Sunday, February 14, 2021

Despite the impeachment’s expected result, Trump clearly failed the “imminent lawless action” test

 

Donald Trump’s impeachment trial. Trump attorney David Schoen was speaking, and I couldn’t help but to observe aloud that “This guy must think we’re stupid.” Schoen claimed that the Democrats were simply motivated by “hate” for Trump, but it is remarkably easy to hate someone who thrives on hate, just as Trump’s supporters do—which is why they “love” him so much.

After he was finished with the nonsensical, hypocritical accusations  about the Democrats’ supposed motives, which was clearly aimed at pleasing Trump own feverish self-victimization, Schoen showed the defense video to “prove” that Trump was really just a “peaceful” guy, while cherry-picking entirely out of context instances where Democrats had used the work “fight.” Democrats almost always used the word “fight” in the context of “we are fighting for you,” but Schoen mendaciously suggested the words were meant no more (or less) to induce violent action by others than Trump’s own use of such words. But it was clear that when Trump used the term “peaceful” as in “protest,” he always sounded like he didn’t really mean it, and his supporters knew he didn’t “really” mean it.

Trump was always much more “persuasive” when he called for his supporters to “knock people out” for throwing a tomato, or calling for “shooting” when the “looting starts,” which actually wasn’t “necessary” for the shooting to start (see Kyle Rittenhouse). The anti-lockdown rioting in several states—including the armed occupation of the Michigan state house—was clearly helped along by Trump’s own refusal to lead on the issue, and the Capitol Hill insurrection was clearly incited by months of Trump and his crackpot lawyers and sycophants on Fox News knowingly making false claims about a “stolen” election that Trump has “won” by a “landslide.” If Trump had simply admitted that the people had spoken and the large majority had tired of him and his antics and wanted him out, none of this would have happened.  

Bruce Castor, who angered and confused even Republicans and Fox News hosts with his meandering, nonsensical “defense” arguments on Thursday, showed up again and claimed that “The majority party promised to unify and deliver more COVID relief. But instead, they did this. We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of COVID relief to the American people.” Again, the hypocrisy is just too much in relation to the words and actions of Trump and his Republican supporters, and the actions that Biden administration has already taken.

Trump’s second impeachment trial ended abruptly on Saturday, which was just as well since the ultimate verdict had been telegraphed long ago. While it certainly should not come as a “shock” that only seven Republican senators joined all 50 Democrats in voting to impeach Trump on Saturday, in the “court of public opinion” it is clear that Trump was guilty of inciting insurrection against the government of the United States, which is frankly a treasonable offense—and all those Republican lawmakers who followed him are guilty of enabling and abetting that offense, and as is everyone on Fox News who also did so. History so judges, even if idiots still don’t “get it.”

It appears that two Republican senators were persuaded to switch votes from declaring the proceedings “unconstitutional” to finding Trump guilty after the revelation from Republican Rep. Jaime Herrera Beutler—who was one of 10 Republicans in the House to vote for impeachment—that exposed the “conversation” House Republican Minority Leader Kevin McCarthy had with Trump over the phone while the insurrection was underway. McCarthy apparently wasn’t hearing what he wanted to from Trump as rioters were smashing the windows to get into his office, shouting at Trump “Who the fuck do you think you are talking to?” Herrera Beutler released the following statement concerning the phone call:

When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol. McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said: ‘Well, Kevin, I guess these people are more upset about the election than you are.’

It took several more hours of destruction, mayhem and death before Trump released a tepid, insincere response that he was forced to do by aides, even telling the insurrectionists that he “loved” them. Mitch McConnell voted against impeachment, claiming that it was not “legal” to impeach a president no longer in office, which is not legally correct; but he did state that "Former President Trump's actions that preceded the riot were a disgraceful, disgraceful dereliction of duty. Trump is practically and morally responsible for provoking the events of the day," adding that Trump is still liable for criminal prosecution. This of course angered Lindsey Graham, who claimed this would be used against Republicans in 2022. Actually, Graham’s own spineless behavior will be used against him in the history books, and the more likely scenario is that it will be Trumpists who will be damaged by Trump’s words and actions, not “traditional” Republicans.

The legacy of this impeachment trial, however, will be set in stone ironically by Trump’s most violent defense attorney, Michael van der Veen, who used disreputable attack terms that Trump would have approved, and apparently in the hope that Trump will actually pay him for his “legal” work. He insanely claimed that Antifa was the real “culprit,” the case was just a “shameful effort” to “smear, censor, and cancel” Trump and his supporters, and that it was an “unjust and blatantly unconstitutional act of political vengeance” that “further divides our nation.” Again and again, the absolutely tone-deaf hypocrisy of these people is beyond belief. Trump spent four+ years inciting division in this country, ramping it up to the point where violence was its “logical” and foreseeable result. And yet the Trump defense treats thinking people as if they are “stupid."

Van der Veen’s “constitutional” argument cited a Supreme Court case from the early 1960s. Wood v. Georgia, in which a sheriff named James Woods was charged and convicted of “obstruction” for criticizing the calling of a grand jury investigating whether his re-election had been aided by “suspicious” bloc voting by black voters, with the suggestion that they had been “paid” to vote for Woods. Woods was accused of “inciting” black voters to “riot.” The Supreme Court overturned Woods’ conviction. The importance of the case was that it brought up the question of “clear and present danger,” which Justice Oliver Wendell Holmes first employed in his dissent in the case of Schenck v. United States, in which he wrote 

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.

The “clear and present danger” here was limited to sedition during wartime, but the term underwent several alterations until it was replaced by the dictum of “imminent lawless action,” written by Justice William J. Brennan (not to be confused with the William Brennan also on Trump’s “legal” team):

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Trump was clearly guilty of inciting “imminent lawless action” by inciting in his most fanatical and violent supporters the need to violent action to prevent a “stolen” election. Trump had proven himself time and time again to be someone who does not concern himself either with acting or speaking in a civil manner, or with the consequences of violent language in inciting violent behavior from his most fanatical supporters; he knew who these people were, and he not only knew how, but hoped that they would respond in the way they did—that was proven by his “fascination” with the riot, and his refusal to do anything even when a leading member of his own party begged him to do something to stop it.

How many times have we heard Trump speak forcefully about actual physical action and threatening federal and state officials, urging his people to retake his “victory,” while the few times that he has spoken about “peace” and “going home,” it is said so weakly that it is clear he doesn’t really mean it? If Trump didn’t know his words and actions would cause “imminent lawless action,” then he is without question unfit before, now and in future from even sniffing political office or influence.

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