Saturday, February 13, 2021

"Senators did what the former president failed to do. We put our constitutional duty first": Two Views of the Acquittal of Former President Trump After his 2nd Impeachment


The Senate acquitted former President Donald Trump in his second impeachment trial Saturday, voting that Trump was not guilty of inciting the deadly January 6 riot at the US Capitol, but the verdict amounted to a bipartisan rebuke of the former President with seven Republicans voting he was guilty. The final vote was 57 guilty to 43 not guilty, short of the 67 guilty votes needed to convict. But the Republican senators who voted against Trump amounted to a number higher than even Trump's legal team had expected, marking a stark departure from the first impeachment trial where only one Republican, Mitt Romney of Utah, found Trump guilty. (Trump acquitted for second time following historic Senate impeachment trial).

For the moment, the saga of the relationship of former President Trump to the Republic has come to an end.  Like the beginning of that engagement with this Republic, the actions left no one particularly satisfied, though it left everyone touching on these events in a heightened state of emotion.  

One will leave it to endless debate (like most thing in American politics) about the legal, political, societal, moral and other arguments thrown into the stew pot that is the debate about Mr. Trump to others. That subject will continue to feed the divisions that, perversely enough, produced the phenomenon that is Mr. Trump in the first place. Yet that appears, over the course of its ore than 200 year history, to be the "American way."

Much more interesting, and touching on the great nodal point that marks the moment when the Republic passes from its recent past to the potential of its future (such as Americans will make of it) are the speeches delivered after the fact by the Senate majority and minority leaders  These tell us more about what is to come than much of the drama (and its dramatic broadcasting) of the last several weeks. 

Mr. McConnell and Mr. Schumer, both in their own ways, remind us that there is much work to be done--assuming there is a taste for that sort of work beyond the necessary and catechismic rhetoric expected for public performances by elected political leaders (one of the lessons learned from the events of the last several months). But first the period of national purging--at least by the representatives of the elites now elected to legislative and executive positions in the federal government.  These remarks are quite telling for a nation embedded in cultures that values the therapeutic ("In 1909 when Sigmunf Freud, Carl Jung, William James, G. Stanley Hall, and others met at Clark University, the age of the 'therapeutic man' was about to dawn" Clarence J. Karier, "The Ethics of a Therapeutic Man: C.G. Jung," Psychoanalytic Review 63(1):115, 121 (1976)) That age of the therapeutic is here now with a vengeance in the political sphere. And that therapeutic turn in this age is drizzled with a healthy dose of righteousness (a necessary declaration of separation from Mr. Trump and what he now represents)--and a singular lack of humility.

Whoever has been awakened and shaken by world history since the first collapse of the peaceful world will never be entirely free from the feeling of complicity, although it is more appropriate to the young, for age and experience should have taught us that this question is the same as that of our share in original sin and should not disquiet us; we can leave it to theologians and philosophers. But since within my lifetime the world in which I live has changed from a pretty, sportive, somewhat self-indulgent world of peace to a place of horror, I will no doubt suffer occasional relapses into this state of bad conscience. (Herman Hesse, Autobiographical Writings (New York: Farrar, STraus & Giroux, 1972); p. 286, and quoted in Karier, supra). )

Decide for yourselves.  The text of both remarks follow. The reality of the new order will only slowly emerge.

Read McConnell's remarks on the Senate floor following Trump's acquittal

By CNNUpdated 5:50 PM ET, Sat February 13, 2021Read his remarks below provided by McConnell's office, as prepared for delivery:
"January 6th was a disgrace.
"American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like.
"Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President.
"They did this because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he'd lost an election.
"Former President Trump's actions preceding the riot were a disgraceful dereliction of duty.
"The House accused the former President of, quote, 'incitement.' That is a specific term from the criminal law.
"Let me put that to the side for one moment and reiterate something I said weeks ago: 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 is not just his endorsement of remarks in which an associate urged 'trial by combat.'
"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.
"I defended the President's right to bring any complaints to our legal system. The legal system spoke. The Electoral College spoke. As I stood up and said clearly at the time, the election was settled.
"But that reality just opened a new chapter of even wilder and more unfounded claims.
"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.
"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.
"The unconscionable behavior did not end when the violence began.
"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.
"Instead, 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.
"Later, even when the President did halfheartedly begin calling for peace, he did not call right away for the riot to end. He did not tell the mob to depart until even later.
"And even then, with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.
"In recent weeks, our ex-President's associates have tried to use the 74 million Americans who voted to re-elect him as a kind of human shield against criticism.
"Anyone who decries his awful behavior is accused of insulting millions of voters.
"That is an absurd deflection.
"74 million Americans did not invade the Capitol. Several hundred rioters did.
"And 74 million Americans did not engineer the campaign of disinformation and rage that provoked it.
"One person did.
"I have made my view of this episode very plain.
"But our system of government gave the Senate a specific task. The Constitution gives us a particular role.
"This body is not invited to act as the nation's overarching moral tribunal.
"We are not free to work backward from whether the accused party might personally deserve some kind of punishment.
"Justice Joseph Story was our nation's first great constitutional scholar. As he explained nearly 200 years ago, the process of impeachment and conviction is a narrow tool for a narrow purpose.
"Story explained this limited tool exists to "secure the state against gross official misdemeanors." That is, to protect the country from government officers.
"If President Trump were still in office, I would have carefully considered whether the House managers proved their specific charge.
"By the strict criminal standard, the President's speech probably was not incitement.
"However, in the context of impeachment, the Senate might have decided this was acceptable shorthand for the reckless actions that preceded the riot.
"But in this case, that question is moot. Because former President Trump is constitutionally not eligible for conviction.
"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.
"Here is Article II, Section 4:
"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."
"Now, everyone basically agrees that the second half of that sentence exhausts the legitimate grounds for conviction.
"The debates around the Constitution's framing make that clear. Congress cannot convict for reasons besides those.
"It therefore follows that the list of persons in that same sentence is also exhaustive. There is no reason why one list would be exhaustive but the other would not.
"Article II, Section 4 must limit both why impeachment and conviction can occur... and to whom.
"If this provision does not limit the impeachment and conviction powers, then it has no limits at all.
"The House's 'sole power of Impeachment' and the Senate's 'sole Power to try all Impeachments' would create an unlimited circular logic, empowering Congress to ban any private citizen from federal office.
"This is an incredible claim. But it is the argument the House Managers seemed to make. One Manager said the House and Senate have 'absolute, unqualified... jurisdictional power.'
"That was very honest. Because there is no limiting principle in the constitutional text that would empower the Senate to convict former officers that would not also let them convict and disqualify any private citizen.
"An absurd end result to which no one subscribes.
"Article II, Section 4 must have force. It tells us the President, Vice President, and civil officers may be impeached and convicted. Donald Trump is no longer the president.
"Likewise, the provision states that officers subject to impeachment and conviction 'shall be removed from Office' if convicted.
"As Justice Story explained, 'the Senate, [upon] conviction, [is] bound, in all cases, to enter a judgment of removal from office.' Removal is mandatory upon conviction.
"Clearly, he explained, that mandatory sentence cannot be applied to somebody who has left office.
"The entire process revolves around removal. If removal becomes impossible, conviction becomes insensible.
"In one light, it certainly does seem counterintuitive that an officeholder can elude Senate conviction by resignation or expiration of term.
"But this just underscores that impeachment was never meant to be the final forum for American justice.
"Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.
"Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were "still liable to be tried and punished in the ordinary tribunals of justice."
"We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.
"I believe the Senate was right not to grab power the Constitution does not give us.
"And the Senate was right not to entertain some light-speed sham process to try to outrun the loss of jurisdiction.
"It took both sides more than a week just to produce their pre-trial briefs. Speaker Pelosi's own scheduling decisions conceded what President Biden publicly confirmed: A Senate verdict before Inauguration Day was never possible.
"This has been a dispiriting time. But the Senate has done our duty. The framers' firewall held up again.
"On January 6th, we returned to our posts and certified the election, uncowed.
"And since then, we resisted the clamor to defy our own constitutional guardrails in hot pursuit of a particular outcome.
"We refused to continue a cycle of recklessness by straining our own constitutional boundaries in response.
"The Senate's decision does not condone anything that happened on or before that terrible day.
"It simply shows that Senators did what the former President failed to do:
"We put our constitutional duty first."

Read Senate Majority Leader Chuck Schumer's speech following Trump's acquittal

(CNN). . .

Schumer's office provided a copy of the New York Democrat's remarks. Read the text of Schumer's speech below as prepared for delivery:
The case of Donald Trump's second impeachment trial was open and shut. President Trump told a lie -- a big lie -- that the election was stolen, and that he was the rightful winner. He laid the groundwork for this big lie in the months before the election, he told the big lie on election night, and he repeated the big lie more than 100 times in the weeks afterwards. He summoned his supporters to Washington, assembled them on the Ellipse, whipped them into a frenzy, and directed them at the Capitol.
And then he watched, as the violence unfolded, and the Capitol was breached, and his own Vice President fled for his life—and President Trump did nothing.
None of the facts were up for debate. We saw it. We heard it. We lived it. This was the first presidential impeachment trial in history in which all Senators were not only judges and jurors, but witnesses to the constitutional crime that was committed.
The former president inspired, directed, and propelled a mob to violently prevent the peaceful transfer of power, subvert the will of the people, and illegally keep that president in power.
There is nothing—nothing—more un-American than that.
There is nothing—nothing—more antithetical to our democracy.
There is nothing—nothing—more insulting to the generations of American patriots who gave their lives to defend our form of government.
This was the most egregious violation of the presidential oath of office and a textbook example—a classic example—of an impeachable offense, worthy of the Constitution's most severe remedy.
In response to the incontrovertible fact of Donald Trump's guilt, the Senate was subject to a feeble -- and sometimes incomprehensible -- defense of the former president. Unable to dispute the case on the merits, the former president's counsel treated us to partisan vitriol, false equivalence, and outright falsehoods.
We heard the roundly debunked jurisdictional argument that the Senate cannot try a former official, a position that would mean that any president could simply resign to avoid accountability for an impeachable offense. A position, which, in effect, would render the Senate powerless to ever enforce the disqualification clause in the Constitution. Essentially, the president's counsel told the Senate that the Constitution was unconstitutional. Thankfully, the Senate took a firm stance and set a firm precedent, with a bipartisan vote, in favor of our power to try former officials for acts they committed while in office.
We heard the preposterous claim that the former president's incitement to violence was protected by the First Amendment. The First Amendment right to free speech protects Americans from jail, not presidents from impeachment. If a president had said, during WWII, that "Germany should attack the United States on Long Island, we've left it undefended" -- I suspect Congress would have considered that an impeachable offense!
Finally, the defense counsel said that President Trump was not directly responsible for the violence at the Capitol. "His words were merely metaphor, his directions were merely suggestions, and that the violent mob was just a spontaneous demonstration." But wind the clock back and ask yourself: if at any point, Donald Trump did not do the things that he did, would the attack on the Capitol have happened? There is only one answer to that question. Of course not.
If President Trump hadn't told his supporters to march towards the Capitol; if he hadn't implored them to come to Washington on January 6 in the first place; if he hadn't repeatedly lied to them that the election was stolen and that their country was being taken from them; the attack would not have happened, could not have happened. January 6th would not have happened but for the actions of Donald Trump.
Here's what the Republican leader of the Senate said: the mob that perpetrated the "failed insurrection" was on January 6th "was provoked by President Trump."
You want another word for "provoke?" How about: "incite."
Still—still!—the vast majority of the Senate Republican caucus, including the Republican leader, voted to acquit former President Trump, signing their names in the columns of History alongside his name—forever.
January 6th will live as a day of infamy in the history of the United States of America. The failure to convict Donald Trump will live as a vote of infamy in the history of the United States Senate.
Five years ago, Republican Senators lamented what might become of their party if Donald Trump became their presidential nominee and standard-bearer. Just look at what has happened. Look at what Republicans have been forced to defend. Look at what Republicans have chosen to forgive. The former president tried to overturn the results of a legitimate election—and provoked an assault on our own government—and well over half of the Senate Republican conference decided to condone it.
The most despicable act that any president has ever committed and the majority of Republicans cannot summon the courage or the morality to condemn it.
This trial wasn't even about choosing country over party, even not that. This was about choosing country over Donald Trump. And 43 Republican members chose Trump. They chose Trump. It should be a weight on their conscience today. And it shall be a weight upon their conscience in the future.
As sad as that fact is, as condemnable as the decision was, it is still true that the final vote on Donald Trump's conviction was the largest and most bipartisan vote of any presidential impeachment trial in American history. I salute those Republican patriots who did the right thing. It wasn't easy. We know that. Let their votes be a message to the American people.
Because, my fellow Americans: if this nation is going to long endure, we, as a people, cannot sanction the former president's conduct.
Because if lying about the results of an election is acceptable, if instigating a mob against the government is considered permissible, if encouraging political violence becomes the norm, it will be open season, open season, on our democracy; and everything will be up for grabs by whoever has the biggest clubs, the sharpest spears, the most powerful guns.
By not recognizing the heinous crime that Donald Trump committed against the Constitution; Republican Senators have not only risked but potentially invited the same danger that was just visited upon us.
So let me say this: despite the results of the vote on Donald Trump's conviction in the court of impeachment, he deserves to be convicted—and I believe he will be convicted—in the court of public opinion.
He deserves to be permanently discredited—and I believe he has been discredited—in the eyes of the American people and in the judgment of History.
Even though Republican Senators prevented the Senate from disqualifying Donald Trump from any office of honor, trust, or profit under these United States, there is no question that Donald Trump has disqualified himself.
I hope, I pray, and I believe that the American people will make sure of that.
And if Donald Trump ever stands for public office again, and after everything we have seen this week: I hope, I pray, and I believe that he will meet the unambiguous rejection by the American people.
Six hours after the attack on January 6th, after the carnage and mayhem was shown on every television screen in America, President Trump told his supporters to "remember this day forever." I ask the American people to heed his words: remember that day forever. But not for the reasons the former president intended.
Remember the panic in the voices over the radio dispatch; the rhythmic pounding of fists and flags at the chamber doors.
Remember the crack of the solitary gunshot.
Remember the hateful and racist Confederate Flag flying through the halls of our Union.
Remember the screams of the bloodied officer crushed between the onrushing mob and a doorway to the Capitol, his body trapped in the breach.
Remember the three Capitol Police Officers who lost their lives.
Remember that those rioters actually succeeded in delaying Congress from certifying the election.
Remember how close our democracy came to ruin.
My fellow Americans: remember that day, January 6th, forever—the final, terrible legacy of the 45th President of the United States and undoubtedly our worst.
Let it live on in infamy, a stain on Donald John Trump that can never, never be washed away.
On Monday, we'll recognize Presidents' Day. Part of the commemoration in the Senate will be the annual reading of Washington's Farewell Address. Aside from winning the Revolutionary War, I consider it his greatest contribution to American civic life. And it had nothing to do with the words he spoke but the example it set. Washington's Farewell Address established for all time that no one had the right to the office of the presidency, that it belonged to the people.
What an amazing legacy. What an amazing gift to the future generations: the knowledge that this country will always be greater than any one person, even our most renowned. That's why members of both parties take turns reading Washington's address, once a year, in full, into the record—to pledge common attachment to the selflessness at the core of our democratic system.
This trial was about the final acts of a president who represents the very antithesis of our first president, and sought to place one man before the entire country—himself.
Let the record show, let the record show, before God, History, and the solemn oath we swear to the Constitution, that there was only one correct verdict in this trial: guilty. And I pray that while justice was not done in this trial, it will be carried forward by the American people, who above any of us in this chamber, determine the destiny of our great nation.

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