“Barr will most likely be remembered for running interference for Trump, describing Robert Mueller’s special investigation of Russian influence on the Trump campaign as having cleared the president. In reality, Mueller’s investigation report was quite clear that if Trump had not been the president, he probably would have been facing obstruction of justice charges.
It’s unfortunate, truly, that Barr will be remembered mostly as Trump’s craven pet because the rest of Barr’s actual record as attorney general is even more worthy of scorn. Barr opposes marijuana legalization. He said he was willing to allow states to make their own decisions on marijuana legalization, but then his office launched a bunch of antitrust investigations targeting cannabis companies.
As America went through a summer of anger, protests, and violence about police abuse of minorities, Barr not only habitually took the side of police, but also basically told Americans to just shut up and do what they’re told. He warned in a speech that if citizens didn’t bend the knee to police, “they might find themselves without the police protection that they need.” In speeches, he embraced the “warrior cop” mentality and complained in a speech at a Fraternal Order of Police conference in 2019 that, “Not too long ago influential public voices—whether in the media or among community and civic leaders—stressed the need to comply with police commands, even if one thinks they are unjust.” He was mad that those days were gone and insisted that anybody who resists the police should be prosecuted, even if the police conduct was in the wrong.
Barr opposes legislation that would weaken “qualified immunity,” which in many cases protects police officers from being sued when they knowingly violate citizens’ rights”
“In the hours after Republican Sens. Bill Cassidy (LA) and Richard Burr (NC) joined five other Republican senators in voting to convict former President Donald Trump on an article of impeachment for his role in inciting the January 6 insurrection, the state Republican parties in Louisiana and North Carolina wasted no time laying down a marker that the GOP still belongs to Trump.
The LAGOP and NCGOP each quickly censured Cassidy and Burr for their votes. In a statement posted to Twitter, the LAGOP wrote that it “condemn[s], in the strongest possible terms, the vote today by Sen. Cassidy to convict former President Trump,” while NCGOP chair Michael Whatley released a statement denouncing Burr’s vote as “shocking and disappointing.”
Trump won both Louisiana and North Carolina in 2020. Cassidy was loyal to Trump throughout Trump’s term in office, but began to distance himself during the impeachment trial, perhaps feeling emboldened by the fact that he just won reelection for another six-year term. Following his vote, he posted a remarkably succinct video statement in which he said, “I voted to convict President Trump because he is guilty.””
“the fact that seven of the 50 Republican senators voted for Trump’s conviction indicates his hold over members of his party in that chamber has weakened since he was in office, the quick censures of Cassidy and Barr are reminders that his popularity among grassroots Republicans remains strong.
The series of censures also points to a worrying dynamic that will be at play if Trump decides to run again in 2024. After all, if publicly inciting a violent attack on the legislative branch of the federal government isn’t enough to prompt state-level Republicans to break with him, then what, if anything, would?”
“For the first time in the history of the United States, a defeated president attempted to overturn the election’s outcome to keep himself in office.
Trump’s effort to try to steal the election was multifaceted. He spent months lying that there was massive voter fraud. He pressured state officials and state legislators not to certify President Joe Biden’s win. He filed dozens of frivolous lawsuits. He urged members of Congress and Vice President Mike Pence to throw out valid electoral votes on January 6. And, that same day, he encouraged supporters to gather in Washington and egged them on. The violence at the Capitol ensued.
It was stunning conduct that flew in the face of the US tradition of peaceful transition of power. And Congress did have an opportunity by which they could make Trump face a very real consequence for this: impeachment and prohibition from holding federal office again in the future (preventing him from running again in 2024). An impeachment of a US president has never ended with conviction, but surely, if one ever would, one would think that Trump’s conduct would merit it.
But instead, partisanship triumphed, Republicans mostly closed ranks around Trump, and the vote fell well short of the two-thirds threshold needed for conviction. The result is that Trump will face no consequences — from Congress, at least — for his effort to defy the will of the voters and stay in power. That has ominous implications for the political system’s future stability, and seems to invite Trump or someone similar to try something like it again.”
“After he voted to acquit Donald Trump of inciting the Capitol riot, Senate Minority Leader Mitch McConnell (R–Ky.) explained why the former president was guilty. McConnell explained the apparent contradiction by arguing that the Senate does not have the authority to try a former president. But as he conceded, that is “a very close question,” and McConnell’s rationale for his vote is puzzling in light of what he did after the House voted to impeach Trump a month ago. McConnell’s mixed message reflects the predicament of a party that has built its identity around a reckless, unprincipled demagogue whose influence will continue to weigh down Republicans for years to come.
“Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty,” McConnell said in a Senate floor speech on Saturday after seven of his fellow Republicans joined 50 Democrats in voting to convict. “There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth. The issue is not only the president’s intemperate language on January 6th….It was also the entire manufactured atmosphere of looming catastrophe—the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-president.”
McConnell rejected the notion that Trump’s rhetoric was typical of the language commonly used by politicians and that it is therefore unreasonable to blame him because some of his supporters took him more literally than he intended. “The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things,” he said. “Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally. This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.”
McConnell also noted that Trump’s “unconscionable behavior” continued after the riot started: “Whatever our ex-president claims he thought might happen that day, whatever reaction he says he meant to produce, by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this. Former aides publicly begged him to do so. Loyal allies frantically called the administration. But the president did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.”
To the contrary, “according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election! Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.”
While Trump urged his supporters to “stay peaceful” in a tweet he posted an hour and 45 minutes after the riot began, McConnell noted, “he did not tell the mob to depart until even later”—more than three hours after the protest turned violent. “Even then,” McConnell said, “with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.”
McConnell’s indictment of Trump, which elaborated on his previous criticism of the former president’s conspiracy mongering and his role in provoking the riot, could have come straight out of the arguments made by the House managers charged with prosecuting the former president. Why did McConnell nevertheless vote to acquit Trump?
“Former President Trump is constitutionally not eligible for conviction,” McConnell said. “There is no doubt this is a very close question. Donald Trump was the president when the House voted, though not when the House chose to deliver the papers. Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion. But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted: the president, vice president, and civil officers. We have no power to convict and disqualify a former officeholder who is now a private citizen.””
“McConnell’s compromise seems to be aimed at appeasing the majority of Americans who supported Trump’s impeachment without alienating the majority of Republicans who did not.”
“what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.”
“Even though the Constitution’s text does not explicitly address whether the Senate can try a former president, the evidence from English practice, state constitutions, the Constitutional Convention, and the Federalist Papers—all core sources for originalist legal arguments—suggest that its authors fully expected that the Senate would use its power that way.”
“As Hamilton wrote in the Federalist Papers, a core source of original meaning, the framers “borrowed” the model from the English. And, as Raskin pointed out, every English impeachment during the lifetimes of the Founders was of a former official. During the convention debates on impeachment, George Mason mentioned the impeachment of Warren Hastings, a former British official in India, which began during the summer of 1787. No delegate raised any concern about its impropriety. No early state constitution prohibited impeaching a former official—and in fact, Delaware allowed its chief executive to be impeached only “when he is out of office.” Early state constitutions are usually core evidence for originalists. The English and early American practice suggest an emphasis more on punishment—for instance, disqualification from future office—than on removal.
In the 1787 Convention debates, as recorded by James Madison, four convention delegates explicitly discussed the potential problem of incumbent presidents abusing their power at the end of their terms in order to get reelected. Several of them specifically mentioned that election fraud and manipulation of the Electoral College could be grounds for impeachment.”
“When the Convention specifically debated the timing of impeachments, delegates William Davey, George Mason, Edmund Randolph and Gouverneur Morris (the last three considered among the most influential delegates) implicitly rejected the Trump team’s arguments. On July 20, 1787, the Convention turned to the proposed impeachment language, and two delegates, Morris and Charles Pinckney, objected. Madison recorded Pinckney’s objection: A president “ought not to be impeachable whilst in office.” Morris explained that such impeachments of sitting presidents would hand Congress too much power over the president, who might be compromised by fear of impeachment. This argument is similar to the concern about whether a sitting president can be indicted and prosecuted.
William Davie answered, “If [the president] be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. [Davie] considered [impeachment of sitting presidents] as an essential security for the good behaviour of the Executive.”
Morris saw the public as the final arbiter—“In case he should be re-elected, that will be sufficient proof of his innocence,” he said—but neither Morris nor anyone else in the long ensuing debate suggested that a president who wasn’t reelected should be able to avoid impeachment for what he’d done in office. And in fact, several delegates addressed Morris by emphasizing their concerns that presidents might abuse their power at a particularly dangerous time: during bids for reelection.
On that same day, George Mason was especially concerned with election fraud and the Electoral College—with presidents corrupting electors to get elected, and then attempting to stay in power “by repeating his guilt.” It defies logic to think that a president who tried such a scheme could be impeached only if he somehow succeeded and stayed in office—especially given the British precedent of out-of-office impeachments, from which the Founders were drawing.
Then Randolph emphasized broad application: “Guilt wherever found ought to be punished”—reflecting the view that the purpose was not just removal from office, but more broadly punishment for abuses of power.
In the final speech of the debate on July 20, and perhaps the most significant, Gouverneur Morris, a supporter of a strong presidency, conceded that his colleagues had persuaded him to drop his concern about timing and to vote for the impeachment clause. After noting the infamous “Secret Treaty of Dover,” in which England’s Charles II made a corrupt deal with France’s Louis XIV that led to war, Morris concluded that “treachery” justified impeachment. But then he added other reasons, including, “Corrupting his electors, and incapacity.”
He proposed that incapacity, which implied no transgression, be punished only by “degradation from his office.” But corruption during a reelection effort deserved full impeachment, removal and disqualification from office. Impeachment proceedings for such abuses would by definition have to take place after the election. And implicitly, Morris was highlighting the urgency of disqualification for treachery and corruption of the Electoral College, regardless of removal. With Morris’ reversal, the Convention moved to vote, and impeachment prevailed 8-2.”
“The original meaning of the impeachment clauses is that they applied to former presidents, as well as presidents.”
“The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Ben Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones and heat detection outside houses.
Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.”
“A new poll hints at one potential reason so many Republican lawmakers remain wary of distancing themselves from former President Donald Trump and seem reluctant to convict him in the Senate’s impeachment trial: There’s a real possibility they’d endanger their electoral prospects.
In a new survey from Vox and Data for Progress, 69 percent of Republicans said they’d be less likely to vote for a political candidate in their state if that person found Trump guilty in the trial, with 56 percent of Republicans saying they’d be much less likely to do so, and 13 percent saying they’d be somewhat less likely to do so.
Many Republicans, too, indicate that they don’t see Trump as being at fault for the January 6 attack on the Capitol.
Broadly, only 22 percent of Republicans surveyed blame Trump for the insurrection, compared to 91 percent of Democrats and 64 percent of independents. Support for the impeachment trial is similarly split along partisan lines, with 12 percent of Republicans agreeing that the Senate should find Trump guilty; 82 percent of Democrats and 52 percent of independents feel the same. Overall, 48 percent of likely voters believe Trump should be found guilty.”
“The central fact of American politics today is that one of the country’s two major political parties is broken. Not merely wrong, but broken in a fundamental way, hostile to democracy and incapable of serving as a good-faith partner in governing.
Trump repeatedly attempted to overturn a legitimate election, an effort that culminated in inciting a mob that threatened the lives of members of Congress. Yet Republicans in that body cannot bring themselves to inflict the appropriate constitutional punishment for this kind of offense even after he has left office and is no longer needed to get judges confirmed and tax cuts passed.
Democracies require accountability to function. Political elites must be held responsible for grievous errors and punished accordingly. The GOP’s decay has destroyed this possibility — but the Senate trial is a necessary step toward fighting back.”
“It will show that, even in the dramatic case of outright insurrection against the US government, the country’s political system is incapable of holding elites accountable largely due to one party’s extreme partisanship. Demonstrating this will serve as a justification for people, Democrats and civil society alike, to take more dramatic steps to repair American democracy down the line — including pushing for significant reforms of the political system.”
“To really fix America, Democrats need to engage in a kind of partisan warfare: They need to inflict costs for past misbehavior not only on Trump, but on the Republican Party that enabled him. Most fundamentally, they need to roll back the anti-democratic practices — like extreme gerrymandering and voter suppression tactics — that permit Republicans to remain competitive while appealing primarily to the most reactionary elements of the American public.
There are no costs that politicians pay attention to more than electoral ones. And if Republicans can’t win in the future by embracing leaders like Trump, they won’t be so comfortable excusing anti-democratic abuses down the line.
The tactics Democrats will need to employ in doing this — most notably, radically revising the filibuster to allow the passage of pro-democracy legislation along party lines — will seem extreme. But they will be more justifiable, including to moderate Democrats like Sens. Joe Manchin (WV) and Kyrsten Sinema (AZ) — in a world where it’s clear that the normal levers of political accountability are broken. It is a way of showing that radical procedural reforms really are a “last resort.”
So failing to convict Trump again will further underscore that impeachment is a paper tiger, at least for Republican presidents. But that horse is already out of the barn. Trying and failing once again, when the anti-democratic offense is much greater and the cost to Republicans for convicting is much lower, will help underscore just how deeply complicit they are in the events of January 6 — and build the case for others, Democrats and non-politicians alike, to punish them accordingly.”
“Rep. Joe Neguse (D-CO) detailed how Trump laid the groundwork for trying to overthrow the election even before November 3 by creating a “no lose” situation in which he repeatedly insisted he could only lose if the election was stolen from him. At the same time, Trump glorified the harassment of his opponents — including, in an October 31 tweet that received attention on Wednesday from Del. Stacey Plaskett (D-Virgin Islands), by lauding fans of his in Texas who tried to run a Biden-Harris bus off the road.
Rep. Joaquin Castro (D-TX) detailed how, as it became clear in the days following November 3 that Biden had won, Trump encouraged unruly “Stop the Steal” protests that presaged the January 6 insurrection.
Instead of trying to tamp down tensions, the Trump campaign instead spent millions on “Stop the Steal” ads that ran until January 5, recounted Rep. Eric Swalwell (D-CA).
At the same time, Trump repeatedly urged his supporters to turn out in DC on January 6 for a “wild” protest. As Plaskett explained, his team even got directly involved in the permitting process for the January 6 event, helping organizers get permission to march to the Capitol.
“The truth is President Trump spent months calling his supporters to a march on a specific day, in a specific time, in a specific place, to stop the certification,” Plaskett said. “That is why he must be convicted and disqualified.”
Once his followers were gathered in DC, Trump delivered a speech to them in which he mentioned “fighting” more than 20 times, only once in passing urging them to remain peaceful. Videos that impeachment managers played to senators on Wednesday showed how Trump followers reacted to Trump’s speech by chanting things like “Take the Capitol!” and “Storm the Capitol!””
“Alluding to Republican arguments trying to absolve Trump, Rep. Madeleine Dean (D-PA) said, “The truth is, this attack never would have happened but for Donald Trump. And so they came, draped in Trump’s flag, and used our flag, the American flag, to batter and bludgeon.””
“Some of the steps Trump took in the service of his election fantasy were by themselves clear abuses of power. The trial memorandum notes, for example, that he “tried to induce Michigan’s top Republican legislative officials to violate Michigan law by rejecting the popular vote and selecting a Trump slate of electors.” In a January 2 telephone conversation, Trump pressured Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to overturn Biden’s victory in that state, warning that failing to do so would be “a criminal offense” and “a big risk for you.” Trump publicly and privately urged Vice President Mike Pence to block congressional affirmation of Biden’s victory. Since that is a power the vice president does not actually have, Trump was soliciting Pence to do something illegal.
Meanwhile, Trump continued to press his doomed, delusional cause with highly inflammatory rhetoric, castigating Republican officials who questioned his claims and warning that democracy would be destroyed if Biden were allowed to take office. He kept doing that even after it became clear that some of his followers were responding with death threats and violence. His campaign to overturn the election results culminated in his fiery January 6 speech to thousands of supporters who had gathered in Washington, D.C., to “stop the steal” at his behest.”
” Trump made the stakes clear. “We’re going to have somebody in there that should not be in there,” he said, “and our country will be destroyed. And we’re not going to stand for that.””
“After the protest turned violent, Trump compounded his irresponsibility by only belatedly urging his supporters to be “peaceful,” even while reinforcing the imaginary grievance on which the rioters were acting. “At 1:49 PM, after insurrectionists had overcome the Capitol perimeter—and after reports of pipe bombs had been confirmed—President Trump retweeted a video of his speech at the rally,” the trial memorandum notes. “Just over thirty minutes later, at 2:24 PM, while rioters were still attacking police and after Vice President Pence had been evacuated from the Senate floor, President Trump again tweeted to excoriate the Vice President for refusing to obstruct the Joint Session: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.'”
The House managers add that Trump “did not take any action at all in response to the attack until 2:38 PM, when he issued his first tweet, and 3:13 PM, when he issued a second.” The first tweet said protesters should “remain peaceful,” while the second said there should be “no violence.”
During this time, the House managers say, “not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.”
Finally, more than three hours after the riot started, Trump released a video in which he urged “peace” and told his supporters to “go home now.” At the same time, he reiterated that the election was “stolen from us” after he won in “a landslide” and closed with this mixed message: “We love you, you’re very special.…I know how you feel. But go home and go home in peace.” That evening Trump tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
Here is how Rep. Liz Cheney (R–Wyo.), the third-ranking Republican in the House and one of 10 Republicans who voted to impeach Trump, interpreted the events of that day: “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” Sen. Mitch McConnell (R–Ky.), then the Senate majority leader, agreed that “the mob was fed lies” and “provoked by the president.””
“freedom of speech “does not protect government officials from accountability for their own abuses in office,” the House managers say. “The Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests. Thus, just as a President may legitimately demand the resignation of a Cabinet Secretary who publicly disagrees with him on a matter of policy (which President Trump did repeatedly), the public’s elected representatives may disqualify the President from federal office when they recognize that his public statements constitute a violation of his oath of office and a high crime against the constitutional order.””
“The House managers also address the argument that Trump’s trial will only exacerbate the bitter political division between his supporters and his opponents. “Many have suggested that we should turn the page on the tragic events of January 6, 2021,” they say. “But to heal the wounds he inflicted on the Nation, we must hold President Trump accountable for his conduct and, in so doing, reaffirm our core principles. Failure to convict would embolden future leaders to attempt to retain power by any and all means—and would suggest that there is no line a President cannot cross. The Senate should make clear to the American people that it stands ready to protect them against a President who provokes violence to subvert our democracy.”
Since Trump’s acquittal seems to be a foregone conclusion, I’m not sure how clear a message the trial will send on that score. But there is value in laying out the details of this shameful and horrifying episode. Even if only a handful of Republicans favor conviction, a bipartisan vote will signal that Trump did much more, and much worse, than express an opinion.”
“Preconstitutional practice in England and America included impeachment of former officials. Ten of the 12 state constitutions that were written before the U.S. Constitution was drafted addressed impeachment. In those state constitutions, Kalt notes, “late impeachment was either required, permitted, or not discussed, but was nowhere explicitly forbidden.”
Did the Framers mean to break from historical practice by limiting impeachment to current officials? If so, they never clearly expressed that intent.
The Constitution says “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to removal from office and disqualification from future federal office.
This “poor drafting,” as Kalt describes it, leaves unresolved the question of whether the optional penalty of disqualification is enough to justify a Senate trial when the mandatory penalty of removal from office is no longer possible. As Turley sees it, “a private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”
Kalt and many other scholars argue that the aims of accountability and deterrence would be frustrated if a president could avoid impeachment or trial by committing “high crimes and misdemeanors” toward the end of his term (as Trump is accused of doing) or by resigning (as Belknap and Richard Nixon did) after his misconduct comes to light. They also argue that disqualification is an important remedy when a president guilty of serious misconduct might plausibly make a comeback.
The “good faith” to which Turley aspires is hard to perceive in the arguments offered by most of Trump’s critics and defenders. As Stanford law professor Michael McConnell (who thinks Trump’s trial is constitutional) notes, “much of the discussion…consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed.””