Category: reason

There is a lot of blame to go around for the poisonous delusions that led to yesterday’s riot at the Capitol, starting with a president who incited his followers with loony conspiracy theories and wild tales of a stolen election. But the disgraceful performance of Sen. Ted Cruz (R–Texas) should figure prominently in histories of this shameful incident. By contrast, Sen. Rand Paul (R–Ky.), who also has reinforced some of Donald Trump’s fraud claims and even toyed with the idea of objecting to electoral votes, stared into the constitutional abyss and stepped back.

Cruz was one of six senators who voted against recognizing Arizona’s electoral votes for President-elect Joe Biden last night and one of seven who supported the challenge to Pennsylvania’s electoral votes. Ostensibly, these objections were based on the claim that the votes were not “regularly given,” as required by the Electoral Count Act. Yet Cruz offered no reason to think that was true, meaning he had no legal basis for his objections.

Cruz presented his challenges as an attempt to assuage the doubts of Americans who think the election was “rigged” by appointing an “electoral commission” charged with conducting “a 10-day emergency audit” to investigate unfounded claims of systematic fraud that have been decisively rejected by state officials and the courts. He knew there was no way that was going to happen, but he pursued his objections anyway, even after yesterday’s pro-Trump chaos, vandalism, and violence led several of his erstwhile allies to reconsider their support for his plan. His pointless grandstanding lent credence to the unfounded accusations underlying the riot—accusations recklessly hurled by the same man Cruz himself has described as a “pathological liar” who “doesn’t know the difference between truth and lies”—while forsaking his oath to support and defend the Constitution.

“Recent polling shows that 39 percent of Americans believe the election that just occurred was ‘rigged,'” Cruz said when it was his turn to explain why he was objecting to Arizona’s electoral votes. “You may not agree with that assessment, but it is nonetheless a reality for nearly half the country….Even if you do not share that conviction, it is the responsibility, I believe, of this office to acknowledge that it is a profound threat to this country and to the legitimacy of any administrations that will come in the future.”

Cruz insisted that he wasn’t “arguing for setting aside this election.” His concern, he claimed, was that “tens of millions of Americans will see a vote against the objection as a statement that voter fraud doesn’t matter, isn’t real, and shouldn’t be taken seriously.” Dismissing their concerns, he said, “jeopardizes, I believe, the legitimacy of this and subsequent elections.”

What was missing from Cruz’s little speech? Any mention of evidence indicating that Arizona’s electoral votes were not properly certified, which is the only legal justification for rejecting them. A senator who takes his responsibilities seriously does not lodge an objection under the Electoral Count Act simply as an excuse for outlining a cockamamie scheme that supposedly will alleviate the doubts sown by a president whose fantasy that he actually won the election by a landslide is impervious to evidence.

Cruz’s maneuver was cowardly as well as legally groundless. Eager to appease the Republicans who live in Trump’s alternate universe without seeming like a kook, Cruz refuses to endorse or reject their beliefs. More than two months after the election, the closest he can come to admitting that Biden won is his concession that “our candidate may not have prevailed.” At the same time, he presents the widespread “conviction” that Trump won not as his personal belief but as a “reality” that somehow justifies setting aside duly certified electoral votes.

Senate Majority Leader Mitch McConnell (R–Ky.) shares Cruz’s concerns about voter fraud and election “irregularities.” But as he noted before Cruz spoke, “nothing before us proves illegality anywhere near the massive scale…that would have tipped the entire election.” He added that “public doubt alone” cannot “justify a radical break” from historical practice “when the doubt itself was incited without evidence.”

McConnell rejected the notion that humoring conspiracy theorists will somehow bring the nation together. “We cannot keep drifting apart into two separate tribes,” he said, “with a separate set of facts and separate realities, with nothing in common except our hostility towards each other and mistrust for the few national institutions that we all still share.”

McConnell warned that “if this election were overturned by mere allegations from the losing side, our democracy would enter a death spiral” and “we would never see the whole nation accept an election again.” Instead, “every four years would be a scramble for power at all cost.”

Cruz’s claim that he was not trying to overturn the election results is impossible to reconcile with his original plan, which involved objecting to electoral votes from six swing states, enough to change the outcome. “This objection is for the state of Arizona, but it is broader than that,” he said last night. “It is an objection for all six of the states.” In point of fact, it wasn’t. But if the Capitol Hill riot had not persuaded Cruz and his allies to scale back their objections, their efforts, if successful, would have done precisely what Cruz insisted he did not want to do.

Now consider what Rand Paul had to say about Cruz’s machinations:

Should Congress override the certified results from the states and nullify the states’ right to conduct elections? The vote today is not a protest; the vote today is literally to overturn the election!

Voting to overturn state-certified elections would be the opposite of what states’ rights Republicans have always advocated for. This would doom the Electoral College forever. It was never intended by our founders that Congress have the power to overturn state-certified elections.

My oath to the Constitution doesn’t allow me to disobey the law. I cannot vote to overturn the verdict of the states. Such a vote would be to overturn everything held dear by those of us who support the rights of states in this great system of federalism bequeathed to us by our founders.

The Electoral College was created to devolve the power of selecting presidential electors to the states. The Electoral College is, without question, an inseparable friend to those who believe that every American across our vast country deserves to be heard. If Congress were given the power to overturn the states’ elections…what terrible chaos would ensue. Imagine the furor against the Electoral College if Congress becomes a forum to overturn states’ Electoral College slates.

It is one thing to be angry. It is another to focus one’s anger in a constructive way. That hasn’t happened today, to say the least. We simply cannot destroy the Constitution, our laws, and the Electoral College in the process. I hope as the nation’s anger cools, we can channel that energy into essential electoral reforms in every state.

Paul is by no means blameless when it comes to vague allegations of election fraud. During a December 16 Senate hearing on election “irregularities,” he accepted the testimony of Christopher Krebs, who ran the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency until Trump fired him in a fit of pique on November 17, that vote-tabulating machines were not compromised, as the president has repeatedly alleged. But Paul said that does not mean “there was no problem in the elections.” He said he was concerned that “people broke the absentee [ballot] rules.” He also worried about votes by noncitizens and “dead people,” both of which are rare.

Later Paul declared that “fraud happened,” which no doubt is true, and “the election in many ways was stolen,” which is quite a leap. He added that “the only way it will be fixed is by in the future reinforcing the laws.”

In short, Paul has flirted with rhetoric similar to Trump’s but nevertheless agreed with McConnell that fraud was not pervasive enough to justify rejecting electoral votes. Cruz, by contrast, wanted to throw out electoral votes from Arizona and Pennsylvania without even bothering to allege that they were legally invalid. Whether or not you agree with Paul’s views about the merits of the Electoral College, his refusal to compromise his principles by going along with Cruz’s scheme shows that even loyal Trump supporters can find the courage to defy the president’s demands.

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Since I wrote my previous post on the subject of impeachment, last night, the idea of removing Trump from office has gained additional momentum. Earlier today Democratic Senate leader (and soon-to-be majority leader) Chuck Schumer said that Trump should be removed from power by invoking the 25th Amendment. Failing that, he urges Congress to immediately go into session in order to proceed with impeachment. In a helpful recent post, co-blogger Josh Blackman describes the 25th Amendment process, and explains how it can potentially be used to remove Trump from office for the remaining fourteen days of his term. As Brian Kalt, a leading academic expert on the amendment, notes, the short timeframe make it more feasible to use the 25th Amendment in this case, than in other scenarios, where the president would have more time to resist.

Both Schumer and (as far as I know) everyone else who has publicly commented on the issue appears to assume that the 25th Amendment and impeachment are mutually exclusive alternatives. We must either pursue one or the other. In reality, nothing prevents pursuing both options simultaneously. Neither the Constitution nor any other law forbids it.

Schumer is probably right to say that “[t]he quickest and most effective way—it can be done today—to remove this president from office would be for the Vice President to immediately invoke the 25th amendment.” But Congress can still begin the impeachment and removal process at the same time.

The two processes serve distinct purposes. The 25th Amendment can be used to temporarily remove from office a president unable to perform his duties  (though, in this case, a temporary removal would likely cover the entire rest of Trump’s term). Invooking does not involve any assessment of whether the president has engaged in wrongdoing, does not necessarily involve any moral opprobrium (the president could be removed because he is unable to serve for reasons that are not his fault, such as injury or illness), and cannot be used to bar him from holding office again in the future.

By contrast, impeachment followed by conviction removes the president from office permanently, and does require a judgment that he has committed a “high crime” or “misdemeanor.” The latter need not be an actual violation of criminal law; but it does have to be some sort of significant abuse of power or threat to the constitutional order. Perhaps even more importantly, impeachment can be used to not only remove the president from office, but also to impose the additional penalty of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” The latter would be a useful step to prevent Trump from ever returning to power and thereby once again abusing it in the ways he has over the last four years.

To a much greater extent than the 25th Amendment, impeachment can create a valuable deterrent against the repetition of similar misconduct by future presidents. Most politicians fear permanent removal from power much more than a brief temporary suspension from it. And many (though perhaps not Trump) also worry about long-term damage to their reputations, which is likely to be greater in the event of a successful impeachment than with an invocation of the 25th Amendment.

Thus, I tentatively suggest that Vice President Pence and the cabinet indeed invoke the 25th Amendment, if they can. And Congress should move to impeach and convict Trump at the same time. The former step would eliminate the immediate threat Trump poses. The latter can impose proper moral and legal sanctions for his actions, and prevent him from ever returning to power again.

All of this assumes that Pence, the cabinet, and Congress have the political will needed to take these steps. I remain skeptical that either Pence or a majority of the cabinet will actually invoke the 25th Amendment. Most of them are longstanding Trump loyalists. And, for reasons noted in my last post, impeachment may not be a desirable strategy unless there are enough votes in the Senate to actually convict Trump, or at least enough to generate bipartisan opprobrium that can seriously damage his political position.

I also assume that the inability referenced in the text of the 25th Amendment (which requires the Vice President and cabinet to indicate that “the President is unable to discharge the powers and duties of his office”) can include the sort of malevolence displayed by Trump, as well as a more conventional lack of physical or mental capacity to carry out his duties. The issue of the exact meaning of “unable” is one I must leave to specialists on the subject.

But, with these important caveats, there is no reason why impeachment and the 25th Amendment should be considered mutually exclusive options. They involve different processes and serve different purposes. A president can be simultaneously  guilty of “high crimes and misdemeanors” that justify removing him from office, and also “unable” to perform his duties properly. Indeed, it is possible that a propensity for criminality and abuse of power is one of the factors that make him “unable.”

 

 

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Stephanie Pappas (Live Science) reports; thanks to InstaPundit for the pointer.

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In the wake Wednesday’s mob assault on the U.S. Capitol, some conservatives are trying to shift blame from the dozens of pro-Trump protesters who stormed the building to a fictitious antifa boogeyman.

“Those who stormed the capitol yesterday were not Trump supporters,” claimed Texas Attorney General Ken Paxton. “They have been confirmed to be Antifa. Violence is not the answer.”

Paxton’s sentiments were echoed by other pro-Trump figures, including Rep. Matt Gaetz (R–Fla.), Rep. Mo Brooks (R–Ala.), and the conspiracist attorney L. Lin Wood, who touted “indisputable photographic evidence that antifa violently broke into Congress today.” This assertion, like Wood’s previous claims that Supreme Court Chief Justice John Roberts is part of a pedophile cabal and that Vice President Mike Pence will face execution by firing squad, is wrong, as are all other claims that antifa was responsible for the Capitol riot.

For one thing, this isn’t antifa’s m.o. Antifa protesters typically use “black bloc” tactics: They dress in black and conceal their faces with masks and hoods. Individuals will quickly smash windows and set fires, then blend back into a crowd of similarly dressed people. They don’t aim to get caught.

The people who stormed the Capitol, by contrast, were captured in numerous photos and videos. Their faces are easily identifiable. Many are obviously sincere Trump supporters associated with the far right. Several of them, including “groyper” leaders Nick Fuentes and Baked Alaska, are well-known to the media by now. The woman who was sadly killed by police under circumstances that require further investigation was genuinely pro-Trump. The guy who sat in House Speaker Nancy Pelosi’s chair and stole her mail is definitely not antifa, nor is the half-naked fur-and-horns guy. This latter individual is named Jake Angieli, and he is a conspiracy theorist—the self-stylized “Q Shaman”—who has appeared at multiple Trump rallies.

I covered the unrest at the Capitol, and it’s simply not possible that the acts of violence and property destruction were carried out by undercover antifa agents. The people smashing windows, climbing walls, and knocking down police barriers were often the leaders of the crowds; they were known to the other protesters. For these activists to be secret agents of the left would have required a covert operation far beyond antifa’s capabilities, and at odds with antifa’s typical behavior.

Andy Ngo, a writer with a record of harshly criticizing antifa, agrees.

“The people occupying the Capitol building do not look like antifa people dressed in Trump gear or Trump costumes,” he told The Washington Examiner. “I have seen no evidence that they are able to coordinate a mass infiltration on this scale before, so I’m really skeptical that they would have been able to do it here without any of that information leaking out.”

An article in The Washington Times claimed that a “facial recognition firm” had confirmed antifa’s involvement in the attack. That article was debunked, and it has since been deleted.

Thousands of people were at the Capitol on Wednesday, and many of them caused trouble. It’s possible that someone, somewhere, was trying to falsely pin a crime on a Trump supporter. But the many acts of violence and intimidation that transpired in the halls of Congress yesterday were overwhelmingly and provably committed by the president’s most fervent supporters.

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On January 22, 2020, I decided to take a brief hiatus from Twitter. I made this decision shortly before the New York Times published my op-ed on impeachment. (Remember the impeachment?!). I did not know how long my self-imposed exile would last, or whether I would have the discipline to stick with it.

One year later, I am proud to be Twitter free. I still post links to my posts. I will click on a link to a tweet a friend sent me. And I occasionally use the direct messaging feature. But I never scroll through the timeline. I never check my notifications. If you’ve @’d me over the past year, I haven’t seen it. If you’ve screen-shotted my work to subtweet me, I have no clue. I suspect the fact that I do not respond emboldens some people to @ me with righteous indignation. More power to them.

In hindsight, I quit Twitter at just the right time. I missed the Senate impeachment trial. I missed the pandemic. I missed Blue June. I missed the racial justice marches over the summer. I missed the election. I missed the election litigation. I missed January 6, 2021.

Yet, I was able to stay remarkably well informed. And, I would say, much happier and saner. Plus I have more time. I suspect I save hours every week–time much better spent elsewhere.

You should try it. Stop checking your timeline. Stop checking your notifications. The world will continue. And you can avoid the awful cesspool.

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One can never really predict the future, but yesterday sure felt like one of those turning-point days in American history, one in which a switch is thrown and we all move onto a very different track than the one we had been traveling on.

Over the past month, I had puzzled over the President’s motives in deciding to continue—and to intensify—his attacks on the legitimacy of Biden’s victory.  Was he actually hoping that he’d get a January 6 Miracle?  That Mike Pence would say “I will not count the certified electoral count from Arizona [and Georgia, and Pennsylvania]” and throw the election into the House? Could be. Or perhaps he was merely positioning himself for a post-presidency role as movement leader, Republican kingpin, or television star? Or perhaps it was just the simple inability of a very, very insecure man to accept the public humiliation of an electoral defeat, with no greater strategic goal in mind?

But whatever his motives were (or are), it seemed pretty clear that one virtually certain outcome of his provocations would be that the Republican Party would be rent in two. Thanks to his pressing the issue, Congressional Republicans would have no place to hide. He would force a totally unnecessary and entirely futile “are-you-with-me-or-are-you-against-me moment” on every one of them. And he would be taking names.

And so it happened—in a manner almost unimaginable a few days ago*—and the Republican Party has indeed been rent in two.  It looks to me, though, like the President may have miscalculated a bit, and that, here again, he has come up short, and is left holding the smaller of the two portions.

* If you imagined that the President of the United States would send a message saying “We love you, you’re very special” to armed rioters who had forcibly occupied the US Capitol, your powers of imagination are superior to mine.

I watched most of the Senate debate yesterday and last night, and the sight of the Republican Senators, one after another—McConnell, Toomey, Lee, Loeffler, Daines, Romney, Paul, Portman, Sasse, Graham, …—publicly repudiating the President, refusing to do the one thing everyone knew he wanted them to do, was absolutely breath-taking. It was as though they had all, suddenly, awoken from a bad dream, after four years in which they had collectively cowered in the corner, afraid to say a single word that might draw the ire of the Capo, lest he direct his terrible fury at them.

How many of them would have done so had not a majority of their colleagues also done so is an interesting question we’ll never be able to answer. But the fact is that the majority of their Republican colleagues, for once, did not cave in, and one can’t help but think that the collective nature of the response help strengthen some of the backbones involved.

It was the answer to the question that many of us had been asking for years:  When, if ever, would they push back?  What, if anything, is over the line?  Is there anything—short of shooting someone on Fifth Avenue—that would make them say “Enough is enough”?

The President, intentionally or not, finally found the line—with two weeks to go in his presidency—that only the True Believers would cross.

He may declare war on the Infidels who refused to join him in the coming months and years, or others may do so on his behalf.  We shall see. But he would be doing so from a much, much weaker position than he was in just a few days ago, because his “base,” all of a sudden, is a lot smaller than it was before. The Party turned its back on him; only seven of 52 Republican Senators, once the line was drawn, crossed it at his behest. Fifteen percent—of Republicans. And I’m pretty confident that no more than the same small fraction of the Republican electorate—more than, say, that 15%—will stand behind a president (let alone an ex-president) who sent his love and good wishes to armed rioters** who had forcibly occupied the US Capitol.

**Although many commentators are using the term “insurrection” to describe yesterday’s events, I prefer calling it a “mob riot.”  To my ears, “insurrection” connotes that someone has a plan. It may not be shared by others, and it might not even make a lot of sense; but once the gates are stormed, someone has a step 2: Take over the TV station, or run the new flag up the flagpole, or take opponents into custody (or shoot them on sight), or issue a declaration, … Something.  From what I could see, it didn’t look like anyone (let alone the collective) had a plan yesterday for their assault on the Capitol other than generally whooping it up and getting their picture taken sitting in Nancy Pelosi’s office. This event looked quite a bit like the takeover of the University Administration Building at Columbia in 1968; it was much more serious than that, of course, because it was directed at the US Capitol, and because many of the rioters were, apparently, armed, but the perpetrators seemed to possess the same general cluelessness of what the point of the exercise was.

Donald Trump cannot control the Republican Party from that 15% perch. Two days ago the Republican Party was securely within his grip.  Today, it is not.

As it turns out, the forces he unleashed gave him no place to hide.

What the Republican Party will look like in the aftermath of this debacle is anybody’s guess. But I do think the rioters may actually have—inadvertently, to be sure—performed a great service for the country. I am among those who believe that the country needs something it has not had for some time: A functioning, principled, conservative Republican Party. The events of January 6 have exposed for all to see the anti-democratic and dictatorial heart of Trumpism, and helped to push push it off to the fringe of the political landscape where it belongs. For that, we should all be grateful.

 

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