Saturday, January 9, 2021

Trump Must Be Removed From Office: Now!

            President Trump must be removed from office, as soon as possible, before he can do more harm to law and order, justice, and political discourse. Trump incited the mob that stormed the U.S. Capitol on Wednesday [Jan. 6, 2021: a date that shall live in infamy] just as Congress was about to complete the process of electing Joe Biden as president and confirming Trump as the loser in 2020 election.

            My home state of Tennessee faced a similar dilemma in 1979 in dealing with an out-of-control lame-duck chief executive as evidence emerged that Gov. Ray Blanton was selling pardons through his counsel to convicted felons. The U.S. attorney in Nashville worked with Democratic legislators to cut off the pardon-selling scheme by helping engineer the installation of the Republican governor-elect Lamar Alexander three days before the scheduled inauguaration..

            Trump has already engaged in a pardon-issuing binge and is reported to be considering many more in his final days in office, including possible pardons for son-in-law Jared Kushner and even a legally dubious pardon for himself. Trump’s enablers and apologists need to take steps now to prevent any further debasement of the presidential pardon power and any further damage to the constitutional order.  

            My former Tennessean newsroom colleague Keel Hunt detailed the Tennessee story in his masterful book, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal (Vanderbilt University Press, 2017). As Keel tells the story, the successful effort to thwart further debasement of the governor’s office required acts of political statesmanship by the state’s Democratic leaders and the then U.S. attorney, Hal Hardin, who started the ball rolling by calling Alexander with word that Blanton had more pardons set to be issued.

            With similar statesmanship here in Washington, Republican leaders and the interim U.S. attorney Bruce Sherwin could combine to make it untenable for Trump to remain in office for the ten days that remain in his four-year term. As the federal prosecutor for the District of Columbia, Sherwin could and should state that Trump’s speech on Wednesday morning urging the mob toward the Capito is enough to charge him with the federal crime of incitement.

            Sherwin raised this possibility by telling reporters on Thursday [Jan. 7] that his office is considering possible criminal charges against “all actors, not only the people who went into the building.” Under questioning, Sherwin left open the possibility that Trump could be included among the targets. “We’re looking at all the actors,” Sherwin repeated, according to the account in The New York Times. “If the evidence fits the elements of a crime, they’re going to be charged.” The next day, however, prosecutor Kenneth Kohl batted the suggestion away. “We don’t expect any charges of that nature,” he told The Washington Post.

            Here, for anyone needing a bill of particulars, is the federal law that prohibits incitement 18 U.S.C. §373. The law makes it a crime for anyone to “solicit[], command[], or induce[]” another person to “engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States . . . .”

            The Supreme Court, in the leading case of Brandenburg v. Ohio (1969), held that the First Amendment does not protect from possible prosecution speech, such as Trump’s, if “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Trump’s speech to a throng that numbered in the thousands clearly satisfies those requirements. He directed the placard-waving crowd m to march toward the Capitol and exhorted them to show strength. “You will never take back our country with weakness,” he said.

            The timing of the march needs to be stated clearly: Trump spoke around the noon hour as Congress was set to convene, imminently, at 1 PM to count the Electoral College votes that would verify Biden’s election and confirm his own defeat. In effect, Trump was exhorting a lynch mob to march into the courtroom just as the jury was about to return a verdict. And, in fact, the mob’s successful entry into the Capitol forced Congress into recess, delaying the eventual certification of Biden’s victory past midnight.

            In contrast to the amorphous situation in Tennessee four decades ago, the U.S. Constitution sets out two procedures for removing Trump from office before his term expires: removal by impeachment and conviction in Congress or invocation of the Twenty-Fifth Amendment based on a finding by his own Cabinet that he is “unable to discharge” the duties of the office. Either of those procedures is problematic, but Republicans interested in reclaiming a measure of the party’s integrity could provide the votes needed for conviction in the Senate or the support needed to persuade Vice President Pence to join in invoking the Twenty-fifth Amendment.

            At this writing, Pence is said to be opposed and, in fact, he declined to take a call on Thursday from House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, who wanted to ask him to take that step. Leading newspapers joined last week in editorially endorsing whatever steps are needed to remove from Trump from office now: not only The New York Times, but also USA Today and the solidly conservative Wall Street Journal. As the Times put it, Trump’s “potential to wreak havoc is enormous,” even if his remaining time in office is short. USA Today's editorial cited Trump’s incitement of the assault on the Capitol as evidence that he has “forfeited his moral authority to stay in office.

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