January 14, 2021 "Information Clearing House" - The vote on Wednesday to impeach Donald Trump a second time with just days to go in his term was meant to prevent him from running again in 2024, as the Constitution disqualifies an impeached official from seeking future office. 

The House voted 232-197 to impeach after Vice President Mike Pence rejected a Democratic ultimatum Tuesday of 24 hours to begin the process of removing Trump under the 25th Amendment.  Trump will finish out his term as the Senate won’t likely take up the case until after Inauguration Day, Jan. 20.

Conviction is possible this time as Senate Republicans face a dilemma: vote to convict and alienate Trump voters, or remain loyal to Trump and alienate everyone else. 

If he is convicted, Article 1, Section 3 of the Constitution says,

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The 14th Amendment also disqualifies anyone to hold office who “shall have engaged in insurrection or rebellion against” the United States.

The articles of impeachment say: “Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.”

It goes on to say:

“President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.

Shortly before the Joint Session commenced, President Trump addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that ‘we won this election, and we won it by a landslide.’

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He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore.’

Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.”

Did Trump Incite the Capitol Takeover?

To convict Trump, the Senate trial, if it were not a completely political exercise, should have to determine if his words at the rally on Wednesday broke federal law, which states in 18 U.S. Code § 373 – “Solicitation to commit a crime of violence”:

“Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned…”

About 30,000 Trump supporters filled the Ellipse between the back of the White House and the Washington Monument. According to the transcript of his remarks, Trump said:

“These people are not going to take it any longer. They’re not going to take it any longer. … All of us here today do not want to see our election victory stolen by emboldened radical left Democrats … and stolen by the fake news media. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved. … 

Our country has had enough. We will not take it anymore and that’s what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal. … We’re gathered together in the heart of our nation’s Capitol for one very, very basic and simple reason, to save our democracy…. we’re going to have somebody in there that should not be in there and our country will be destroyed, and we’re not going to stand for that. …

You’re stronger, you’re smarter. You’ve got more going than anybody, and they try and demean everybody having to do with us, and you’re the real people. … Unbelievable, what we have to go through, what we have to go through and you have to get your people to fight. If they don’t fight, we have to primary the hell out of the ones that don’t fight. You primary them…. 

Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here.

We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong… 

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.

Today we will see whether Republicans stand strong for integrity of our elections, but whether or not they stand strong for our country, our country. … The radical left knows exactly what they’re doing. They’re ruthless and it’s time that somebody did something about it. And Mike Pence, I hope you’re going to stand up for the good of our constitution and for the good of our country. …

So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give …  our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country.”

At times the crowd chanted, “Fight for Trump! Fight for Trump! Fight for Trump!”

Are these words by Trump “strongly corroborative” of an “intent that another person engage in conduct constituting a felony,” an intent that “… solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct?”? 

Or were these just the fighting words of a politician, directed almost entirely at fellow Republicans?  He said: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” [Emphasis added.]

When he said the Democrats were “ruthless” and “it’s time that somebody did something about it” he was referring to Pence and the Republicans sending the electoral college votes back to key states. That is the entire context of his more than one hour speech.  When he said “you have to get your people to fight,” he meant Republican representatives who would have to be primaried.

With no proof so far that Trump had prior knowledge of the plan to take over the Capitol, or evidence of direct instructions from him to do so, it would seem difficult to convict him in a court of law, but maybe not in a political trial in the Senate. 

Before Trump spoke, Donald Trump Jr., who acted like he’s preparing to run for office, whipped up the crowd saying that Wednesday was the day to prove “if you are a hero or a zero.” But he was not referring to the supporters, but to Republicans in Congress who he was demanding vote against certifying election results from key swing states.

Rudy Giuliani, likewise used a strange phrase, “combat justice,” but in the context of continuing to challenge the computer results of the election.  Trump’s people already filed 62 electoral fraud lawsuits across the country, and lost them all. 

Whether or not it would be sufficient evidence to convict him, it was troubling that Trump took several hours before he called on the rioters to leave the Capitol and afterward tweeted “Go home with love & in peace. Remember this day forever!” 

Was it a Coup, an Insurrection or Terrorism?

More information about the events at the Capitol have emerged since my column last Thursday, in which I wrote:

“But by the time it was over we knew that: only five weapons were seized by police so most of the intruders were probably unarmed; the only shots fired were by police who killed an unarmed female protestor; video and photos showed the demonstrators taking pictures of chambers and art work like they were tourists; and the occupiers were peacefully led out of the Capitol six hours later.  (Had they been anti-racism protestors one wonders how differently it would have ended.)”

All of that remained true from what was known 24 hours after the 4-hour takeover peacefully ended. But since then new information has emerged:

A police officer was killed after protestors beat him with a fire extinguisher; fighting with police took place inside the Capitol not only at the breached police lines outside;  computers, allegedly with sensitive defense information, were stolen; cars nearby were found carrying pipe bombs; at least one protestor inside the Capitol was photographed with plastic ties presumably to arrest lawmakers and a noose was constructed outside the steps of the capital. 

There are arrest warrants so far for about 150 suspects out of the thousands of protestors who stormed the Capitol. This would indicate that a relatively small group inside the crowd had planned the violent assault on the building.

This has led to so far totally unfounded theories that it was a false flag operation to set Trump up for impeachment. Who this small band of men were, whether active or ex-servicemen, or off-duty policemen is being investigated, as were plans discussed in online fora. 

Once the police were overwhelmed and doors broken open, hundreds more–mostly acting like tourists–streamed in, some walking single file inside velvet ropes.  They too are subject to arrest for illegally entering a federal building.

Did what happen constitute a coup or an insurrection, and are the protestors domestic terrorists, as Biden called them? Was the noose purely symbolic? Did they really think they could succeed in using it? 

One has to separate out those few who appeared ready to arrest members of Congress or use pipe bombs, from the vast majority of protestors who entered the Capitol. Smearing them all as “extremists” and even worse as “terrorists” is inflammatory. It is leading to a wholesale reaction that is further deepening the crisis. 

The actions certainly exposed an extreme rage against Congress. Just a handful of male protestors of military age it seems, some trained to climb up walls, were potentially planning to detain and perhaps punish members and Pence, whose name was chanted near the noose. Had these far-fetched plans succeeded would it have constituted a coup? 

A study of attempted and successful coups show that the usual targets are the presidential palace, radio and TV stations and the airport. The military or the police has to be on the coup-plotters side, or they will be crushed by the state. 

A coup d’etat means the overthrow of an existing government and its replacement with new rulers. Is that what was attempted here? 

The small number of protestors who may have dreamed of a coup had only the presidential palace on their side and nothing else. It was a deluded fantasy that they could have taken over the vast and powerful U.S. government, and not just the Capitol for a few hours. They had zero chance of forcing Congress or Pence to reject the electoral college results. Calling it a coup attempt is a huge stretch.

Insurrection

The U.S. law against insurrection is exceedingly broad. 18 U.S. Code § 2383 – “Rebellion or insurrection” reads:

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

What happened at the Capitol could qualify under the broadest phrase “any rebellion.” But the Cambridge Dictionary definition of “insurrection” would exclude what happened last week: “an organized attempt by a group of people to defeat their government and take control of their country, usually by violence.”

It was an attempt to take control of the Capitol, not the country. Trump was impeached for inciting an insurrection.

Defining terrorism has been immensely controversial, with the UN General Assembly failing to agree on its meaning. A working definition is violent acts by non-state actors against civilian targets for political aims.  The FBI’s definition of domestic terrorism is broader: 

“Domestic terrorism is the unlawful use, or threatened use, of force or violence by a group or individual based and operating entirely within the United States or Puerto Rico without foreign direction committed against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof in furtherance of political or social objectives.”

Under these broad terms the protestors who used violence “to intimidate” government could conceivably be indicted on a terrorism charge.  Biden, the author of the Patriot Act, has promised new domestic terrorism laws.

Is the Reaction Worse Than the Crime?

The Congressional Republicans who challenged the electoral college results last Wednesday are guilty of one transgression:  wasting Congress’ time.  There was no way the electoral college votes would be overturned.

However those Republicans were completely within their rights to challenge the results and spur debate and a vote in both chambers. To suggest that that Constitutional right constituted incitement or support for the riot is extraordinary overreach. 

Yet there have been Democratic calls for these Republicans to be unseated and even investigated for possible prosecution. During the impeachment debate on Wednesday, Democratic Congressman Jerrold Nadler said the rioters’ “accomplices in this House will be held to account.”  Numerous corporate donors have said they will no longer contribute to these Republicans’ campaigns.

There is even wild speculation by some Democrats that some Republican members gave Capitol “reconnaissance” tours to the rioters the night before.  The New York Times posted photos of all Republican members who challenged the electoral college votes as if they were on a wanted poster.

Republican Congressman Jim Jordan in the impeachment debate pointed out that more Democrats in Congress objected to more states’ electoral college results in 2017’s certification than had Republicans last Wednesday.

A Democratic member responded that Hillary Clinton had conceded, unlike Trump, and that the objections were based on “Russian interference” in that election. He accused the Republicans, with a straight face, of engaging in “conspiracy theories” about a stolen 2020 election.

Such Democratic hypocrisy was underscored on 60 Minutes Sunday, when House Speaker Nancy Pelosi called Trump “deranged, unhinged, and dangerous.” But is he any more “deranged, unhinged, and dangerous”  than Democrats who joined Republicans to vote in 2003 to invade and occupy a nation that posed no threat to the United States? How would one describe Pelosi’s response in 2019 when asked why she opposed impeaching George W. Bush for that invasion, a crime of “aggression,” the worst war crime according to the Nuremberg Tribunal?