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The rush to a foregone conclusion

Updated: Feb 14, 2021

The Hound of Heaven is on its own trail, and the vestige still lures the scent of a foregone conclusion.Benjamin Paul Blood. Blood (1832–1919) was an American poet and philosopher, theoretician of the pluriverse, sometime farmer, inventor, a man of "loose and wandering ways…successful gambler during the Tweed regime…fancy gymnast," friend and correspondent of Tennyson and William James, and enthusiast of the anesthetic revelation.

Anesthetic is the operatic term here as I reflect on the trial of twice-impeached former president Donald Trump. Any accompanying revelation on the part of Republicans, with precious few notable exceptions, has been in the way of paranoiac delusion and phantasmagoria that might have flaked off the fevered brain of Salvador Dalí. The defense team trotted out a parade of non sequiturs, fallacies, irrelevancies, bald-faced lies, bearded lies, all intended to muddy the waters and provide a semblance of cover for anesthetized Republicans whose verdict is a foregone conclusion.

At the beginning, way back during House impeachment proceedings, I felt that the issue of constitutionality was an arguable proposition about which people could in good faith reach different conclusions. After revisiting relevant sections of the Constitution and the Federalist papers and reading several articles by constitutional scholars, upon due consideration I concluded that any doubts I had about constitutionality were ill-founded (discussed in my blog post Republican deadenders, impeachment, and that pesky conservative value personal responsibility). The House managers laid out the case in textbook fashion. Trump's defense failed to rebut it.

The defense either fails to understand or simply refuses to admit that an impeachment trial is not a judicial proceeding but a political process where their objections that certain rules governing jury trials are not being observed are irrelevant. Inquiring as to the true spirit of the institution of impeachment, Alexander Hamilton asked, "Is it not designed as a method of NATIONAL INQUEST into the conduct of public men?" The model from which "the idea of this instituion has been borrowed" comes from Great Britain. Hamilton notes that several state constitutions had followed the British example and both the states and Great Britain "seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government." The following passage describing the nature of an impeachment proceeding hammers a spike through the heart of the Trump team's specious objections:

This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion which a court of impeachment must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons. [This why the Senate serves as jury rather than, for example, the Supreme Court]. (Federalist, No. 65)

"The Senate shall have the sole Power to try all impeachments" (Constitution, Article I, Section 3). The constitution and Hamilton's stark language regarding "the awful discretion which a court of impeachment must necessarily have" leave no doubt that the Senate is not bound by the rules for conduct of judicial matters.

Suppose for the sake of the argument for this one moment that we grant the defense's contention that the impeachment trial should be conducted in accordance with standards that govern jury trials. What is to be made of judges Lindsey Graham (R–SC), Ted Cruz (R–TX), and Mike Lee (R–UT) meeting with the defense team the night before they presented their case and the following day during a break in proceedings? No need to answer. The question is rhetorical.

It is a shame that the word "trope" has been wrenched from its traditional usage as a technical term of literary criticism to be employed these days primarily as a rhetorical firebomb. Otherwise I would note the rollout by the defense of familiar Trumpian tropes of witch hunts, a stolen election (sneaked in, albeit not all that subtly), and cancel culture. Charges that Democrats are motivated by hatred of the twice-impeached former president and the silly video clips of Democrats using the word "fight" in reference to policy or brushing off violence during last summer's wave of protests (I may take this up again at another time) are beside the point, irrelevant to Trump's actions and the question of innocence or guilt. They can only be intended to muddy the waters and provide cover, however flimsy, for Republican votes to acquit.

This morning we were treated to much foofaraw over the question of witnesses. Jamie Raskin's announcement that House managers planned to seek testimony from GOP Rep. Jaime Herrera Beutler (WA) sent excitable Trump attorney Michael van der Veen into a state of high dudgeon. He threatened to depose hundreds of witnesses, including Nancy Pelosi and VP Harris who he said would have to come to his office in Philadelphia to be deposed, and claimed the need to conduct a 9/11-style investigation. After considerable posturing the issue was resolved. The defense agreed to accept the House managers' submission of Beutler's statement into the record. No witnesses will be called. The clown show came to nothing beyond a lot of posturing. The strategy remains to go for a quick vote, the foregone conclusion (Mitch McConnell reportedly informed his colleagues via email that he will vote to acquit), then change the subject.

The case laid out by the House managers is a powerful rebuttal to the alternative facts and revisionist history already being laid out by forever-Trump propagandists. For this alone the Senate trial is worthwhile.

I've quoted never-Trump conservative Jonathan V. Last on a number of occasions. From his column yesterday comes this troubling assessment about the state of the nation and our prospects going forward:

I’ve made it pretty clear that I’m fundamentally short on America and this is why. It’s because some very large percentage of the country is no longer interested in democracy. Maybe that percentage is 15 percent, maybe it’s 40 percent. But it ain’t 2 percent.

That percentage is largely concentrated in a single political party. That party is not evenly distributed…It is concentrated in distinct geographic regions which increases the party’s throw-weight.

As a result, this party will not be kept out of power indefinitely. At some point in the future—probably the near future—Republicans will be in power again.

And when that happens, they will do what their voters demand.

Maybe we’ll get lucky again and the next attempt to overturn the government will fail. But that’s the thing about being on the side of democracy: You have to win every single time. The anti-democratic forces only have to win once. (Last, The Avatar Rule of Politics)

This is a pretty fair summation of my sentiments. American democracy is not necessarily doomed, but the struggle with authoritarian, profoundly antidemocratic elements within the Republican and further out on the militia and conspiracy fringes of the right, is far from over. Indeed, it is only beginning.

Memo from the editorial desk: Things are moving quickly this morning. Some of what is written here may be dated by the time it is published.


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