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.
Comments
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.
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.
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.