Saturday, February 13, 2021

Debasing Democracy in order to Save It (quoth)

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Self-righteous Dumbfucks. There is no other way to describe the Democrats who have misunderstood and mismanaged the impeachment process.

As I have explained before, impeachment is the constitutional analog to the de-throning of James II who, for imprecise but generally understood reasons was thought to be undermining the state under color of law. The key word here is generally. The understanding had to transcend partisanship and had to involve something more than the usual chicanery kings and politicians are wont to engage in. If you do not have the votes to convict, you should not bring forth articles of impeachment because you do not have the general understanding that is essential to the matter. If anything was foreseeable on January 8th it was that the votes to convict were not there. That should have ended the project.

If that were not enough, Pelosicrats might have hearkened to the principle of judicial restraint. It is a salutary maxim that restrains a court from reaching an issue that is not "ripe" (see above) or that is "moot". The purpose of impeachment is to remove a president from office. Once Trump was no longer in office, removing him was no longer on the table. Instead of adhering to this cautious principle, the Democrats resorted to a stretched constitutional interpretation that attempted to squeeze out from the language of Article I, section 2 the notion that a president could be impeached merely and solely to disqualify him from holding office. As I have argued elsewhere, this reading does not flow either from the grammar or the history of the Impeachment Clause.

I might add that if the person impeached is in office then disqualifying him from holding office is what removing him from office entails. On the other hand, if the so-called "Disqualification Clause" does not require the accused to be in office then it could be brought against any citizen to preemptively disqualify him from running for office. On what basis does the Senate have personal jurisdiction over Mr. Trump who is now a private citizen? Under Article III, the trial of all crimes is vested entirely with the judicial branch. Apart from removing a person from office, Congress does not have a judicial power to try citizens at large for unspecified "high crimes and misdemeanors." The exasperated cry will go up, that such absurdities were not contemplated. Indeed they were not, but that is the absurdity the flows from maintaining that "disqualification" is a ground of impeachment separate and independent from removal for office. Evidently Chief Justice Roberts agrees; for, absent from all the breathless reporting was the absence of the Chief Justice from the proceedings. Why? Because "When the President of the United States is tried, the Chief Justice shall preside." Trump was no longer president; there was no one to impeach.

Having misunderstood the nature of impeachment, the Pelosicrats then proceeded to utterly mismanage their prosecution, turning the entire affair into a dismal spectacle of partisan revenge and personal animus.

To begin with, they began by drafting articles of impeachment which were as imprecise as they were rhetorically inflated. Was there not a lawyer in the House? and if there were what damn law school did she (or he) go to? All action has an intended purpose which, in this case, was said to be "insurrection." But "insurrection" is a vague and amorphous term. It merely means a rising up against. It has been used to cover the planned overthrow of the existing government or any diffuse striking out against the authority of government. Instead of defining Trump's alleged purpose, the Articles resorted to equally vague phrases to the effect that Trump "threatened the integrity of the democratic system," "imperiled a coequal branch of Government," and "endangered the security of the United States" to which was gratuitously added that he "betrayed his trust" to the "manifest injury" of the People.

Huffing and inflated as this kind of language may be it added nothing specific to the already vague charge. Words like "peril," "danger," and "threat," all refer to undefined potential harms not actual and specific ones such as "he blew up a bridge" or "disrupted proceedings." Legal puff talk may sound impressive but absent concrete facts it is empty. The strategy seems to have been to paint the target as large as possible so as to be able to proceed by scatter shot. And scattershot it was.

There were three overall ways a prosecutor could have proceeded on the publicly known facts. She (or he) could have chosen to charge Trump with incitement and/or conspiracy and/or dereliction of duty. Although they might all stem from the same general set of facts, each one of these offences has its own legal requirements and limitations.

The worst charge (from a prosecutorial point of view) was incitement because this crime runs smack into the wall of the First Amendment. Criminal incitement requires both intent and imminent causality, as I have discussed elsewhere. It is not enough to blabber about reckless "incitement" that "could foreseeably and likely" result in some kind of danger or damage. "Could" refers to nothing more specific than open-ended and arguable possibilities. Incitement requires words that will infrangibly result in inevitable and specifically intended harm. More than a "trigger," the words must be the hammer that strikes the pin. Why is the bar set so high? Because, as Justice Holmes famously remarked, "all speech is incitement." We do not want people dragged into court on stretched and inflammatory allegations because someone in power took offence at what was said and then argues with great emphasis and moral certitude that because an event happened it was "entirely foreseeable!" and because the effect could not but have been known to any reasonable and honest person, the result must have been intended... beyond a reasonable doubt! Such a recklessness standard can be used to punish any speech, as Holmes plainly understood. Had the House Clowns not read the Supreme's Court jurisprudence on seditious incitement? If they have, one can only conclude that what they were really interested in was dragging Trump into the well of the Senate in order to harangue him with epithets and insults decked out in a very thin tissue of "evidence."

In terms of legal theory, the easiest charge to prove would have been conspiracy to obstruct government business. To show a conspiracy it is not necessary to produce a signed agreement beforehand or audio tapes of thieves compacting in the night. All that is required is to show that the participants of the alleged conspiracy acted in a coordinated fashion toward a singular (unlawful) end. If they acted as if they had agreed to do so, it can be inferred that they in actual fact did agree to do so, if only by wink and by nod. In today's age of texting and tweets, proving conspiracy is a piece of cake. We do have the equivalent of a neighbor listening at the keyhole of the door. The beauty of a conspiracy charge, is that it re-opens the door to an incitement charge; for, all that would be needed is one tweet carelessly urging actual violence without Trump's cagey caveat to be "peaceful". The only drawback, from Pelosi's perspective, is that raising a conspiracy charge required interviews and investigation and this, in turn, would be met with claims of executive privilege and confidentiality. So she discarded a charge that required time consuming footwork and opted for something quick and dirty.

Proving dereliction of duty stands somewhere in the middle. It is not a sexy charge but if the facts are present it is a solid one. Despite all the huffing and puffing from the Pelosicrats, Trump is not directly responsible for the safety of the Capitol or any other building in Washington. The safety of the Capitol itself is entrusted to the Capitol Police which are under the authority not of the Executive but of the Legislative Branch... a detail I did not see reported anywhere on the pages of the Slime.  However, because Washington D.C. is a federal enclave, the President is responsible for activating the National Guard in and for the District of Columbia. This authority has been delegated to the Department of Defence. Reports from January 6th show that when a request to activate the Guard was made, the Secretary of Defence dillied and dallied for over an hour before responding. Trump might always claim that he didn't know the Pentagon was dragging its feet and that he was assuming they would do what was "appropriate," but this kind of self- serving excuse-making ducks the more primary issue; namely, that any president worth his salt would have called out the Guard on his own initiative upon first learning that a violent breaking and entering followed by rampaging had taken place. He certainly would not have waited two hours before telling the rioters to cease and desist. Arguably, laissez aller incompetence is not grounds for impeachment; but his inaction was the one culpable fact that was capable of plain and simple proof.

So, to summarize, there were three avenues of prosecution available to the House. They chose the worst one. Why? They did so because what is known as "bad character evidence" is dirty, cheap and easy. Just paint the accused as a thoroughly rotten apple and, without any further footwork or evidence, the case is proved. As I have explained previously, the whole case against Trump was based on the proposition that (1) nefarious, reprobate that he is, he was (gasp!) contesting an election that he clearly lost and (2) that he had for months roused his rabble with inflamed and "violent" rhetoric and therefore "in context" -- that is, in the context of his demagoguery and low-lifedness -- his call to march on the Capitol really meant and was understood as a call to violently disrupt an official proceeding and (hopefully) to lynch Pelosi in the process. There were several problems with this approach.

The first is that dastardly, low-handed and Tricky Dicky as it might be, it is not crime to contest an election, by whatever legal means might be available. And in our free and open democratic Republic "legal means" includes bringing political pressure to bear on members of Congress. No one seems to have had any problem with advocacy groups bringing "the pressure of public opinion" (as represented by those assembled) against the Supreme Court. The Pelosicrats tried to circumvent this minor legality by casting Trump's contesting as "prevent[ing] the peaceful transfer of power." Now the transfer of power in this country is presumed to be peaceful. The Constitution does not provide for violent successions; so why insert the word "peaceful"? It was a rhetorical trick to insinuate that Trump's contesting the certification was somehow a violent act. Without more, it was not.  If Demorats meant that on January 6th Trump instigated a riot in order to disrupt, with force and violence, the certification proceedings then that is exactly what they should have said. Broad brushing two full months of obnoxious political gambits and protests as "preventing the peaceful transfer of power" was just bullshit.

Of course, the decent and sporting thing to do has been to concede at midnight Tuesday even though one might suspect that some people voted early and often. Are all these swift and gentlemanly concessions really just attributable to mainstream Protestant Decorum? Bunk. Let us be brutally frank. More connects Gore with Bush, and Hillary to Donald than connects either of them to me or to the average anonymous and unimportant anyman. They could give a rats ass about you or me (provided you are a nobody like me) but they do care deeply about preserving the aura of legitimacy around the system that cozies them in privilege and power. They are terrified that the people might see through the utter farce and sham that the whole system, and especially elections, are. People might stop paying taxes, might start revolting and then they would have to call out the goons of a professional army to restore order and everything would get very messy. So it is a far, far better thing to pretend that the elections are, on the whole and with a few minor and unimportant irregularities here and there, free and fair! And after all, the worst that can possibly happen is that for four or eight years one will have to get a cushy corporate job with percs instead of slumping into a cushy government job with percs.

Trump understands this as well as anyone else. The only difference between him and the average political whore is that he is willing to va banc. This is what so infuriated the Democrats. But they are hypocrites. Did not Democratic congressperons themselves attempt to contest certification back in 2001? And if one is concerned about preserving an aura of legitimacy, who was it exactly, that spent three years delegitimizing the previous election as the result of "foreign meddling" and interference? History is largely a matter of progressions and in the progression from bad to worse, Hillary-the-Cheated and her elves at the NY Slime had already taken things farther than they had been taken before. Trump's rabble rousing -- geared to people who are tone deaf to Buttigiegian Burbble or the gentrified sophisms of the Times -- was a logical degression.

For all that, the question was (and remains) whether Trump intended to resort to violence in order to play his hand. A resort to violence, by the president himself, would have gone beyond all political convention. I do not for a second minimize the charge if true. But its very seriousness demanded that it be proved with something more than "what else" and "innuendo." My own suspicion is that Trump was hoping for violence while stopping just short of calling for it. I feel in my bones that evidence is out there to be found. But the Demorats didn't produce it. In fact they did not present evidence at all but only their opinions about whatever it was that was shown on Youtube and television. For shame! They succeeded only in "proving" to those who agreed that Trump was one of the scummiest, if not the scummiest, politician in a country that has had no shortage of scummy politicians. But dragging out his dirty bad character onto the floor of Senate for all the world to see, did not prove the case for illegal incitement to unlawful action. To be as charitable as possible, the Democrats resorted to a case of "circumstantial impressionism."

My suspicion also is that Trump was tickled pink upon learning that Pence and Pelosi were being scurried to safety. If there are eyewitnesses to this then that would nail Trump's illegal intent; for, it would be simply too much to claim that one was not angling for violence when one is caught jumping up and down with glee when violence occurs. But again, the Democrats did not bring these witnesses into the chamber. They will have all sorts of excuses as to why they could not but none of them are relevant. If you don't have the proof, you don't have a case and shouldn't bring it.

It is far more than a suspicion to say that Trump did nothing when the rioting inside the Capitol became known. Any other president I can think of, except perhaps Willard Fillmore, would have been on the horn to the Secretary of the Army demanding the deployment of the guard. I can all but hear St Jack on the phone. But of course St. Jack would never have called upon his supporters to rally in front of the Capitol in the first place. Had he been so politically crass to have done so, he would have called them off the instant the first pane of glass was broken. In my mind dereliction of duty was the strongest case given what was known. The Democrats didn't bring it because they were too busy rushing to make a solemn and pompous march "to the other House" in the manner of country bumpkins imitating Black Rod.

This whole fiasco -- and when you loose it is a fiasco -- was the misbegotten spawn of Pelosi's pique. There is much to loathe in Donald Trump and the ghouls he surrounds himself with. He represents a next step in the ongoing degeneration of American politics. But, aside from all the pompous and self-righteous posturing, what really fires the ire of the Democrats is that he has bested them at their own game -- and worse yet, tweaks their noses while he is at it. They seethe, not with real concern for the shabby state of our so-called democracy, but with personal resentment. They were incredulous and outraged when Hillary was scorned and they spent the next three years trying to delegitimize the result.

Had the Demorat establishment and the New York Slime been capable of the least objectivity they would have stepped back from announcing to the world that this "miracle" of America (Raskin), this "temple of democracy" (Pelosi), was in fact controlled from abroad, the mere glove of Putin's hand shoved up its ass. Even real satraps don't announce to the world that they are puppets. But no. The Demorats spent three years trying to prove it.

I have been amazed at how intelligent people have fallen for the bullshit of Russiagate. I think it flows from America's Original Derangement -- its profound need for bugbears. Without enemies we are lost! For then we have only ourselves to contemplate and that is truly scary. Supposing the allegations were true, does the national interest require you to broadcast it? No, the national honor requires that the truth be denied in order to maintain the country's credit and authority on the world stage. Governments not run by hysterics and petulant egomaniacs understand this.

But none of this matters to Pelosi, the Demorats and the Slime. They viscerally hate Trump only because he has upset their complacency and sense of entitlement. Aided by the true cunning of McConnell, Trump consistently left them to stew in impotent rage. Had the Demorats acknowledged the alienation and dispossession that fuels Trump's base they would have got behind Bernie. But no. They ran a campaign whose aim and slogan was to return to the "normalcy" of the days when we were in power.

Well fine. They got what they wanted. So what did Nancy do? Enraged that the Temple of Her Office got polluted by riff-raff, she went off half cocked on a third attempt at revenge. Revanche! Revanche! Toujours Revanche. But to paraphrase St. Jack, you can't get even when you are mad.

Impeachment is a legalized form or regicide or revolution. It is very serious business because it annuls an election and thus shakes the very governmental order it seeks to save. It should not be used for tactical partisan advantage or revenge, far less for personal pique. The Republoscum started the abuse when they impeached Clinton over nonsense. There was no reason for the Democrats to turn the abuse into a habit.

I have said from the start of this fiasco that impeachment was not the way to go. The case should have been investigated with calm and care. Once the evidence of the three crimes I have mentioned was marshalled, the former president should have been haled into District Court to face the music. Instead, energized by his acquittal, Trump will claim vindication and carry on as before to the delight of his half of the country and to the general nausea of everyone else.

I have often alluded to Ridicule, the French movie about the sly, snide and sordid games played against one another by the aristocratic ruling class within the confines of Versailles. The movie ends with the distinct implication that this world of powdered and periwigged vipers will not last. Pelosi, who last year, while hundreds of thousands lined up at failing food banks, cheerfully told an interviewer that she found consolation in designer chocolates, symptomizes the despicable uselessness of this intramural class on a hill.

The Demorats can play their stupid games with the Republoscum, but the broader picture is (1) that the people in the country are close to hopelessly divided against themselves and (2) the system is economically, educationally, medically and socially failing close to 80% of the populace, with 40% subsisting in a state of no-escape destitution. In light of this socio-economic debacle, Trump is the least of this country's problems. He is a manifestation and not a cause. The rabble he roused will still be there when he is gone only to be roused by someone else. No amount of smug, self-righteous hectoring and finger wagging from the gentrified liberals and the woke "left" will change that. What will change things is not lectures, not social media control, not tearing down statutes and doxing people but putting in place social conditions which prevent the despair and degeneration of the individual.

If, instead of obsessing over Trump, the Demorats rolled up their sleeves and used their thin majorities to make America a worthwhile and happy place to live in, the alienation, resentment and hate demagogues like Trump feed on, would recede away. I will not hold my breath. At the end of the day, politics is a game of entre nous and nobodies don't count except as ballot fodder to keep the illusion alive.


Post Script. As this was being readied for publication, the Demorats disclosed, at the 13th hour, that they had just discoverd (Neguse on Face the Nation) a memo from Congresswoman Jaimie Herrera Beutler about a overhearing a conversation between Congressman McCarthy and Trump which supposedly showed that Trump knew rioters were breaking into the Capitol. The letter is at least double hearsay and is still loose ended as to exactly what and when. But the letter proves my point. As I have said, I have always felt that there was evidence (real evidence and not personal conclusions) that could nail Trump. My point is that the Pelosicrats were so obsessed with viscerally going after their Hate Object that they did not properly investigate and marshall their case which ought to have been taken into a court of law.

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