So I have been quiet lately with the political rants because reasons. But here is the nutshell about what is going on in the US with the 2nd Impeachment of Donald Trump, in my humble opinion. This will be a long one…
The riot on January 6th in Washington DC was a riot, not an insurrection. There were people there with the intent of violently interfering with the US government process, but from a legal perspective almost all of them lacked the mens rea or “guilty mind” of someone committing the specific crime of insurrection. It was clear from the video and from what they have said in public that they were there to protect the Republic, not to overthrow it. They may have been gravely mistaken, but their intent was not insurrection. They may be guilty of trespass, breaking and entering, being in a restricted area, as they had the mental component, the intent to be there/break in without lawful right, but they did not intend insurrection.
Which gets us to the the concepts of “Acquired Asset” vs. “Useful Idiot”. These terms were used by the former Russian KGB to distinguish between two types of actors. Acquired Assets were people who knew damn well they were spying/working for the Russians; they were ideologues, they were bought, they were compromised, but they knew what was up and who was calling the shots and why.
Useful Idiots were people whom the KGB had convinced, one way or another, that they were actually doing the right thing for their own country, and that their actions were patriotic, maybe not legal, but right, just, proper and in the best interests of all concerned. They usually had no idea the KGB were behind it. They thought they were working for even their own government, some other government or charity or a good and just cause.
The rioters of January 6th were Useful Idiots. Very Useful Idiots. But the reality was that although they would have been very useful for a real insurrection/coup, they did not have the capacity to mount a serious insurrection/coup on their own, and that was not their intent.
I do not think that Trump deserves to be convicted on the article of impeachment as drafted. Key words in that sentence are “as drafted”, and I will get into that in a bit. I also think the facts do not bear out that there was a sincere attempt at a insurrection because Trump did not have an Acquired Asset “Specific Purpose Entity” in place.
A “SPE” is a business law term used to describe a corporation created for a specific purpose, like owing a particular hotel or casino. The Trump Organization always worked via SPEs. Each property was its own show. It borrowed money, it entered into contracts, it did one deal. If that deal made money, then the Trump Organization made money. If it flopped (and he had a lot of flops) then the liability for the debt and all the invoices for goods and services and wages that went unpaid, all stay within the SPE, which goes into bankruptcy. Key point; Trump and the Trump Organization always walk away from failures at zero cost. Trump did this time and time again, and it was his modus operandi. He never committed his money or his liability to anything. He got all the upside, and everyone else involved took on the risk and got left holding the bag on the downside.
So what does this have to do with the insurrection thing? Trump did not have anyone in place to be the Insurrection SPE. He wanted Comey to be his SPE, he declined. He wanted Barr to be his SPE, but he backed out. He was setting up Michael Flynn to be the SPE, but Trump ran out of time. Trump tried to put in loyalists in the Pentagon, CIA and Justice. But Flynn and all the other loyalists were also just Useful Idiots. None of them understood that what Trump wanted them to do was actually overthrow the government, not save it.
What do I mean by that? OK so on the day of the riots, I was looking for the real signs of an insurrection, and I did not see them. What would that look like? Well, about the time that the rioters were attacking the capitol, the following things needed to happen. First, the SPE would have arranged for ‘false flag’ terror attacks in Democratic cities, particularly Portland, but anywhere the Democrats are in charge. Secondly, the SPE would have had to arrange for the Secret Service to grab Pence, AND take the boxes with the certified electoral college votes and then permanently disappeared both. Third, the SPE would have had the Georgia Secretary of State, Brad Raffensperger, “disappeared”/Jimmy Hoffa’d” And lastly, the President starting a little war with Iran or wherever would have been a nice touch.
If there had been an SPE doing all of the dirty work, then Trump could say “There is chaos, so we need order. There is no vote because someone (the rioters? Antifa? Who knows?) stole the boxes, so no one was elected by the electoral college, so that needs to be redone from scratch. And we have serious (unspecified), very serious, allegations against the guys who defied the President. And we are at war, so we need martial law, and an investigation to get to the bottom of all the fraud. And I need to remain in charge as President until it is all sorted out… ” That way he would have the justification for what he wanted to do, but more importantly, everyone would know that if you cross the President, very bad things happen to you. Insurrections/coups succeed only if there is sufficient fear created in the political class to keep them supine.
However, Trump would never ever do any of this on his own. He clearly wanted someone to take the job, but that kind of risk-taking is just not in his DNA. He needed someone to step up and be the SPE because if the coup/insurrection failed, the blame would then fall on the SPE, and Trump could disclaim any knowledge, pretend he never met the guy, slip the liability and walk away. But if it works, then Trump gets all the upside.
But with no SPE, there is no way Trump is going to make a move. His MO since he started in business is “talk big, talk others into taking risks, but never take any risk”. So no SPE equals no real insurrection attempt.
Indeed, lots of people declined the invitation, and others maybe would have if the invitation had not been so oblique, but that is the problem with Useful Idiots; they are useful because they are idiots, but they are still idiots. Useful Idiots need to believe they are doing the right thing. And a real insurrection/coup required doing things that were clearly not the right thing. So Trump needed an Acquired Asset to be his Insurrection SPE, not a Useful Idiot, and no one smart enough to figure it out volunteered for that job.
So back to the 2nd Impeachment. On the constitutional issue, much of the talking on TV is just nonsense. The US Constitution is clear; the House can only impeach someone who is in office. However, the constitution also says that the Senate will try all impeachments. On the facts, Trump was impeached, while in office, on the 16th of January by the House, and so the Senate has to try him. There is precedent that if someone resigns or ceases being in office after they are impeached, the Senate still has to have a trial. The Senate must try all impeachments, period. The Senate can do this because the Senate can also bar someone from holding public office in the future as a sanction of conviction. This is the view of virtually all serious US constitutional scholars. The fact that 45 Republican Senators did not vote yea on this issue is a political decision, not a constitutional law decision.
However, as discussed at length above, the specific article of impeachment is for inciting an insurrection. There was no insurrection. There was a riot, which could have been a convenient smoke screen for a real insurrection, but it was only a riot. Also, the wording of the article of impeachment uses a criminal definition of incitement. This is a very high standard in US criminal law. Political speech can get very fiery, very aggressive, and it is still not incitement under longstanding US Supreme Court precedent, and it is protected under the 1st Amendment. So although Trump’s words may have set up and caused a riot, he did not “incite an insurrection”. Words have meaning. Words have consequences. The article of impeachment uses the wrong words and is therefore of no consequence.
Now does that mean that I think Trump does not deserve impeachment and conviction? Oh Hell No. He should be impeached and convicted. But there should have been three articles of impeachment: 1) abuse of power in soliciting and threatening a public official to breach his duty for the President’s political benefit. The call with Raffensperger was basically a mob boss telling the Georgia Secretary of State “Nice little career/life you got there, it would be a shame if something were to happen to it…”;
2) setting up and causing a riot that resulted in threats to the life and safety of the VP, the senators, the members of the house and caused the death of two Capital Police officers, as well as the abuse of the dignity of the House and Senate;
3) failure to protect the VP, the members of the House and the Senators from the real and present danger to their lives and health after the riot was underway. The President could have ended the riot with a Tweet, or orders to the military or to the Secret Service or to the FBI. He could have stopped it. He instead watched it on TV and reveled in it for hours according to his own staffers. Pence finally got through to the Pentagon and DC police himself to call in re-enforcements. Trump was literally “fiddling while Rome burned”. Each of those three counts merits impeachment, conviction and being permanently barred from public office.
At the end of the day, Trump is impeached twice, but in this case on a bogus article. He will not be convicted in the Senate because of politics, not because the article is bogus. But he should be convicted because of what he actually did and did not do, and because the only reason there was no real coup/insurrection attempt was because no one volunteered to be Trump’s Acquired Asset Insurrection SPE. The whole thing will go down in history as just a howling shit-show from beginning to end. But at least there was not a real insurrection/coup attempt… I will try to let you all know if I see one coming.