6 minute read
Postscript I: The Trump Impeachment
statement that “I don’t see any reason why it would be” Russia that interfered in the 2016 presidential election. After an uproar over this particular remark, Trump announced the next day that he meant to say “wouldn’t.” (“Sort of a double negative,” he said.) One can imagine, in connection with his forthcoming impeachment trial, hearing Trump declare he meant “fun” when he tweeted that his rally would be “wild.”
It is worth considering what might have occurred if Pence had “caved” and obeyed Trump’s directive to order the challenged Electoral College ballots returned to their respective states and then to declare Trump the winner of the election. Would the protesters then have been welcomed into the Capitol for a grand celebration instead of their having forced their way in, intent on assassinating Pence for his disobedience? Since Trump then had two more weeks in the White House until Inauguration Day, would he have declared martial law, called out the National Guard, and had all of the new army of protesters arrested and charged with treason and insurrection? Didn’t he predict he’d be at his second inaugural on January 20? Would we now be engaged in Civil War II? Happily, we will never really know, but the mere thought of it certainly should make us realize how close we came to a coup d’état. Unfortunately, however, notwithstanding Pence’s eleventh-hour decision to defy Trump, the indications thus far are that most of the Senate Republicans will stand by Trump and oppose conviction. This suggests that the struggle against Trumpism, and what it stands for, will continue with no apparent end in sight.
Advertisement
Postscript I: The Trump Impeachment
I wrote the foregoing essay prior to the Senate impeachment trial of Donald Trump, February 9–13, 2021, for a very specific reason— namely, I hoped to influence the course taken by the House managers when they prosecuted Donald Trump in the Senate. The
fundamental issue I was addressing was whether, in order to convict Trump in the Senate, it was necessary to prove, or at least demonstrate convincingly, that he was guilty of committing specific federal crimes rather than merely showing that he had simply engaged in gross misconduct in office, as I anticipated the House managers would argue.
As my essay makes clear, I believed that the managers’ view was correct, but I felt that meeting the higher standard of showing the commission of specific criminal acts, as in the Constitution’s specific reference to treason and bribery, would be more effective in persuading seventeen Republican senators (the number needed under the Constitution, with the anticipated fifty Democratic Senators voting for conviction, to achieve the two-thirds vote needed to convict) to vote in favor of a guilty verdict. I worried that Republican senators would insist upon proof that specific crimes had been committed to justify conviction. Instead, at the trial, Trump and Republican senators hid behind the spurious argument that Trump had already left office by January 20, 2021, when Biden had been inaugurated, so that Trump could not be convicted since his removal from office had become moot. This argument lacked credibility, however, since a convicted president thereafter faced being barred from federal office for life, which could be imposed by a Senate majority vote, so that Trump remained subject to the imposition of such penalty despite having left office.
I submitted my essay to the editors of The American Prospect magazine, who mercilessly cut it in half and published it online on February 1, 2021.
There were very specific reasons that I held my view. In 2018, well before either of Trump’s impeachment trials in 2020 and 2021, retired Harvard Law School professor Alan Dershowitz wrote a book entitled The Case Against Impeaching Trump, in which he argued that specific crimes were required to be proven in a Senate trial in order to convict a president. Trump had by then already
engaged in serious misconduct in office. Indeed, by that time, with the help of my Vineyard neighbor Mike Cooper, a distinguished New York City lawyer (sadly, he died of COVID-19 in 2020), and other friends, I initiated a national online petition campaign to have either the House, the Senate, or both censure Trump. (Censure is a traditional congressional method of reprimanding members of Congress or others for misconduct.) Like me, Dershowitz was a longtime Martha’s Vineyard summer resident, and during the summer of 2018, while he was engaged in promoting his book, he was asked to speak on the Vineyard about it by the director of the Martha’s Vineyard Film Festival, Thomas Bena, in connection with the showing of a film about Trump’s 2016 presidential campaign.
When the Vineyard’s two weekly newspapers reported that Dershowitz would be speaking at a Vineyard event on July 25, 2018, many anti-Trump Vineyarders who opposed Dershowitz as well (for, among other things, being a Trump apologist) asked Bena whether he could find a speaker to counter Dershowitz at the event, both with regard to the film and the book. Bena approached me on my willingness to appear. I accepted, with the idea in mind that I also could promote my “Censure Trump” campaign at the meeting. To respond to Dershowitz’s arguments, I quickly read his book and boned up on the law of impeachment.
On the evening of the event, at which there were about one hundred or so Vineyarders in attendance, I distributed materials at the door to attendees supporting my Trump censure petition, and I then proceeded to debate Dershowitz. I thought that I was well prepared and argued effectively. If you are interested, a video of the debate appears online on Vimeo.123
Well before the Senate’s second impeachment trial of Trump over two years later, I emailed my impeachment essay to Maryland
123. “Alan Dershowitz Debates with Jules Bernstein over Donald Trump,” https:// vimeo.com/283049749.
Congressman Jamie Raskin, who had been appointed by Speaker of the House Nancy Pelosi as head manager of the House team of managers who would present the House’s case before the Senate for Trump’s conviction of “high Crimes and Misdemeanors” (Article II Section 4 of the Constitution). I first knew Raskin as the son of Marc Raskin, whom I had known going back to my law school days in Chicago. Marc was a founder of the Institute for Policy Studies, a left-wing think tank in Washington, D.C., after he had resigned from serving in the Kennedy White House in 1962 because of political differences. Also, Jamie was a graduate of the progressive Georgetown Day School in Washington, at which all three of my children were “lifers.” Indeed, Jamie and my daughter Beth had been arrested together at a protest against apartheid at the South African embassy in Washington in the early 1980s.
As the history books will reflect, the House leadership chose not to mount a full-blown impeachment case against Trump but instead rested their claim upon a single allegation of “Incitement of Insurrection,” based upon the storming of the Capitol on January 6 by Trump supporters after Trump’s incendiary speech to them earlier that day before he directed them to march to the Capitol. However, they did not allege the commission of any specific crime by Trump.
It was believed that the House managers proceeded in the foregoing manner so as to avoid a lengthy proceeding involving document requests and the calling of witnesses. As the Democratic leadership in both the House and Senate saw it, a protracted impeachment proceeding would serve to delay newly elected President Biden from “hitting the ground running” with his ambitious “American Rescue” legislative proposals to deal with the pandemic crisis.
In the end, on February 13, 2021, the Senate voted 57–43 in favor of conviction of Trump, with 7 Republican Senators joining 50 Democrats in voting yes. However, since the U.S. Constitution requires a two-thirds Senate vote in favor of conviction in an impeachment proceeding, Trump stood acquitted.
