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]]>A reader asked me to analyze the statutory and constitutional tools that could and should be used to fight Trumpism now that Trumpism has been irrefutably revealed for what it is: Fascism. Having studied for decades the interactions between constitutional law and constitutional politics, I actually have some expertise on this topic. That experience does not mean any recommendations are “right answers,” particularly because there are so many competing ends and thus competing means. Hopefully, my training provides reasonably acute analysis. The following is predicated on publicly available facts; we may soon learn of more seditious acts that justify far more severe sanctions.
Before evaluating particular options, we need to determine the scope of the problem, rank desired outcomes, and sort them by time (short term, intermediate term, and long term).
First, how serious is this threat to the Republic? Over the past few years, I would occasionally come across polls indicating that a vast, growing number of Americans no longer believed in democracy. They want a “strong leader,” unencumbered by Congress, the media, or Courts. Alas, my response consisted of more denial than fear: Most of those people didn’t really mean it. Large anti-democratic factions are on both sides, so neither side is very dangerous. They won’t act, either out of fear or lack of conviction. Most Americans don’t like domestic violence. The polls are probably wrong. This is just macho Locker Room or Chapel talk. Those thoughts somewhat calmed an underlying dread that our Nation was in a downward spiral.
The World Values Survey published in 2017 a poll stating that 38 percent of Americans support an unchecked leader. This movement had grown from 24 percent in the mid-1990s to 29 percent in the early 2000s. The number may be greater now, but we can hope this tragedy has enabled some people to change their minds. I could not find a good poll indicating the different political ideologies of these anti-democrats, but my current guess is almost all are Fascists. Remember how bewildered many of us were at Trump’s ability to keep his approval ratings above 35 percent no matter what he did? Trump, who often said he wanted to be “President for Life,” either knew those numbers or instinctively sensed his opportunity. He really meant that he would not support a peaceful transfer of power. Trumpism is not just a temporary, freakish cult of personality; it is a potentially fatal political movement that long predates Trump’s rise to power.
The attempted coup on January 6 proved that neither Trump nor his most devout followers were play-acting. We can add Fascism to our exploding list of existential threats. Incidentally, while those poll numbers should not be admitted in a court of law, they confirm the odious intentions of Trump, his enablers, and many of his followers when they assaulted the Capitol. The only Legal Vote is a Republican Vote. The only Legal Party is the Republican Party. If you assume those principles, the election was stolen.
Fortunately, many Republicans disagree. Some Republican House and Senate members have indicated that they will vote for impeachment. Mitch McConnell strongly intimated that he wants the President impeached. State Republican officials did not succumb to Trump’s relentless public and private pressuring. I never thought I would write that Governor Kemp of Georgia acted heroically. Right now, we must build upon this burgeoning bipartisan response. Maybe this crisis provides us with the chance to make a few sorely needed legislative changes to improve our political economy, address some of our systemic social injustices, and better protect our environment.
The stakes could not be much higher, so we must think very clearly. We can’t let “hot emotions” like revenge and fierce partisanship cloud judgment. It is time to act like a lawyer or a Machiavellian politician, using cooler passions to cripple this political movement, which long predates Trump and is not going away soon. We must drive these cretins back into their holes, where they can grumble about their inability to impose their totalitarian, often religiously inspired visions on the rest of us.
Until Biden becomes President, Trump can start a nuclear war, plot against the Inauguration, start a conventional war with a country like Iran, attempt assassinations of foreign opponents, declare martial law, and/or foment another rebellion. Obviously, he should resign. But that will never happen. Once he leaves office, he plans to run for Dictator in 2024.
Given these horrifying stakes, it is easy to conclude that Pence and the Cabinet should use the Twenty-Fifth Amendment to remove this unstable idiot savant. But there is one crucial fact that we do not presently know: Have they already cut off Trump’s hands? Is Pence currently the real President of the United States? General Milley, the head of the Joint Chiefs of Staff, might still politely answer Trump’s calls, treating him like a rich mental patient, but should only be taking orders from Pence. Trump can fondle his nuclear “football,” but the launching code has been turned off.
If Trump has been stripped of all meaningful power, then Pence’s unwillingness to invoke the Twenty-Fifth Amendment is not an outrageous dereliction of duty. Forcing Trump out of office will enrage the dangerous part of his dwindling base, increasing the likelihood of imminent violence. But if Trump retains any power over the use of force, Pence and other leading Republicans failed, risking all our lives.
For the moment, let’s give Pence the benefit of the doubt. Pence’s admirable performance on January 6 reveals that many Evangelicals believe in democracy. Not all Evangelicals are members of Vanilla ISIS (Super kudos to the person who coined that phrase). We must create a new, broad movement of Constitutional Americans, consisting of all Americans who still believe in democracy.
A military coup is the final short-term protection against Trump monstrosities. Fortunately, our military leadership firmly stated that Biden will be President in a few days. If Trump tries to do something outrageous, the military will probably stop him, install Pence, and withdraw after Biden becomes President. The Proud Boys and a few rogue cops won’t stand a chance against the United States Marines.
Everything else takes too long. Congress should have immediately conducted a Zoom Impeachment and conviction, but that moment has passed. Legislatures are generally incapable of reacting quickly, a trait is a strength and a weakness.
We cannot let this conflict distract us from starting to address the underlying forces that caused it to arise. We must provide more hope and opportunities to average citizens, giving them reasons to be loyal. Aside from the incorrigible Fascists, there are millions of voters and nonvoters who think our system has become corrupt and unresponsive. Machiavelli wrote that a republic can be the strongest form of government, because it takes the best care of its citizens. He also warned that corruption was the greatest internal threat. Democrats need to act boldly, hoping some Republicans join them. Politics as Usual will guarantee more Unusual Politics in the future. Some Democrats would like to use this event as an excuse to do very little, thereby pleasing their wealthy patrons.
On the other hand, it is vital to act firmly against Trump, his enablers, and his most violent followers. This is not the time to simply “move on.” Strength is the only thing these Fascists admire and fear. In terms of legal sanctions, we must separate insurrection leaders and the most violent from their sympathizers. Economic and social sanctions are also appropriate. Private companies should never support leaders like Cruz and Hawley. Coup participants ought to be fired. Boycott companies that give money to men like Cruz or advertise on Fox Television unless it stops spewing its toxic nonsense. It may be years before one has Thanksgiving Dinner with crazed Uncle Ralphie.
Impeachment seems like the best tactic to immediately punish the President. Above all, it will be bipartisan. Several leading Congressional officials, including Liz Cheney, have already committed. McConnell probably will join Romney, Sasse, and others in the Senate. The incoming Senate may well convict him. Stripping Trump of his federal benefits and any opportunity to run for federal office will be provocative, but his fans already think he is a martyr. He remains a unique threat, because of his long history of celebrity, his Presidency, and his strange, telegenic charisma. There will be more Fascist aspirants to the Presidency, but few have his twisted skillset.
Of course, if it turns out that Trump and his minions actively planned the attempted coup and supported it by stripping Congress of police protection, then there are additional grounds for criminal charges and impeachment (Right now, Congress should also impeach him for failure to act once the coup began).
One advantage of this horrible tale is that we now know the names of many of our enemies (sadly, that is what they are). Anyone who continued to support Trump’s Big Lie after the coup is presumptively anti-democratic. Thus, the Gang of Six in the Senate and the Congressional rabble in the House have effectively become a dangerous, separate political party. McConnell and Cheney, two tough Republicans who are not afraid of a fight, have already begun the Republicans’ civil war.
While Democrats need Republican allies to combat Trumpism and to deal with pressing political problems, they also should use this opportunity to drive a wedge through the Party’s existing heart. Just as the chaos surrounding the 1968 Democratic Convention signified the beginning of the end of the New Deal Democratic coalition, it is time to fracture the Republican Party. Fortunately, McConnell, Pence, and Cheney are patriotic enough to finally put country above party. You can certainly argue they took too long, but better late than never.
The Republican Party must clean its stables. Supporting impeachment is just a start. At a minimum, Cruz and Hawley should be permanently kicked out of the Party. The other four Senators and the hundred-plus House members ought to be given a chance to apologize, admit they promoted a big lie, and vote for impeachment. Otherwise, they are also out.
Should Congress use the Fourteenth Amendment or the Expulsion Clause to purge their dangerous colleagues? Assuming there was no direct Congressional collaboration with the invaders, those moves would create a dangerous precedent, making it far easier for future Fascists to create a one party system of government. Better to leave the leaders’ fates to Republican colleagues, donors, and voters. Hawley and Cruz achieved their desire to be remembered in history, joining such luminaries as Benedict Arnold and Jefferson Davis.
Neither the Fourteenth Amendment nor Expulsion should be pursued unless we find that some Congressional members clearly and actively conspired with the invaders. Expulsion is slightly better than the Fourteenth Amendment, because it requires a two-thirds vote. Congress usually cannot expel members unless there is some bipartisan support. A bare majority cannot purge its opposition. But it is very likely that any expulsion vote based upon what was said in Congress would pretty much proceed on party lines, reaggravating partisanship at the very moment that we desperately need bipartisanship.
The Fourteenth Amendment seems applicable, because we witnessed something resembling an “insurrection,” the event that triggers the federal power to remove seditious federal office holders. Of course, The Civil War was a classic example. However, it is not clear that Congress can act unilaterally. The Supreme Court has already appropriately held that Congress violates separation of powers whenever it adjudicates individual cases (aside from impeachment). Arguably, Congress must pass appropriate legislation under Section Five of the Fourteenth Amendment to empower Article III Courts and juries to determine whether or not Congressional leaders like Cruz and Hawley committed “insurrection.” Even if the Supreme Court holds that Congress has the power to remove these scoundrels by a mere majority, a Congressional purge creates a dangerous precedent. Indeed, the Fourteenth Amendment is a worse path than Expulsion since it might only require a majority to reconstitute Congress.
Until the failed coup, I was inclined to conclude that Trump should not be sent to prison for the crimes we know he committed. Whatever else you want to say about Bill Barr, he did the country a great service last year when he did not indict Biden or Obama. “Lock her up” or “Lock him up” are disturbing, divisive chants. My wariness extended to state criminal charges. Imprisonment would be too divisive and set a terrible precedent. It would be hard to get a conviction, because at least one silent Trumpster would probably sit on any jury.
I am no longer so sure about such restraint. In addition, there may be other, even worse crimes that will be revealed after Trump leaves office. Perhaps this fraught decision should be made after our political life settles down a bit and his popularity hopefully drops quite a bit. For quite a long time, I am going to be as interested in anti-democracy polls as Republican-Democrat polls.
On the other hand, state and federal officials should aggressively pursue all possible civil and criminal fraud cases against Trump, his sleazy family, and grifter associates. If they are guilty, they should be fined to the maximum extent permitted by law. We also can wish success to all the private plaintiffs, ranging from Michael Cohen to violated women, who seek damages from this predator. Punitive damages seem particularly appropriate in all possible situations.
At a bare minimum, there needs to be a thorough, public review of his Presidency. Truth and Reconciliation for his followers, Truth and Non Reconciliation for Trump and his most dangerous enablers.
None of the Congressional authoritarians should be indicted unless they directly collaborated with the attackers. Representative Mikkie Sherrill claims to have seen Republican lawmakers giving “tours” to rioters one day before the attack. If they did conspire in advance to terrorize Congress and thus the People, those acts are not vague, political crimes. They should be locked up. The same applies if there was a conspiracy to not protect the Capitol.
While almost all the rabble who invaded the Capitol were guilty of numerous felonies and misdemeanors, we should focus on their leaders and the most egregious and flamboyant actors. The murderers of Officer Sicknick should face manslaughter charges, at a minimum.
Two questions framed the first third of the Twenty-First Century: Would the human race learn to control its desires enough to preserve the planet for itself and other species? Would the United States gracefully accept the inevitable decline in its relative power?
The rise of Fascism in America, based in significant part upon denial of climate change, shows that we are off to a terrible start. Perhaps we can build a new political ideology out of the wreckage, a viewpoint that attracts an enduring supermajority. The Fascists and Left-Wing purists won’t be happy, but that would be a clear sign we are on the right path.
A few years ago, I was talking to a thoughtful checkout person at a Whole Foods. After the usual commiseration about the state of our society, he asked me what he should do next. I replied, “Read good books.” One of the main goals of this newsletter is to demonstrate the utility and pleasure of reading of good books.
[Editor’s note: This article was reprinted, with permission, from James Wilson’s newsletter: hopebutnoexpectations@
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]]>The post Lincoln Project: “We are Republicans, and we want Trump defeated” appeared first on Occasional Planet.
]]>One day before the impeachment of Donald Trump in the U.S. House of Representatives, it became apparent that this decidedly strange time in America’s history was about to get a whole lot stranger. With the announcement by a handful of conservative Republican strategists, political consultants, and journalists that they’ve founded a political-action group called the Lincoln Project, Democrats and progressives who have been raising ever louder alarm bells about the dangers of another four years of Trumpian chaos, corruption, lawlessness, government destruction, and outright cruelty found themselves on the same side of the political divide with some of the most stalwart conservative Republican insiders.
The founders and backers of the Lincoln Project – attorney and spouse of Kellyanne, George Conway; former campaign chair for John McCain and consultant to George H.W. Bush, Steve Schmidt; and political strategist and journalist Rick Wilson, along with other prominent Republicans like Reed Galen, Jennifer Horn, Mike Madrid, Ron Steslow, and John Weaver – have declared that they intend to proudly lead the charge to oust via the ballot box in 2020 Trump and any Republican politicians who have thrown themselves onto the disgrace that is the Trump bus. And that’s not all. In a shocking coup-de-grace, the Lincoln Project manifesto declares in no uncertain terms that the goal of the group is to forge in this time of high stakes for American Democracy and the rule of law an alliance with Democrats who share with the Lincoln Project’s supporters a “fidelity to the Constitution.”
In an eloquent and brilliantly framed call to action, entitled “We Are Republicans and We Want Trump Defeated” that was published in The New York Times on December 17, 2019, George Conway, Steve Schmidt, John Weaver, and Rick Wilson outline why they and other Republicans decided to take this extraordinary leap – side by side with like-minded Democrats and other patriots – to right the ship of state and obliterate the perilous constitutional maelstrom that Trump and Trumpism have precipitated.
Below is an excerpt from the editorial. Read it. Take heart. And share it with everyone and anyone you think might take a few moments to process the seriousness of what’s at stake.
“Patriotism and the survival of our nation in the face of the crimes, corruption and corrosive nature of Donald Trump are a higher calling than mere politics. As Americans, we must stem the damage he and his followers are doing to the rule of law, the Constitution and the American character.
That’s why we are announcing the Lincoln Project, an effort to highlight our country’s story and values, and its people’s sacrifices and obligations. This effort transcends partisanship and is dedicated to nothing less than preservation of the principles that so many have fought for, on battlefields far from home and within their own communities.
This effort asks all Americans of all places, creeds and ways of life to join in the seminal task of our generation: restoring to this nation leadership and governance that respects the rule of law, recognizes the dignity of all people and defends the Constitution and American values at home and abroad.
Over these next 11 months, our efforts will be dedicated to defeating President Trump and Trumpism at the ballot box and to elect those patriots who will hold the line. We do not undertake this task lightly, nor from ideological preference. We have been, and remain, broadly conservative (or classically liberal) in our politics and outlooks. Our many policy differences with national Democrats remain, but our shared fidelity to the Constitution dictates a common effort.
The 2020 general election, by every indication, will be about persuasion, with turnout expected to be at record highs. Our efforts are aimed at persuading enough disaffected conservatives, Republicans and Republican-leaning independents in swing states and districts to help ensure a victory in the Electoral College, and congressional majorities that don’t enable or abet Mr. Trump’s violations of the Constitution, even if that means Democratic control of the Senate and an expanded Democratic majority in the House.
The American presidency transcends the individuals who occupy the Oval Office. Their personalities become part of our national character. Their actions become our actions, for which we all share responsibility. Their willingness to act in accordance with the law and our tradition dictates how current and future leaders will act. Their commitment to order, civility and decency is reflected in American society.
Mr. Trump fails to meet the bar for this commitment. He has neither the moral compass nor the temperament to serve. His vision is limited to what immediately faces him — the problems and risks he chronically brings upon himself and for which others, from countless contractors and companies to the American people, ultimately bear the heaviest burden.
But this president’s actions are possible only with the craven acquiescence of congressional Republicans. They have done no less than abdicate their Article I responsibilities.
Indeed, national Republicans have done far worse than simply march along to Mr. Trump’s beat. Their defense of him is imbued with an ugliness, a meanness and a willingness to attack and slander those who have shed blood for our country, who have dedicated their lives and careers to its defense and its security, and whose job is to preserve the nation’s status as a beacon of hope.
Congressional Republicans have embraced and copied Mr. Trump’s cruelty and defended and even adopted his corruption. Mr. Trump and his enablers have abandoned conservatism and longstanding Republican principles and replaced them with Trumpism, an empty faith led by a bogus prophet. In a recent survey, a majority of Republican voters reported that they consider Mr. Trump a better president than Lincoln.
Mr. Trump and his fellow travelers daily undermine the proposition we as a people have a responsibility and an obligation to continually bend the arc of history toward justice. They mock our belief in America as something more meaningful than lines on a map.
Our peril far outstrips any past differences: It has arrived at our collective doorstep, and we believe there is no other choice. We sincerely hope, but are not optimistic, that some of those Republicans charged with sitting as jurors in a likely Senate impeachment trial will do likewise.
American men and women stand ready around the globe to defend us and our way of life. We must do right by them and ensure that the country for which they daily don their uniform deserves their protection and their sacrifice.”
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]]>The post What I’ve Learned After a Year of Trump appeared first on Occasional Planet.
]]>Donald Trump unfortunately is already more consequential than any US President since Ronald Reagan. Trump will reshape our judiciary, he has already reshaped our tax code, and next year he will have an opportunity to undo much of the Great Society and New Deal. There are some things we may not be able to restore, at least not for a long time, such as the dignity of the office. We can’t exactly bottle back up whatever Trump’s candidacy let out, it’s here now and we’re going to have to live with it. However, we can learn from what’s happening and discern what it means to live in this strange and foreign land that was once America. I don’t know exactly what Trump is or what the hell is happening with our politics, but 2017 gave me some time to reflect and this is what I’ve come up with.
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