What to do about Donald Trump - part 2

What legal actions, if any, should the government take with respect to President Donald Trump? As Rep. Liz Cheney (R, WY) later said, “There’s no question the president formed the mob. The president incited the mob. The president addressed the mob. He lit the flame.”

Impeachment. Although Congress cannot move with sufficient speed to impeach and convict President Trump before he leaves office on January 20. Congress should impeach and convict Trump. That will disqualify him from holding federal office in the future, making official what his actions have already made unofficial.

Indictment and Trial. Legal action against President Trump is pending in more than one non-federal jurisdiction. These actions should proceed. If the President pardons himself, the pardon covers only federal offenses, not state offenses. Given currently available public information, the federal government should not pursue charges against Trump. Federal investigation(s) will send a mixed signal (is the investigation politically motivated by the Biden administration/Democrats or actually warranted). Prosecution for state crimes establishes accountability but shifts jurisdiction out from under the President’s control. Biden in words and actions must re-establish the Department of Justice’s impartial credibility. The Department is not a political weapon to be used at the President’s discretion. An important exception to this general approach is for the IRS to complete the audit begun well prior to Trump’s 2016 campaign and then to take any appropriate enforcement actions.

Donald Trump is a symptom and not the problem. The problem is that we citizens have stopped believing in and acting on the idea that the federal government is OUR government, a government of, by and for the people. Too many people fail to vote. Too many people are content with a government controlled by monied interests. Too many of us have stopped asking what a government that functions for the people would look like.

We now ask of government, “What will you do for me?” instead of asking “What can I do for my country?” We send the children of the poor to fight our wars. We pay for those wars with deficit financing, creating debt future generations must pay (or at least pay the interest on that debt). We cut taxes on the wealthy even though economic research consistently reports that tax cuts on the wealthy do not create jobs or higher wages for lower earners.

Politicians and elected officials loudly support fair and honest elections. Count every vote, they insist. Nevertheless, numerous politicians and elected officials work to make voting more difficult for the poor and people of color. Restrict voting hours. Limit the number of polling stations. Aggressively purge voter rolls. They justify these and other actions by citing the need to ensure honest elections even though no research has uncovered evidence of substantial voter fraud in the last half century. Yet when evidence of foreign interference in US elections appears, many of these same politicians and elected officials respond with a yawn.

In a democracy the people have the government they have earned. The failures of the Trump administration point to our failures. Thankfully, we and our government can change.

We the people need to become passionate about good government. Become knowledgeable. Learn the facts. Denounce falsehoods. Encourage everyone regardless of race, gender and other demographic differences to get involved. Run for office. Vote. Demand accountability from our elected leaders.


Anonymous said…
I’m not so sure there was no insurrection. The question is quite important. The article of impeachment introduced in the House today specifically mentions insurrection, one reason being that 18 USC 2383 disqualifies anyone who has incited insurrection from holding any office under the U.S. This would effectively ban Trump from running in 2024… one of the Democrat’s objectives, although I would hope that the last month’s events would reduce Trump’s support. The Constitution also mentions insurrection in the 14th Amendment, Section 3.

But nowhere does the Constitution or law directly define insurrection. We know it when we see it, I suppose. Of course, the Constitution and 14th Amendment were written in contexts of the Revolution and the Civil War, respectively. Perhaps there is case law that defines insurrection. Otherwise, Congress and the courts will have to apply the term. Congress is its own judge, with respect to impeachment.

This link has a perspective from North Carolina law https://nccriminallaw.sog.unc.edu/insurrection-in-north-carolina/. There is precious little case law in North Carolina to say what is insurrection and what isn’t, apparently.

Everyone seems to say that organization is a necessary element of insurrection. How organized was the invasion of the Capitol? I’m inclined to wait and see what facts emerge.

It may be that the response of the Capitol Police was measured for good reasons, or it may be that incompetence or randomness manifested in their reaction, or it may be that some members of the USCP were passively or actively involved.
George Clifford said…
I just watched the House vote to impeach Trump. Although disappointed that more Republicans did not vote for impeachment, the bipartisan vote was still encouraging.

Pre-pandemic, I had a couple of opportunities to converse with candidates running to become Honolulu’s next prosecutor about prosecutorial discretion. Part of that discretion is deciding with which offense(s) to charge a person. Crimes often see well=defined until one actually attempts to apply the law to particular behavior(s). Of course, some offenses such as murder are a little clearer: is there or is there not a dead body? Even in those cases, however, the offense has rightly become nuanced over time, ranging from accidental manslaughter to pre-meditated murder, with the nuancing varying somewhat among jurisdictions.

I’m guessing that insurrection is poorly defined, at least partially because relatively little case law exists and the paucity of insurrection charges has not generated sufficient political will to attempt to define the term insurrection clearly.

What I’ve heard and read leads me to conclude that Trump wants to stay in office. Desire is not a crime. Otherwise, most people would be in prison for multiple offenses. Do Trump’s actions, including his words, constitute actual insurrection? Is he actually attempting to overthrow the government or is he flailing about, without a plan, stirring the pot, creating chaos, hoping something will happen that enables him to stay in power? Is the latter insurrection? Some of the groups among his followers certainly include armed insurrection on their agenda. Has Trump aligned himself with these groups because he thinks he can use them for his own ends or because he subscribes to their insurrectionist agenda? I lean toward the former; the latter seems unlikely given Trump’s narcissism. I’ve also not read anything suggesting Trump assisted in planning/organizing the assault on the capitol.

The Senate trial, which I presume will occur once the Dems become the majority party, will hopefully provide a fuller account of events. Trump watching TV, disengaged from the events occurring around him and failing to act to support or defend the Constitution (i.e., the government) seems prima facie a “high crime and misdemeanor” regardless of whether his actions meet the definition of insurrection.
Anonymous said…
Another possible angle is 18 USC 2101 which criminalizes use of telephone, radio, TV, etc with intent to “incite, organize, promote, or encourage” a riot. The code contains a clear definition of riot. The Code of the District of Columbia also criminalizes willfully inciting or urging other persons to engage in a riot. To your point, what happened at the Capitol would meet most any definition of riot. Prosecutors frequently charge someone with multiple offenses and then see what happens at trial. If the prosecution doesn’t win one, they might win a lesser one.

Can Trump pardon himself before he leaves office? Legal opinion on that is divided.

Can Trump be prosecuted after he leaves office for a crime he committed while in office? Definitely yes. That’s why Ford pardoned Nixon.
George Clifford said…
My presumption has been that Trump will pardon himself before he leaves office. At a minimum, self-pardoning will place another obstacle between Trump and possible prosecution, which is how he has approached legal battles in the past. Fight at every opportunity, run up the cost of the legal proceeding and hope that the other party tires or runs out of resources before Trump loses in court.

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