House Lynch Mob puts on Senate Show Trial

Yesterday commenting on an editorial in the Fem Woke Guardian, I wrote:

"What we are witnessing is a show-trial satisfying the political blood lust of the Democrats. It will solve nothing; it will only drag the country into deeper irredentism.

"Impeachment was designed to remove a president from office. Trump is out of office; the issue is moot. The way to go after Trump is by criminal prosecution with the evidentiary precision and due process safeguards such a trial entails."

Instead the Democrats are pursuing a lynching decked out in the trappings of a "procedure." But don't take my word for it, hearken to the New York Slime

Impeachment Managers Focus on Lack of Remorse

"If Convicting Trump Is Out of Reach, Managers Seek a Verdict From the Public and History

“The Democrats and House managers are playing to a different jury in this case than in any previous impeachment trial of an American president."

THAT IS PRECISELY WHAT A SHOW TRIAL IS -- a performance for the public as jury, with guilt proved by lack of remorse.

And performance it is. The difference between drama and history, says Aristotle, is that history deals with particulars that have taken place whereas drama deals with more abstract concepts that could be. Both contain the same elements and both resort to "spectacle" to suspend judgement and produce a cathartic effect in the audience. And there has been plenty of spectacle. Hearken again to the Slime

Never-Before-Seen Footage Shows Trump Supporters on Rampage

Impeachment Video Reveals a True American Horror Story

"Using never-before-seen footage from Jan. 6, impeachment managers wove video from the Capitol into a narrative of terror, our television critic writes"

Our television critic? Yes, why not? There is certainly no need for any legal commentary.

The "managers" of the prosecution, the Slime tells us, want to use the "national spotlight to make the searing images of havoc the inexpungible legacy of the Trump presidency."

Lest anyone get lax about this, the Slime would have us know that:

Sometimes the horror was in seeing how much worse it could have been.

Say what? If this isn't horror enough for you, the true horror lay in the horror that didn't occur but could have?

What the Slime is telling you, in pure Orwellian fashion, is that you will be horrified whether the images sear you or not.

Let us step back for just a moment to comprehend the broader picture. While the Corporate Masters of Public Discourse are dropping accounts into a memory hole in the name of sanitizing content, the Corporate Liberal Media are telling you that you should be feel dismay and horror at the horrible things that did or did not occur, whether you saw the searing horror or not.

It is really choice when one considers that social media control is done in the name of protecting your mind from unsettling, disturbing or offensive content while at the same time we are being told that our hearts should be filled with fear and loathing. Now if they will only add anal dildos the manipulation will be complete. But I digress...

At least the Slime leaves no doubt that what this senatorial trial really amounts to is a spectacle of horror, havoc and images intended to leave a scar on your brain. So much for judicious.

Let us return to the beginning. In an incredibly imprecise indictment that only Nancy Pelosi could have managed Trump was charged with "inciting an insurrection." I will forgo a detailed parsing of the Articles of Impeachment. Suffice to say that these two words make up the two elements and two factual issues of the charge.

The ordinary meaning of incite means to "stir up" or to "encourage;" in other words, to emotively cause a particular course of action, process or situation. Okay. But as Justice Holmes said, "all speech is incitement." Most Americans get incited every sunday from the pulpit. So, the primary question is: incitement to what? and this brings us to ask what is the meaning of insurrection, since that is what Trump supposedly sought to trigger.

Did Trump seek to incite the overthrow of the government? Did he seek to instigate a coup d'etat? No. After blabbering about Trump's "false" claims to have won the election ( and it is just blabber ) the indictment finally specifies that Trump "willfully made statements that, in context, encouraged—and forseeably resulted in—lawless action at the Capitol."

So, in answer to our first question, the Articles charged Trump with inciting a riot. That is several notches down from what is normally thought of as an "insurrection," "coup," "overthrow," or "revolution".

It is at this point, that we can see what a shabby piece of work the Articles were. A riot is lawless no doubt but it is also aimless. It is a composite of individual actions that have no consistent or organizing principle, other than being a public disturbance. That a riot took place at the Capitol is indisputable. That the riot had the effect of disrupting proceedings in Congress is also indisputable. That this disruption "threatened the integrity of the democratic system" and that it "interfered with the peaceful transition of power" are exagerated ways of saying the same thing twice over. In legal practice this is known as a parade of horribles; in this case, a parade of repetitive horribles. What the matter boils down to is simply that Trump is alleged to have instigated a riot which had the effect of disrupting a proceeding in Congress.

Even to say as much gives the Article too much credit. Every entry-grade prosecutor knows (or ought to know) how to charge inciting a riot or, instigating the disruption of an official act in violation of 18 U.S. Code § 2384. Why not just say it in plain English? Because, as they say in the trade, if you don't have the facts dazzle em with bullshit... the more inflammatory and morally lofty the better.

But the shabbiness of the indictment does not end there. Let us read into the Articles what ought to have been plainly stated; namely, that a specified act was the cause of certain specified effects. Trump made statements which caused a riot at the Capital which riot had certain effects. The effects, rhetorically exagerated as they may be are, as I have said, indisputable. The spectacle of the cause (i.e. the riot) is, as I have also said, a matter of deep impression. That Trump told the crowd to "fight like hell" is also a matter of record. But what gets buried in all of this is the small issue of specific intent.

It is not enough to simply say that the "disruption" of the certification process was "foreseeable" (a disputable fact). In law, ignoring something that is "reasonably foreseeable" implicates the mental state of "recklessness." However, to prove criminal incitement the disruption must also have been specificically intended. As stated by the Supreme Court in Yates v. United States, the words uttered must be "reasonably and ordinarily calculated to incite persons to ...action" and must be aimed at "overthrowing or destroying the Government of the United States by force and violence, ... with the intent to cause the overthrow." (354 U.S. 298, at p. 326 [construing the Smith Act] .) In other words, in addition to action, cause and effect, guilt requires knowledge and intent. This is a maxim of jurisprudence that dates back to Roman law.

Now, in this situation, a strong inference of intent is usually derived from the words spoken. "Go burn down that den of iniquity" (pointing to the Capitol) very strong implies that the speaker thereof wanted his audience to do precisely that. Oh but alas! Trump told his rabble to march on the Capitol "peacefully." Trump is no fool, and that put the House prosectors in the position of proving intent from something other than the allegedly inciteful words themselves. But instead of producing evidence from which an inference of intent might be drawn, the managers resorted to the shabby trick prosecutors always use to establish their case: the conduct had the effect, therefore the effect must have been intended. Post hoc, ergo propter hoc.

During the proceedings, representative Neguse correctly noted that Trump cultivated a culture of aggresive resentments and hate. But Neguse's argument that violence was therefore "foreseeable" shifted legal standards and ducked the issue of intent. In so doing, Neguse fell back on the old --and discarded-- hobby horse of all sedition statutes; namely, the criminalization of speech that has an alleged tendency to provoke violence or sedition. This is not the rule that the Supreme Court follows. Seditious speech is not a question of "atmospherics" or "cultures" or "likelihoods" but of words that are immediately and imminently brigaded to unlawful conduct (Brandenburg v. Ohio (1969) 395 U.S. 444.)

The now recognized defect in the tendency rule is that it criminalizes anything that can arguably be said to have created a "risk" or "danger" or "likelihood" of some violence or some unlawful occurrence. The tendency rule (which is still followed in England) is the darling of all moralists and sociologists precisely because it is open ended. Anything can "tend" anywhere and on the morning after it is always "obvious" that it was going to land where it did. But in Brandenburg the Supreme Court made clear that words cannot be criminalized based on the argument that they may have a tendency to lead to some undesirable end or that that they could in the vast realm of possibilities promote some undesirable consequence. In addition to being intended to promote an unlawful end they must be imminently connected to conduct which is itself unlawful.

Trump spoke. A riot happened. Proceedings were temporarily disrupted. That is all these "managers" have. They have even less, once it is taken into account that Trump told his "fighters" to be "peaceful." To make up for the thin tissue of their case, the managers of this prosecution and the pontiffs at the Slime want to suspend your judgement with the spectacle of the horror that could have been!!

But it gets worse still. In addition to the issues of act, knowledge, cause, intent, and effect there is the small matter of free speech. The Supreme Court has made it difficult to prove criminal incitement not simply because "free speech is important" but because speech itself is emotive and fluid. If we were constrained to using words only in their precise and literal meaning, speech would be as dead as the High Priestesses of Poltical Correctness want it to be. As stated in Yates "[v]ague referemces to 'revolutionary' or "militant' action of an unspecified character" are not sufficient. So too statements like: "hang the bastards!" "fight like hell for what you believe" and "Johnson ought to be shot!" Two rules emerge: (1) mere "advocacy" of violence does not suffice; and (2), figurative expressions, metaphorical language and even violent language or "fighting words" are constitutionally protected, Nancy Pelosi notwithstanding.

Do the "managers" of this senatorial lynching really not understand that Trump's exhortation to "fight" for the government they wanted was protected speech? Do they really not understand that for words to amount to criminal incitement they must be so "brigaded" with the unlawful conduct as to be inseverable from the conduct? The Supreme Court has set an extremely high bar for prosecutors, managers and the pontiffs at the Slime to jump over; and, in making a case against Trump in accordance with these principles they have utterly failed.

As I have said, Trump knows how to push the envelope. He told people to "fight" to "save" the country. When Neguse argued that such speech "was not a metaphor" he was tacitly admitting that this kind of speech is constitutionally protected, precisely because it is presumed to be a metaphor. What did Neguse offer to show that "fight" was meant literally? What did he offer to show that "peacefully" was not meant to be taken seriously? Nothing other than that Trump had laughed off violence before and often resorted to aggressive and hateful language. "Just look at all the stuff he said before..." But this was to go around in a circle -- circumstantial evidence being used to buttress an inference from circumstantial evidence. It is in this manner that the matter is brought back to the issue of specific intent. It is only separate proof of intent that can break out of the self perpetuating loop.

It is at this point the House prosecutors actually did manage to come up with what might have been relevant evidence. Although criminal intent must exist at the time of the criminal conduct in question, it is an accepted maxim that it can be proved by conduct after the event. Typically this conduct consists in some form of consciousness of guilt. But it can also consist in consciousness of success! When a person cheers the success of something, there is a strong and logical inference that he intended for that "success" to happen.

According to Representative Ceciline, Senator Sasse was said to have said that Trump was "delighted" and "borderline enthusiastic" "as events unfolded on January 6." But like the proverbial carrot being dangled before the jury, what this double hearsay evidence left unclear was precisely what Trump was delighted at. "As events unfolded" is a very broad and vague timeline. Was Trump "delighted" at the sight of Antler Man howling in the Senate Chamber? At the sight of rioters smashing windows? Or was his delight at the sight of a swelling mob outside the Capitol?

Again, Ceciline, cited an article from the Washington Post according to which Senatory McCarthy pleaded with Trump to "to issue a statement for his supporters to leave the Capitol." To leave the Capitol grounds or to leave the building? It makes a difference.

Instead of pursuing and nailing down this potentially very damning evidence the prosecutors left double and triple hearsay statements dangling in the wind while they chased after what amounted to bad character evidence. That is the favorite tactic of all prosecutors because it makes their case as easy as it is illusory. So-and-so is a bad apple -- indeed a bad, worm eaten and rotten -- apple, ergo he must have done the bad thing. We know that Trump is a very bad and rotten apple that any decent worm would disdain, but that does not prove the case. As the matter was left the "proof" was simply a species of ad hom coupled to a vague proffer of what might have been evidence.

In this regard, it might be worth noting that this was not the first time the Certification Process has been called into question. Democrats tried to do it on the floor of the chamber back in 2001. It is a somewhat dodgy manouever but it is not illegal. Just as the Senate's prerogative to "consent" implies a prerogative not to consent; so too, the power to certify implies a power to not certify. And if that is the case, then Trump was within his envelope to bring peaceful, political, protest pressure to bear on the proceedings inside. The House prosecutors waxed indignant that Trump had dared to question the legitimacy of the vote. Whoa.... Had not the Democrats done precisely that for three years on behalf of Hillary-the-Scorned?

Was it shabby? Unquestionably. Everything Trump does is shabby and this was the shabbiest of all. Compare his conduct with Al Gore's when, presiding over the certification of Bush's win, he ruled challenges to the certification to be out of order. But shabby is not illegal. Politically pornographic as it may have been, so long as he did not incite violence, Trump was within bounds in seeking to bring peaceful pressure to bear on the process.

But just as shabby was a trial at which the evidence consisted of nothing more than accusatory closing arguments. Not a single witness has been called and, consequently, not a single assertion of fact has been cross-examined. The managers' argument was that there was no need to call witness because we all were witnesses who tuned into CNN and Youtube and saw what there was to be seen. When the evidence is "what every good German knows it to be" (thank you Roland Freisler) we are in deep show.

I realize that an impeachment trial is not a judicial proceeding in the strictest sense. But I don't know of a case where the basic rules of evidence -- direct and cross examination -- were so completely and high-handedly disregarded. The "evidence" in this case was about as real as a Trump reality show. Shabby. Shabby. Shabby.

To be clear. The Demorats might have had a case had they pursued the right issue instead of embarking on a self righteous crusade of character assassination. They might have a case had they properly formed the indictment so as to charge a separate count of dereliction of duty for failing to to protect the duly elected officials of government if and once Trump knew of the danger they were in. It is for this reason that I have always stated, that the way to proceed is by criminal prosecution...not by what amounts to a partisan political lynching.

In my view there is a strong, potential case that Trump and his cronies conspired to disrupt the proceedings in Congress, and such a conspiracy would be illegal. But that is a charge that would require much more investigation and precision in charging than what is taking place in the Senate Chamber now.

None of this is relevant to the Vengeocrats in the pits of Congrease or in the caves of the Slime. Instead, knowing beforehand that they did not have the votes to convict, they want to carry their case to the public on waves of contrived horror.

Even here, we are led to wonder what kind of nation of ninnies we have become that a largely comic riot should be accounted as and equated with History's Greatest Horrors! Per the hysteria emanating from the offices of the Slime, one would think it was a Second Albigensian Crusade. Caedite eos omnes!!

Let me be clear, again. Violence is ugly. Two men pummeling one another on a street corner is a shocking spectacle of raw animal rage. A bar room brawl, which might be the scene of slapstick comedy, is, in actual fact, a brutal event. It is very injurious and at times fatally so to be blindsided by a chair or hit over the head with a bottle. Protests turned riot -- whether of the left or the right, by blacks or by whites -- are harmful precisely because people have lost their better judgement and are utterly unpredictable in what they will do. Those faced with a tsunami of rioters running amok are justifiably scarred shitless. No one can fault AOC or Pelosi or Pence for being fearful for their own safety. Nor do I make light of the fact that one protestor was shot by a federal agent or that one cop died from as yet unkown causes.

But for all that, history is (in Gibbon's inimitable words) the sorry chronicle of the "crimes, vices and follies" of mankind. We have seen far, far worse before than the riot at the Capital on January 6th. When we are called upon to make an objective judgement as to the legal or political harm involved, a certain callousness is required. Increasingly, public discourse is being reduced to using words as emotional flash-bangs. If we are to fall to pieces in fits of quivering fear and hysteria at the mere thought of any injury or violence, then we are not fit to make dispassionate judgements.

That is precisely the fear and trembling the Slime wants to substitute for judgement. And not even judgement in the Senate, because the Slime has already conceded that the votes for conviction are not there. No... the Slime is talking about judgement by the public and by history. By history reduced to a spectacle of horrors and a public induced into states of hysteria.

As much as I think Trump is a despicable creature; as much as I am glad he is out of office, I refuse to be jerked around in this fashion. The Slime and the Pelosicrats can go to hell.