Sunday, 10 January 2021

The end game of a divisive Presidency

Donald J Trump was born in New York on 14 June 1946. His father (Fred Trump) had built a real estate business from which Donald Trump undoubtedly benefited financially - New York Times 2 October 2018. In 1971, aged 25, he became President of the business (Wikipedia). 

Trump entered the presidential race in 2000 but withdrew.  He did not run in 2004, 2008 or 2012. The election of 2016 saw him win the Electoral College 304 Votes to Hilary Clinton's 227. Although he lost the popular vote (Clinton 65,853,625 - Trump 62,985,106) he thereby won the Presidency and was the first billionaire to become President. (A more detailed resume of Trump's business and political career is at Britannica).

The frequently controversial and turbulent history

of the Trump Presidency is set out at Wikipedia.  At the 2020 Presidential Election, Trump lost the popular vote (Joe Biden 81,281,888 - Trump 74,223,251) and also lost the Electoral College (Biden 306 to Trump 232). Nevertheless, Trump refused to concede the election and 62 legal challenges were brought which are summarised by USA Today. Whilst Trump maintains that he was "robbed" of victory, there was no credible evidence to support that belief.

On 6 January 2021 the USA Congress confirmed that Joseph Biden had been duly elected as 46th President of the USA.  This clears the way for Biden's inauguration on 20 January and Trump's presidency ends at noon on that day.

Events of 6 January:

6 January was marred by Trump addressing a large crowd of supporters - ABC News 7 January. He told the crowds that - "We're going to walk down - and I'll be there with you - to the Capitol, and we're going to cheer on our brave senators and congressmen and women, and we're not going to be cheering so much for some of them, because you'll never take back our country with weakness - you have to show strength." Later in his speech he referred to marching over to the Capitol building to "peacefully and patriotically make your voice heard". He went on to say that if Congress did the "wrong" thing "we should never forget" and he claimed that Congres would be right if it sent a "bad vote" back for recertification. He also expressed his unhappiness with the Surpreme Court and remarked that he had "picked" three of them. (Trump's nominees were Neil Gorsuch in 2017, Brett Kavanaugh 2018, aand Amy Coney Barrett in 2020).

After the speech, people proceeded to the Capitol and violence followed - BBC News 8 January 2021 - resulting in the deaths of 5 individuals - The Guardian 8 January.

As reported by the US Department of Justice, some 13 individuals have been charged in Federal Court. In addition, "approximately 40 individuals have been arrested and charged in Superior Court with offenses including, but not limited to, unlawful entry, curfew violations, and firearms-related crimes."

U.S. Speaker of the House of Representatives (Nancy Pelosi) accused Trump of inciting “…an armed insurrection against America,” adding that Trump committed a “seditious act” in her opinion by instigating and directing the angry mob which descended on the Capitol building - Global News 7 January.  

By any standards, the attack on the Capitol building highlighted important questions of security which will have to be addressed - USA TODAY.

Constitutional questions:

The executive Power is vested in the President of the USA - (US Constitution Article II) and the President holds office for a 4 year term.

The USA's formal (written) constitution contains two methods by which a sitting President can be removed - by Impeachment and under Amendment 25.  

On 12 February 1999, President Bill Clinton was acquitted at his impeachment based on charges of lying under oath and obstruction of justice - Washington Post 31 February 1999. The process was formally commenced on 19 December 1998.

President Trump was impeached in December 2019. He was acquitted by the Senate on 5 February 2020 - the charges being abuse of power and obstruction of congress. Voting in the Senate was on party lines and, to date, all impeachments (three so far) have concluded in the same manner. 

An interesting article, written just before Trump's 2019 impeachment, is Fractured into Factions? What the Founders Feared About Impeachment.  The Founders wanted a strong Presidency but that required a means of removal to protect the nation from "someone with demagogic tendencies."

Senator Bernie Sanders, the independent from Vermont, tweeted that some people ask, why impeach a president who has only a few days left in office? The answer: "Precedent. It must be made clear that no president, now or in the future, can lead an insurrection against the U.S. government."

There is considerable merit in that viewpoint but whether impeachment is achievable before Trump leaves office is questionable and any proceedings may have to be held after he has ceased to be President (assuming that it is lawful to do so). To rush the impeachment of a President who has less than 2 weeks of his term remaining would lead to allegations of unjust process.  The legality of impeachment after the individual has left office is discussed at Just Security January 8.

Politically, impeachment is likely to be a process adding fuel to the fire albeit a fire which Trump has done so much to ignite and keep burning during his Presidency. It may prove better that Trump finally departs entirely as a result of losing the election and nothing else.

The Constitution provides that the Senate has the sole Power to try all Impeachments. "When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present." (The word "present" may prove to be important). The Constitution also states that a successful impeachment extends no further than "to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States."

The other way of removing a President is Amendment 25.  Section 4 of the amendment enables the Vice-President to assume the powers and duties of the presidency and become Acting President. This can happen where a President is unable to discharge the powers and duties of his office. To instigate such a removal requires the Vice President and a majority of the "principal officers of the executive departments" to declare in writing that the President is unable to discharge his duties. The sitting President can challenge such a declaration. It appears that Amendment 25 is unlikely to be used in the present cirucmstances - Sky News 7 January.

After the events of 6 January, President Trump issued a statement referring to the "heinous" attack on the Capitol and pointing out it has "defiled the seat of American democracy" and that those who broke the law would pay. . This effectively abandoned supporters who he had encouraged to march to the Capitol.  He then said - "A new administration will be inaugurated on January 20. My focus now turns to ensuring a smooth, orderly and seamless transition of power." 

Trump's statement did not concede that he had lost the election. He will not be present at President-Elect Biden's inauguration on 20 January. (Note 21 January - Trump did not attend).

10 January 2021.

Further links and updates:

11 January 2021 - The Guardian - Democrats formally charge President with incitement of insurrection.

13 January - BBC News - Impeachment: Republicans begin to turn on Trump - where it is reported that the House of Representatives "passed a resolution by 223-205 votes calling on Vice-President Mike Pence to help oust Mr Trump using the 25th Amendment, which would allow the cabinet to remove the president if he is deemed unable to discharge his duties.

But Mr Pence had already rejected the Democrats' resolution, saying in a letter to House Speaker Nancy Pelosi: "Under our Constitution, the 25th Amendment is not a means of punishment or usurpation."

Washington Post - Several senior Republicans join impeachment push

14 January - Washington Post - House hands Trump a second impeachment, this time with GOP support - the final vote was 232 to 197.  The decision to impeach Trump came after Vice President Mike Pence said he would not invoke the 25th Amendment and declare Trump unable to perform duties. The focus now turns to the Senate. 

17 January - Propublica.org - Inside Trump and Barr's Last-Minute Killing Spree

19 January - The Guardian - Trump pardons and commutations - the full list

21 January - On 20 January, Biden was inaugurated as President - Inaugural Address. A number of Executive Orders were issued aimed at reversal of certain policies of the Trump presidency - White House Presidential Actions. With the US Senate evenly split (50:50) it may be difficult for Biden's administration to secure essential legislation - Aljazeera - How will Democracts' control of an evenly-divided Senate work?

An interesting article covering Biden's career was published by New York Times - Joe Biden's long road to the Presidency

23 January - The Guardian - Trump impeachment trial set to begin the week of 8 February 2021

23 January - A number of articles which discuss the legality of impeachment after the individual has left office.  The balance of legal opinion appears to be that it is lawful but no court has ever stated this categorically.

https://www.justsecurity.org/74107/the-constitutions-option-for-impeachment-after-a-president-leaves-office/

https://constitutioncenter.org/blog/can-president-trump-be-impeached-after-he-leaves-office

https://nymag.com/intelligencer/article/impeachment-could-ban-trump-2024-run.html

https://www.washingtonpost.com/opinions/2021/01/13/senate-impeachment-trial-constitutional-after-trump-leaves/

14 February - Trump was acquitted - BBC News. The Guardian 14 February. Trump's acquittal shows paltry punch of impecahment process - The Guardian 14 February.


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