Pelosi’s Third Impeachment Folly
Does the President have a right to free speech? Josh Blackman, a constitutional law professor writing on The Volokh Conspiracy, suggests he certainly does and that his speech on January 6 is a weak reed (as was Nancy Pelosi’s past impeachment folly) on which to gain a conviction in the Senate. (Remember an impeachment vote in the House is basically an indictment with no effect unless the Senate finds guilt after a trial.) Looking at the most analogous case, the impeachment of President Andrew Johnson, he finds plenty of reason for senators to vote against it.
We think the Supreme Court's First Amendment caselaw establishes a baseline. And Senators ought to explain their departure from those precedents. A senator might comply with his constitutional oath, and act in good faith, if he determines that the full scope of First Amendment rights apply to the President under established Supreme Court caselaw. A senator might also comply with his constitutional oath, and act in good faith, if he were to decide otherwise. Our point is that First Amendment rights established by the courts establish a baseline from which departures ought to be explained. [snip]
In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." The Chief Justice was right.
By necessity, this process has been hurried. Yet, Congress should not forget the lessons of history in the rush to convict President Trump. We know all too well that history has a way of repeating itself. During Johnson's impeachment trial, a House manager warned that Johnson's remarks were not "only talk." In a speech that could be used for Trump's Senate trial, Representative Benjamin Butler of Massachusetts said that "words may be, and sometimes are, things -- living, burning things that set a world on fire." In 1868, Butler's speech did not carry the day -- the House failed to convince enough Republican Senators that the President's speech was unprotected by the First Amendment.
Democrats are poised to make a similar mistake today. The House managers seem to think they are more likely to secure a conviction by presenting an impeachment article -- a functional indictment -- which ignores the President's free speech rights. We think this approach may be a blunder. As the managers depart further from the traditional understanding of the First Amendment, the proceeding will more likely be seen as unfair. And, Republicans who see the proceeding as unfair may, at the margin, vote to acquit. They could defend their vote by finding that the managers chose the wrong legal standard. These Senators could justify their vote as a prudential choice to avoid making bad law and bad precedent.
Victor Davis Hanson shares my gimlet eye view of this effort by the Speaker and her party in an article I urge you to read in its entirety.
Donald Trump was impeached again on Wednesday, a week before leaving office in one of the great travesties of modern politics.
Here are reasons why the exercise proved a farce.
[I]mpeachment was never intended by the founders to become a serial effort to weaken a first-term president. But this latest try will mark the third failed attempt of Democrats in Congress to remove Trump before his allotted tenure.
The first Democratic impeachment effort of December 2017 fizzled. The second impeachment of December 2019 succeeded but predictably failed to obtain a Senate conviction.
This third try will likely not result in a Senate conviction, either.
But from now on, House impeachment will be used by the out-party as a periodic club to wound a first-term president. President-elect Biden should beware.
Aside from the constitutional issue of impeaching a President who, like every one of us, is entitled to free speech, there’s the political fallout to consider.
And no one better analyzes this than Victor Davis Hanson. Among other things he highlights the fact that the first two impeachment efforts failed, that the President has been under unremitting attack from day one, that Pelosi and Democrats like Schumer and Biden, have themselves engaged in incendiary speech and conduct. I can’t disagree with his conclusion:
Do we really wish to institutionalize these efforts to weaken a president? Would a President Biden want his opposition on three occasions to attempt formal impeachment proceedings?
Would Biden welcome a two-year special counsel investigation of the entire Biden family for its alleged efforts to use his name and influence to skim money from foreign governments?
Would Biden wish to face serial 25th Amendment threats to remove him from office on allegations that he frequently seems cognitively lost?
So what, then, was this latest impeachment gambit really about? Of course, it was a Parthian shot to discredit supporters of Trump -- and perhaps stop Trump from running for president again.
But it was also aimed preemptively at opponents of what will soon be the most left-wing Congress in history -- one that in days will try to change the very institutions of American government in ways never tried before.
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Did an anodyne speech by the President, actually incite a riot?
As more evidence appears, it would be hard to sustain that charge. The timeline of the incursion is clear: The Capitol was breached substantially in advance of the conclusion of his speech by people headed there probably before he even spoke. Were all those who entered the Capitol intent on mayhem? It appears most of those who entered the Capitol building engaged in little more than a walkthrough without threatening anyone or damaging any property. Indeed, the Washington Post acknowledges that some of those questioned by law enforcement confirmed the videos -- they did not enter without right, the very point law enforcement must prove to make any charges on unlawful entry stick: They were invited in by a Capitol police officer who “shook their hands, gave one a partial hug and told them both that ‘It’s your house now.’” The Post suggests that this conduct was induced by fear of the large crowd.
Maybe. But maybe they recognized that the crowd was largely in support of things like Back the Blue and the people they were protesting about are in the Defund the Police camp. Maybe it’s a feature of the Capitol police force itself, under the control of Congress with the to-be-expected results of political mismanagement and corruption (most of these are patronage jobs, after all).
Did the President have reason to claim on January 6 that the election was stolen?
The very fact that the left is trying so hard to prevent any discussion on this suggests to me and John Hinderaker that they want to sweep a lot under the carpet and down the memory hole:
First, this question: why are the Democrats so hysterical in their insistence that fraud not be mentioned? One reason is obvious. Joe Biden will take office under a cloud, since close to half of all Americans doubt that he really won the election. The Democrats want to stamp out such doubts to preserve Biden’s authority as president.
But there is a second reason that may be more important. The Democrats want the lax voting procedures that prevailed in 2020 to continue in the future. They know that efforts will be made in many states to improve ballot integrity, and they want those efforts to fail. By rendering all discussion of voter fraud out of bounds, they hope to forestall reforms that would make it harder for them to cheat, or enable cheating, in the future.
Nobody was arguing that it was beyond to pale to accuse Trump of being elected due to tampering by Russian hackers, so I’m treating all this pearl-clutching as the self-serving fraud that it is.
Donald J. Trump in my view has been a most consequential President; before the COVID spread he created unparalleled prosperity, lifting all boats, he made great strides in halting waves of welfare dependent illegal aliens from entering the country to the detriment of the poorest, he achieved foreign policy objectives -- like peace in the Middle East -- and defusing the threat from North Korea without firing a shot, he rebuilt a military weakened by successive Democratic administrations, and his loss is a big one for the country. The Babylon Bee describes what horrors the next administration is planning. The Bee is, of course, a satire site, but these days much of what they satirically report did, alas, come to pass.
My friend Lisa Schiffren is also on the mark when she describes the far left policies and aftermath we can expect from the new administration. How quickly, she notes,
“...last week’s conveniently timed violence at the Capitol, the origins and perpetrators of which are only now being investigated, and perhaps arrested, after a rush to pin it on the President’s followers, pushed remaining serious questions about the election's integrity off the table? How the well-timed violence caused Republican senators and congressmen to decide on the spot not to question clearly illegitimate votes in their own states? Another small reality reset: planned violence helped the narrative crowd out of having to explain away any contradictory facts."
This owes much to our nation’s current lack of a free and honest media, without which a free society cannot trust information. Instead, we are stuffed to the gills with propaganda factories working with partisan politicians. Which is why narratives -- big lies -- of the sort that undergird totalitarian societies, have crowded out reality. Especially in a year when everyone was forced to stay at home, watching screens.
And she gives the back of her hand to Q-Anon
“...that great psyops that sucked the fight out of millions of patriots, who came to believe that Trump was playing and winning "three-dimensional chess" against a gang of pedophiles, and deep state holders of power. It will take a serious investigative reporter to unearth where the Q cult came from. Considering how the Q fantasy lulls patriots into complacence about "winning," I presume it was perpetrated by Trump's enemies.”
It’s time for clarity, she concludes, even the bad reality which is surely in the works. Once we face this, we can devise strategies to effectively respond and mobilize to carry them out.
Image: Michael Ramirez