Impeachment of an Ex-President: Constitutional or Not?

 There's been a lot of discussion about the upcoming Senate trial of former President Donald Trump following his second impeachment. The topics of discussion include whether he actually committed an impeachable offense to the impeachment procedures in the House to whether it's even constitutional to hold a post-impeachment Senate trial for a former president. Most of the people who weigh in on social media against proceeding usually throw around the assertion that the whole process is unconstitutional while unable to point to the part of the Constitution that is being violated. 

Let's start with the Impeachment itself. While it might seem counterintuitive, an impeachable offense, within certain bounds, is what the House of Representatives says it is. The term "high crimes and misdemeanors" is not defined in the Constitution itself, but it's meaning at the time the Constitution was written suggests that it was interpreted broadly and not meant to be tied to any specific laws or ordinances. While "incitement of insurrection" may not be provable in a court of law, it does not need to be. While the recent impeachment may not conform to legal proceedings we have become used to after watching decades of crime procedurals and cop shows, if a majority of the House of Representatives decides that an action by the president is impeachable, then he's impeached. It may not seem right or fair, it might seem to be partisan head hunting, but it does not contravene the Constitution. 

A specific objection that I saw today was that the recent impeachment was unconstitutional because Trump's words that have been construed as incitement to insurrection were protected speech under the First Amendment. This objection ignores the fact that not all speech is protected speech, the cliché "you can't yell 'fire' in a crowded movie theater" is illustrative of this point. One might reasonably argue that Trumps' words didn't constitute an incitement to insurrection, but you can't argue that it was automatically protected speech just because it was speech. Even First Amendment protection from government censorship does not immunize one from the consequences of that speech. 

An objection to proceeding with the Senate trial is that Trump cannot be removed from office as a result of a Senate conviction because he is no longer an occupant of the office. There are two ways that this is argued, one is the practical, the other constitutional. The practical objection is that it's a waste of time, since he's already removed by dint of his term having expired n January 20th. The answer to this objection is that upon conviction Trump can be subject to "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States". So it's not really a moot point, since there are further consequences beyond removal, which is moot. The Constitutional objection is a bit messier, and not totally clear.

One view is that the impeachment clause of the Constitution lists those people who are subject to impeachment. They are the President, Vice President, and all civil officers of the United States (which includes federal judges and cabinet officers) and that an ex-president is not on that list. The contrary view is that nothing in the Constitution prohibits a former president from being impeached or being tried in the Senate after impeachment. There is only one precedent upon which we can refer to: in 1876 Secretary of War William Belknap resigned as the House of Representatives was contemplating impeachment. The House impeached him anyway, and the Senate held a trial, with a majority agreeing that it retained impeachment trial jurisdiction despite the resignation. He was acquitted, with a majority that was less than the two-thirds, voting to convict. A number of Senators that voted to acquit expressed doubt about whether an impeachment of a former official conformed with the Constitution. This precedent has never been applied in the case of a former president. 

So there's nothing that unambiguously permits or prohibits the impeachment or subsequent Senate trial of a former president, despite assertions of unconstitutionality by the Trumpists. Whatever the scholars or those with unwarranted confidence in their knowledge of the Constitution may believe, the trial has been scheduled. 

Unity

Some years ago a was involved in a car accident. Another driver wasn't paying attention and blew through the intersection hitting my car square on the driver's side. As I looked at the vehicle speeding directly at me I was sure I was going to die. My car was totaled, but I walked away from it without a scratch. I was angry at the damage done to my car, but was relived that I was alive and unhurt. The feeling was similar to how I felt on Inauguration Day this year. Not that I thought President Biden was the savior that would fix it all, right all the wrongs and heal all wounds, but that our nation had made it through the last few years - and that we still had a nation. If anyone had any doubts about how unfit for the presidency Trump was, the two and a half months between the election and the inauguration, with his ham-handed attempts to overturn the election and his pardons of corrupt politicians, should have knocked them off the fence. 

Somehow the myth that those who opposed him did so because we were offended by his crude, coarse manner, that he wasn't "presidential", or that he allegedly spoke his mind, was accepted by his most ardent supporters.  In fact, most of what he accomplished was boilerplate Republicanism: lower taxes on the rich, eliminating regulations and lots of anti-immigrant rhetoric. What most of us disliked about Trump was his gleeful stoking of hatred and division, labelling anyone who disagreed with him as anti-American, going so far as to call the mainstream media "The Enemy of the People" and suggesting that his political opponents be locked up. Any hope that we had that he would settle into the job, listen to the advice of "the adults in the room" was squashed pretty quickly. His documented lies reached the tens of thousands. His ignorance, not only of how government worked, but of basic economics was abysmal. His contempt for our allies and solicitousness of our enemies was worrying. His persona was that of a petulant child, when he wasn't acting as the playground bully. He had barely dodged the bullet that was the Mueller Investigation when he attempted to bribe the president of Ukraine in order to start an investigation of Joe Biden and his son Hunter. His incompetence and laziness came to the fore as he ignored the seriousness of the Covid-19 virus that has so far killed 400,000 of us. 

While I probably would have voted for a can of green beans over Trump, Biden, whatever his shortcoming's, is someone who takes the job seriously, has the knowledge and experience needed for the job, and in contrast to his predecessor, sees himself as the president of all Americans, not just those who voted for him. He has the perhaps unlikely dream of our nation being united. 

Let's talk about unity. The reality is that we are a deeply divided nation. A not insignificant minority believes that his election was fraudulently won. There are deep disagreements on just about everything. There is an impeachment trial still pending in the Senate for the former president. The progressive faction of the Democratic Party thinks Biden is just another establishment hack; Trump's core of support think he's a communist. No matter what he does or doesn't do is going to make somebody mad. But unity and governing with eye to making decision's that are best for all Americans isn't about accomplishing the impossible, i.e. making everybody happy. It's about doing what's overall in the nation's best interest, knowing that not everyone agrees on what the best interest is. 

There are two competing realities. One is the old saying "elections have consequences". Not only did Biden garner a healthy majority of the electoral votes, the exact same number that Trump claimed as a landslide in 2016, but unlike Trump, he also received a healthy majority of the total votes cast nationwide. Surely this gives him the right to honor his campaign promises and take whatever unilateral actions that are available to him, even if the Republican Party doesn't like it. The second reality is that his party has only a slim majority in the House of Representatives (221-211, with 3 vacant seats - it takes 218 votes to reach a majority) and a 50-50 tie in the Senate, with several conservative Democrats unlikely to support what the consider any ultra-liberal proposals. These slim majorities will make it all but impossible to get anything done with the cooperation of at least 10 Republican Senators, since the filibuster still exists for legislation, although not for judicial appointments. Mitch McConnell is still the leader of the Republican caucus.

Let's not forget that it was Mitch McConnell who obstructed everything that President Obama attempted accomplish. It was Mitch McConnell who stole a Supreme Court nomination based on the suspect reasoning that a president shouldn't be able to appoint a Supreme Court Justice in his last year in office, a reasoning that he conveniently changed when it was Trump who had the opportunity to nominate a justice during his last month before the election. It was Mitch McConnell who virtually shut down the Senate, except for judicial appointments, refusing to consider any bills sent over from the House of Representatives. I don't envision much legislation getting passed. We're already hearing from politicians like Ted Cruz who think "unity" means that Biden and the Democrats roll over for the Republicans, as if Biden hadn't won the election.

This isn't very optimistic, I know. But it's realistic. There's still a lot that President Biden can do without the cooperation of the Republicans. He can fill judicial vacancies, he can appoint people who support the mission of the cabinet departments, instead of those whose goal was to dismantle them under Trump; he can re-engage us with the international community and strengthen our alliances; he can re-institute environmental protections that were gutted in the last four years. 

He can take the job seriously.

 

Burger Flipping

Now that President-Elect Biden has signaled his support for an increase in the federal minimum wage to $15, the critics of such a move have already been busy with their insulting characterizations of people who make the minimum wage. 

Arguments against the minimum wage increase:

* It's just high school kids working those jobs, they'll graduate and find something better

* If you don't like making minimum wage, find a better job

* It's unskilled labor

* Paramedics make $15/hour (or really, fill in your favorite profession that already makes $15/hour or slightly more) - are you saying "burger flippers" are worth as much as paramedics?

* Companies will go out of business or lay off employees if forced to increase wages

Let's dispense with the economic argument first. Research has shown that increasing wages, counterintuitively, doesn't cause businesses to close or to lay off workers. 

https://www.businessnewsdaily.com/8984-increased-minimum-wage.html#:~:text=Researchers%20say%20raising%20the%20minimum,businesses%20or%20reduce%20job%20opportunities.

Business owners by and large are not philanthropists. They will take whatever action is necessary to maximize profits. If they voluntarily raise wages, it's usually because of outside pressure. Often it because of increased competition for employees due to low unemployment. Your paycheck is based, not on what you need, but on the lowest amount that your employer feels they can get away with paying you. If revenues increase for whatever reason, fewer competitors, lower costs or reduced taxes, most employers will not turn around and increases wages because they don't have to. 

The idea that all or most minimum wage jobs are filled by high school students is also a myth. While it is true that high school kids, if they are working, are working in minimum wage jobs, people from all walks of life are working in low-paying jobs for a variety of reasons. Higher paying positions typically require specific training or education. This may shock people who are college graduates, but not everyone can afford to go to college. Of course there are alternatives, two of my children joined the military. One is a career NCO and the other combined student loans with support from the military to get a college degree and a teaching job. Two of my children have union jobs with decent pay and benefits. Circumstances and decisions made years or decades ago will affect ones ability to find a high paying job. Single parents with young children are often limited in the jobs that they can take. Some people, often through no fault of their own, do not have the education or training that would qualify them for a higher paying career. 

The bigger picture that is often overlooked is that these lower paying, lower status jobs are still necessary. If we want there to be restaurants where we can enjoy a nice dinner in our free time with our discretionary income, someone has to be "flipping the burgers". In virtually any industry there are "front line" workers who do the bulk of the work, who get things done. This is not to say that supervisors and administrators are not necessary, but that there would be nothing to supervise or administrate without those front line workers. In any business that I have ever been in, if every non-manager had called in sick the place would have fallen apart (and I say that having been a manager at most of the businesses where I was employed). A related issue is that in most industries the only way to advance, i.e. to make more money, is to be promoted to management. The problem with this is that management is a skill set that is separate from the underlying business. You may be the best [fill in the blank] but may have no ability to effectively supervise your former peers or manage the business that you are engaged in. But most positions have a maximum wage rate, and once you reach that ceiling, you have one option: become a manager. This paradigm ignores the likelihood that a front line workers with many years of experience will bring more value to the business than a rookie with the same job title. 

The last item that I will address is the comparative value argument. Usually it takes the form of comparing the average compensation of paramedics or teachers to the $15/hour suggested minimum wage and implies that minimum wage workers aren't the equals of paramedics or teachers. This isn't the slam dunk that opponents of a minimum wage increase think it is. It's an argument for increasing the remuneration of teachers and paramedics. And speaking of comparisons, some studies indicate that if the minimum wage kept pace with inflation and productivity increases, it would be $24/hour.

Presidential Election Procedures for Dummies (Really)

So, what's the procedure for electing a president? There's a lot of confusion out there claiming that election procedures in some states are illegal, that state legislatures can override the people's vote or that "massive" fraud took place. 

According to the Constitution and related law (Article II Section 1, The 12th Amendment and the Electoral Count Act of 1887), the states have the authority to set election law within their state. Every state has laws on the books indicating that the person who receives the greatest number of votes will be awarded all of the electoral votes from that state. (Maine and Nebraska are exceptions to the winner-take-all rule). Every state has laws enumerating procedures for contesting the results. These procedures include automatic or requested recounts if the margin of victory is within a certain percentage. 

In every single state (and for the purposes of discussing the presidential election The District of Columbia will be included as a "state") the winner was clear - automatic and requested recounts confirmed the winner with no material change in numbers. 

Usually, at this point, we view everything else that follows as pro forma and consider the election a done deal. 

Unlike every other election in the past 140 years, the loser of the election claimed, despite there being no doubt about the results, that he had actually won and that only cheating, fraud (the massive kind) and dead people voting had robbed him of his victory. The objections came in two broad categories: (1) fraud, and (2) illegal or unconstitutional provisions in state election law. Despite the president (the loser in this case) claiming loudly and continuously that there was fraud on a massive scale, the Attorney General, the head of the Department of Homeland Security's cyber security agency, the U.S. Secretary of State, and governors, state secretaries of state, election commissioners and other local officials in every single state have assured us that there was no election fraud, sometimes with the qualifier "on a scale that would have affected the results". In the few cases where there were specific allegations by Trump or his allies, they have been explained as lack of understanding of ballot counting procedures or drawing conclusions based on incomplete or erroneous data. In fact none of the lawsuits by the Trump campaign or Trump's allies or lawyers have alleged fraud, but have targeted election procedures and laws. Every single lawsuit over election procedures has been dismissed, some due to lack of standing, but most due to lack of evidence. 

The next step in the process is the certification of the election results in each state. Trumpists have claimed that the Constitution gives the state legislatures the authority to select the electors and therefore could overrule the vote if they thought it wasn't valid. They get this from Article II Section 1: "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors". Of course they ignore the clause "in such manner as the Legislature thereof may direct" which gives the legislature the freedom to delegate this to the Secretary of State or an election commission the procedures for appointing electors. As I stated above, every legislature has tied this appointment to whoever received the most votes. At least one local election commission in Michigan, and later the state election board, attempted to block certification, even though their certification was, like virtually every other step, a formality. 

The state certification process follows any challenges or recounts and serve to acknowledge what came before. The states set their own standards for certification, and resolve all disputes internally. The next step occurs when the electors meet in their respective state capitols and cast their votes. This also is a formality. They have no authority under the laws of any state to do anything other than cast a vote for whomever they are pledged to vote for. The casting of electoral votes, unlike everything else in the process, happened without any drama. 

The final step is the delivery of envelopes containing the electoral votes to the Vice President, presiding over a joint session of Congress. If I haven't been absolutely clear about formalities, this step also is usually just a formality. According to the 12th Amendment to the Constitution, the only job of the Vice President is to open the envelopes while clerks tabulate the votes (of course we already know the result) and announce formally the results of the election. However, in the aftermath of a contested election in 1876, a federal election law was passed that added some additional detail to the proceedings. It's a long & confusing law, but the relevant portion gives Members of the House of Representatives the right to object to any state's electoral votes as long as at least one Senator agrees. Once an objection is raised, each chamber debates the objection, then votes to accept or reject that state's electoral votes. This is the law that some Republicans are leaning on for a last stand fight to keep Trump as president. What the Sedition Wing of the Republican Party isn't telling us is that the same law emphasizes that disputes about electors are to be resolved within the states and that the procedure for objection is designed to address a situation where there have been competing slates of electors due to questions about the authority of the officials who signed the states' certifications. 1876_United_States_presidential_election

Republican Representatives and Senators who have committed to objecting to the results in swing states that went for Biden claim that this is necessary due to the "many allegations of fraud". (See above for a discussion of the alleged fraud) While this was going on, a recording of Trump attempting to pressure the Georgia Secretary of State to "find" enough votes to give him victory...by one vote. Surely he has made similar calls to other states. 

Congress meets in two days for the next phase of this attempted coup. I wonder what insanity will follow.