As we all know, impeachment occurs in two stages: a presentation of charges or indictment in the U.S. House, followed by a trial in the U.S. Senate, which either does or does not convict on the charges presented by the House. The charge sent to the Senate by the House was that President Donald Trump had, according to Reuters, “incited insurrection in a speech to supporters before the deadly attack on the Capitol, setting in motion his second impeachment trial.” Partisan Democrat senators, i.e. prosecutors, failed on February 13 to convict. What lessons should we draw from this exercise in fatuity?
Perhaps the person least surprised by the failure
to convict was Speaker of the House Nancy Pelosi who, one must suppose,
can count up to ten without the use of her fingers. Democrats did not have the
numbers to impeach in the Senate, and she knew it. Impeachment conviction is
wholly a political matter. The process is dressed up in juridical robes, but
this is mostly for show. It is not insignificant that Chief Justice of the US
Supreme Court John Roberts declined to serve as the presiding judge in the
matter. His place was taken by frequent Trump critic former president pro
tempore of the Senate Patrick Leahy of Vermont, a senator in the chamber for nearly
half a century.
Impeachment is, Gerald Ford once correctly said, whatever
the House says it is. But insurrection is certainly not whatever the House says
it is. The legal definition of an insurrection is the act of revolting against
a civil or political authority or an established government. The insurrection,
if such occurred, was a revolt against a congressional proceeding, not a revolt
against an established government with a view to overthrowing that government. A
crime punishable in ordinary courts, insurrection carries a fine of $10,000 or
imprisonment of not more than ten years, according to the U.S. Code.
Before bringing charges in the House, Speaker Pelosi should
have made a careful examination of the riotous incursion with a view to
answering the following questions: Was the violent disturbance of Congressional
business at the Capitol on January 6th a true insurrection? Did
President Donald Trump by his words at the rally incite a breakaway group to
illegally enter the Capitol building and disturb the business of the congress? Is
it constitutional for the Senate to affirm an impeachment charge when the
person impeached has already left office, removal from office being the only
punishment constitutionally assigned for impeachment? Having secured an
indictment of impeachment in the House, what was the possibility of a
conviction on the House charge in the Senate? If the possibility of conviction
in the Senate was remote –and it was known to be remote before proceedings in
the House began – would not a vote of censure in the Senate have been more
appropriate?
Both congressional and criminal conviction must show that
Trump did incite some more violent members of the rally to do precisely what
they did; otherwise, the charge of INCITING insurrection cannot justly be upheld
either in the congress or the courts.
There are difficulties in successfully prosecuting a charge
of incitement in the Senate. Recent evidence shows that the crowd that
ransacked the Capitol and interfered with the business of government may have
laid their plans well before Trump addressed his rally. Then President Trump encouraged
rally attendees to march in protest PEACEFULLY to the Capitol. That word
“peacefully” was not often mentioned by Democrat partisan prosecutors in their
Senate speeches encouraging members to convict on the House charge. And the
exculpatory word was not overused in media reports covering the House
indictment or the Senate vote.
It should be plain to any dispassionate, non-partisan trier
of facts that if the evidence shows criminally liable rioters planned to do
what they did BEFORE Trump’s speech encouraging the crowd to peacefully march
on the Capitol, the former president cannot reasonably be accused of inciting
an insurrection preplanned before his speech, because a necessary connection
between the inciting word and the deed of incitement is broken. The lesser
charge that Trump had incited riotous behavior, if not insurrection, must
overcome the same difficulties.
It has often been said that no man or woman is above the law,
a sentiment usually flourished by people who like to boast that in an equitable
judicial system not even presidents may escape the majesty of the law, so highly
do we value in a just republic a government of laws, not of men. Such a noble
sentiment, always on the lips of our politicians, should be valued and
encouraged. The respect for law is what distinguishes us from political beasts
and totalitarians who use the agencies of government they control to punish
their political enemies. Because we live in a time in which the agencies of government
may be easily deployed against our precious liberties, we should recall from
time to time that in a system of just laws, no man – not even a president – is below
the law either, the law being both a sword and a shield.
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