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Posts published in “Day: February 20, 2021”

Call for special counsel

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A guest opinion by Everett Wohlers, a former deputy secretary of state in Idaho.

In a display of spinelessness, 43 Republican Senators on Saturday February 13 voted to give Donald Trump a pass for his brazen attack on the Constitutional order in the form of his attacks on the validity of the election and his incitement of the insurrection against the Capitol and the counting of the electoral vote by Congress.

Most of those Senators, including both of Idaho’s, explained their votes to acquit by invoking the decisively debunked argument that the Constitution does not permit impeachment and conviction of a President after he leaves office. None of the Republican Senators who voted to acquit argued that the ex-President was not guilty of the offense with which he was charged. Minority Leader Mitch McConnell even got up and agreed in some detail with the House managers that Trump was guilty as charged.

So we are left with an ex-President who remains eligible to hold future office, including the Presidency, despite having violated his oath of office in the most egregious way possible – by attacking the most fundamental feature of a functioning democracy, the peaceful transfer of power to the choice of the people. What must be done about it, and by whom?

The nature of the offenses committed by the ex-President and his many co-conspirators is criminal under federal law. To not pursue justice under those laws would in effect say to the world that powerful people are above the law. So action under the relevant federal laws must be pursued, but by whom? The US Attorney for the District of Columbia could take on such a case, since that is the venue where the core of the criminality occurred. But there were many related criminal acts that occurred in remote swing states such as Arizona, Pennsylvania and Georgia, so the US Attorney for DC would face logistical and jurisdictional problems.

Alternatively, prosecutions could be divided among the US Attorneys for the venues of different criminal acts, but that would create a disjointed effort, with possible conflicts. Another possibility is that the new Attorney General, presumably Merrick Garland, could bring the action, but that could be seen as a partisan effort by many, putting the legitimacy of the outcome in doubt in many eyes.

There is a better option that does not suffer from those problems. After Merrick Garland is confirmed as Attorney General, he should appoint a Special Counsel to investigate and appropriately charge those who committed federal criminal offenses in connection with the ex-President’s attempts to overturn the results of the election. The Special Counsel’s remit should be broad so that it can charge any crime by any person that was committed in connection with the effort to overturn the election results, to include the insurrection against the Capitol and the electoral vote count.

While the scope of the Special Counsel’s investigation and prosecutorial actions would not be limited to them, there are three relevant laws under which charges could be brought that come to mind immediately.

First, 18 U.S. Code Section 595 makes it a crime for any government official to use “his official authority for the purpose of interfering with, or affecting, the . . . election of any candidate for the office of President. . . .” The efforts of Trump and his surrogates to intimidate election officials in the swing states such as Michigan, Arizona, Pennsylvania and particularly Georgia to “find” votes appear to clearly fall within the purview of this law.

Second, 18 U.S. Code Section 2383 makes it a crime to incite “insurrection against the authority of the United States or the laws thereof, or [to give] aid or comfort thereto . . . .” The Senate impeachment trial established that Trump and a number of his surrogates did exactly that in inciting the attack on the Capitol and Congress’ count of electoral votes.

Third, 18 U.S. Code Section 2384 makes it a crime for “two or more persons . . . [to] conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . . .” The clear evidence from the impeachment trial shows that Trump conspired with a number of others, including Giuliani, Flynn, Kremer, Jones, et.al. to cause the mob to disrupt the count of electoral votes that is required by the Constitution, and that the mob’ actions did in fact “hinder or delay” completion of the count.

If no person is above the law, these and any other relevant crimes must be charged and prosecuted to the full extent of the law, regardless of political considerations. One of the new Attorney General’s first actions upon confirmation should be the appointment of a Special Counsel with a broad remit to investigate and prosecute all of those who have committed federal crimes in connection with the ex-President’s attempts to overturn the election result, to include the ex-President and his co-conspirators.
 

What are they afraid of?

johnson

The irascible, irreverent Perry Swisher – once an editor at the Lewiston, Idaho paper that publishes my regular column – was a 20th Century Renaissance Man: legislator (he served as both a Republican and Democrat), an independent candidate for governor, a writer, activist, deflater of egos and caustic truth teller, particularly about frauds, phonies and attorneys.

One Idaho governor threatened the judicial council with a Swisher appointment to the Supreme Court – Perry wasn’t a lawyer – if the council didn’t start recommending better candidates for the court. Another governor put Swisher on the Public Utilities Commission and he proceeded for several years to scare the crap out of Idaho Power Company.

Swisher once quipped that the Founders had made one fundamental mistake: they turned over an entire branch of government to lawyers. One can only imagine what the old curmudgeon would have made of the “trial” of America’s first insurrectionist president; where at least 18 of the Senate Republicans jurors who voted to acquit Donald Trump – including the two timid sheep from Idaho – are card carrying members of the bar.

Of course, none of these Perry Masons actually attempted to defend Trump’s behavior leading up to and including January 6, 2021 when a crazed mob of the then-president’s followers stormed the U.S. Capitol, killed a police officer, precipitated the deaths of two others and injured dozens more.

This brainwashed gang of cranks, misfits, losers, white supremacists and MAGA true believers were, as Wyoming Republican Liz Cheney succinctly put it, summoned by Trump, assembled by the president who then “lit the flame” of the attack. There has never been such a blatant frontal assault on our democracy.

Everything that followed, Cheney said, “was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not.”

That’s it. That was sum of the indictment that 43 Senate Republicans would not, could not defend, but were craven enough to dismiss on specious process grounds.

The “trial was unconstitutional,” Harvard Law grad Mike Crapo said. “The House’s impeachment proceeding blatantly violated established guarantees of due process.”

Jim Risch soiled the reputation of the University of Idaho’s law school where he surely learned more than he is now able to admit. “The United States Senate has no jurisdiction over a private citizen,” the former law and order prosecutor intoned incorrectly, “and thus impeachment was and is impossible.”

Both men conveniently ignored that the Senate has, in fact, conducted trials of impeached officials who are out office and that the Senate in which they sit actually voted on the constitutionality question and a majority of senators deemed the proceedings proper. They weren’t defending the Constitution, they were engaging in jury nullification.

The Trump “base” of the GOP, and those like the coward caucus in the Senate who refuse to confront it, are, in the words of media analyst Margaret Sullivan, “so disconnected from reality that when reality manages to intrude – in the form of undeniable facts, timelines, videos and presidential tweets – there’s nothing to do but deny it as outrageous and either look for an escape hatch or go on the attack.”

And it’s not as though these senatorial profiles in gutlessness don’t know any better. Arkansas’s Tom Cotton, Texan Ted Cruz and the insurrectionist from Missouri Josh Hawley are, like Crapo, Harvard men, recipients of the best, most exclusive legal education America can offer. Cruz clerked for a chief justice of the Supreme Court. Utah’s Mike Lee was an assistant U.S. attorney and clerked for federal judges before jumping through the escape hatch rather than act to uphold an oath of office.

Constitutional law scholar John E. Finn of Wesleyan University is just one of dozens of experts who utterly reject the rationalization of unconstitutionality that allowed Trump to skate. Instead Finn calls what Crapo, Risch and 41 other Senate Republicans did “constitutional rot,” a condition “in which we appear to be formally governed by constitutional rules and the rule of law, but the reality is quite different. When rot sets in, public officials and the public routinely ignore or subvert those rules while sanctimoniously professing fidelity to them.”

The historian T.J. Stiles, a winner of the Pulitzer Prize for biography, knows his American scoundrels. He says of our current one: “Donald Trump is precisely the sort of person for whom the Framers wrote the impeachment provision into the Constitution.” Unfortunately, while Madison and Hamilton and the rest did envision the need to disqualify a despot their imagination failed them when it comes to someone as ethically vacuous as a Cruz or a Crapo.

This is the point at which history reminds his constituents that Crapo – Juris Doctorate cum laud, Harvard Law School in 1977 – has the rare distinction of voting to both impeach and then convict Bill Clinton for lying about consensual sex. Yet rather than confront the guy who summoned the mob, incited it, lit the flame and then watched the fire burn, Crapo employed the solemn sanctimony of the partisan escape hatch to acquit a man he must know in his heart of hearts is guilty as sin.

The debasement of basic decency, truth and accountability are now widely accepted as a fundamental condition for good standing in a political party that once plausibly, but no longer, claimed Lincoln as its founding father.

“The Republicans who voted to acquit Trump acted with selfishness, cynicism and even malice,” says the conservative scholar Tom Nichols. “They have smeared their betrayal of the Constitution all over their careers the same way the January insurrectionists smeared excrement on the walls of the Congress itself. At least human waste can be washed away. What the Republicans did on Feb. 13, 2021, will never be expunged from the history of the United States.”

History will remember, however, the few Republicans – Washington’s Jamie Herrera Beutler is one – who stood against the lies, rejected fears of mob censure and refused to quake at the prospect of facing the dreaded primary challenge.

“I’m not afraid of losing my job,” Herrera Beutler said after voting to impeach Trump, “but I am afraid that my country will fail. I’m afraid that patriots of this country have died in vain. I’m afraid that my children won’t grow up in a free country. I’m afraid injustice will prevail.”

What are Crapo and Risch and the Senate’s 41 other cowards afraid of? They should be frightened of the verdict rendered by the French philosopher Voltaire: “Every man is guilty of all the good he did not do.”