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GOP Senate Leader Mitch McConnell said DonaldTrump was responsible for what happened Jan. 6, but voted to acquit the former president.
One vote both squandered and sullied the ultimate congressional check on a president
Feb 19 2021
Marcuss is a retired partner at the law firm Bryan Cave and on the steering committee of Lawyers Defending American Democracy.
<p>
Donald Trump tried to steal the election and prevent the peaceful transfer of power. And 43 Republican senators said that's OK when they voted to acquit him in the impeachment trial. It was time to "stop the steal," as the former president's allies so often shout. But it was the Senate that refused.
</p><p>
Trump's militias attacked the Capitol, tried to stop Congress from counting the electoral votes that confirmed his defeat, called for hanging the vice president and threatened to assassinate the speaker of the House. And 43 Republican senators said that's OK.
</p><p>
The melee created by Trump's militias led to the deaths of at least five people, including a Capitol Police officer, and more than 100 of his colleagues were injured. Now the Capitol is an armed camp, surrounded by barbed wire and thousands from the National Guard. And 43 Republican senators said that's OK.
</p><p>
Americans might be forgiven for thinking the impeachment process is what protects the country from leaders like Trump, bent on destroying American democracy and the rule of law. Saturday's acquittal vote has proved this view to be dangerously wrong.
</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>
The Constitution provides that a president who commits "high crimes and misdemeanors" may be removed and disqualified from holding elective office. A president who incites a mob to seek to prevent Congress from certifying the results of an election he lost has unquestionably committed a high crime and misdemeanor.
</p><p>
Senators take an oath to "do impartial justice" before sitting in an impeachment trial. It was clear from the outset, however, that most GOP senators decided to ignore evidence of Trump's guilt even before the trial began. It's fiction that there was ever a chance for a real trial and the impartial administration of justice.
</p><p>
The undisputed evidence presented to the Senate demonstrated beyond a doubt that Trump started his effort to invalidate the 2020 election long before the first votes were cast, spreading the fiction that the only way he could lose was if the vote was rigged. After he actually lost, he kept spreading the lie that he'd been denied a second term by election thieves. Sixty or so courts across the land, including the Supreme Court, roundly disagreed.
</p><p>
In rally after rally, Trump nonetheless encouraged followers to believe his lies and urged them to come to Washington on Jan 6. Trump promised the day would be "wild."
</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>
And then, just before the start of the Electoral College tabulation ceremony, Trump repeated his Big Lie once more. He told a raucous rally that Joe Biden's victory "could not stand" and that Vice President Mike Pence had a duty to overturn the election. The mob then marched on the Capitol, ransacked the building, hunted for Pence and Speaker Nancy Pelosi and stopped the certification process for several hours. Trump, meanwhile, remained ensconced in the White House, did nothing to protect the Capitol, declared that his vice president had failed in his duty and embraced the mob.
</p><p>
"We love you; you're very special," he said as their insurrection continued, urging them once it was over to "Remember this day forever."
</p><p>
None of this was disputed. Even GOP Senate Leader Mitch McConnell said afterward that Trump was responsible for what happened and intended by his actions "to torch our institutions on the way out."
</p><p>
Yet, minutes earlier, McConnell and 42 other Republicans effectively did no more than shrug and say, "So what?"
</p><p>
McConnell shamelessly cloaked his vote with a laughable argument, that a former president was not constitutionally subject to an impeachment trial. But it was McConnell himself who prevented the trial from starting while Trump was still in office.
</p><p>
Nothing explains the acquittal, and McConnell's cynical contortions, except a craven surrender to political self-interest. A violent threat to our country be damned, said those who found Trump guiltless; for them, impartial justice meant nothing more than indifference to justice.
</p><p>
Impeachment is intended to protect the country from presidents who threaten the country's most sacred institutions, including the peaceful transfer of power. The process is meaningful, however, only if senators obey their oath to do "impartial justice." The Senate minority leader, and the other 42 Republicans who voted "not guilty," refused to do so despite knowing the charges were true.
</p><p>
The impeachment process can never be stripped entirely of political considerations. A politician not affected by politics, after all, is a dead politician. Senators are not like jurors in a regular court. They are not disqualified from voting because they know a lot about the case before the trial begins, or even if they have opinions about the merits of the case before seeing the evidence.
</p><p>
Like most things in life, however, conflicting pressures and obligations have to be balanced. There is an obvious conflict between the duty of impartiality, on the one hand, and the impossibility of expunging acquired biases and insulating politicians from political realities, on the other. Reconciling the two is not easy. What is inexcusable, however, is not even to try.
</p><p>
Those who voted not guilty did not try. They entered the Senate chamber determined to acquit and refused to be deterred. Some even openly collaborated with Trump's lawyers as the trial proceeded.
</p><p>
Those 43 senators have impeached the impeachment process. They have stolen from the Constitution a bulwark against tyranny and impeached themselves in the process.
</p><p>
But the other seven Republicans, and the 50 Democrats, knew the difference between commitment and capitulation on Saturday. They acquitted themselves by discharging their duty to act on the difference. Voters should remember this day forever.</p><div>
</div>
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Spencer Platt/Getty Images
Former Trump lawyer Michael Cohen could be the kind of explosive witness able to sway votes, writes Solomon.
Why witnesses at Trump's trial would be good for the system — and the drama
Feb 09 2021
Solomon is the senior digital strategist at Next Level Studios, a legal marketing firm, and an adjunct management professor at McGill University in Montreal.
<p>The question that remains on everyone's mind is whether the post-presidential impeachment trial of Donald J. Trump is constitutional. </p><p>Of course it is.</p><p>In <a href="https://u12097671.ct.sendgrid.net/ls/click?upn=9rudYHeevExQpJ5A1h-2BA7QI44mLlIJLIZK4HWVcNopPeojX-2BOGynGRupHmAQ9E6gmqHQ-2F6fStzlpG3CgmI9v-2FQcuG3zEAhEvfwoCV2X6dzIYgJ0f5vbN3GECLWnYzz-2FhT29H_JIetNOmp7jQc9Tcd1KtGsYMabOGMQGlJPxdDIPVtw-2BB4fvtnf55KlPRfUjDDaZ987dV6azLRBUdPm3gNOBpU79AsG2Dxk6ncX98SfP5K9CyGGFjxCRD6KlBlJPBNQ8-2FxU-2BLTvhcWw5SPEvI-2FfkCS3-2BDRtutrD2HfW0TmV57zDTYm1d7it30pCh7fX1DuyO2FHGpeedxMprC4pXGsakik89F0mxgA8ot4bqVBPajmaZhXEFL-2FZOb1KnIRmyYIY385Aiz6-2Bv9Er-2BzLrxvUn-2BOm7rWEvzvR8tFnTai67glhVZ-2B4R54OST6Km1n4oz6z0HPRyy9Pnpazafk7mmR0bUHekw6Qh7F3RRAWh8bU-2FNe8JhnppjpuwK-2FcWxIxjAeOCwbwXx7VxmBWnoOrn9gtAFcqorn0aWd7BOvQ116iyJ5kiiHdw0LSW5WfFWn-2FP-2FlT7v8h" rel="noopener noreferrer" target="_blank">a 14-page memo</a> released last week, lawyers for Trump argue, among many other things, that the Senate trial beginning Tuesday is an egregious constitutional overreach and that the Senate has no jurisdiction over Trump because he currently holds no public office from which he can be removed. </p><p>This is a serious logical stretch and even a more tenuous legal one. </p><p>Trump was impeached by the House while he was still the president. The acts and omissions that led to his being charged all occurred while he was in office. The Senate proceedings are simply a timely continuation of this fair process that is actually empowered by the Constitution. To be crystal clear, there is nothing happening that is unconstitutional. </p><p>What is actually and critically important is how the Senate will conduct the trial. </p><p>The process will be historically good political theater. With a Senate tied at 50 Democrats and 50 Republicans, the chances of getting to an actual conviction are somewhere between tiny and small — even with a few Republican senators looking likely to vote to convict Trump of "incitement of insurrection," the storming of the Capitol on Jan. 6. Remember that the bar is set high, with a two-thirds majority required. It just seems too unlikely for this to happen, though the past five years should have taught us that political prognostication is a wicked game. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>So what's the wild card here? What might actually create a situation so politically bad for the GOP that enough members would have to even begrudgingly cross the line and vote in favor of conviction, which would then very likely lead to a second vote barring Trump from holding public office again? Witnesses. </p><p>This is the fight that will begin to be played out in traditional and social media cycles. Watch for the nuance in the arguments as to why witnesses should or should not be called. It's going to be fascinating stuff. </p><p>The Democrats have wanted to call witnesses. Why not? They feel that enough witnesses will emerge to strengthen their impeachment case. The Democrats feel that the Trump defense team is questionable at best — more of a team of B players rather than Grade A lawyers. The strength and depth of the legal team is critically important. They need to be reactive in real time during the trial but they also need to be proactive, able to anticipate the next move from the House impeachment managers. The key Democratic leaders feel that there is no evidence yet that the previous president's team will be terribly skilled at doing this. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Strategically, this opens the opportunity for blockbuster witnesses to come in with damaging evidence powerfully presented. While there are many who might be called to testify should witnesses be allowed, perhaps none would be more damaging than the former president's former lawyer, Michael Cohen. </p><p>Just last week, Cohen said that he would put the "nail in the coffin" at the trial if given the opportunity to testify. Unless we believe this to be all palaver, Cohen could be the kind of explosive witness able to sway votes. </p><p>The GOP doesn't want any witnesses and who can blame them? The goal of the vast majority of Republicans in the Senate is to make this all go away. Clearly, even the most ardent Trump supporters simply want the Senate trial to disappear as quickly as possible. A carbon copy of the first Trump impeachment trial, only a year ago, would be ideal for them. Fast and not even close. </p><p>GOP Sen. Lindsay Graham of South Carolina says that allowing witnesses at trial would be tantamount to "opening a Pandora's box," which is actually a prescient observation. </p><p>As the Greek myth goes, Pandora's box was actually a jar. Pandora opened this jar left in her care expecting it to be a wonderful gift. Instead, it contained sickness, death and many other unspecified evils which were then released into the world. Hence the opening of a Pandora's box today focuses only on the effect of the jar's opening. </p><p>But, again, Pandora thought she was opening a present. She had no intent to open a jar that would cause a literal world of problems. So perhaps Graham is right. Allowing witnesses in the Senate impeachment trial could be opening the box Pandora had intended to. </p><p>The Democrats have nothing to fear by calling witnesses. Worst case scenario is that their witnesses are a total flop. Unlikely, but if this is the case, their efforts to impeach would certainly be no worse off than if they weren't allowed to call witnesses and the trial proceeds quickly to a losing vote. </p><p>What the GOP has to lose by calling witnesses may be the entire trial. Who knows what evils are brewing within the jar? Would there be multiple witnesses such as Mr. Cohen with the clear intent and perhaps the knowledge to hammer in that final nail? Does the GOP already know that these witnesses exist and are ready to come forward or will they be truly surprised at the scope and depth of what the jar will reveal if opened?</p><p>That's the thing with both mythology and witnesses in an impeachment trial. You never know what you're going to get until it happens.</p><p>Under a draft agreement between Majority Leader Chuck Schumer and Minority Leader Mitch McConnell that circulated Monday, the prospect of witnesses looks unlikely. The former president was asked to take the stand by the House managers, or prosecutors, he has flatly declined the offer to be the most dramatic and unpredictable star witness possible.</p>
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Pool/Getty Images
Donald and Melania Trump board Air Force One for the final time on Wednesday.
The democracy Trump leaves behind: His 7 most serious tests of the system
Jan 20 2021
As Donald Trump's brazenly chaotic and exhausting presidency comes to an end, he leaves behind this fundamental question:
Did his relentless attacks on our democracy make its festering problems even more malignant than he found them? Or did his unstoppable assault on civic institutions and governing norms succeed in highlighting the system's fragility while also tempering its resilience?
The nation's collective behavior in the years ahead will determine whether American democracy's metaphorical glass has been irreparably emptied or has a sufficient reservoir for survival. For now, the 45th president's infuriated yielding of power on Wednesday allows for a quick countdown of seven ways he rattled the republic the most. Such inventories are a necessary first step for those dedicated to fixing the system — so the next four years under Joe Biden don't come close to replicating the stress and anxiety of the Trump era.
7. He exposed the limits of governing without experience.
<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUwNjQ0MC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYxOTQ4NDU5NX0._kCvpIX8-GTQMOkI5WT-rHW7hGk_AYjN_mGzBK_7xg4/img.jpg?width=980" id="697a4" class="rm-shortcode" data-rm-shortcode-id="e2b9fd937c2239fc3e1504f643615d5d" data-rm-shortcode-name="rebelmouse-image" />Ron Galella/Getty Images
<p>Commander-in-chief is the only position of public trust Trump ever sought — or held. A real estate promoter and reality television star, he had never so much as served on a small-town zoning board until Jan. 20, 2017. All of his 44 predecessors had been leaders in federal or state government: governors, members of Congress, generals or Cabinet secretaries.<br></p><p>Fans saw his unique measure of inexperience as a badge or honor for the ultimate outsider committed to dismantling business as usual. But skeptics worried his total lack of familiarity with how governments operate, both mechanically and ethically, would be a debilitating if not dangerous liability.</p><p>At the start, much of Trump's norm-busting behavior and disregard for the rule of law came off as a form of willful ignorance that was a part of his unique brand of political theatrics.</p><p>But even Republican allies soon found themselves ascribing his most perplexing and outrageous conduct to someone "still growing" into the presidency's awesome requirements and limits. It was an excuse many kept citing almost to an end marked by his mismanagement of a crippling pandemic and the violence that flowed from his refusal to accept defeat. Those miseries, fueled by his inabilities on the job, will be more prominent parts of his legacy than the achievements for which he claims credit: installing three Supreme Court justices and 54 appeals court judges, pushing a substantial tax cut through Congress, and engineering expansive business and environmental deregulation.</p>6. He propelled political spending to unseen heights.
<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUwNjQ5My9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY3Mjk5NDM2NX0.YyJqmJcgf2i2xyOyKRQnpK2kwYEy2XCxQAm_UFi7sk0/img.jpg?width=980" id="671e6" class="rm-shortcode" data-rm-shortcode-id="234c2fac2326b21be1a84bc20661fd9b" data-rm-shortcode-name="rebelmouse-image" alt="Donald Trump at fundraiser" />President Trump attends a 2018 fundraiser in South Dakota.
Nicholas Kamm/AFP via Getty Images
<p>Trump claimed the White House in the second presidential election after the Supreme Court's landmark <a href="https://thefulcrum.us/citizens-united" target="_self">Citizens United</a> decision effectively unlocked the last meaningful shackles impeding the flow of money in politics. He claimed to have spent $66 million of his own money, smashing the record for self-funding by a national candidate, and the grand total for candidate and outside group spending on presidential and congressional races topped $7 billion for the first time.<br></p><p>Four years later, those numbers seem almost quaint. The enormous potential business consequences from Trump's reelection or defeat combined with the political passions of millions of Americans — at all income levels and all along the ideological spectrum — pushed the campaign finance system into overdrive.</p><p>Two billionaires, Michael Bloomberg and Tom Steyer, each tapped many multiples of their fortunes more than Trump but gave up near the Democratic primary's starting gate.</p><p>More importantly, spending on all federal elections more than doubled, cresting $14 billion for 2020 — the size of West Virginia's budget, Instagram's revenue and Amazon's projected profit for the year. That was because small-dollar donations, contributions by business <a href="https://thefulcrum.us/super-pac" target="_self">super PACs</a>, and money from outside groups backed by billionaire donors and closely tied "<a href="https://thefulcrum.us/dark-money" target="_self">dark money</a>" groups all went through the roof.</p><p>Trump did not single handedly cause the cavalcade of cash, but neither did he make any effort to slow it or assure its minimal regulation was carried out. Most seats on the already weakened and gridlocked Federal Election Commission were kept vacant until the end of his presidency. Only at that point came Trump's unintended but potentially biggest contribution to the cause of campaign finance reform: the wave of companies closing their checkbooks indefinitely to Republicans who backed Trump's effort to overturn the election.</p>5. He toppled the boundaries of civil discourse.
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="7e721b09afeb64b0f59af0670d04707a"><iframe lazy-loadable="true" src="https://www.youtube.com/embed/NsQ2hX_noNw?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>The presidential bully pulpit has the ability to shape the national conversion, and Trump did so with a tone that was consistently hyperbolic, defiant, uncompromising — and largely free of facts. Civic educators, parents and politicians all agree his rhetorical legacy is making it more difficult for Americans to bridge their differences through conversation.<br></p><p>His pronouncements bore all the hallmarks of demagogues and autocrats, focused on delegitimizing all criticism and maintaining the allegiance of his loyalists. And his refusal to reflect subtlety or countenance compromise had a profound effect on magnifying the polarization of politics. Nuance is almost impossible in 280 characters, a point Trump underscored in the more than 60,000 tweets and retweets before both Twitter and Facebook locked him out this month. But in short bursts or meandering ramblings at rallies, Trump made little time for the truth: Fact checkers have come up with 30,000 as the consensus total of his presidential lies and falsehoods.</p><p>The only oddly saving grace was that his social media addiction and love of speechmaking produced a new sort of government transparency. Salted amid all the disinformation was a steady diet of policy pronouncements, personnel moves, shifting views and flat reversals — along with stream-of-consciousness insights into the complex mindset of the world's most powerful person.</p>4. He succeeded in expanding the swamp he vowed to empty.
<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUwNjUxNC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY2Njg1NTMzN30.ygElpoYCkypRp9rhfDiib0r5go1JyFUQ6h_FkEiSnQQ/img.jpg?width=980" id="1efa7" class="rm-shortcode" data-rm-shortcode-id="53c378e6908464828e26cc75061a59c7" data-rm-shortcode-name="rebelmouse-image" alt="Donald Trump plays golf in Virginia" />President Trump plays a round of golf at his Virginia course in November.
Samuel Corum/Getty Images
<p>If one aspect of Trump's 2016 candidacy made democracy reformers happy, it was his repeated vow to "drain the swamp." But his disregard for that campaign pledge went way beyond shelving his own plans for tightening lobbying regulation, limiting campaign donations from foreign companies and setting congressional term limits.</p><p>Instead, he personally led an unprecedented presidential enhancement of influence for well-heeled private interests — starting with his own. The rasher of pardons at the end of his term, larded with clemency for his own political allies and favor-doers, was only the final example after four years of special and sometimes lucrative treatment for the people and institutions in his familial, financial, social and political orbits.</p><p>The government was compelled to spend millions at Trump's properties — the golf courses where he played most weekends, the D.C. hotel that became a de facto Oval Office waiting room, the Florida resort he made his weekend White House and the hotels around the world where his family stayed. His eponymous real estate business kept pursuing deals with both American allies and adversaries. He sidestepped anti-nepotism rules so his son-in-law Jared Kushner could have a top West Wing post. He used his office to promote companies run by supporters and to steer federal contracts and other government business to allies.</p><p>Beyond that, he named former lobbyists and corporate executives to jobs with oversight of the industries of their former clients, and four of "only the best people" in his original Cabinet were forced out under ethical clouds. He went to the Supreme Court to preserve, at least for his time in office, his distinction as the first president since the 1970s to keep his tax returns a secret.</p><p>Finally, on his last night in the Oval Office, he revoked an executive order, signed days after he took office, that had stopped his appointees' from spinning through the revolving door to lobby for five years after leaving the administration. </p>3. He sought to obliterate the balance of power.
<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUwNjU0MC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY1OTEyOTc5N30.nKRy9OpwGyz24KVwWXiLOULMBDKH0YJywlCaY9A3nm8/img.jpg?width=980" id="0a1ac" class="rm-shortcode" data-rm-shortcode-id="16bb4bd8892941dd7f6fe742bd18ad78" data-rm-shortcode-name="rebelmouse-image" alt="Nancy Pelosi, Mike Pence, Donald Trump, Chuck Schumer" />President Trump meets with Democratic congressional leaders in December 2018.
Brendan Smialowski/AFP via Getty Images
2. He sowed unmatched distrust in the electoral system.
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="5ba684958a6e15d5608f4748ae8258b5"><iframe lazy-loadable="true" src="https://www.youtube.com/embed/J20N4HbIuho?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>No other president has done so much to incubate distrust in the elemental acts of American democracy — the casting and tabulating of ballots for public office.<br></p><p>But the public consciousness is now saturated with Trump's more recent and even more insidious unprecedented assault on democracy, working to reverse the election he lost even to the point of fomenting a mob attack on the Capitol. And so his remarkable effort to undermine the electorate's faith in the security and reliability of voting has slipped to secondary consequence.</p><p>That campaign began seven months before Election Day, perversely a part of his effort to simultaneously leverage and downplay national anxiety about how the burgeoning coronavirus was going to upend every aspect of American life.</p><p>"Mail ballots are a very dangerous thing for this country, because they're cheaters," he told reporters at a briefing April 7. "There's a lot of dishonesty going along with mail-in voting."</p><p>It was the first of more than 150 false or misleading claims, catalogued by the Washington Post during the campaign, concerning fraudulent ballots or the alleged dangers of absentee voting — inconsistently focused on states that proactively deliver vote-by-mail packets to all registered voters. And that does not include the burst of wholly inaccurate claims in the summer that he had the power to postpone the election if he decided unilaterally it was not going to be on the up-and-up.</p><p>The crusade ended up backfiring. Either because of political pressure or as a consequence of the most litigated election ever, two-thirds of states made it easier to cast a ballot in 2020, mostly by making it easier to vote by mail. By highlighting the states' control and other aspects of the election system that generally get overlooked, Trump ended up ensuring the public was better informed than ever about voting mechanics.</p><p>That, and Trump's polarizing nature, prompted 67 percent of those eligible to cast a ballot — the highest turnout in 120 years. Two-fifths of the votes came in envelopes, up from one-quarter in the previous two elections. There was no evidence of widespread fraud or irregularities, prompting Trump's own administration to declare it the most secure election in history. And, ultimately, the president's own strategy worked decisively against him by producing a "red mirage" on election night: His dominance of that day's volume at the polls disappeared when mailed votes were counted and went decisively for Biden, the candidate who did not declare them untrustworthy.</p>1. He fomented an insurrection against his government.
<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTI2NTE3OC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY1NjMyNDQwOH0.koHw8bgQTBnbIR-w-hE1_1_w8qCZWN2ghLuveVBaqPg/img.jpg?width=980" id="cb14f" class="rm-shortcode" data-rm-shortcode-id="cec325887ca521b289bf6ba3c9ed7e65" data-rm-shortcode-name="rebelmouse-image" alt="President Trump speaks to supporters Wednesday" />President Trump rallies his supporters before they storm the Capitol on Jan. 6.
Tasos Katopodis/Getty Images
<p>No other president has been impeached twice, and Trump would not have been — and just a week before leaving office — but for the shocking seriousness and palpable validity of the alleged offense. The Senate will soon try him on the House's charge of "inciting violence against the government of the United States" in his quest to overturn Biden's election.</p><p>Whether formally convicted or not, and then barred from seeking the presidency again, on his last full day in office he heard Senate Republican Leader Mitch McConnell affix the blame for the storming of the Capitol on Jan. 6. "The mob was fed lies," he said. "They were provoked by the president."</p><p>The damage and injury wrought by the thousands of violent insurrectionists who heard his rhetoric that day as a call to arms, to disrupt the tabulating of the Electoral College results that sealed his defeat, will almost certainly stand as the most tangible evidence of his assault-on-democracy-itself legacy. The memory has been lastingly seared on the global consciousness.</p><p>The riot was quelled and the election result was finalized — albeit with two out of three House Republicans, and one in six GOP senators, voting with the ousted president and against the election that ousted him.</p><p>So does Wednesday's inauguration — a peaceful transfer of power, perhaps, only because 25,000 troops are belatedly standing guard — mean democracy has survived or only that its fragility has been magnified? Are the politicians' fresh declarations after the riot — "This is not who we are" because "We are better than this" — viable exhortations for a recommitment to longstanding virtues or only naive bromides about a past that has rarely been as venerable as described?</p><p>Probably it means the system has proved itself both resilient and more threadbare than ever before.</p>From Your Site Articles
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Brendan Smialowski/Getty Images
If you're a Trump crony, like Roger Stone, crimes are not really crimes, writes Marcuss.
Abused pardon power: One of the bigger problems Trump's leaving behind
Jan 19 2021
Marcuss, a retired partner at the law firm Bryan Cave and a former senior fellow at Harvard's Kennedy School, is on the steering committee of Lawyers Defending American Democracy.
<p>The president's pardon power is thought by many to be virtually unlimited. As he heads out the door, President Trump's pardoning of criminals who lack remorse and cronies who lack conscience challenges us to reexamine that belief.<br></p><p>The unadorned words of the Constitution seem to place no limits on the pardon power except in the case of impeachment. But skeptics may be forgiven for asking why the Constitution should permit pardons for murderers, thieves, tax-cheats, fraudsters and secret foreign agents — or those who have obstructed justice, lied to the FBI, abused immigrants, used campaign and corporate cash for improper purposes, disguised personal expenditures as charitable contributions and used prostitutes to entrap enemies.</p><p>Pardons like these undermine the entire criminal justice system. If you're a Trump crony or someone who obstructed justice to protect him, crimes are not really crimes. They are a sordid badge of honor. </p><p>There are two systems of justice in this country, one for the rich and well-connected and the other for everyone else. Trump's pardons create two more categories, one for those in the president's favor and another for those who are not. Criminals in the president's favor go free. The rest end up in jail. There is little wonder why cynicism runs rampant.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Cynicism will be one of the lasting legacies in Trump's parade of horrors. And it pervades much more than the administration of justice. </p><p>Consider: Use of the White House to enrich the president and his family, use of the Justice Department to protect the president personally and punish the president's enemies, interference with congressional oversight responsibilities by withholding information or prohibiting witnesses from testifying.</p><p>Consider also retaliation against whistleblowers, governing by executive order instead of congressional enactment, trashing international agreements, encouraging violence, failing to protect the public from a health crisis for fear of hurting the stock market — and, at the end, throwing the country into turmoil by falsely challenging the legitimacy of presidential elections. </p><p>We used to think it cannot happen here. Well, it has been happening here, and the country must do something about it. We cannot afford simply to hope that another Trump will not reappear in the Oval Office. Human nature has not changed. Greed, the seduction of power, and lack of moral principle lurk in the shadows, ready always to pounce. Future Trumps may be more skilled than the original in stealing democracy. </p><p>Tackling the unfettered exercise of the pardon power should be among the first orders of business in the new Biden administration. The Constitution must not be allowed to become a death warrant when politicians behave as if it contained no constraints.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The pardon power has been used by President Trump to create a class of citizens who are above the law. It has been bad enough when Trump issued a pardon after a conviction or guilty plea. It has been even worse when he has telegraphed in advance that pardons for future illegal behavior are likely. That is nothing more than a license to ignore the law. And when a president pardons those who commit crimes in service of his interests, he licenses his own wrongdoing as well.</p><p>Richard Nixon one haughtily proclaimed that "when the president does it, that means that it is not illegal." Trump once said that he could shoot someone on Fifth Avenue, and no one would stop him. A president who wields the pardon to shield his own criminality would be out-Nixoning Nixon.</p><p>The fact that the Constitution appears to place few restrictions on the exercise of the pardon power should not be an insuperable obstacle to reform. Many matters on which the Constitution is silent are dealt with through legislation to fill in gaps or reconcile conflicting provisions. </p><p>Among the many examples are constraints imposed by legislation on the use of firearms despite the absence of constraining words in the Second Amendment. Another is the permission enshrined in law to sue for libel or provide government support for religious-run schools despite the absence of constraining words in the First Amendment. </p><p>It is hard to imagine any good argument for permitting pardons as personal or political favors or to cover up a president's wrongdoing. It is equally hard to imagine a good argument against constraining the pardon power to cases of recognized injustice or situations of compelling mercy. </p><p>Some say that there are difficulties under the Constitution in trying to restrict the president's pardon power or defining when pardons are appropriate. Some also say there are difficulties in tackling other presidential abuses of power. </p><p>But difficult issues are difficult because of their importance. A hope that the depredations of the Trump administration will disappear when Trump is out of the Oval Office is naïve. Abuses of presidential power have been accumulating for decades. Reform of the pardon power is an essential starting point despite the challenges because the corrupt forgiveness of criminality is the rot that will eventually destroy the Constitution itself and render other reforms irrelevant.</p><p>In Shakespeare's "Merchant of Venice," Portia instructs that "the quality of mercy is not strained" and that mercy blesses the giver as well as the receiver. A corrupt pardon dressed in robes of phony mercy blesses neither. It diminishes both giver and receiver and threatens the rule of law that is the bedrock of American democracy. </p>
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