they are voting in. He gives the example of Andrew Jackson, who was known to engage in illegal duels, killing men. Still, he has voted in as President anyways. This gives a permissible cause to vote for acquittal.[7]
Secret Proceedings
In January 2020, the Republican majority in the Senate made the proceedings of the Trial open. Traditionally, however, much of Impeachment proceedings are secret, including the Senate’s deliberations whenever they want to take a vote. Even during the Clinton Impeachment, the only one to have occurred during the internet age, there wasn’t an ability to carry a device into every proceeding and surreptitiously record, tweet, or post every action. And although there are severe consequences for violating Senate secrecy rules, we’ve already seen instances of key “private” meetings of both Democrats and Republicans being live-streamed effectively. There’s also the political cost of keeping parts, or any, of the Trial proceedings secret. I wouldn’t expect secret proceedings, but there may very well be secret deliberations that have all the security features of a Parler server.
Secret Ballot
The biggest functional difference because of Democrat control of the Senate and proceedings will be if they vote to authorize secret ballots. Senator McConnel declined to have secret ballots in the last Trial, which in effect made the Trial less about Trump’s behavior and more as a purity-test of personal loyalty by Republicans to President Trump. Unsurprisingly, the party of Reeks did not vote to convict Ramsay Bolton except for Senator Romney. The split over Trump’s behavior is much deeper this time. Now that he’s out of power, there is a significant conflict within the Republicans to what extent the party will continue to be defined by former President Trump going into the 2022 elections. If the Democrats, plus any Republican defectors, make votes themselves Secret, Republicans will vote. And a secret vote may not be on the virtue of the arguments, Republicans desiring not to have to run against President Trump or his cronies again in 2022 and 2024 can vote secretly to convict, then claim openly “Gosh, I don’t know where that total came from.” It’s just speculation which Republicans would say one thing and do another. Without at least 67 Senators in total voting to convict, secret or not, it won’t make a difference.
Secret ballots are no longer an exercise in abstraction. When House Republicans voted on whether to remove Representative Liz Cheney (R-WY) from her leadership position for anti-Trump remarks, they did so by a secret ballot. The results were a lopsided 145-61 endorsement of Cheney. And the extent to which they voted, 70% in favor of not disciplining Cheney, is well above the Senate 2/3rd’s threshold. [12]
Witnesses and Executive Privilege
Some evidence against President Trump is public: the released taped phone call on the first charge of subversion and obstruction of the election and his Rally, public tweets, and released statements on the second charge of incitement Insurrection. However, his behavior out of the public eye is crucial to both the first charge and crucially to the third, dereliction of duty during the Insurrection. In the past proceedings, the Republican-controlled Senate surrendered any pretense of integrity by refusing to call witnesses. Argument called by Lawfare Blog ‘incomprehensibly weak’ and in the same article invoking a reminder of George Orwell’s line: “The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”[10]
Discounting clowns and gadflies, three substantive categories of witnesses may be called in to testify for the Trial. This will only be determined after the opening argument shave been heard, and is the second key vote of the Trial, occurring likely on Monday or Tuesday.
Witnesses on Subversion and Obstruction of Presidential Election
The first category of witnesses can speak to the charge of subversion of the election. This could range from John Bolton, former National Security Advisor, then-Acting Attorney General Jeffery Rosen, Jeffery Clark, White House Counsel, and Deputy Counsel Pat Cippolone and Patrick Rhilbin. Any witnesses had knowledge of the before and after preparation for the Georgia Secretary of State Raffesnperger call or any similar calls or communications that occurred with any other State.
The range of testimony these individuals could provide stretch from the initial Whistle Blower complaint, that the President broke the law in requesting a foreign investigation of a domestic political opponent through a convoluted plot to oust the Acting Attorney General so that the President could have the Department of Justice directly file a case with the Supreme Court to overturn the results of the election. The effort allegedly failed when Trump’s own political appointees refused to file what they viewed as a legally baseless argument with the Supreme Court, and civilian staffers threatened a mass-resignation if the Acting Attorney General was fired.[13][14]
Although the evolving concept of executive privilege has grown past all reason and is now generally used to conceal crimes, or the discovery of evidence that may lead to crimes, by President’s ranging from Clinton through Bush, Obama, and Trump; there’s a thorny legal question to as to which President may assert executive privilege, the former or the current. However, the more important precedent relevant to the Senate Trial is that executive privilege has generally not been honored during impeachment trials. And a Senate Trial being again the “sole Power” of that body, is an ultimate check on the President’s potential abuse of power. [15]]
Witnesses on Incitement and Dereliction of Duty
The second category of witnesses are those who observed or know the President’s actions during the crucial period between the Rally and his public video Tweets. Any testimony confirming allegations that the President was gleeful about the events and confused why others or not, strike at the heart of defense the President didn’t intend to incite the crowd. If the President’s actions at the Rally were truly innocent and as shocked as his defense claims at what happened, then his behavior should match. And if it doesn’t, that undercuts an incitement defense. Even more, if any testimony by witnesses indicates that the President took it upon himself or directed staff to interact with any individual unlawfully in the Capitol during the riot, during an act of Insurrection itself, it would be lethal to his cause. But this category of witnesses can also speak to dereliction of duty. The timeline of events and the President’s specific actions are murky between what happened from the start of the Insurrection to its conclusion.
Expert Witnesses on What it Means to be President during a Crisis
The third category of witnesses is the only four individuals who can speak authoritatively on the President’s duties: former Presidents Obama, Bush, Clinton, and Carter. When it comes to the third charge, the President’s dereliction of duty, and his behavior during the time the Insurrection was occurring, the four former Presidents could provide valuable insight. How would they have acted? What do they think the President should’ve done? [16]
A Conviction must Proceed Disqualification, but Disqualification is Optional
The disqualification of President Trump cannot be voted on unless he is first convicted. The disqualification of holding future office is an optional consequence of punishment that the Senate may choose or not choose to impose. Amar argues against President Trump’s disqualification holding future office on the basis it does more than punish President Trump but risks disenfranchising an entire segment of the electorate who are his supporters. The Senate’s higher duty is again to set the precedent of what is permissible or impermissible behavior, and the Senate judgment during the Trial is to lay out the facts and establish the guardrails of behavior.[7]
This is one area where I disagree with Amar’s analysis. Still, I admit my perspective is informed more by counterinsurgency than it is Constitutional analysis. I do not believe that any segment of the electorate should be allowed to engage in hostage-taking. If they win, they benefit from governing powers, but they resort to seditious rebellion if they lose. And to the extent, this segment elevates leaders who further their movement to behaviors against the Constitution and, in doing so violate their Constitutional oaths. It is permissible to punish the public officer with barring from future office. This does not prohibit the electorate segment from raising a new leader, voting them into office, and continuing their ideas. But the Constitution serves the whole of the People, not solely one segment of them, and certainly not the leaders of them. No single leader is worth sacrificing the Constitution for. And no segment of an electorate, even if feeling disenfranchised, has a grievance that rises sufficiently to overturn valid election results through Insurrection and Rebellion.
Sources
[1] https://www.congress.gov/bill/117th-congress/house-resolution/24/text
[3] https://www.politico.com/f/?id=00000177-82b6-dc90-a7f7-f6bf558c0000
[4] https://www.nytimes.com/2021/01/30/us/politics/trump-butch-bowers-impeachment.html
[6] https://www.democrats.senate.gov/imo/media/doc/ALB21257.pdf
[7] https://www.wypr.org/post/trumps-2nd-impeachment-trial-preview-yale-laws-akhil-reed-amar
[8] https://en.wikipedia.org/wiki/Trader_post_scandal
[9] https://www.politico.com/news/2021/01/25/supreme-court-trump-emolument-cases-462134
[10] https://www.lawfareblog.com/incomprehensibly-weak-case-acquittal-without-witnesses
[10] https://www.scotusblog.com/2021/01/roberts-will-not-preside-over-impeachment-trial/
[12] https://www.politico.com/news/2021/02/03/mccarthy-defends-liz-cheney-465626
[13] https://www.wsj.com/articles/trump-pressed-to-change-justice-department-leadership-to-boost-his-voter-fraud-claims-11611434369
[14] https://www.nytimes.com/2021/01/24/us/politics/jeffrey-clark-trump-election.html
[15]] https://www.lawfareblog.com/can-former-president-assert-executive-privilege-impeachment-trial
About Author
