The advantages of earplugs and blinders

 

                                                                                                                                               Jack Doppelt 

                                                                                                                                               Feb. 12, 2021 

As the Trump impeachment trial team introduced its defense today of the former president for “inciting insurrection" by encouraging the Jan. 6 riot at the U.S. Capitol, maybe the GOP senators will discard their earplugs and blinders. The sensory protectors must be annoying to have to resort to. They apparently need them so they don’t hear or see what they can then deny without facing up to how utterly shameless and hypocritical they are. 

Texas Sen. Ted Cruz, who was one of the most vocal supporters of Trump’s incendiary “Stop the Steal” narrative and one of the 44 GOP senators who voted that the trial is unconstitutional because Trump is no longer president, said publicly yesterday that Trump shouldn’t be convicted because the House managers had not come "remotely close" to demonstrating that Trump's conduct on Jan. 6 constituted incitement. 

Kaleidoscope of dots
[Image: Part of Mandelbrot set -
Smily Kaleidoscope-
Creative Commons

I can appreciate that. If you don’t hear or see any of the statements or videos that clearly connected a kaleidoscope of dots leading up to Jan. 6, you too might think that there’s no difference between heightened, insensitive, angry or inflammatory rhetoric in political campaigns, in demonstrations or in the media on the one hand, and what happened on Jan. 6, on the other hand. 

“The right” mass produces the earplugs and blinders. Ken Starr fulfilled his consulting gig on Fox News in the morning. He characterized The House manager’s case as political theater and prepared us to anticipate that Trump’s defense team is “going to run the ‘First Amendment-free speech’ play.” 

Starr is a former Appeals Court judge who turned legal hit man for the right when he led the impeachment prosecution of Bill Clinton in 1998 and became one of Trump’s legal team in Trump’s 2020 impeachment trial. He was also one of an even more impressive legal team in 2008 that represented Jeffrey Epstein, the politically connected billionaire and sex offender. In a revealing interview on Fox News in July 2019, Starr called it “nonsense” that any of the abused women whose cases were compromised by a cozy non-prosecution agreement with Epstein were bowled over by the influential lawyers. Starr would know, he boasted. “I was in the room.” [where it happened, with homage to Lin-Manuel Miranda and Hamilton]. Alexander Acosta, who was the then-U.S. Attorney who cut that deal, later stepped down as Trump’s Secretary of Labor because of the incident. As Starr put it, by resigning, “[Acosta] took one for the team.” A federal judge saw it differently. In Feb. 2019, Judge Kenneth Marra rebuked the phalanx of big name attorneys, including Starr, who had written Acosta at the time that it would be “wholly inappropriate” for the U.S. Attorney’s office to issue victim notification letters to the women, though failing to do so violated Florida law. 

With Starr pointing me to the play action, I listened closely to Trump’s defense team and focused on their videos. They summoned plenty of rhetoric by the likes of Maxine Waters, Kamala Harris, Chuck Schumer, Hillary Clinton, and Bernie Sanders. All Democrats, of course. Similar rhetoric can be invoked of Republicans. Of course, speech and rhetoric can be heated. 

Trump’s defense presentation was a testament, as were some of the House managers videos, to harnessing the wonders of digital video searching and to the craft of selective editing. The word “fight” repeated hundreds of time…by Elizabeth Warren and Kamala Harris alone. How’s that different, the point was, from Trump saying the words “fight” 20 times in the paroxysm of the Jan. 6 Capitol riots. 

Language like “fight like hell” and “don’t give up” and “you have to get your people to fight,” “punch him in the face,” “fights may need to be in Congress, in the courts and in the streets,” and “I want to tell you…you have released the whirlwind and you will pay the price.” 

The only two soundbites in the whole series of montages that pinpricked me were: CNN's Chris Cuomo: “Show me where protesters are supposed to be polite and peaceful.” Chuck Schumer: “The patriots were protesters.” 

Once Trump’s defense rested, we were left where we expected we’d be. It takes 67 votes to impeach. The votes are not there. Trump will be acquitted. Despite the expected and caricatured “he says (without listening to her), she says (without listening to him)” nature of our political landscape, the call about whether he should be convicted is a tough call, with the 1st Amendment guarding the door.  

Did Trump intend to incite his MAGAs to commit “imminent lawless action” on Jan. 6 specifically and were those actions likely to happen then and there? As I wrote the other day, that’s where the virtues and ambiguities of the videos before and on Jan. 6 matter. We shouldn’t be punishing people or impeaching a president for speaking passionately. But Trump’s speech and actions on Jan. 6 were singularly unique. 

As Justice William Brennan wrote more than 50 years ago in New York Times v. Sullivan, which is one of America’s proudest exports to the world, “debate on public issues should be uninhibited, robust, and wide-open.” That freedom is defining of America. It is not absolute. People forfeit that freedom by perjuring themselves, by convincing co-conspirators to break the knees of mob victims, or by intending to incite people to commit “imminent lawless action” that is likely to happen then and there. 

Did Trump forfeit that freedom? Because if he did, he cannot avail himself of a First Amendment protection, and he should be impeached and not allowed the privilege to seek public office in the nation where I live. 

Maybe Bruce Springsteen put it best in “Dancing in the Dark”: “You can’t start a fire without a spark.” 

I believe with all the conviction of someone who sees before me not only a dangerous, unrepentant, charismatic demagogue who kicked down the 1st Amendment door, but almost half a Congress who’ve traded in their political pedigree as the Grand Old Party for membership in Gimme Only Partisans. They preserved the acronym. 

Please tell me, though, that there is hope that the 70 millions of my fellow citizens who were sycophantic believers in a con man no longer have use for earplugs and blinders. 

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Where does "the right" get this stuff? The Impeachment edition

Jack Doppelt

 Feb. 9, 2021 

Again, I’m watching Fox News’ coverage, as I did on Jan. 6. I’m not watching to be convinced whether or not Trump should be convicted on one count of "incitement of insurrection" for encouraging the Jan. 6 riot at the U.S. Capitol. That’s about Trump.

I’m watching to fathom one underlying question that will define our futures as a nation: Where does "the right" get the stuff that has them believing dangerous nonsense? Of course, the media, including social media, propel this stuff. Yet, what stuff catches fire and why? 

A primer on one place where the right gets this stuff can be found in one program that aired the day before today’s impeachment trial. It aired on Newsmax, a fellow right wing network that is giving Fox News a run for its ratings. 

Co-hosts Sean Spicer (yes, that Sean Spicer) and Lindsay Keith interviewed Alan Dershowitz, whom they welcomed as a constitutional scholar, legal professor at Harvard and “author of a million books.” Bona fides to impress. 

Newsmax-Feb. 8, 2021

Dershowitz was on the team of lawyers who represented Trump at his first Senate impeachment trial. His novel argument in that hearing was that if Trump believed he was acting both in his own political interest -- and at the same time in the country’s interest in withholding military aid to Ukraine until Ukraine announced an investigation into then-former Vice President Biden -- those actions cannot be impeachable. As he put it, "If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment," he argued. The irony was that his argument, laughably bizarre as it was, seemed to be what caught on with the GOP and the right. Bona fides enhanced. 

Spicer and Keith last night gushed over every word of Dershowitz. At the end of the interview, they thanked him for breaking things down so the audience could get the answers as they try to make sense of the impending impeachment trial. 

The simple answers Dershowitz divined were these: 

Trump can’t be impeached for speech. He claimed that Trump’s speech was no different from other speech, which of course is protected by the 1st Amendment. He went into professed con law mode by conceding at least that speech can go beyond 1st Amendment protection when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” 

The issue clearly is whether Trump’s speech in the context of the election fraud buildup he harnessed for his electoral college day rally did that. Dershowitz pointed to the 1969 Brandenburg case about a Ku Klux Klan rally in Ohio to make his distorted points. He failed to say that the landmark holding in the case was directed at an Ohio law that went too far in limiting speech. In striking down a clearly over-broad Ohio law, the case rejected a doctrine that emerged from WWI called “clear and present danger.” 

The justices in Brandenburg were struggling with the line that preserves the advocacy of abstract ideas but can punish speech that incites imminent lawless action. Justice William O. Douglas recalled the words of Oliver Wendell Holmes who wrote prophetically in 1925: “Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.” The justices warned: “Eloquence may set fire to reason… If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” 

Without needing to refer to Trump’s incitement as eloquent, it had the power to “set fire to reason.” The incited Trumpers came to DC because he had provoked them “to stop the steal.” Still, they all had time to resort to their perverted reasoning in coming to DC or attending the rally. That took time. Trump’s persuasiveness had won those days with them, as his persuasiveness had attracted 74 million votes. That’s speech, and as the justices put it, “government has no power to invade that sanctuary of belief and conscience.” 

Once in DC with Trump ranting persuasively to his MAGAs, did he incite them to commit “imminent lawless action” and was action likely to happen? 

That’s where the virtues and ambiguities of the videos of Jan. 6 leave us. That’s what makes Jan. 6 and Trump unique, as they should be. We shouldn’t be impeaching or punishing impassioned speakers? 

Dershowitz actually claimed that Trump couldn’t have intended to incite “imminent lawless action” that was likely to happen. After all, as Dershowitz conjured, “most of the people who heard the president didn’t even go to the Capitol, most of the people who went to the Capitol didn’t go inside, most of the people who went inside didn’t destroy property, and hardly anybody killed people.” 

Apparently, it can’t be intended incitement to “imminent lawless action” if not everyone is fomented to act instinctively, lawlessly, violently and murderously? Pardon? 

Imminent lawless action needn’t result in people being killed. Though it did. Invading the Capitol, threatening people, destroying property, putting lawmakers, their staffs and their families in fear of their lives will do just fine. Watch the videos. Hundreds did that. 

Many of the lawbreakers chanted: “Stop the steal.” “Treason.” Defend your Constitution.” “Fight for Trump.” Listen to the videos. 

Trump had pledged as he dispatched his followers to the Capitol: “We’re gonna walk down to the Capitol and I’ll be there with you.” He must have gotten waylaid after that. Like any ersatz movement leader, he abandoned them to march on their own. What good are lambs if they need to be accompanied to the slaughter? 

Dershowitz wants the right to believe that the impeachment trial is about run-of-the-mill speech, the kind that, as he puts it, could result in political activists from the right or left put at risk of government encroachment. 

Even more scary, Dershowitz envisions, is to allow impeachment any time an office holder leaves office. Who’s next, Nikki Haley? Be very worried, Republicans. Bill Clinton? Could happen to you, Dems. Dershowitz knows a straw man when he creates one. 

Trump is being impeached for actions he took and actions he fomented while he was president, not years before or after. 

To the credit of Democratic impeachment managers, they opened today’s proceedings by re-framing what the Dershowitzes and right wing “thinkers” call the unconstitutionality of impeaching a former official. 

What it really would be providing is a January exception that would allow a Trump-sort to do whatever he wants with impunity in the final days in office to prevent accountability because days later, he’s no longer in office. As we all know, Donald Trump would never reserve audacious acts like rampant pardonings until the final days in office. 

Dershowitz reserved his most virulent pent up anger yesterday for his legal scholar colleagues, led by his nemesis and Harvard colleague Laurence Tribe. Dershowitz seemed to hanker for a food fight with Tribe. To Dershowitz, the difference between himself and the Tribes of the legal establishment is that he, Dershowitz, is principled. 

The constitutional scholars, 144 of them of all political stripes, issued a public letter to Trump’s legal team [read it here], that, according to Dershowitz on both Newsmax and in The Hill, demanded, “in effect, that they not make arguments to the Senate regarding the First Amendment.” Dershowitz referred to the letter as blatant intimidation, as did The Hill’s headline: “Impeachment scholars are wrong to intimidate lawyers of Donald Trump.” Dershowitz characterized the letter as “threatening” in advising the Trump team that they “don’t you even dare” raise the First Amendment. “If you do, it will be unethical and subject you to disciplinary proceedings, including possibly disbarment,” he said raising his voice in emphasis, which elicited a Pavlovian snicker from Spicer. 

I don’t interpret the letter as intimidation. Moreover, I don’t find the quotes used by Dershowitz to be in the letter. What the letter says is, “No reasonable scholar or jurist could conclude that President Trump had a First Amendment right to incite a violent attack on the seat of the legislative branch, or then to sit back and watch on television as Congress was terrorized and the Capitol sacked.” 

The letter reads more like a petition, speaking of the First Amendment. 

Uncanny, though that Dershowitz would invoke the term “intimidation” when part of the argument to convict Trump of impeachment includes the lead up to the Jan. 6 events when Trump four days earlier called election officials in Georgia to convince them to find votes that would undermine Georgia’s election results. [Listen to excerpts or read a transcript from the Jan. 2 call here.] Trump had it all planned. The election was rigged, 11,780 votes need to be found, and if they’re not found and the election officials don’t report the missing votes, it’s a criminal offense and it will be incumbent on Trump to report their crime. 

Now that’s intimidation. the severity of which is being investigated by Fulton County prosecutors in Georgia.

As for Dershowitz, now that’s chutzpah (חֻצְפָּה), the attributes of which he prides himself as having.

https://www.facebook.com/jack.doppelt/posts/10159360929711098

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If Trump Makes It One Year Without Impeachment, Then Let’s Talk Supreme Court Nominees

                                      Jack Doppelt

Feb. 10, 2017

[A version of this article was published in Yes! Magazine on Feb. 10, 2017.]

For the sake of our judiciary—and democracy—Congress should slow down and consider a one-year presidential probation.

The Supreme Court matters. It matters who is on the Court, how the Court is chosen, and whether people trust its legitimacy and decisions.

Alexander Hamilton Famously described the judiciary as the "least dangerous branch," yet the election of Donald Trump over Hillary Clinton suggests otherwise. For those who care deeply about the influence of money in politics, whether abortion is a matter of choice or a matter of life and death, and whether the Second Amendment protects an individual's right to a weapon, The one vacant position on the Supreme Court mattered more than the election for president. Yet of course they were inextricably connected.

The Senate is on the cusp of making a decision that will reveal for generations how much the Court matters.

President Trump has nominated a candidate, Neil Gorsuch, to be the ninth justice on the Court yet almost a year ago in mid-March, then President Obama also nominated a candidate for that vacant position.

Even before Obama made the announcement, Sen. Mitch McConnell pledged to kill the nomination, which, as Republican majority leader he had the power to do. The nominee's qualifications didn't matter. The nominee would not get a hearing.

McConnell justified the brazen move by saying that "the people should be given "a voice in the filling of this vacancy. It was about principal, not the person," he said.

At the rate he's going Donald Trump may well face impeachment or resign within the year.

Photo taken on July 26, 2017
(Photo credit: Ted Eytan under creative commons)

Click on photo to link to the story where it originally appeared

Since "the people" had elected Obama to a second term and the president selects nominees, that didn't make any sense. Eventually McConnell's position was rejiggered to: hearings should not be held during a presidential election campaign (which lasts more than a year) or during a president's final year in office, depending on how one untangled the justification.

Either way, "a year" seems to be key.

Now the pretense has shifted again. With strut in his step, Mitch McConnell again the Senate majority leader, is demanding that the Democrats in the Senate treat Trump's nominee the way Republicans treated Clinton's nominees and Obama's nominees. (His script left out Obama's last nominee, the one in March.)

When pushed to address the obvious he said: "This is the beginning of a four year term (for Trump), not the middle of a presidential election," and he added, "so let's talk about apples and apples, and not apples and oranges."

Let's do that then. Principal matters. Precedent should matter too, but it's easily distorted to fit the moment, and it's the Republican's moment.

Columnist David Brooks portended it days after the election, before there was evidence that could easily substantiate its occurrence. An impeachment campaign, with draft legislation created by attorneys at Free Speech for People, is already underway and in a short time has amassed 800,000 signatures.

One year is more or less the time clock the Republicans set as they announced they would not hold hearings or a vote on Obama's nominee. If Trump were to be impeached or driven to resign within the year, neither Republican nor Democratic Senators nor "the people" who should be given "a voice in the filling of this vacancy" would want Trump to fill it, not in the middle of a fateful impeachment process.

The Senate, including the Republicans, should put the president on one-year probation.

I concede that it is hard to predict with certainty what will emerge as the grounds for the articles of impeachment to trigger bona fide impeachment proceedings against Trump within a year, just as it has been hard to predict the reckless abandon of his executive branch, his tempestuous exchanges with foreign leaders, his unconstitutional, autocratic actions and his yet to be disclosed and purposefully hidden conflicts of interest that have surfaced in less than a month in office.

To put it in terms Trump might appreciate, oddsmakers are giving attractive odds that he will be impeached or resign before his first term is over.

 

The grounds might spring from differences over issues between Trump and the "business as usual Chamber of Commerce agenda" of the Republican establishment, as former U.S. Rep. Tom Tancredo, R-Colorado, warned recently in a Breitbart News column.

They might emerge from Trump's instinct to defy court orders if judges dare to stop his excesses of executive authority. What to make of the President's tweet that denounced a "so-called" Republican-appointed federal judge for ruling against the travel ban on people from seven mostly Muslim countries? Hard to predict, even harder to defend for GOP Senator Ben Sasse (NE) who said, "we don't have any so-called judges, we have real judges." Harmless, mindless tweet or a precursor to attacks on an independent judiciary?

Grounds for impeachment are bound to be tied to his clear and continuing flouting of the Emoluments Clause of the Constitution, which prohibits the federal officeholders, particularly the president, from receiving payments or benefits from foreign entities who could dangle money to curry favor or otherwise corrupt a president's decision-making.

So here's a proposal: the Senate, with Republican involvement, should put the president on one-year probation, a fitting procedure for an apprentice president.

A wait-and-see year is a no-lose proposition. 

I realize that this may seem like a radical departure from constitutional tradition. But from the perspective of the sanctity of justice, it is a modest proposal. Here's why. What the pundits have failed to account for in concluding that McConnell's brazen power play a year ago to stymie Obama's nomination won the day by having no apparent consequence to a Republican electoral victory in November is that there are latent consequences for the people's trust in the legitimacy of our judicial system.

Young people have only superficial connection with Bush v. Gore, the fiercely divided Supreme Court decision of 17 years ago that contravened principal and precedent along partisan political lines to place George Bush in office over Al Gore. That too appeared at the time to be a cynical power play that won the day with no erosion of our political institutions.

Yet after the Bush-nominated Chief Justice John Roberts ascended to the Court five years later, he took with him the visceral instinct that it was up to him to cast the unexpected, decisive vote to uphold Obama's Affordable Care Act to regain the people's confidence in an independent non-partisan judiciary.

My appeal for the Senate to deny a hearing to Trump's Supreme Court nominee as it did to Obama's Supreme Court nominee a year ago is directed primarily to Republican Senators and their constituents, and to young people who, by a convincing majority, are disheartened by the incivility in American politics.

I am not so naïve to think that GOP Senators will come forward publicly to imply that Trump will no longer be an office in a year. There is a cover for them, though.

Senate procedures require 60 votes to end debate on Supreme Court nominees if the nomination is filibustered. There are only 52 Republican Senators. But McConnell can change those rules to bring a nominee up for vote with only a simple majority, resulting in likely confirmation even over unified Democratic opposition. The question on the floor right now is whether McConnell will change the rules. That is called "the nuclear option" by Beltway politicians and pundits who apparently need hyperbolic euphemisms to justify their importance. All it requires is McConnell and the Republican majority voting to change the rule. Easy to do yet they have the option to not do it. After all, they've acknowledged it's nuclear, and Trump's prompting for them to "go nuclear" should serve as a reminder of the recklessness that needs a probationary year to keep him in check.

A wait-and-see year is a no-lose proposition for Republican Senators and even for their most vocal, doctrinaire constituents. If they keep a leash on Trump in the name of having him act responsibly for a year to avoid impeachment, Trump will be able to have his nominee approved by the Senate. If Trump continues to act so recklessly that Republicans recognize that impeachment or resignation is imminent, then Vice President Pence will replace Trump and appoint the conservative justice that the right elected Trump to appoint.

The Court will need to go another year with eight justices. Not optimal but workable. After all, it was field tested for the last year of Obama's presidency.

The difference will be that the people will trust the Court's legitimacy and decisions, and that's the democracy we depend on.

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