Over the Cliff Notes – Impeachment

5 mins read
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Here we go. Over the Cliff Notes (name suggested last year by a clever follower on Twitter). The charge: Incitement of Insurrection.

Spoiler: This is a slam dunk in the impeach-and-convict department and will create a moment of truth for the GOP. 

What I mean by “slam dunk” and “moment of truth” is that when the facts are this clear, the party defines itself by how it responds.

First, the basics:

  • Impeachment requires a majority vote in the House. 
  • Impeachment is followed by a Senate trial.
  • Conviction requires two-thirds of the Senate. 

The Senate trial following impeachment is not a criminal trial. The Constitution specifically says that a criminal trial may be appropriate AFTER impeachment and removal.

Defendants in a criminal trial have special protections because they stand to lose their liberty, property, or even their life. An impeached president, on the other hand, stands to lose his job and the ability to hold the job again.

Therefore certain requirements for a criminal trial, such as the requirement that allegations be proven beyond a reasonable doubt, do not apply.

In addition to charging Incitement of Insurrection, the Article of Impeachment invokes the 14th Amendment (Section 3) and Trump’s duty to faithfully execute the oath of office:

Notice that the 14th Amendment doesn’t give the procedure for determining when Section 3 applies:

Another part of the 14th Amendment — Section 5 — empowers Congress to enforce the entire amendment “by appropriate legislation.” But that would require the president to sign off on it and might violate the ban on a Bill of Attainer? 

In other words, it gets complicated.

One judge has said a simple majority is all that is needed to remove under Section 3 but that may have been incorrect, for reasons Chicago law professor Daniel Hemel explains here.

Under the impeachment clause, after conviction (two-thirds of the Senate) a simple majority can remove Trump’s ability to run again for office.

Now, for a close look at the charge of Incitement of Insurrection:

Note: The statement of facts doesn’t have to be complete. Additional facts can come out at the trial, which is sort of what trials are for. This is particularly true when a crime was actually televised, members of the Senate conducting the trial were witnesses, the situation is an ongoing national emergency, and the public doesn’t have all the facts yet.

Facts given in the Article of Impeachment:

  • On Jan. 6, Congress and the VP were carrying out the duties given in the 12th Amendment.

During the proceeding months, Trump repeatedly lied and said the election results shouldn’t be accepted because they were the result of widespread fraud. 

Just before the insurrection, Trump addressed a crowd and, among other things, said the following:

After being incited by Trump, the crowd did the following:

This conduct followed Trump’s efforts on Jan. 2 when he “urged” Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn Georgia’s presidential election results and “threatened” Raffensperger if he failed to do so.

This is a slam dunk in the impeach-and-convict department and will create a moment of truth for the GOP. 

They don’t want the truth to come out. They don’t want to acknowledge their complicity or discredit their own propaganda machine.

Flashback to Impeachment #1 when the GOP essentially put Trump above the law by ignoring the fact that Trump was strong-arming the Ukrainian president to open an investigation that would help Trump politically. 

Who is getting strong-armed now? As a wise person said, “If you hunt with wild wolves, it doesn’t matter how long you’ve fed them for, the first day that you fail to feed them, they will kill you and eat you.”

Nah. He was president when the Article was drafted. One requested remedy is that he can’t hold office again. The idea that a president can commit a heinous act during the final days of his presidency and thus escape accountability makes no sense.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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