Autocracy Watch: Lawfully and non-violently withholding our consent for the attack on America’s governmental fabric

The Situation on Friday,  from Lawfare, urged the impeachment of Judge Emil Bove as soon as a majority in the House of Representatives exists to do it.

Today, my social media feeds are an incoherent melange of stories, some related to one another, some not, some important and meaningful, some emphatically neither. There are tariffs; there’s jobs data and resulting personnel actions; there’s a bit of Sydney Sweeney—of whose good jeans I have now heard; there are Texas Democrats fleeing their state; there are non-Texas Democrats pretending they are up to retaliating against Texas Republicans over redistricting. There’s famine in Gaza. And there’s still a bit of Jeffrey Epstein hanging around.

All of which is to say that it’s a good time to ignore the news and to return to the subject of non-cooperation with The Situation—a matter which I treated back at the beginning of March when I declared that “I don’t know about you, but I am not interested in cooperating any more.”

My point in that column was that we should all figure out ways, lawfully and non-violently, to slow things down, to make society work a little less efficiently, to withhold our consent for the attack on America’s governmental fabric.

I have spent a lot of time since writing this column thinking about what mass non-cooperation with The Situation looks like in practice, and I have been moved that others have gotten in touch with their own thoughts and ideas on the subject. Excellent experiments have taken place.

I have also been reading on the subject and thinking about it conceptually, trying to envision mass action based on highly-distributed forms of non-cooperation that are not destructive, not violent, yet are also more than just holding signs and chanting things. 

I have to say, after studying the problem for a few months, I have not yet come up with a magic bullet.

Let’s consider the pros and cons of a few different forms of non-cooperation:

Denying a quorum to the Texas legislature seems like an excellent form of non-cooperation. It will slow down redistricting in the Lone Star State. It gets a lot of attention. It may spur other actions. And it stands for a larger form of non-cooperation, which others may take up: that is, non-participation in official actions that may require one’s participation to take place at all. It’s great—as far as it goes.

The trouble is that most of us aren’t legislators and thus can’t band together with a few dozen of our colleagues to collectively shut down institutions from which The Situation demands anti-democratic action.

Most of us aren’t in a position to operationalize this particular form of non-cooperation—which is to say that it’s not scalable and can’t be done in a distributed fashion.

Here’s one that can be done in a more distributed fashion: I have exactly no intention of cooperating with ICE in its current roundup of undocumented aliens—and neither, it seems, do a lot of other people, both citizens and officials. What’s more, I would have no hesitation about filming any ICE raid which I might happen to witness and making that public—as many others are doing. 

The non-cooperation of civilian bystanders with these law enforcement activities—some by activists and some by people who just happened to be present—has been a salutary thing, raising a lot of awareness of what “mass deportation” really means. These policies have become increasingly unpopular as more and more people have seen them in action. As long as people are careful not to do more than express their views, take pictures, and film things—not, that is, to dox people or to interfere physically with lawful activity—it strikes me as a constructive form of non-cooperation with a dangerous policy. 

But again, there are limits—and risks to personal safety and liberty. As we’ve all seen, it’s not going to stop what ICE is doing. It’s not going to shame members of Congress into refusing to balloon ICE’s funding. And the administration is actively proud of these videos. It stages this sort of brutality and makes ads out of its own videos.

So again, useful, but not a silver dagger.

Here’s a third area of non-cooperation, one which hits close to home for me: For the first time in my life, there are whole categories of government actions in my field with which I will not assist and upon which I will not advise.

Only a few months ago, I was proud to serve on an advisory board convened by DHS on intelligence matters. I would not serve on such a board today. Similarly, I would not assist on or consult with NSA, FBI, the Defense Department, or the Justice Department on policy matters—all of which I have done proudly in the past under administrations of both parties. It’s not that I don't think that career officials in all of those areas are struggling with hard questions. They are. It’s that I don’t trust the leadership of these agencies to act in an apolitical fashion any more—even, perhaps especially, on national security matters. I don’t trust that my advice will be used for the benefit of the country, rather than for the benefit of The Situation. So I will not cooperate. I will not participate. And in that judgment, I am certainly not alone.

The trouble with this form of non-cooperation is that it is a bit bespoke—precious, even. Pam Bondi and Kash Patel and Tulsi Gabbard don’t want my advice anyway, so announcing that I won’t show up to a party to which I haven’t been invited is striking a bit of a pose. And that’s true even if to the limited extent my point scales. When I say I’m not alone, after all, what I mean is that there are a few hundred, maybe a few thousand people, who are self-consciously not participating in helping the executive branch with national security work. I imagine that there are a bunch more in other fields—fields like public health and climate science. And as the Lord High Executioner might put it, “they’ll none of them be missed.”

Trumpism is, at its core, a war on elites and expertise, so a small handful of elites declaring that they are withholding their expertise is very far from a pressure point; it is threatening The Situation with a good time.

None of this is to criticize the people who are taking these approaches. They all have a place in the mood of non-cooperation that an active citizenry should be contemplating these days.

There may be no single mass act of non-cooperation that everyone can participate in, that is more than momentary, and that paralyzes The Situation. It may be that diversity of non-cooperation is itself an essential part of the mood.

But I keep thinking about it. I keep stewing on it. 

“In this country,” wrote Ralph Waldo Emerson in an essay published in 1844, “we are very vain of our political institutions, which are singular in this, that they sprung, within the memory of living men, from the character and condition of the people, which they still express with sufficient fidelity, — and we ostentatiously prefer them to any other in history.” Emerson was contemptuous of the preference: “But our institutions, though in coincidence with the spirit of the age, have not any exemption from the practical defects which have discredited other forms. Every actual State is corrupt. Good men must not obey the laws too well.”

Eventually, every actual state is corrupt—and the corruption of this one is happening before our eyes. The search for ways to undermine that corruption, to withhold consent, to not participate in it and to not cooperate with it, to not obey its laws too too well, strikes me as an essential part of maintaining goodness.

The Situation continues tomorrow.

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Federal courts create judicial task force for security and independence

A task force of federal judges will consider how to respond to “current risks” for the judiciary, following a spate of threats against judges who have ruled against the Trump administration, reported The New York Times.

According to an internal two-page memo distributed to federal judges and obtained by The New York Times, the new Judicial Security and Independence Task Force will hold its first meeting within the next 10 days.

The announcement comes days after Chief Justice John G. Roberts Jr. issued a rare statement rebuking calls for impeaching judges. President Trump and his allies have repeatedly called for the removal of judges who have issued rulings halting or slowing the adoption of his agenda.

The formation of the task force is another sign that the judicial branch is taking seriously an increasingly hostile and politicized climate. In recent weeks, there have been hoax reports of bombs placed in mailboxes. Pizzas have also been anonymously sent to judges’ homes and the homes of their family members, which security experts have said is intended to send a menacing message that the public knows where they live.

On social media, allies of President Trump have shared posts that purport to contain the personal information of judges’ families. Elon Musk and prominent Republican lawmakers have singled out specific judges and called on Congress to impeach them.

In a statement, a White House spokesman condemned “attacks on public officials, including judges.” Such attacks “have no place in our society and President Trump knows all too well the impact of callous attacks, having faced two assassination attempts,” said Harrison Fields, the spokesman.

Threats against public officials have been rising for years.

Democrats have also used heated rhetoric on judges and their rulings. “You have unleashed the whirlwind, and you will pay the price,” said Senator Chuck Schumer of New York outside the Supreme Court in 2020, as the court was considering a major abortion case. “I shouldn’t have used the words I did,” Mr. Schumer, the Senate Democratic leader, said later, after Chief Justice Roberts condemned his remarks.

According to the memo, the intent of the task force will be “to identify and help” the judicial branch “respond to current risks, and to anticipate new ones.”

“Through its efforts, it is hoped that the security of individual judges will be enhanced and that judicial independence will be assured,” the memo said.

The memo names 10 judges and one circuit executive who will be serving on the task force, with two more court clerks to be announced. Judge James K. Bredar of the U.S. District Court for the District of Maryland will serve as the new group’s chair.

It was signed by Judge Robert J. Conrad Jr., who oversees the Administrative Office of the U.S. Courts, which helps oversee the system under the direction of the Judicial Conference, a policymaking body led by Chief Justice Roberts. The office declined to comment.

The establishment of the task force is an encouraging step, said Judge Michael Ponsor of the U.S. District Court for the District Massachusetts, who has written on recent threats against the judiciary. “This is a welcome initiative and a powerful expression of the judiciary’s concern and its determination to do the job that our Constitution sets out for it,” he said.

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Judges not in line with Administration subjected to threats and intimidation

Federal judges who have ruled against the Trump administration this year are confronting a wave of threats, potentially compromising their personal safety and the independence of the judiciary.

The sister of Supreme Court Justice Amy Coney Barrett received a bomb threat earlier this month, and lower court judges who hit pause on some of President Trump's efforts to dismantle federal agencies and programs have been singled out on social media, reported NPR.

Republican lawmakers close to the president even have proposed impeachment proceedings against a few of those judges, who serve for life.

Elon Musk, who oversees the Department of Government Efficiency making cuts to federal agencies, himself has repeatedly posted on social media about impeaching judges who delay or block parts of Trump's agenda.

Efforts to undermine the judiciary come at the same time the Trump administration has moved to fire lawyers inside the Justice Department and the Pentagon, penalize private law firms who represented clients Trump does not like, and to back away from participation in the activities of the American Bar Association.

Judge Richard Sullivan, of the U.S. Court of Appeals for the Second Circuit, said in his lifetime four federal judges have been killed in retaliation for their work on the bench.

"This is not hypothetical," Sullivan, who leads a Judicial Conference panel on security issues, told reporters in a news conference this week. The Judicial Conference is a representative body of federal judges that frames policies for courts. "It's real. It's happened before. We have to be certain that it doesn't happen again," he said.

The Federal Judges Association, a voluntary group of more than 1,000 judges across the nation, said the judiciary plays a "critical role in preserving democracy and a law-abiding society."

"Judges must be able to do their jobs without fear of violence or undue influence," the group said in a written statement to NPR.

Early threats

One thing stands out to legal experts: these attacks on judges are coming at a very early stage in the legal process — often, before the Supreme Court weighs in as the final decider.

"We have a system of justice that allows for appeals," Judge Jeffrey Sutton, chief judge of the Sixth Circuit Court of Appeals, told reporters this week. "That's typically the way it works. Impeachment is not and shouldn't be a short-circuiting of that process. And so it is concerning if impeachment is used in a way that is designed to do just that."

Only 15 federal judges have faced impeachment, mostly for allegations of wrongdoing such as bribery, corruption or perjury, in the past couple of centuries.

Stephen Vladeck, a law professor at Georgetown University, said the odds of a successful judicial impeachment are pretty low, and to remove a judge from the bench would require a two-thirds vote from the Senate.

"The more that people like Elon Musk are putting on the wall the idea that it's appropriate to attack these judges for nothing more than ruling against the federal government, the more that we're normalizing what really are in the main very serious threats to judicial independence," Vladeck said.

"Jeopardize the rule of law"

But Paul Grimm, who spent 26 years as a federal judge, said even the threat of impeachment can amount to intimidation.

"And if you try to intimidate judges, if that's your goal, so that they do not do their constitutional duty, then you jeopardize the rule of law," said Grimm, who leads the Bolch Judicial Institute at Duke Law School. "And without the rule of law, every liberty and every right that we cherish as Americans is vulnerable."

Grimm said he worries a lot about online posts that display the home and work addresses of judges and their adult children, a step that he said "crosses the line."

Nearly five years ago, an angry litigant shot and killed the son of U.S. District Judge Esther Salas in New Jersey.

In 2022, a California man carrying a gun and zip ties traveled to the home of Justice Brett Kavanaugh. He turned away after spotting a security detail there. The man has pleaded not guilty to a charge of attempted assassination of the justice, and awaits trial this year.

And in 2023, a state court judge in Maryland was gunned down in his driveway.

Attacks over rulings

The U.S. Marshals say threats against federal judges have doubled in recent years, according to the most recent data. And those threats have been directed at both Democratic and Republican judges.

Justice Barrett came under withering criticism this month from some right-wing political commentators, after she voted alongside Chief Justice John Roberts and the liberals on the high court against Trump's effort to freeze foreign aid.

Lower court judges have faced online attacks for their early rulings on Musk's DOGE team, efforts to restore government web pages and the freeze on foreign aid.

The Marshals protect judges, but they also report to the U.S. attorney general, not to the courts themselves. That's got some members of Congress on alert.

"A judge's security is dependent in many ways on the Marshals Service who the president appoints to protect the judges, and if a president doesn't like a decision that's coming from a judge, theoretically they could pull their security," Rep. Eric Swalwell, a Democrat from California, said at a congressional hearing this month.

The administration has already yanked protection this year from former military and national security officials who disagreed with Trump in his first term.

Swalwell said Congress should consider giving judges their own security force — one that's independent from the White House.

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Trott: SCOTUS presidential immunity ruling has left us 'a kingdom within our republic'

Stephen S. Trott a senior judge on the U.S. Court of Appeals for the 9th Circuit and Reagan appointee, writing in the Washington Post:

Under the Supreme Court’s recent ruling on presidential immunity, could President Richard M. Nixon have legally ordered his Plumbers to burgle the office of Daniel Ellsberg’s psychiatrist? Might they all have gotten away with it?

It certainly looks that way to me, and I have a particular interest in this matter. As a young lawyer in the Los Angeles District Attorney’s Office in 1971, I oversaw the burglary indictment of senior White House officials and White House operatives for breaking into the Beverly Hills office of Dr. Lewis Fielding. In my assessment, if Trump v. U.S. had been on the books then, the president’s agents responsible for the Fielding burglary and related crimes, instead of going to prison, would have escaped prosecution and punishment entirely.

Let me explain why. In its June ruling, the Supreme Court held for the first time that a former president cannot be prosecuted for any acts undertaken while in office if those acts fall within the core constitutional powers of the presidency even if they constitute prima facie crimes under the federal criminal code. Other official acts outside that core responsibility, the court said, are at least presumptively immune.

The court grounded its decision on the perceived need to insulate the president from chilling and debilitating worry about possible legal jeopardy and to preserve the separation and balance of powers among the three branches of government.

To understand the court’s holding in Trump v. U.S., consider the Ellsberg case. Ellsberg was on trial in Los Angeles for having released to the New York Times and The Washington Post the “Pentagon Papers,” classified as top secret. That 7,000-page report about the Vietnam War, which Ellsberg had assisted in producing, had been prepared by the Defense Department  and contained a candid and embarrassing review of the government’s mismanagement of the conflict.

Convinced by the papers that the Vietnam War was unjust and could not be won, and that the government was lying to the public about it, Ellsberg brought the report to the attention of several influential senators, trying unsuccessfully to persuade them to release it. Frustrated by their negative response, he decided to release the report himself, explaining that, as a “responsible American citizen, he could no longer cooperate in concealing them.”

In response to Ellsberg’s unauthorized release, an angry Nixon created a high-level White House team under the direction of his domestic policy adviser, John Ehrlichman. The team’s goal was to prevent further leaks of sensitive national-security information about the ongoing conflict. Hence the name: “the Plumbers.”

In pursuit of Nixon’s goal, Cuban American operatives working for the Plumbers burglarized the Beverly Hills office of Fielding on Sept. 3, 1971, nine months before the Watergate break-in in D.C. Ehrlichman had approved the burglary on the Plumbers’ assurance that it would not be traceable. The Plumbers’ nefarious purpose was to steal the contents of Fielding’s file on Ellsberg and to release the doctor’s notes and records to the press. Their ultimate objectives were to discredit Ellsberg publicly as clinically disturbed and to discredit the media’s portrayal of him as a patriot.

Directed against Ellsberg, Nixon’s orders to his chief of staff, H.R. Haldeman, were “Don’t worry about his trial. Just get everything out. Try him in the press. Try him in the press.” Ironically, the Plumbers came up dry: Fielding kept no records about his patient’s mental condition, only appointment information for billing purposes. Although reported to the police, the burglary was not linked to the Plumbers and the White House until 1974, during the Watergate trials in D.C. There is no doubt that had they found something derogatory about Ellsberg, Charles Colson, Nixon’s special counsel, would have found a way to disseminate it to the public anonymously.

When the Fielding burglary came to light during the Watergate trials, I was a deputy district attorney in Los Angeles. Our office had jurisdiction over crimes committed in Beverly Hills. When we found out about the Fielding burglary, we called Henry Petersen, then the assistant attorney general in charge of the Justice Department’s Criminal Division in D.C. We wanted to know what the DOJ planned to do about this obvious federal crime. Surprisingly, Petersen’s answer was “nothing.” Years later I found out he was under orders from Nixon to steer clear of the Fielding case because it was a matter of “national security.”

Given Petersen’s answer, we convened a state grand jury in Los Angeles and secured an indictment charging burglary. The defendants were Ehrlichman and Colson, and Plumbers David Young, Egil Krogh and Gordon Liddy, all White House operatives. Shortly thereafter, Archibald Cox, recently appointed the Justice Department’s Watergate special prosecutor, secured federal indictments against all but Young, who was granted immunity. Eventually the federal defendants were convicted of, and sentenced to prison for, a conspiracy to obstruct justice, as well as other federal crimes.

Colson, once characterized by Haldeman as “Nixon’s hit man,” pleaded guilty to attempting to obstruct justice by interfering with the Ellsberg trial. By agreement with the special prosecutor, I dismissed our state case. By then, Judge Matthew Byrne had dismissed the federal case against Ellsberg because of governmental misconduct arising from the Fielding burglary, illegal wiretaps targeting the defendant and the Plumbers’ attempt to corrupt his trial.

Now, think about what would have happened if Trump v. U.S. had been on the books in 1971.

First, Nixon was acting as commander in chief, a core constitutional power, when he launched the Plumbers’ mission, which he considered a matter of national security. The mission arose during the Vietnam War from an unauthorized release of Defense Department classified information about the hostilities. Accordingly, the Plumbers’ activities, including the burglary, would have fallen squarely within the president’s unreviewable, conclusive and preclusive core constitutional authority. The men convicted and sent to prison would have been entitled to immunity, because as the president’s agents acting within the scope of his express constitutional authority, they, too, would have been cloaked with his absolute immunity. The president’s and the Plumbers’ corrupt intent and criminal purpose would have been considered immaterial.

Second, the Supreme Court held that “the Constitution vests the entirety of the power of the executive branch in the President,” giving him exclusive authority over the investigative and prosecutorial function of the Justice Department. In that capacity the president has “absolute discretion” to decide which crimes to investigate and prosecute. Even if the president makes those decisions and pursues them with a corrupt motive and criminal intent, it is now beyond debate that those determinations cannot be formally questioned.

Nixon would not have permitted the Justice Department to investigate himself and the Plumbers for any of their acts pursuant to his orders. The appointment of a special prosecutor to do so would have been out of the question. Moreover, any official resisting the president’s orders could have been fired on the spot.

The same fate would have befallen the entire mission of Cox and his successor, Leon Jaworski. After the Watergate break-in by White House burglars on June 17, 1972, Cox assembled a crack team of prosecutors to assist him. By the time the dust had settled, the Watergate Special Prosecution Force, operating within the Justice Department, had secured 40 felony convictions of government officials, including John Mitchell, Nixon’s former attorney general. If Nixon had known he had the unreviewable power to fire the special prosecutors and refuse to investigate and prosecute anyone related to the Watergate scandal, no one would have had to pay the price for their crimes.

Presumably, the president has the same bulletproof authority over the Treasury Department and the IRS. Nixon kept a political “enemies list.” In 1972, White House Counsel John Dean urged the IRS to investigate 575 people on that list. Dean’s objective on behalf of the president was “to use the available machinery [of government] to screw our political enemies.” Presumably, that gross abuse of executive power would also have been unreviewable and entitled to immunity? As an aside, where does the court’s imprecise language leave the jurisdiction of federal inspectors general and congressional oversight of the executive branch?

This is not how previous courts have understood the powers of the presidency. In 1882, the Supreme Court declared that “No man in this country is so high that he is above the law. No officer of the law may [defy] that law with immunity. All the officers of the government, from the highest to the lowest, are creatures of the law and bound to obey it.”

Are we to believe that in 1882 the court silently intended to exclude the president from this unequivocal statement of principle? The Trump ruling is irreconcilable with this long-standing postulate, a precept understood by all since 1788 until now, that ours is a government of laws, not of the officials who enforce it.

The court majority’s convoluted answer to the charge that they have unjustifiably placed the president above the law is that the president is not above the law because it is the law itself that says he is above it. No matter how cleverly articulated, the result is the same: The president and his agents are free to break the laws that apply to every other person in the nation. This newly minted imperial power is difficult to reconcile with an explicit presidential responsibility in Article II of the Constitution to “take Care that the Laws be faithfully executed.”

The court’s paradoxical holding is that the person we choose every four years to faithfully enforce our laws does not have to follow them. Why? Because if he must comply with our laws, it might render him fearful and cautious in office to the detriment of the responsibilities of the executive branch. The court cited no evidence or examples to support this concern. As Justice Ketanji Brown Jackson observed in dissent, this unsupported, counterintuitive holding allows a president to do whatever he wants as long as he uses his official powers to do so. The court has uprooted the principle that it is the law that is supreme, not our officeholders.

There is a conspicuous flaw in the court’s constitutional analysis. Although the Constitution provides impeachment as a method to remove a person from office for criminal behavior, the framers of the Constitution did not consider the remedy of removal alone to be sufficient. It provides that a person removed from office by impeachment “shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.” The Trump majority evades the plain meaning of this text by noting that the clause “does not indicate whether a former president may, consistent with the separation of powers, be prosecuted for his official conduct in particular.” The court’s reasoning is unconvincing.

Alexander Hamilton participated in drafting the Constitution. In 1788 and before ratification, he and James Madison wrote a series of essays in the Federalist, articles designed to explain the workings of the new government and to quell critics’ fears about its various provisions. One major objection was that the president of the new nation would resemble the king of Great Britain in his unfettered powers. Not so, wrote Hamilton. Unlike a hereditary monarch, the president would serve a term of only four years, after which he would have to stand for reelection or rejection. More to the point, he elaborated on the generic judgment impeachment clause as it would apply to the president himself.

Hamilton wrote: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery or other high crimes and misdemeanors, removed from office, and would afterward be liable to prosecution and punishment in the ordinary course of law. The person of the King of Great Britain [by comparison] is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subject without involving the crisis of a national revolution.”

We learned from Watergate that Nixon’s coverup was as serious as the crimes he was attempting to conceal. Now, the court has given the president the constitutional tools to accomplish the equivalent of a successful coverup in plain sight: a safe harbor against justice. The court’s decision will embolden the president because he will no longer have anything to fear from the law. The court’s holding that the president has “unreviewable and absolute discretion” over prosecutorial decisions means that if Donald Trump is reelected president, he can and most likely will dismiss all federal charges against himself. One seriously doubts that such a corrupt and egotistical act is what the framers had in mind when they called for an “energetic independent Executive.”

Will the public on whose support our institutions depend accept one set of rules for the president and his agents but another for themselves — a constitutional double standard?

As the dissenting justices acknowledged, it is one thing — and entirely appropriate — to protect a president from criminal prosecution for the good-faith exercise of his or her legitimate power, even when the president is mistaken. The same considerations do not apply, however, when the evidence shows that the president intentionally violated clearly established criminal law, not in good faith, not to serve the nation, but to benefit himself.

As the dissenters in the case explain, it is neither necessary, wise nor appropriate to resort to the extreme of removing the president from the reach of the justice system when a less drastic prophylactic would do. It is sufficient to give former presidents the protection of an adequate defense to criminal charges, a defense that honors the special and important responsibilities of the office. Without getting into details, such defense would include an “as applied” constitutional challenge to the application of a statute to the activity at issue, a defense of “public authority” to do what is in question, and having acted on authoritative advice of counsel. In conjunction with the robust procedural safeguards that every suspect and defendant enjoys, these defenses would accomplish the majority justices’ objectives. The final safeguards, of course, would be the criminal law’s burden of proof beyond a reasonable doubt and a jury trial by the former president’s peers.

It would seem to come down to this consideration: Either we trust our justice system to resolve challenging cases and controversies appropriately, or we do not.

Nowhere in the Constitution or the Federalist is there any provision, suggestion, or hint that the president can with impunity commit crimes against the state or lawlessly abuse citizens without recourse. But that is what the Supreme Court has left us: a kingdom within our republic.

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The impeachment trial that wasn't--Senate dismisses first impeachment of a sitting Cabinet secretary

The U.S. Senate voted  to dismiss two articles of impeachment against Homeland Security Secretary Alejandro Mayorkas, which allege he mismanaged an influx of migrants at the U.S.-Mexico border, reported the Washington Post. 

The impeachment trial came to a close a little more than three hours after it started, following a GOP senator’s move to quickly quash an offer for limited debate and the creation of an impeachment committee, marking a rapid close to the first impeachment of a sitting Cabinet secretary.

A spokesperson for Mayorkas released a statement highlighting the dismissal of the charges as further indication that “there was no evidence or Constitutional grounds to justify impeachment.”

Senators, voting 51 to 48 along party lines, found the first article charging Mayorkas with “willful and systemic refusal to comply with the law” to be unconstitutional. Sen. Lisa Murkowski (R-Alaska) voted present.

Senators voted again along party lines — 51 to 49 — to find the second article charging Mayorkas with “breach of public trust” also to be unconstitutional. This time, Murkowski sided with her party. The trial came to a conclusion before the House impeachment managers could present their arguments.

After the trial ended, Minority Leader Mitch McConnell (R-Ky.) scolded his Democratic colleagues for setting a “very unfortunate precedent” by not following the directions of the House. “This is a day that’s not a proud day in the history of the Senate,” McConnell said to applause from other Republicans.

Majority Leader Charles E. Schumer (D-N.Y.) retorted that Democrats were obligated to set a precedent that impeachment “never be used to settle policy disagreements.”

Shortly after opening the trial, Schumer offered Republicans a period of debate time and the opportunity to form a committee on the matter — a move that was sharply rejected by Sen. Eric Schmitt (R-Mo.). Schumer swiftly responded with a point of order to declare the first article unconstitutional, prompting the first of several procedural objections by Republicans that followed.

Sen. Ted Cruz (R-Tex.) called for a closed session. Sen. John Neely Kennedy (R-La.) motioned to adjourn the Senate until April 30. And McConnell called to reject the point of order made by Schumer. Each objection made by Republicans, who are in a relatively powerless position in the minority, failed.

Some senators appeared bored at their small desks as Republicans made one procedural point after another, forcing a series of unsuccessful votes to delay the trial and other matters. At times, Republicans attempted to deliver extended remarks on the Senate floor, blaming Mayorkas and Democrats for the record-breaking levels of migration at the southern U.S. border.

Sen. Patty Murray (D-Wash.) repeatedly interceded as her GOP colleagues tried to make their points of order into political statements, interrupting Sen. John Thune (R-S.D.) as he described the border crisis in a lengthy introduction to another failed procedural vote.

Two House impeachment managers, who watched the proceedings from the back row, filed out of the chamber before senators were done tossing out the second impeachment charge. Republicans argued that the body had set a precedent that the Senate can effectively ignore a House impeachment vote.

After indicating last week that he planned to vote with Democrats to dismiss the trial, Sen. Mitt Romney (R-Utah) ultimately voted with Republicans in what may have been the trial’s only minor surprise.

In a statement issued after the trial closed, Romney said that while he did not believe the charges against Mayorkas met the Constitution’s bar for impeachment, he “voted against the Schumer points of order because it was important to engage in some level of debate.”

“It was a mistake for Senate Democrats to set a new precedent of disposing of the Articles of Impeachment without any evaluation whatsoever,” Romney added.

Even the most politically vulnerable Democrats held the party line, voting unanimously to reject both charges and bring the trial to a close amid criticisms that House Republicans were abusing a constitutional tool to settle what amounted to policy differences.

Sen. Jon Tester (D-Mont.), a vulnerable lawmaker up for reelection in a red state key to the GOP’s plan to win control of the upper chamber, ultimately voted with his party to dismiss the charges. But he called on the Biden administration to “do more to keep Montana and our country safe” in a post-trial statement.

“Montanans want real solutions that secure the border, not partisan games from D.C. politicians,” Tester said. “I agree with my Republican colleagues who have said this exercise is a distraction that fails to make our country safer.”

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No basis to impeach, refer for criminal prosecution

Facing the prospect that they may never be able to impeach President Biden, House Republicans are exploring a pivot to a different strategy: issuing criminal referrals against him and those close to him, reported The New York Times.

In recent weeks, a political and factual reality has set in on Capitol Hill. Despite their subpoenas and depositions, House Republicans have been unable to produce any solid evidence of wrongdoing by Mr. Biden and lack the votes in their own party to charge him with high crimes and misdemeanors, the constitutional standard for impeachment.

Instead, top G.O.P. lawmakers have begun strategizing about making criminal referrals against Mr. Biden, members of his family and his associates, essentially sending letters to the Justice Department urging prosecutors to investigate specific crimes they believe may have been committed.

The move would be largely symbolic, but it would allow Republicans in Congress to try to save face while ending their so far struggling impeachment inquiry. It has the added appeal for the G.O.P. of aligning with former President Donald J. Trump’s vow to prosecute Mr. Biden if he wins the election.

And it would avoid a repeat of the humiliating process House Republicans, who have a tiny and dwindling majority, went through last month with the impeachment of Alejandro N. Mayorkas, the homeland security secretary. After initially falling short of the votes to impeach Mr. Mayorkas, Republicans barely succeeded on the second try, only to realize that the Democratic-controlled Senate was poised to quickly acquit him — or even dismiss the charges without a trial.

“There’s nothing that I’ve heard in the last couple of weeks that says that we are anywhere close to having the votes” for impeachment, said Representative Kelly Armstrong, Republican of North Dakota and the author of the resolution authorizing the impeachment investigation.

Mr. Armstrong said he believed criminal referrals were the much more likely outcome. Mr. Armstrong suggested House Republicans could make referrals regarding alleged violations of the Foreign Agents Registration Act in connection with international business deals by Hunter Biden, the president’s son, and suggested that the Justice Department investigate accusations of obstruction.

“I’m still interested in why we haven’t gotten better answers on the whole-of-government approach to obstructing all of these investigations,” Mr. Armstrong said.

Republicans say they are not finished with their investigation, and could still change course and decide to hold an impeachment vote. They have scheduled a public hearing next week with former business partners of Hunter Biden, though Mr. Biden himself has refused to appear.

 

In an interview, Representative Jim Jordan, Republican of Ohio and the Judiciary Committee chairman, said he was also demanding audio recordings of President Biden that were part of the special-counsel investigation by Robert K. Hur into his handling of classified documents.

Criminal referrals, Mr. Jordan said, were among the options “on the table” as the House G.O.P. moves forward.

Representative James R. Comer, Republican of Kentucky and chairman of the Oversight Committee, has repeatedly suggested in recent weeks that issuing criminal referrals could mark the end of the impeachment inquiry, rather than an impeachment vote.

“At the end of the day, what does accountability look like? It looks like criminal referrals. It looks like referring people to the Department of Justice,” Mr. Comer said in a recent interview with Fox News’s Sean Hannity. “If Merrick Garland’s Department of Justice won’t take any potential criminal referrals seriously, then maybe the next president, with a new attorney general, will.”

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The new standard: Impeachment without crimes and misdemeanors

House Republicans’ impeachment case against Alejandro N. Mayorkas, the homeland security secretary, boils down to a simple allegation: that he has broken the law by refusing to enforce immigration statutes that aim to prevent migrants from entering the United States without authorization, reported The New York Times.

The Homeland Security Committee approved articles of impeachment against Mr. Mayorkas on a party-line vote early Wednesday morning, setting the stage for a vote of the full House next week. If impeached, he would be only the second cabinet secretary to receive that punishment in American history, the first in 148 years and the only one to be indicted by Congress for nothing more than carrying out the policies of the president he serves.

Republicans have moved forward with the process even though constitutional scholars, past secretaries of homeland security and even some former legal advisers to former President Donald J. Trump have noted that nothing Mr. Mayorkas is accused of rises to the level of high crimes and misdemeanors, the standard for impeachment laid out in the Constitution.

The G.O.P. argues that the secretary’s failure to uphold certain aspects of immigration law is itself a constitutional crime. But in the United States, the president and his administration have wide latitude to control the border, and Mr. Mayorkas has not exceeded those authorities.

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Conservative Wisconsin legislators back-off impeaching newly elected supreme court justice

Wisconsin Republicans signaled on that they were retreating from their threats to impeach a recently seated liberal State Supreme Court justice, Janet Protasiewicz, before the newly left-leaning court could throw out the gerrymandered legislative maps that have cemented the G.O.P.’s hold on power in the state, reported The New York Times.

Robin Vos, the powerful Republican speaker of the State Assembly, said at a news conference in Madison that he would not seek to remove Justice Protasiewicz based on the argument he and fellow Republicans had been making for two months — that statements she made calling the maps “rigged” during her campaign for office this year compelled impeachment if she refused to recuse herself from a case challenging them.

Now, Mr. Vos said, the focus would be on what Justice Protasiewicz does “in office.” He said that if the court ruled against the Republican-drawn maps and other conservative causes, he would appeal its decisions to the U.S. Supreme Court. Impeachment, he said, remained “on the table” but was not something Republicans would pursue now.

“If they decide to inject their own political bias inside the process and not follow the law, we have the ability to go to the Supreme Court and we also have the ability to hold her accountable to the voters of Wisconsin,” Mr. Vos said.

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Texas AG campaigns against his impeachment

 

With television ads and text messages, direct mail and billboards, supporters of the embattled Texas attorney general, Ken Paxton, have embarked on an escalating campaign of political pressure, backed by hard-right billionaires, aimed at trying to sway the outcome of Mr. Paxton’s upcoming impeachment trial, reported The New York Times.

The targets of their efforts are narrow: the 19 Republican members of the State Senate who will act as jurors in the trial, set to begin on Tuesday, and decide whether allegations of corruption and abuse of power are serious enough to warrant permanently removing and barring Mr. Paxton from office.

But the effort to save Mr. Paxton, who is seen by many hard-core conservatives as their legal standard-bearer, is also the latest proxy in the broader fight over the future direction of the party, both in Texas and nationally.

It has drawn in a range of conservative figures on both sides, with Rick Perry, the former Texas governor, and Karl Rove, the political consultant to former President George W. Bush, arguing in support of the impeachment process, and Steve Bannon, the former Trump political adviser, lampooning it as a Democrat-inspired witch hunt.

“We want the entire MAGA movement to understand that what’s going on in Texas is not just about Texas,” Mr. Bannon told his podcast audience this month.

The wrangling over Mr. Paxton’s fate has reflected the same deep Republican divisions that emerged in Georgia over the indictment of Donald J. Trump, raising again the question of whether Republicans are willing to hold fellow conservatives to account — and whether, if they do so, they can survive a primary.

Mr. Paxton has so far managed to survive politically under both a criminal indictment and the looming impeachment, in part because he has become a key player on the right flank of the conservative legal movement. He has mounted aggressive challenges to the Biden administration, particularly over its immigration policies, and led coalitions of Republican states against Obama-era programs such as the Affordable Care Act and Deferred Action for Childhood Arrivals, or DACA, which protects many migrants from deportation if they came to the United States as children.

He secured Mr. Trump’s endorsement in a hard-fought primary last year, after demonstrating his willingness to contest the results of the 2020 election in court. An outspoken partisan fighter, he addressed the crowd at a rally for Mr. Trump on Jan. 6, 2021, that preceded an insurrection at the Capitol.

Yet those conservative credentials may not be enough to help Mr. Paxton survive what promises to be the most significant test he has faced. Though Republicans have a clear majority in the Texas Legislature, the most stridently partisan members do not always hold sway.

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Krasner: Impeachment an 'authoritarian attack to overturn elections'

Days after the Pennsylvania Senate set the stage for the first impeachment trial in nearly three decades, Philadelphia’s top prosecutor asked a state court to halt the proceedings, arguing that the process is politically motivated, unlawful, and outside the Legislature’s purview, reports the Pennsylvania Capital-Star.

District Attorney Larry Krasner, a Democrat who easily won re-election last year, asked Commonwealth Court on Friday to stop the Republican-backed process that could remove him from office after GOP lawmakers launched an investigation into him earlier this year.

During a virtual press conference on Monday, Krasner said efforts to impeach him play into the “national context of attacks on reform prosecutors” and “a more generalized authoritarian attack” to overturn elections.

“The authoritarian movement in this country, at the moment, is losing, and the authoritarian movement in this country against reform prosecution is losing,” Krasner said. “I repeat — you don’t have to do this stuff when you’re winning elections.”

The legal challenge came days after lawmakers in the upper chamber voted to formally accept the articles of impeachment from the Republican-controlled state House, which accuse Krasner of misbehavior in office and obstructing a legislative investigation, and took an oath to uphold the state Constitution during a trial that could begin in January.

The lawsuit names interim Senate President Pro Tempore Kim Ward, R-Westmoreland, the House impeachment managers, and the senators who will serve on the committee overseeing the case  arguing that the impeachment efforts against Krasner “stands the Constitution and this commonwealth’s history on its head.”

The filing claims that the impeachment process should have expired on Nov. 30, when the two-year legislative session ended. The filing also argues that the Legislature does not have the constitutional authority to remove local officials from office, and alleges the charges against Krasner do not meet the standards for impeachment.

Krasner requested an expedited briefing in Commonwealth Court, citing a writ of summons formally notifying him of the charges approved by the Senate last week. Michael Satin, a lawyer for Krasner, said he does not know what the court will decide.

The writ of summons gave Krasner until Dec. 21 to file an answer to the upper chamber ahead of the trial.

Erica Clayton Wright, a spokesperson for Senate Republicans, told reporters in a statement that the caucus was reviewing the filing and would respond “once we have had time to evaluate the petition.”

The House Select Committee on Restoring Law and Order, which was formed in June to investigate and review rising crime rates in the state’s largest city, has focused on Krasner’s approach to prosecuting crime in Philadelphia. In September, the GOP-controlled panel conducted a series of public hearings with live testimony on gun violence.

Earlier this year, the House voted 162-38 to hold Krasner in contempt for refusing to respond to a subpoena issued by the GOP-controlled committee.

Krasner agreed to testify before the select committee. But there were conditions from the panel, including that the meeting would take place behind closed doors without a public live stream or audio recordings. While the committee would have a copy of the testimony, Krasner said he could not make a copy.

Krasner — who has urged lawmakers to focus on a statewide review of gun violence and increased crime through a public process — told reporters in October that Republicans were using impeachment as a “political stunt.” He added that lawmakers have not proven that his policies have contributed to increased crime in Philadelphia.

On Monday, Krasner said he “fully [intends] not to be silent” as the proceedings play out.

“We are proud of our policies. We are proud of our ideas. We are proud of our successes,” Krasner said. “We know some things about what is going on in the rest of the state that is, frankly, not flattering to their motivation to pursue all of this. We fully intend to respond.”

Removal from office requires a two-thirds majority vote, at least 34 lawmakers, in the Senate, meaning that some Democrats in the 50-member chamber would have to support the measure for it to succeed after what could be a lengthy and costly trial. Voters elected a Republican 28-22 majority during the November election, and a special election will take place next month to replace one GOP lawmaker who resigned.

Sen. Jimmy Dillon, D-Philadelphia, was the only member of his party to support the impeachment-related resolutions last week.

Senate Minority Leader Jay Costa, D-Allegheny, argued similar claims on the chamber floor, saying it would be “unconstitutional” to carry over impeachment proceedings from one session to the next two-year period. He also noted that voters elected a Democratic majority in the House during the Nov. 8 general election and said moving ahead with a trial would “undermine the voice of the people of this commonwealth.”

Only two officials in Pennsylvania have faced removal from office through the impeachment process. The most recent occurred in 1994.

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GOP legislators seek to impeach Democratic Philadelphia DA

Pennsylvania Republicans announced plans this week to impeach and potentially remove from office Philadelphia District Attorney Larry Krasner, a national leader among progressive prosecutors who was overwhelmingly re-elected last year, reported NBC News.

Krasner is not accused of committing a crime. Nor do his critics allege corruption. Instead, they accuse him of dereliction of duty for what they say is a failure to adequately enforce criminal laws, leading to rising crime rates and declining quality of life for Philadelphians.

The extraordinary move — the state Legislature has impeached only two officials in its entire history, in 1994 and 1811 — comes just two weeks before a midterm election in which Republicans have focused on crime while Democrats have highlighted threats to democracy from politicians willing to defy elections.

It also comes as progressive prosecutors and recent criminal justice reforms have faced blowback due to rising crime.

“I recognize the unprecedented nature of what must be done and am confident our members are up to the task,” Republican Rep. Martina White said at a news conference Wednesday announcing articles of impeachment at the state Capitol in Harrisburg.

Republicans control both chambers of the Legislature, but White is the only GOP member from Philadelphia, which is on pace to break last year’s record-setting homicide rate. 

The rest hail from other, largely rural parts of the state.

“There should be a war on crime. But due to the failed vision and his idea of criminal justice, crime is allowed to wage war on the good people and the great beautiful city of Philadelphia," Pennsylvania House Majority Leader Kerry Benninghoff said of Krasner at the news conference.

Pennsylvania’s Constitution gives the Legislature broad power to impeach “all civil officers” for “any misbehavior in office,” though it has almost never exercised that authority.

“It’s clear under the Constitution that 'misbehavior in office' is the standard,” said Republican Rep. Torren Ecker, when asked by reporters what impeachable offense Krasner had committed. “Failing to do his duty and uphold the law — that is the very definition of misbehavior.”

The Legislature is scheduled to recess the Wednesday before the Nob. 8 election, but Republican leaders said they will add extra days to the calendar if necessary to make sure an impeachment vote happens as soon as possible.

They insisted the move against Krasner and its timing is not about politics, but about the need to offer some relief to Philadelphians struggling against crime every day.

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South Dakota House votes to impeach attorney general matter heads to Senate for trial

The South Dakota House of Representatives voted to impeach state Attorney General Jason Ravnsborg over a 2020 accident in which Ravnsborg struck and killed a pedestrian on a rural stretch of highway, reported Courthouse News Service.

The 36-31 vote did not comport with a recommendation from the House Select Committee on Investigations against impeachment, which occurred in March in a 6-2 in a party line vote.

The matter moves to the state Senate for trial, where a two-thirds majority will be required for Ravnsborg’s removal. There is a minimum 20-day waiting period until the Senate trial can begin under the state constitution. He is suspended from his duties pending the outcome of the trial.

Ravnsborg has remained in office since the collision despite calls for his resignation, including from Governor Kristi Noem, a fellow Republican. The attorney general pleaded no contest last year to using a mobile electronic device while driving and failing to stay in his lane.

Ravnsborg was driving home from a political fundraiser on the night he struck Joe Boever, who was walking along the shoulder of a U.S. Highway 14 near Highmore, South Dakota. The attorney general has maintained he did not realize he struck a man until he returned to the scene the next day and found his body, according to The Associated Press.

During the Select Committee meetings, law enforcement officials testified Ravnsborg had been distracted and driving on the shoulder of the highway at the time of the collision.

On Monday, Ravnsborg sent a letter to House members claiming Noem had “weaponized” the collision by asking him to resign, South Dakota broadcaster KELO reported. He elected not to so to preserve checks and balances in state government, he said.

“No state has ever impeached an elected official for a traffic accident,” Ravnsborg wrote. “I could not resign then and cannot resign now because the incident did not impede my ability to perform the functions of attorney general including ongoing investigations of the executive office. Knowing Governor Noem could hand-select my replacement, I felt it appropriate to stay in office to maintain checks and balances within the state.”

He added: “It has been 576 days since the accident. I mark it on my calendar each day and reflect. I want to say, ‘I am sorry.’ Every day I think about Joe Boever, a man I had never met, who changed my life forever. I am sorry the family has had to endure this tragedy in so many ways and has been put in the middle of this highly political situation.”

Speaking in favor of impeachment, Rep. Linda K. Duba, a Democrat, blasted Ravnborg’s letter. She noted Ravnsborg had the opportunity to testify in front of the Special Committee under oath but did not, instead sending the letter at “the eleventh hour.”

Duba emphasizing the part of the letter where Ravnsborg wanted to say he was sorry and that Boever had changed his life forever.

“Let’s turn that around. You took Joe Boever’s life. Did you intend to hit him? No. But you did. And that’s what we’re about today and that’s what we need to think about when we push the button.”

Republican members of the House spoke in favor of impeaching Ravnsborg as well.

“The attorney general has broken the law, and as a result of that, one of our citizens has died,” said Rep. Will Mortenson. “Never before in our state’s history has it been that a state official criminally ended the life of one of our citizens and refused to resign from that post. This is a grave and exceptional situation.”

There was no testimony in opposition to the measure.

The difference in the result of the committee and full House votes may be due to concerns voiced by the public to their representatives. Michael Card, an associate professor of political science at the University of South Dakota, said legislators have told him the Ravnsborg investigation is an issue frequently raised to them by their constituents.

“I wasn’t surprised that they would vote to impeach,” Card said in an interview. “I think there is enough concern.”

Also, a pattern of behavior made public last week by South Dakota broadcaster Dakota News Now may have added to the vote to impeach. Video and information obtained via a public records request showed law enforcement had pulled Ravnsborg over at least 25 times before the fatal Sept. 12, 2020, collision.

In more than one incident, Ravnsborg made it known to the officers he was the attorney general. In once such stop, in West Point, Nebraska, he was in a state-owned vehicle bound for Army Reserve duty, in uniform.

“It just fails the smell test,” Card said. “And I suspect that a number of legislators who voted to impeach are thinking he didn’t do a crime that was worthy of going to jail, but he shouldn’t be our attorney general.”

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New York legislature authorizes impeachment investigation of Gov. Cuomo

Carl Heastie, Speaker of the New York State Assembly, has authorized the Assembly Judiciary Committee to commence an impeachment investigation into Governor Andrew Cuomo after multiple women accused the governor of sexual harassment and inappropriate behavior, reported Jurist.

Among the six women who have come forward, Lindsey Boylan, Candidate for Manhattan Borough President, published an online essay detailing her unpleasant encounters with Cuomo.

Governor Andrew Cuomo has created a culture within his administration where sexual harassment and bullying is so pervasive that it is not only condoned but expected. His inappropriate behavior toward women was an affirmation that he liked you, that you must be doing something right. He used intimidation to silence his critics. And if you dared to speak up, you would face consequences. … I hope that sharing my story will clear the path for other women to do the same.

Following Boylan’s claims, other former and current aides to Cuomo came forward with their stories reported by the New York Times, Times Union and other sources.

Cuomo issued a statement apologizing and calling for “an outside, independent review” to look into the allegations:

I never intended to offend anyone or cause any harm. … I now understand that my interactions may have been insensitive or too personal and that some of my comments, given my position, made others feel in ways I never intended. I acknowledge some of the things I have said have been misinterpreted as an unwanted flirtation. To the extent anyone felt that way, I am truly sorry about that. To be clear I never inappropriately touched anybody and I never propositioned anybody and I never intended to make anyone feel uncomfortable, but these are allegations that New Yorkers deserve answers to.

Earlier this week, New York Attorney General Letitia James announced the investigation into the allegations against Cuomo. She appointed former Acting US Attorney for the Southern District of New York Joon Kim and employment discrimination attorney Anne Clark to lead the investigation.

James said:

We are committed to an independent and thorough investigation of the facts, Joon H. Kim and Anne L. Clark are independent, legal experts who have decades of experience conducting investigations and fighting to uphold the rule of law. This team is charged with conducting a thorough and independent investigation of, and the circumstances surrounding, allegations of sexual harassment against Governor Cuomo, including his administration’s handling of such matters.

The attorney general’s office also issued a statement Thursday following the commencement of the impeachment investigation that their investigation would be independent and would run parallel to the impeachment investigation.

Several calls for Cuomo’s resignation were issued by New York State Legislators, including Reps. Alexandria Ocasio-Cortez, Jamaal Bowman and Jerry Nadler.

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Bruce Castor former PA prosecutor joins impeachment defense team

Former President Donald Trump announced two new attorneys who will lead his impeachment defense team, just days before his Senate trial is set to begin, reported the USA Today. 

The announcement came one day after it was reported five members of Trump's team split with him. 

Trump, the first president to be impeached twice, announced his legal team would be led by David Schoen, a criminal defense attorney who works in Alabama and New York, and Bruce Castor Jr., a former district attorney in Pennsylvania.

The news comes just days before filings are due in Trump's trial, including an official response due on Tuesday to the article of impeachment passed by the House charging Trump with inciting an insurrection at the U.S. Capitol. Trump's trial will begin in earnest the week of Feb. 8.

"I consider it a privilege to represent the 45th President," Castor said in a statement released by Trump. "The strength of our Constitution is about to be tested like never before in our history. It is strong and resilient. A document written for the ages, and it will triumph over partisanship yet again, and always."

Both attorneys are no stranger to high profile cases. 

Castor garnered headlines after he declined to prosecute actor Bill Cosby in 2005 on sexual assault allegations that years later sent Cosby to prison. 

Schoen has similarly been involved with cases for high-profile figures. Herepresented Roger Stone, a key Trump ally who was pardoned by the former president after charges stemming from the investigation into Russian meddling in the 2016 election. 

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WAPO: There’s an alternative to impeachment or 25th Amendment for Trump, historians say

As a pro-Trump mob stormed the Capitol last week, Eric Foner, one of the nation’s premier Civil War historians, watched in horror, reported the Washington Post.

“I was watching just like anyone else, with my mouth hanging open,” he said in an interview.

But his mind quickly shifted to history, specifically the little-known history of a little-known provision of the 14th Amendment of the U.S. Constitution.

The 14th Amendment, ratified in 1868, is most famously known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States, including formerly enslaved and free Black people.

But as calls emerged almost immediately for President Trump’s ouster and ban from office via the 25th Amendment or impeachment — neither course is expeditious or easily accomplished — Foner began pondering a different remedy provided by Section Three of the amendment, which says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

“Nobody really had heard about this except people like me who study this era,” said Foner, a Columbia University professor and author of numerous books on the Civil War, Reconstruction and Abraham Lincoln. “And then I had other historians emailing me saying, ‘Wouldn’t Section Three apply here if Trump is guilty?’ ”

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U.S. House of Representatives prepares for new articles of impeachment

Democrats in the House of Representatives have circulated a draft of a new article of impeachment against President Trump charging him with “incitement of insurrection” for his role in the January 6 attack on the US Capitol during congressional vote counting, reported Jurist.

The impeachment comes in response to pro-Trump rioters storming the Capitol building in Washington DC on Wednesday soon after a “Save America” rally held at the National Mall in which President Trump delivered a speech protesting the “stolen election” and encouraging the mob to move on to the Capitol. The draft charges President Trump for “willfully inciting violence against the Government of the United States” and says that he has violated his constitutional oath to faithfully execute the office of the President and to “preserve, protect and defend the Constitution of the United States.” According to the draft, Trump’s false claims and efforts to subvert the certification of the 2020 presidential election results “foreseeably resulted” in the 6 January violence. His actions threaten the integrity of the democratic system and have endangered the security of the country’s institutions of government.  The draft states that he has acted in gross violation of the rule of law and cannot be allowed to remain in office.

The article is expected to be introduced in the House on Monday by Reps. Jamie Raskin from Maryland, Ted Lieu from California, and David Cicilline from Rhode Island. Speaker of the House Democrat Nancy Pelosi said on Friday that she will proceed with the impeachment if Trump does not resign immediately.

President-elect Joe Biden has said that Trump’s impeachment is a decision for the Congress to make and that as soon as they are sworn in, his administration will be focused on introducing significant legislation to handle the virus, economy and economic growth.

The White House released a statement condemning the violence at the Capitol saying that they are working towards an “orderly transition of power”. At the same time, some Republicans dismissed the impeachment as a “politically motivated” move which would only “further divide our great country”.

If the article is passed by the House, Trump will be the first US President to be impeached twice. If the articles of impeachment pass the House, the Senate will vote to remove him from office before the end of his term on 20 January 2021.

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