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There's a glaring problem with the GOP's bid to stop Trump's impeachment trial in its tracks
January 27, 2021
Despite widespread demands that the U.S. Senate hold former President Donald Trump accountable for helping to incite a deadly insurrection at the U.S. Capitol just before leaving office, all but five Republican senators on Tuesday voted to invalidate the trial as unconstitutional—a move that ultimately failed but portends poorly for those hoping for conviction.
Just 10 House Republicans joined with Democrats earlier this month to impeach Trump—the only president to be impeached twice—for his role in sparking the January 6 attack on Congress. House impeachment managers delivered the article to the Senate on Monday.
<p>While senators were sworn in on Tuesday for Trump's second impeachment trial, arguments aren't set to start until February 9.</p><p>Sen. Rand Paul (R-Ky.) on Tuesday <a href="https://twitter.com/RandPaul/status/1354163711917903872" rel="noopener noreferrer" target="_blank">claimed</a> that the trial is unconstitutional and forced a procedural vote on the matter. Paul's move "might seem like a silly procedural gambit, but it's important," <a href="https://www.politico.com/newsletters/playbook-pm" rel="noopener noreferrer" target="_blank">reported</a> <em>Politico</em>, because it forces GOP senators to go on record about whether they think the trial should be allowed to proceed.</p><p>Only Republican Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Neb.), and Pat Toomey (Pa.) joined with Democrats to oppose Paul's effort, which Senate Minority Leader Mitch McConnell (R-Ky.) supported. The <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=117&session=1&vote=00008" rel="noopener noreferrer" target="_blank">55-45 vote</a> signals that the necessary two-thirds of senators do not support a conviction.</p><p>The Senate vote was swiftly condemned, including by House Democrats who supported Trump's impeachment:</p><iframe src="https://platform.twitter.com/embed/index.html?creatorScreenName=commondreams&creatorUserId=14296273&dnt=false&embedId=twitter-widget-0&frame=false&hideCard=false&hideThread=false&id=1354173067556171778&lang=en&origin=https%3A%2F%2Fwww.commondreams.org%2Fnews%2F2021%2F01%2F26%2Fafter-delaying-trump-impeachment-trial-all-5-gop-senators-vote-favor-saying-now-its&siteScreenName=commondreams&siteUserId=14296273&theme=light&widgetsVersion=ed20a2b%3A1601588405575&width=550px" style="position: static; box-sizing: inherit; visibility: visible; width: 521px; height: 417px; flex-grow: 1;" title="Twitter Tweet"></iframe><iframe src="https://platform.twitter.com/embed/index.html?creatorScreenName=commondreams&creatorUserId=14296273&dnt=false&embedId=twitter-widget-1&frame=false&hideCard=false&hideThread=false&id=1354166916621996032&lang=en&origin=https%3A%2F%2Fwww.commondreams.org%2Fnews%2F2021%2F01%2F26%2Fafter-delaying-trump-impeachment-trial-all-5-gop-senators-vote-favor-saying-now-its&siteScreenName=commondreams&siteUserId=14296273&theme=light&widgetsVersion=ed20a2b%3A1601588405575&width=550px" style="position: static; box-sizing: inherit; visibility: visible; width: 521px; height: 343px; flex-grow: 1;" title="Twitter Tweet"></iframe><p>As <em>MSNBC</em>'s Chris Hayes <a href="https://twitter.com/chrislhayes/status/1354174459461197824" rel="noopener noreferrer" target="_blank">noted</a>: "McConnell delayed the trial and then voted in favor of a point or order to dismiss it because it was...starting too late."</p><p>Despite the timing of the House impeachment vote, McConnell, while he was still Senate majority leader in the immediate wake of the attack, <a href="https://www.commondreams.org/news/2021/01/13/fascist-enabling-coward-mcconnell-declines-reconvene-senate-trial-house-moves" rel="noopener noreferrer" target="_blank">refused</a> to start a trial before President Joe Biden's inauguration.</p><p>Ahead of the Tuesday vote, Paul <a href="https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655" rel="noopener noreferrer" target="_blank">told</a> reporters: "I think there will be enough support on it to show there's no chance they can impeach the president... If 34 people support my resolution that this is an unconstitutional proceeding, it shows they don't have the votes and we're basically wasting our time."</p><p>Paul tried to claim that the trial is unconstitutional because Trump is no longer in office. Senate Majority Leader Chuck Schumer (D-N.Y.) <a href="https://www.cnn.com/politics/live-news/biden-presidency-trump-impeachment-1-26-21/h_bbbcc5bd4d2937830e4eb29804e46452" rel="noopener noreferrer" target="_blank">responded</a> by pointing to Article II, Section II of the U.S. Constitution, which allows for the "removal of office and disqualification to hold and enjoy any office honor."</p><p>"If the framers intended impeachment to merely be a vehicle to remove sitting officials from their office they would not have included that additional provision, disqualification from future office," he said.</p><p>"The language is crystal clear without any ambiguity," Schumer said. "The history and precedent is clear. The Senate has the power to try former officials, and the reasons for that are basic common sense."</p><iframe src="https://platform.twitter.com/embed/index.html?creatorScreenName=commondreams&creatorUserId=14296273&dnt=false&embedId=twitter-widget-2&frame=false&hideCard=false&hideThread=false&id=1354174974790168577&lang=en&origin=https%3A%2F%2Fwww.commondreams.org%2Fnews%2F2021%2F01%2F26%2Fafter-delaying-trump-impeachment-trial-all-5-gop-senators-vote-favor-saying-now-its&siteScreenName=commondreams&siteUserId=14296273&theme=light&widgetsVersion=ed20a2b%3A1601588405575&width=550px" style="position: static; box-sizing: inherit; visibility: visible; width: 521px; height: 365px; flex-grow: 1;" title="Twitter Tweet"></iframe><p><em>Common Dreams</em> reported earlier Tuesday that polls <a href="https://www.commondreams.org/news/2021/01/26/majority-us-want-senate-convict-trump-bar-him-holding-office-ever-again-poll" rel="noopener noreferrer" target="_blank">continue to show </a>that the American public supports convicting Trump and barring him from ever holding office again. A survey conducted by the Monmouth University Polling Institute from January 21 to January 24 found 56% of Americans approve of the House impeaching Trump.</p><p>That polling results also showed that 52% of the U.S. public wants the Senate to convict Trump on the impeachment charge. Additionally, when those surveyed were told that a conviction must precede a ban on Trump holding office in the future, support for the Senate convicting the ex-president jumped from 52% to 55%.</p><p>As the advocacy group Stand Up America <a href="https://twitter.com/StandUpAmerica/status/1354175029546770434" rel="noopener noreferrer" target="_blank">put it</a> in a tweet Tuesday: "Convicting Donald Trump for inciting a white supremacist insurrection against the government of the United States should be a given."</p>
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When it became clear that the second impeachment trial of Donald Trump would take place after he was out of office, it raised a curious constitutional question that few had ever previously considered: Should Chief Justice John Roberts preside over the trial, as he did during the previous impeachment?
We recently got the answer: No. President pro tempore of the Senate Patrick Leahy, a Vermont Democrat, will preside instead.
<p>And in an interview on MSNBC with Rachel Maddow on Monday night, Senate Majority Leader Chuck Schumer revealed why for the first time.</p><p>"It was up to John Roberts whether he wanted to preside," Schumer said, "and he doesn't want to do it."</p><p>Many had assumed that, as he was during Trump's first impeachment trial, the chief justice would be obligated to preside. But a close reading of the U.S. Constitution suggests he is not.</p><p>"When the President of the United States is tried, the Chief Justice shall preside," the Constitution reads. The word "the" before "President" is crucial. Because while Trump is in some sense still "a president," he is definitively not "the president." Joe Biden is. Therefore, we can conclude there's no obligation on the part of the chief justice to preside in Trump's trial.</p><p>Schumer did seem to suggest that the chief justice may have presided over the trial, if he had so chosen. And nothing in the Constitution would appear to forbid that. But it's not surprising that Roberts, believing he had an option under the constitution, would opt to sit the trial out. He is known for having a strong desire to keep the Supreme Court as apolitical as possible. During Trump's first impeachment trial, he frequently looked uncomfortable and displeased with his obligation to preside.</p><p>There still remains a question of why the Leahy had undertaken the obligation to preside over the trial. The duty could have fallen to Vice President Kamala Harris, who is the president of the Senate. Leahy, the president pro tempore, only presides in her absence. And Harris may be required during the trial if she needs to cast any tie-splitting votes on procedural matters.</p><p>Trump and other critics of the impeachment process may point to the chief justice's absence as a reason to discredit and dismiss the trial. But the constitutional analysis about his presence being unnecessary is clear-cut.</p><p>On Tuesday, 45 Senate Republicans voted to dismiss the trial entirely, arguing that former officials can no longer be subject to impeachment procedures. However, the scholarly consensus is against this view, and it is not directly supported by the Constitution. In fact, the Constitution specifically lists "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" as a potential consequence of conviction. And that possibility clearly still exists for a former official. So it's reasonable to infer that a trial for a former president is within the scope of the Constitution. The Constitution also makes clear that the Senate itself has the sole power to try impeachments, suggesting that its determination on the matter is conclusive. And with 55 votes in favor of the trial, it has determined that the proceedings against Trump are legitmiate.</p>
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As Joe Biden and Kamala Harris took their oaths of office last week, it was revealed that FBI Deputy Director David Bowdich will be retiring soon. Paul Abbate, the FBI No. 3, will be promoted from associate deputy director to Bowdich's post.
At least for the moment, Joe Biden has left Christopher Wray as FBI chief — partly in deference to the bureau's supposed independence, and also because on the face of it Wray doesn't look like a Trump guy. Both before and after the election, Donald Trump was said many times to be on the verge of firing Wray. But that was only because the FBI director did not yield to the outgoing president's most extreme, extravagant and baseless requests — such as indicting Barack Obama and Biden over absolutely nothing — and doesn't mean Wray should stay on.
<p>Bowdich's early retirement and departure is likely linked to the Capitol events and the perception of FBI inaction toward far-right terrorism, an issue I have raised in more general terms in a previous Salon <a href="https://www.salon.com/2021/01/07/the-us-capitol-was-built-to-inspire-awe-but-thats-all-gone-now/" rel="noopener noreferrer" target="_blank">article</a>. A lapse as grievous as we saw on Jan. 6 is hardly due to incompetence at that level. We are most likely talking about bias.</p><p>This is why, as a top priority, Vice President Harris should put her lawyer hat on once again and lead, together with Congress, a reform of the FBI legal standards on terrorism, as they are applied to the progressive left and the far right.</p><p>The Capitol attack was not an unpredictable, once-in-a-lifetime "black swan" event. It was part of a pattern. It's not like a meteor hit Washington out of nowhere. These right-wing groups are well known, and closely followed by the FBI.</p><p>Ahead of the elections, FBI agents themselves competently and timely foiled the plot by far-right militias to kidnap and assassinate Michigan Gov. Gretchen Whitmer. The FBI agents that did that did not need a publicly organized event that was all over the media and Twitter to tell them what might happen. This indicates that FBI agents and analysts in the field get it right — when the top leadership doesn't put the brakes on them, that is. The people who entered the Capitol had similar plans for any number of politicians and lawmakers. There is evidence appearing now through the courts that the Trump mob indeed intended to capture and assassinate members of Congress, as detailed in a recent <a href="https://www.courtlistener.com/recap/gov.uscourts.azd.1258007/gov.uscourts.azd.1258007.5.0.pdf" rel="noopener noreferrer" target="_blank">court filing</a> by federal prosecutors. The FBI knows these groups and their intentions.</p><p>In a press conference several days after the events, FBI officials informed the public that they needed to differentiate between "keyboard bravado" and actual intentions. Keyboard bravado is the new "locker-room talk." The FBI gave terrorism practices and terrorism preparations par excellence the benefit of the doubt, but have a pronounced tendency to crack down on practices which are far away from terrorism when it comes to the progressive left.</p><p>The FBI has traditionally been known for its repression of left or progressive activis,, as an Intercept article <a href="https://theintercept.com/2018/04/21/terry-albury-fbi-race-whistleblowing/" rel="noopener noreferrer" target="_blank">explores</a> and as a <a href="https://www.youtube.com/watch?v=Lvfxzht9KUA" rel="noopener noreferrer" target="_blank">new documentary film</a> about the FBI's treatment of the Rev. Martin Luther King Jr. shows.</p><p>In the spring of last year, when I was a candidate for the office of UN special rapporteur on freedom of speech, Bowdich was quoted, in a memo leaked to the New York Times, reacting to the nationwide wave of Black Lives Matters protests. Bowdich maintained that the protesters should be arrested under an outdated racketeering law from the 1940s. The leaked memo showed that Bowdich considered the social justice movement "a national crisis" comparable to 9/11. The hundreds of thousands of people mourning and marching across the country, unified by the simple concept that no life should be taken lightly, were seen by the FBI's deputy director as similar to terrorists or members of organized crime operations.</p><p>To say that protesters who clash with the police are like terrorists is like saying that a car crash at the traffic light is a suicide bombing. Recently I <a href="https://www.youtube.com/watch?v=3HvQ-OXGDeY&t=1827s" rel="noopener noreferrer" target="_blank">wondered</a> why Bowdich won't speak about 9/11 now, when we face the threat of actual far-right terrorism, including plans to blow up buildings and assassinate lawmakers.</p><p>The FBI remains obsessed with dissident or radical voices on the left, while largely ignoring the violent extremists and the real terrorism threat on the far right, as recently revealed by an <a href="https://theintercept.com/2020/09/12/homeland-security-whistleblower-corruption/" rel="noopener noreferrer" target="_blank">Intercept investigation</a> that found "glaring disparities between law enforcement's depiction of groups on the right and the left."</p><p>When it came to analysis of left-wing groups, "law enforcement intelligence was often vague, mixed up in online conspiracy theories or untethered to evidence of suspected criminal activity". When it comes to the right, on the other hand, the documents showed "law enforcement agencies across the country sharing detailed and specific information on the mobilization of armed groups looking to use the unrest as cover to attack law enforcement and protesters and set off a civil war."</p><p>Harris, together with Congress, should lead a review and reform of the legal standards the FBI uses in opening terrorism investigations on progressives, Black activists, pro-bono lawyers, intellectuals and left-wing journalists, and review the standards for evidence of what constitutes suspicious criminal behavior, the thresholds for warrants, and other legal procedures. How easy is it to open terrorism investigations on progressives or leftists who have no prior criminal record and no suspicious criminal-group memberships?</p><p>It is past time to get to the bottom of this. As recent events should make clear, the progressive left is not the national security enemy.</p>
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