Quick take (for real this time... maybe): Presidents aren't above the law. There is no law.
As we prepare for the second acquittal of Donald J. Trump by the rigged jury of the US Senate, a few comments are in order. Blah, blah, nation of laws, blah, blah, not a nation of men.
Presidents are above the law. (Oops.) They just are. The probability of Donald Trump's Senate conviction has always been precise, mathematical zero. The probability that he will ever be convicted in any criminal court, for anything, is precise, mathematical zero. Yes, he actually, literally can personally shoot someone. Cut out the middle men. He could personally hold a gun to your face, pull the trigger, kill you while laughing, on national tv, and he'd get away with it. Why?
Because most of a political party says so. Not all. Liz Cheney and a few others. But as long as most of a political party says that Donald J. Trump is a living god whose actions are definitionally right, he will never be punished for anything ever. As far as criminal law goes, I have already explained to you that the GOP is basically right on speech and incitement here. Trump's impeachment defense relies significantly on a metaphorical interpretation of words like "fight," when he also told the protesters to express their opinions "peacefully," and yes, he used that word. Morally, does that exonerate him in the full context of his inflammatory lies? No. Legally, must it? Yes. But this isn't a criminal trial. It is an impeachment trial, and the question is whether or not he has crossed the line for a president, which he clearly has.
In a criminal trial, I'd be taking his side, and so should you. This just isn't a criminal trial.
It was, in my opinion, a mistake to impeach without anything about the Georgia call, where Trump's conduct more clearly crossed a legal line, attempting to suborn election fraud. He has committed a lot of crimes.
For which he will never pay a price. Because an entire party says so, save that walking badass, Liz Cheney.
This is not a failure of institutions. It is a demonstration of the nonexistence of institutions. In 2012, one of the pseudo-scandals Democrats tried to invent about Mitt Romney was about "corporations." I hate the left. Corporations must exist, for reasons I will not explain today. However, Democrats tried to make hay of Romney's comment, "corporations are people, my friend."
Unclutch those pearls. Corporations are soylent green. They are made out of people. Like Big Bill Broonzy said, all music is folk music. I never heard a horse sing a song. And I've never seen a bunch of horses sign incorporation documents. You know who does? People. Corporations are, like soylent green, made out of people.
As are all institutions. They only follow rules when people do.
What I'm getting at here is an old fight in political science, and oh, fuck, I just typed the word, "fight," but moving on, the fight was been the institutionalists and the behavioralists. Study the institution as the unit of analysis, or people, through psychology and sociology? Eventually, the "behavioralist revolution," as it came to be called, incorporated economics, which is my approach, but this was the fundamental conflict in political science back in the '60s.
And what we are seeing is that institutions-- be they parties, Congress, the legal system... whatever-- ignore rules according to the strategic and semi-strategic preferences of whoever holds power, whoever holds office, and whoever used to hold office.
No president can ever be impeached for anything. Presidents aren't above the law. There is no law. No such thing. It doesn't exist. Why not? Rules only exist as long as both parties consent to the existence of rules.
One of our two parties does not consent to rules or law.
Us = fucked. See? Math is easy!
What about 18 US section 2383?
ReplyDeleteRebellion or insurrection
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.
I've thought this is the appropriate method the whole time. It accomplishes the same goals, but in a court of law, not a court of public opinion (which is what the Senate is a biased form of).
The nice thing is the language is both vague enough AND specific enough to capture January 6. "insurrection against the authority of the United States or the laws thereof"--pretty much a textbook description of 1/6.
As far as federal law is concerned, Trump still has cover, having used the word, "peacefully." Speech wins. Impeachment on incitement? Oh, he's guilty as fuck, by any moral standard. My causal question is simple. Take Trump's lying and inflammatory rhetoric away, and does January 6 happen? No. Was it a likely, and foreseeable consequence? Yup. Morally guilty, and he should be barred from office. But, he has a 100% chance of acquittal, thereby demonstrating that the prohibition against insurrection doesn't apply to Donald Trump. It isn't a law. There are no laws. That's my point.
DeleteOh, I totally agree on the 'no laws' part.
DeleteI was just saying that there exists a perfectly usable law, that has the same ultimate outcome (plus prison) and doesn't depend on an already-hung jury (though, good luck empaneling THAT jury!).
But it seems like that statute would be the better route, rather than the political one, to both reestablish us as a nation of laws (instead of a conviction by the Senate, which is inherently political).
If you are suggesting criminal charges on the basis of inciting insurrection, I ain't with you on that. The difference between insurrection and constitutionally protected protest is violence, so the difference between inciting insurrection and leading constitutionally protected protest is how directly, clearly and cleanly you connect the specific words to the violence itself. I keep coming back to this, but the connection has to be very close to "faster pussycat, kill, kill" given how broadly the First Amendment is written. Yeah, morally the fact that Trump once said, "peacefully," is bullshit, but legally, that has to give him cover. I'm not with you on criminal charges. Impeach his ass, sure, but in a criminal trial, I'd vote to acquit. First Amendment.
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