If some contemporary admirer of JFK (or Ted Sorensen) wished to write a second volume to Profiles in Courage, it would be a very short book.
The last senate majority leader, Mitch McConnell (R-KY), seemed to take pride in his nickname, Grim Reaper, perhaps because it was directly connected to the source of his power, his ability to steer the senate away from situations that might require “his members” to cast a difficult vote. The primary difficulty to be avoided was controversy in their home states.
The issue is not having one’s true position smoked out by the vote. There might not even be a true position. The issue is having to cast the sort of vote that is bound to cost political support among those on the other side of the vote because it is a salient issue, an issue voters carry with them to the ballot box. Another feature of the “difficult vote” is that it is a public position for which reasons must be given. The vote might require the member to — –horrors! — -debate the issue, whether on the campaign trail or on the Senate Floor.
How is it, I wonder, that an outfit styling itself “the world’s greatest deliberative body” could harbor so many members who wish to avoid public deliberation? On the other side of the Capitol, the path to election as Speaker of the House is also paved with issue avoidance. A successful Speaker, like a successful Senate Majority Leader, helps the members avoid hard votes or serious debates.
When Barack Obama was President, each legislative session would begin with the White House running its traps to learn whether there could be a new Authorization for Use of Military Force (AUMF) setting out the Congressional parameters for what we still call the “War on Terror.” A new AUMF was especially important after Obama warned the Assad government in Syria of a “red line” Syrian forces should not cross: using poison gas on Syrian civilians.
Assad trampled the red line, but Congress was still not interested in passing a new AUMF. As a result, the penalty for poisoning civilians was a tongue lashing and there was much cluck-clucking about Obama’s “weakness.” Even now, it’s not clear whether a majority of Congress favored punishing Assad.
That’s the political magic of not taking a vote. No matter what the POTUS does, he can be criticized, and the critic need not fear a charge of hypocrisy. Once a record vote is taken, that political advantage is gone.
This is the same mechanism that has rendered Article I, Sec. 8, Clause 11 of the Constitution null and void. That was the quaint provision that apportioned the power to declare war to Congress, a power not used since WWII. Therefore, if some contemporary admirer of Jeannette Rankin wishes to oppose war from a seat in Congress, the task requires getting Congress to act rather than merely stopping Congress from declaring war.
The use of military force is a major issue, and apportioning the power to approve or disapprove military force was unlikely to have been taken lightly by the scriveners of the Constitution. One of the few decisions that seems as serious as war and peace — or close to as serious — is the power to remove a lawfully elected POTUS when serving as a jury in an impeachment proceeding.
We saw cowardice drive that decision in Impeachment 2020. There was no serious issue whether President Trump committed the offense for which he was impeached, but the Republican Party decided that drawing another nation into U.S. elections did not warrant removal from office. Nobody could place the interests of the nation above the interests of the GOP except a senator representing the Church of Jesus Christ of Latter-Day Saints, an absolutely safe seat.
Now we arrive at Impeachment 2021 and, once more, there will be no live issue about the facts. It’s possible to gin up a fact issue by claiming not to believe the insurrectionists who say they were following Mr. Trump’s orders, but why? “Just following orders” has not been a defense to a criminal charge since the Nuremberg Tribunals and it’s very hard to construe Mr. Trump’s words in a manner that convincingly separates him from the attempted coup d’état.
Mr. Trump wanted to defend against impeachment by claiming necessity based on the elections being stolen. When his lawyers quit laughing, they resigned en masse. The new crew appears prepared to hang the entire defense on lack of jurisdiction, because, they say, you cannot impeach a person who does not hold public office. In the real world, this is a legal issue that does not need to be raised at trial.
A court without jurisdiction lacks the power to act. The defense could try the facts and still escape penalty upon losing because the Senate would still have no power to impose a penalty.
The fly in the ointment is that the defense has a legal issue with no court to rule upon it. Nobody would have standing before a real court — not even Mr. Trump — until he was about to suffer a disadvantage beyond the disadvantage all citizens share — losing the privilege of being ruled for four more years by an incompetent thief, while the thief attempts to pass a Constitutional amendment allowing a POTUS to serve for life.
I can think of only one way to get the defense issue before a court. Get convicted and then try to run again in violation of the Senate’s judgment. At that point, anybody who is qualified according to the Constitution and wishes to seek the same office could bring a suit claiming Mr. Trump is disqualified. That is not a request for an advisory opinion (which the SCOTUS cannot offer) but rather a demand to call off the election.
The only possible objection Mr. Trump could have to doing it correctly would be that he is guilty of sedition, knows he is guilty of sedition, and therefore has no interest in taking a “free shot” at winning on the facts.
If Trump did not intend to set off an insurrection, he can testify he never gave the orders participants claimed to be following. If the Senate agrees (or does not disagree by the required supermajority), Impeachment 2021 is over and Donald John Trump prevailed. He remains eligible for federal office.
If the Senate disagrees with Mr. Trump’s rendition of the facts, Impeachment 2021 is still not over until Mr. Trump attempts to seek federal office in violation of the Senate’s order. If the Trump defense team is correct on the law, Donald John Trump can still prevail in Impeachment 2021. Conveniently, doing it in that manner would take the final decision — the call of the law — out of the hands of the Senate and therefore a major crossroads in U.S. history would not be navigated by the One Ring that rules them all in Washington: cowardice.
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Previously Published on Medium
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