Monday, January 18, 2021

Congress Needs to Use 14th Amendment Instead of Impeachment to Disqualify Trump from Running Again

One of the first items of business for the new Democratically-controlled Senate will be to try the impeachment of President Donald J. Trump.   But by the time, the Senate begins the trial, Trump will be an ex-President.

The chief goal of impeachment is the removal of the President from office by a 2/3 vote of conviction in the Senate. There is a secondary punishment allowed under the impeachment clause - a disqualification from holding future federal office.  That requires a second vote, and only a simple majority vote, following conviction.


I do not agree that a federal official vacating office means the Senate can't try that official's impeachment.  In fact, it's happened before.  Still the fact Trump is already gone is going to be a powerful argument for Republican Senators to vote against conviction.

Unlike in the House where Trump does have a cadre of enthusiastic supporters, most Republican Senators loathe Donald Trump and want him gone.  But they also live in fear of the Trump's GOP base, so much so getting 17 Republican Senators to vote for conviction, the requisite 2/3 of that august body, will prove challenging, to say the least.  If there was a way of disqualifying Trump from ever being President again, without necessitating a super majority vote in the Senate, that would seem to be the route.

Such an option does exist, the 14th Amendment, Section 3, which originally was aimed to apply to former government officials and members of the U.S. military who had joined the Confederacy.  That section states:

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. But Congress may by a vote of two-thirds of each House, remove such disability.

As President, Trump took an oath to support the Constitution of the United States.  So he appears to be someone who would be covered by the section.  Because of the nature of Trump's offense cited in the impeachment articles - inciting an insurrection - the subject matter of the section likewise would seem to apply.

After the Civil War, Congress, in 1872, passed the Amnesty Act, restoring the ability of most former Confederates to seek office.  In conjunction with the passage of the Act, President Grant issued pardons to all but the top Confederate officials.

It remains unclear who gets to decide whether a person has engaged in insurrection or rebellion against the United States.   Determination of that factual question wasn't a big issue when it came to those who joined the Confederacy.  But now, nearly 152 years later, that is the big issue.  While we know who can lift the qualification (2/3 vote of Congress) who decides whether the standard has been met for disqualification in the first place?   

An article in the ABA Journal discusses the possible use of the 14th Amendment, Section 3, and concludes Congress can take the lead in disqualifying Trump from running for office again: 

Congress could find that Trump engaged in insurrection or rebellion by encouraging the attack against the Capitol. The House of Representatives has already outlined its theory against Trump in an article of impeachment filed Monday.

The impeachment article says Trump encouraged insurrection through false assertions of widespread election fraud and statements in a speech before the Jan. 6 riot. The statements included, “If you don’t fight like hell, you’re not going to have a country anymore.”

A Section 3 vote would need only a simple majority vote of both houses, compared to the two-thirds vote needed for the Senate to convict Trump in an impeachment trial, according to the Washington Post op-ed, which is co-authored by Bruce Ackerman, a professor at Yale Law School.

...

Congress could enforce Section 3 by passing a law declaring that anyone sworn to uphold the Constitution who incited, directed or participated in the Jan. 6 Capitol riot engaged in insurrection or rebellion, according to the New York Times op-ed by lawyer Deepak Gupta and Brian Beutler, editor-in-chief of Crooked Media. The law would say those people are disqualified from office in the future.

Congress could also pass nonbinding sense-of-Congress resolutions that specify which people lawmakers intend to disqualify from office, the New York Times op-ed says. Those resolutions could provide guidance to election officials and judges applying the law after investigations are complete and more facts are known.

Trump could appeal a Section 3 determination by Congress to the courts, where he would have to face detailed questioning in a judicial proceeding, the Washington Post op-ed says.

Even if Congress doesn’t act, it’s likely that someone will ask a court to declare Trump ineligible for office if he runs again for president, according to the Bloomberg Opinion article by Noah Feldman, a professor at Harvard Law School.

The House and Senate should pass resolutions censuring and disqualifying Trump from ever serving in office - federal or state - again.  It would seem to be a mistake to leave this option - which only requires a simple majority and which is certain to pass - on the table.  

I would add that the impeachment disqualification provision only applies to federal office, so Trump could run for Florida governor, for example.  Section 13 has the additional advantage that it disqualifies a person for both federal and state.

OOP's short takes:

  • I personally cringe whenever I hear Trumpers complain of "cancel culture."  They are only opposed to cancel culture when it is used against their side. Trumpers have no problem using cancel culture to destroying the careers and reputations of anyone who dares oppose Dear Leader.  Let's not forget all the whisteblowers and members of Congress that Trump and his goons targeted for daring to oppose the President.  And let's not forget forever Trump loyalist Vice President Mike Pence who faced an angry mob of Trumpers who were out to cancel his life because Pence would not follow Trump's demand that he throw out Biden electoral votes, which Pence, of course, had no power to do.  
  • I am a huge proponent of free speech, but something needs to be done about media outlets and social media that continues to spout misinformation and lies.  The riot at the Capitol makes clear that there is a segment of people who will become radicalized when constantly fed lies that seek to reinforce their biases. 
  • Over 100 pardons and commutations are coming tomorrow, Trump's final day in office.  I am still betting Trump pardons himself. What does he have to lose in issuing such a pardon?  Certainly most of Trump's family will receive pardons.  While I certainly don't agree that acceptance of a pardon is an admission of guilt, as some have argued, I have little doubt that the Trump children have an actual need for federal pardons.  The problem is they have a bigger need for state pardons because their bigger problem is with prosecutors in New York.
  • Numerous Trump supporters who stormed the Capitol on January 6th, were caught on video saying they believed they were acting at the request of President Trump.  Since their arrest, the rioters have said the same thing.  Since most of the charges against them are federal, Trump could issue a blanket pardon to the rioters and they could walk free.  But Donald Trump won't do that because such a pardon does not help Donald Trump.  Those Trump supporters are about to learn an important lesson.  At the end of the day, Trump cares only about himself and what is in his best interests.  The rioters were being used by Trump. They were Trump's Chumps.

Thursday, January 14, 2021

Indiana Attorney General Todd Rokita Refuses to Condemn Armed Insurrection of Nation's Capitol

On January 6, 2021, supporters of Donald Trump, egged on by the President Donald Trump's speech and that of his son, Donald, Jr., Rudy Giuliana, Rep. Mo Brooks (R-AL) and others, engaged in an assault on the nation's capitol in an effort to stop the counting of electoral votes which would officially elect Trump's opponent, Joe Biden.   During the assault, rioters broke into the Capitol, beat police officers, and searched the Capitol building looking for members of Congress to kidnap and/or kill.  A gallows was constructed with a noose to carry out the executions.  Rioters angry at the Vice President for not agreeing to carry out Trump's request that he simply not count Democratic electoral votes, chanted "Hang Mike Pence" as they hunted for the former Indiana Governor during their search.  Fortunately, a quick-thinking Capital Police officer led the approaching mob away from an open door to the Senate chambers where the Pence was located.

Indiana Secretary of State Todd Rokita

Rioters also targeted other politicians, in particular, House Speaker Nancy Pelosi.  They called her a "bitch," a "traitor," and said that they were "coming for her."  One of those involved in the assault said he was thinking of "putting a bullet in [Pelosi's} noggin on Live TV."  Another man at the rally was armed with an assault rifle and hundreds of rounds of ammunition, which the man told friends, was going to be used to kill Pelosi.

During the invasion of the Capitol Building, doors were broken down, windows smashed, and government property taken.   A police officer was lying on the ground as protesters hit him and beat him with a pole attached to an American flag.  Other protesters ironically used poles attached to "Trump 2020" and (ironically) "Thin Blue Line" flags to beat police officers.  Another officer was crushed in a door and yet another police officer's head was bashed in by a insurrectionists wielding a fire extinguisher.  Explosive devices were found located on the grounds of the Capitol and at headquarters of the Republican and Democratic National Committees.  A pickup truck with 11 homemade bombs was found parked just two blocks from the Capitol.  

During the assault on the nation's capitol, five people died, including the officer whose head was crushed by the fire extinguisher.

In response to the attack on the Capitol, the National Association of Attorneys General crafted a letter condemning the attack on our nation's capitol:

“We, the undersigned state attorneys general, are committed to the protection of public safety, the rule of law, and the U.S. Constitution. We are appalled that on January 6, 2021, rioters invaded the U.S. Capitol, defaced the building, and engaged in a range of criminal conduct—including unlawful entry, theft, destruction of U.S. government property, and assault. Worst of all, the riot resulted in the deaths of individuals, including a U.S. Capitol Police officer, and others were physically injured. Beyond these harms, the rioters’ actions temporarily paused government business of the most sacred sort in our system—certifying the result of a presidential election.

We all just witnessed a very dark day in America. The events of January 6 represent a direct, physical challenge to the rule of law and our democratic republic itself. Together, we will continue to do our part to repair the damage done to institutions and build a more perfect union. As Americans, and those charged with enforcing the law, we must come together to condemn lawless violence, making clear that such actions will not be allowed to go unchecked.”

The letter was signed by 50 attorneys general, hailing from virtually every state and four territories.  Newly-sworn in Indiana Attorney General Todd Rokita though refused to sign the letter.  In doing so, Rokita joined such notable Attorneys General as Texas'  Ken "Desperately Seeking a Pardon" Paxton, who is under felony indictment for securities fraud and is currently being investigated by the FBI for bribery and abuse of office.

Instead, Rokita issued a letter he released on Twitter, in which he took the "we must condemn violence in all forms" approach.

Apparently, Attorney General Todd Rokita is unable unwilling to distinguish between random acts of street violence and an organized attempted coup that stormed our nation's Capitol, in an effort to kidnap or kill political leaders and stop the transfer of political power. 

Rokita a a smart guy who knows better.  What he is doing is a craven act of political opportunism, an effort to curry favor with President Trump and the Trump base.  One would think he would learn from the experience from other elected officials, especially Vice President Trump who, while hiding out in the Capital as marauding group of Trump supporters looked to possibly kill him, suddenly realized that his undying loyalty to Trump over the years meant nothing to the President.

Rokita is likely misreading the political winds.  Trump is unlikely to be on the ballot again in 2024 when the Secretary of State is seeking re-election or, perhaps, running for Governor  In that election, GOP turnout in the more rural parts of Indiana will almost certainly return to pre-Trump levels.  Meanwhile, Indianapolis is solidly Democratic and its formerly Republican suburbs have steadily trended more Democratic.  Whatever office Rokita runs for in 2024, he will be the No. 1 target for Indiana Democrats.  Rokita's unwillingness to condemn the armed insurrection of our nation's government won't be looked at too favorably by suburban voters who like to vote Republican as long as the Republican isn't a crazy Trumper. 

Further, it's just a matter of time before someone starts looking through Rokita's campaign finance reports and contact his large contributors to see if they support the Secretary of State's refusal to condemn the armed insurrection of the nation's Capitol.  I believe Rokita also supported the attempt of certain members of Congress, i.e. the Sedition Caucus, to throw out the electoral votes of several states and thus toss out the votes of millions of Americans.  In recent days, big political donors have decided to stop funding politicians, like those in the Sedition Caucus, who refuse to honor the result of American democratic elections.

OOP's short takes:

  • It seems Donald Trump is angry at Rudy Giuliani who he says is to blame for his being impeached for a second time.  Trump has ordered his staff to stop paying Giuliani his reported $30,000 a day legal fee.  Hmmmm, Donald your second impeachment, like your first, is the result of what you did.  As far as Giuliani, who knew that his extreme, undying loyalty to Trump would not be rewarded?  Pretty much everyone.
  • Can we stop pretending Melania Trump is not as awful as her husband?   It took her nearly a week to condemn the riot at the nation's Capitol and only did so after criticism had started to build. Donald Trump has proven himself to be someone devoid of morality and human decency, someone who cares only about himself.   That he could find someone to match his immorality and selfishness is a love story for the ages.  Not sure how the two birds of a feather met, but I imagine it went like this.

Wednesday, January 13, 2021

Trump's Future in Republican Party Looks Doubtful As Impeachment Conviction Looks More Likely

President Donald Trump could have walked away from his 2020 election defeat as the certain nominee for 2024, should he have wanted it.  Even if he did not want to run for President again, he could have been a king maker within the Republican Party, picking his successor and nominees for other offices.  Instead Donald Trump repeatedly lied to his followers that the election was stolen, made calls to state and local elected officials trying to get them to alter the results in his favor, and then encouraged members of Congress (i.e. "The Sedition Caucus") and the Vice President to challenge the counting of electoral votes.  When none of that worked, Trump invited a mob to Washington, DC on January 6, 2021, the day the electoral votes were counted, then spoke to them, lighting the fuse that led Trump supporters to storm the Capitol.  

It was that last development - inciting an armed insurrection of our government - that many Republican members  of Congress decided went too far.   Apparently, during the couple hours they spent hiding out from marauding Trump supporters who had broken in to the Capitol building to kidnap or kill them, those Republicans came to the realization that Donald Trump is a threat to the American democracy.  Who knew?

Ali Alexander

Actually a lot of us knew.  Many of us warned that the survival of the American Republic was at stake in last November's election.  During his time in office, Trump had shown utter contempt for our Constitution and democratic institutions.  He expressed admiration for brutal dictators and their tactics in suppressing democratic uprisings.   He clearly longed to be an autocrat and had fully intended to seize dictatorial power if given a second term.  And, if about 45,000 votes in three Biden states had gone differently, Trump would have received his wish.  

This afternoon, the United States House of Representatives will vote to impeach Donald Trump, the first President to be impeached for the second time.  The articles of impeachment will be immediately transmitted to the Senate.  Senate Majority Leader Mitch McConnell, who is demoted to Minority Leader on the 20th, initially resisted the idea of impeachment and said it couldn't be taken up until the 19th, the day before Trump leaves office.

In the last 24 hours, McConnell has changed his mind.  McConnell and future Majority Leader Chuck Schumer are discussing using emergency rules to possibly bring the Senate back from its recess early.  What's worse for Trump is that McConnell is now indicating he may support the House's impeachment articles.  He would no doubt bring with him at least 16 more Republicans, enough to secure Trump's conviction.

But that's not the vote McConnell and the other Senate Republicans are most interested in.  Following Trump's conviction, a second vote would be taken on whether to disqualify Trump from ever holding federal office again.  The disqualification vote would take just a simple majority.  Most Republicans in the Senate want Trump gone. 

Over the last four years, the GOP has jettisoned its conservative principles to become a personality cult which feeds on Trump's lies and wild conspiracy theories.  Supposedly McConnell is bothered by the GOP's loss of its conservative principles.

Back in the real world, McConnell cares little about conservative principles, but cares a lot about political power.  The fact is last November Trump ran behind virtually every Republican statewide candidate in the country.  Then the Georgia runoff election came, and in a protest vote against Trump, Republican voters crossed over to elect two Democrats.  McConnell now views Trump as a political albatross.  He realizes the Democrats are about to hand him and his fellow Senate Republicans the opportunity to remove the Trump albatross from the neck of the Republican Party.  And they make take it.

OOP's short takes:

  • Three GOP members of Congress, Mo Brooks of Alabama, and Andy Biggs and Paul Gosar, both of Arizona, are being questioned about their role in assisting Ali Alexander, leader of the Stop the Steal group whose rally culminated in the storming of the Capitol.  Alexander is claiming he needs $2,000 a day for security since the rally because he is being targeted by “witches and Wiccans” who “are putting hexes and curses on us." Alexander has been convicted of two felonies, property theft in 2007 and credit card abuse in 2008.
  • Don't be surprised if the attempted insurrection of the Capitol on the 6th turns out to involve a lot more planning and assistance than has so far been revealed.
  • Congressional criticism of Vice President Pence not implementing the 25th Amendment to remove Trump is beyond unfair.  Pence simply does not have the authority to do that on his own...he has to have a majority of the Cabinet members support his decision.  Given that three have already resigned since the coup attempt last week, Pence is left with several acting cabinet members i.e. Trump stooges, who would never vote to remove the President. The real blame for Pence's inability to use the 25th belongs with Congress as it has never used the option under the 25th Amendment to create another body to replace the cabinet when it came to considering the fitness of the President.  That should have been done decades ago.
  • Indiana's Eli Lilly's PAC has announced that it expects the Congressional candidates to whom it contributes should show “respect for people and respect for our democratic process and institutions" and that it would "suspend political giving to those who voted against certification of the 2020 election results.”  That includes, four members of Indiana's congressional delegation, Jim Banks, Jackie Walorski, Greg Pence, and Jim Baird.  Other Indiana members of Congress bailed on challenging the results after the attack on the Capitol.
  • The Lincoln Project has played a lead role in encouraging Corporate America to defund members of the Sedition Caucus.  Scores of companies have announced that they are cutting off contributions to those members of Congress who pulled the stunt of trying to challenge the electoral college results.
  • Some Republicans balked at wearing masks when members of the House were moved off floor to a more secure location.   Now they're angry at metal detectors being installed at the entrance of the House chambers.  Geez, when did my GOP become the party of stupid?

Sunday, January 10, 2021

Nikki Haley Attempts to Pivot Away from Trumpism; It is Time for Conservatives to Retake the GOP from Trump Cult

Following the Trump mob assault on Congress last Wednesday, I have watched a lot of Republican officials suddenly decide it was time to distance themselves from Trump.  One was former South Carolina Governor and UN Ambassador Nikki Haley.  From Politico:

Former U.N. ambassador Nikki Haley sharply criticized President Donald Trump over the Capitol riot and his behavior since the election, telling Republican National Committee members in a closed-door speech Thursday evening that Trump’s actions “will be judged harshly by history.”

That makes my blood boil.  Donald Trump's character was not suddenly revealed to Nikki Haley by what he did on Wednesday.  Trump's character was well-known to many of us Republicans before he was ever nominated in 2016.  Even if Haley was somehow in the dark about what type of person Trump was, she certainly knew what type of person he was by the time she ceased working for his administration in October 2018.

Former U.N. Ambassador Nikki Haley

For four years, Trump has embraced conspiracy theories, encouraged violence, and cozied up to white nationalist organizations.  For two months, he has been claiming, without any proof whatsoever, that the November election was "stolen" from him.   He's developed a cult following over the years and his followers would do anything he told them to do.  With the fuel already poured, Trump lit a match on Wednesday.  Following his speech to supporters/seditionists, they walked to the Capitol building and stormed it in an attempt to stop the counting of the electoral votes.  That is exactly what Trump wanted to happen.

Another Capitol Police officer died this morning, making six people who have died as a result of the insurrection instigated by Trump.

Haley is one of the few officials who managed to escape from the Trump administration with her reputation mostly intact.  It was even suggested her resignation was perhaps a protest against the President she would occasionally criticize.  But then she published a book, "With All Due Respect," in which she outed other administration officials who had worked behind the scenes to protect the country from Trump's excesses.  With the book and subsequent attacks on "Never Trump" Republicans, Haley had made the calculation that her career would be best served by fully embracing Trumpism and kicking traditional conservativism to the curb.  On Wednesday, she suddenly realized she had made a bad bet with her book.  Haley's speech Thursday was an attempt to walk back her embrace of all things Donald Trump.

When I saw the news about the speech, I couldn't help but send her a tweet:

Last week, I've heard Trumpers who claim to be "conservative" argue that Congress should be able to override state elections, that the Vice President has absolute authority to disregard state electoral votes, and that government should tell private companies they have to publish objectionable material on their internet websites.  Throughout the four years of Trump, I have watched these same people applaud Trump's attacking free trade, his running up huge budget deficits (during a time of economic prosperity), his playing footsies with America's enemies, dictators who suppress human rights, while undermining our allies at every opportunity.   But it didn't stop there. These Trumper "conservatives", who claim to support the Constitution, had no problem with Trump's assault on free speech,  his refusal to submit to congressional oversight mandated by the Constitution, his ignoring the emoluments clause which limits his ability to personally profit from his position, and his continued pursuit of autocratic powers.

No real conservative would support any of this nonsense.  But you know who would?  Someone who supports totalitarianism.  Someone like a Communist.  Or, apparently, a Trump supporter.

As I've said many times before.  Trump is not the problem.  The problem is the Trump enablers, the people who supported the President and refused to ever hold him accountable for anything he did, including undermining the conservative principles upon which the GOP is based.  This includes people in Congress, people like Josh Hawley, Ted Cruz, Devin Nunes, Matt Gaetz, Louie Gohmert, and Mo Brooks.  It also includes people in the conservative media types, people like Sean Hannity, Tucker Carlson, Laura Ingraham, Rush Limbaugh and Hugh Hewitt, who have enriched themselves by setting aside their conservative principles to slavishly appeal to the Trump cult.

The time is soon approaching for real conservatives to retake the GOP from the Trump cultists.  When that happens, we can never forget those who betrayed us.   The Trump enablers need to be held accountable.

OOP's short takes:

  • There also needs to be action taken against those members of Congress who participated in the attempted coup by their ridiculous vote not to accept slates of electors already certified by the states.  People like Josh Hawley and Ted Cruz knew Congress had no power to do that and they knew what they were doing was giving oxygen to the false "stolen election" narrative which led Trump supporters to storm the Capitol just hours earlier.  Congress should consider censuring those members who pulled that stunt.
  • Another option I saw proposed, which I like a great deal, is to build a monument reflecting the attempted insurrection and sedition which took place on January 6th.  On the monument, you could list all the names of the insurrectionists/seditionists who attempted the coup so their names would be engraved in stone for prosperity. (Not only the rioters but also the members of the Sedition Caucus in Congress.)  Nothing like shame to deter one from ever pulling this stunt again.  The Sedition Monument wouldn't even have to be on government property.  It could be on private property in the D.C. area.  You could even have a museum associated with it and show videos of what happened that day.  We should never forget what certain traitors tried to do to our country that day.

Friday, January 8, 2021

Georgia Republican Cross-Over Vote Elected Democrats Ossoff and Warnock to U.S. Senate

On Tuesday, Georgia held a run-off election featuring two U.S. Senate seats.   In an upset, the two Democratic challengers, Raphael Warnock and Jon Ossoff defeated Republican Senators Kelly Loeffler and David Perdue.  The two victories gave Democrats control of the U.S. Senate.

Usually in runoff elections, turnout drops dramatically from the general election that preceded it. This time that did not happen. About 4.5 million Georgians turned out to vote, nearly 90% the total that voted in the general election.

Can the Democrats' two Senate wins be attributed to Democrats turning out more voters than the Republican Party?

Actually, Georgia Democrats did not beat the Republicans at turnout.  Fortunately for political analysts looking at the Georgia runoff, there was a third race on the January 5th ballot, a contest for the Georgia Public Service Commission.  

In a state like Georgia, which doesn't register voters by political parties, the best way of measuring partisanship in an election is to look at low profile races on the ballot to establish a baseline.  When entering the voting booth, voters generally know about candidates at the top of the ballot.  But as voters make their way down the ballot, they soon encounter races for which they know little beyond the names of the candidates, if they know that.  It is at that point that people's partisanship kicks in to guide their choices.

Below is a table of the election results in Georgia:

Ossoff (D)    2,247,312 50.5%
Perdue (R)   2,206,009  49.5%          D margin of victory: 41,303

Warnock (D) 2,266,333  50.9%
Loeffler (R)  2,187,042  49.1%         D margin of victory:  79,291

Public Service Commission

McDonald (R) 2,288,390   50.4%
Blackman (D)  2,243,676   49.6%   R margin of victory:  44,714

So in the Ossoff-Perdue race, 86,017 voters scratched, i.e. voted for the Democrat Ossoff and then voted for the Republican for Public Service Commission.  In the Warnock-Perdue race, it was 124,005 Republican voters scratching.

It is highly unlikely it was Democratic-leaning voters casting their ballots for Republican McDonald.  Almost certainly McDonald won because a (slight) majority of voters in the Georgia run-off election were Republican or leaned Republican.  But many of those Republican-ish voters did not like Loeffler and Perdue at the top of the ticket

I think the problem for the GOP was that the two Senate seats became nationalized.  Georgia voters, including a significant percentage of Republicans that lived in the state, wanted to send a message of disagreement with Trump and their two Senators who had tied themselves so closely to the President.

OOP's short takes:

  • It looks like The House is going to impeach Trump again, and this time, there may be some Republican support for his removal in the Senate.  So encouraging foreign powers to interfere in an American election, obstructing justice, dangling pardons, refusing to cooperate with legislative oversight, and abuse of power are not impeachable...but fomenting a mob to attack the Capitol and endanger the lives of members of Congress is a step too far?   Good to know where the line is.
  • Breaking news is that Trump won't attend Biden's inauguration.  In other news, water is wet.
  • It is being reported that Trump is considering a self-pardon.  Yes, there is about a 90% chance of that happening.
  • I hope that one thing that will be high on a President Biden's list of priorities is ethics reforms.  One thing we learned from the Trump presidency is we can't expect a future President to do things simply because they are "norms."  Might want to make those "norms" - like a President turning over his tax returns - actual laws with teeth.
  • Yesterday there was yet another record set as to Covid-19 new cases and deaths.  By next weekend, the United States will be at 400,000 deaths.

Thursday, January 7, 2021

The Nation Needs Vice President Mike Pence to Push for Trump's Removal Via the 25th Amendment

The year was 1987, and I was flying from Indianapolis to Washington, DC.  I had signed up for congressional campaign school which offered training for prospective candidates and their campaign staff.  The class had workshops and speakers, the most prominent of which was a young Georgia congressman named Newt Gingrich.

While getting on the plane I saw Mike Pence and struck up a conversation.  

In law school, I was editor of the law school newspaper, the Dictum.  Pence, who was a year ahead me, would occasionally submit a cartoon for the publication.  He would often stop by the Dictum's office, and we would both talk politics.  Being outspoken conservatives, a rarity at Indiana University School of Law at Indianapolis, we certainly had politics in common.  We also were both from Southern Indiana (he Columbus, me Madison) and had both attended tiny Hanover College at the same time (though I left after my Freshman year.) 

Up until that plane ride, I had not known Pence was interested in running for elected office.  After returning from campaign school, I decided not to run for Congress.  Pence though did run and lost, twice, before he won in his third attempt.  

People don't believe me, but in law school Mike Pence was very personable and well-liked, even by the liberals in the school.  He was very down-to-earth and had no problem making jokes at his own expense.  His first few years in Congress, Pence was a principled conservative who wasn't afraid to take on those in powers in pursuit of those principles.

Somewhere along the line, ambition got the better of Mike Pence.  I think it was probably near the end of his time in Congress, certainly before he ran for Governor.  Like ambitious people do, sometimes they start setting aside their principles to curry favor with those who they think might help them get ahead.  That strategy ultimately led to Pence becoming VP.  For the last four years, Pence has continued selling out his principles in the hopes of courting Trump's fervent base of supporters, thus positioning himself to run for President after Trump leaves office.

Last night, I saw a Mike Pence I haven't seen in 25 or more years.  Pence stood up for his principles and the Constitution, and refused to be brow beat by Trump into doing something he could not legally do...disregard electoral votes that did not favor Trump in order to hand the President a second term.  He was impressive, a leader this country desperately needed as pro-Trump rioters were literally banging on the doors of the chamber trying to get in and stop the count of electoral college votes which would hand the election to Joe Biden.

Of course, the Trump faithful immediately turned on Pence on Twitter.  But, realistically, Pence's political career was over before he stood up to Trump anyway.  Now he is free to do the right thing.  

The nation is in crisis. There is no telling what President Trump will do in his final 13 days in office.  He's already instigated his supporters to attack and invade the Capital.   How much worse can it get. Well, Trump has the nuclear codes at his fingertips, so it could get much, much worse.  We cannot trust having Trump in office for nearly two more weeks.  He is obviously not mentally well.

Time to dust off the 25th Amendment.  If Pence led the charge to use the 25th Amendment to immediately remove Trump from office, he would be forever remembered as a hero who came through when the nation needed a leader.

OOP's short takes:

  • According to a YouGov poll,  45% of Republicans approved, and 42% disapproved of Trump supporters storming the Capitol to protest Congress from certifying (not the right term) Joe Biden's election victory.  One cannot underestimate how brainwashed so many of my fellow Republicans have become by right wing and social media.  The good news, I guess, is that only 21% of those polled supported what the rioters did.  It astonishing that anyone, except maybe the rioters themselves, approved of yesterday's actions.
  • Checking out my Twitter feed, the chief topics among Trumpers seems to be 1) the Republicans who turned their backs on Trump are traitors; and 2) that it was actually leftist Antifa types who stormed the Capitol, not Trump supporters.  You can't fix stupid.   FYI, I'm not seeing Trumper Tweeters criticize what the rioters did.  I guess "law and order" is only something that applies to leftists.
  • Several people have mentioned to me that the police would have reacted differently to the mob trying to invade the Capitol if the rioters' faces were black instead of white.  I have to agree with that.  I also suspect to that some of the police might have been Trump supporters and restrained themselves because they were sympathetic to the cause.  The rumor is that some police officers even held open doors for the rioters.  That I have trouble believing.
  • Transportation Secretary Elaine Chao, Mitch McConnell's wife, just resigned.  Too bad.  I would have liked her to stay around a cast a vote on the 25th Amendment question.
  • With all the news yesterday, people may have missed that the United States set a new single day record for number of new Covid-19 cases (260,000 plus) and deaths (over 4,000).

Wednesday, January 6, 2021

No, Vice President Mike Pence Cannot Hand the Election to Trump

Today, scores of Republicans in the House and Senate are planning to attack American democracy by challenging the electoral vote in six separate states.  Although these members of the Sedition Caucus claim they are standing on principle and against election fraud, not coincidentally they only found such fraud in battleground states that President Trump lost.  Not surprisingly, they do not have a problem with the rest of the races on the ballots.  Apparently, the fraud conspiracy launched by Democrats and RINOs to "steal" the election only applied to the top of the ballot.

When did my Republican Party become the Party of Stupid?  That is unfair...there is GOP stupid (think Rep.  Louie Gohmert) and then you have Republicans who are plenty smart, but have absolutely no principles or integrity (think Sen. Josh Hawley and Sen. Ted Cruz).  I actually think the latter is worse than the former.


The 12th Amendment lays out how the Electoral College works:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

After the constitutional crisis resulting from the 1876 election, Congress passed the Electoral Count Act which further clarifies Congress' role as to the counting of electoral votes:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

The Electoral Vote Act makes clear that the job of the President of the Senate, i.e. the Vice President, is merely to open the envelopes containing the electoral certificates and Congress' role is to count those electoral votes.  Vice President Pence has no power to pick and choose which slates of electors he is willing to accept.  Further, under the Act, Congress has no role whatsoever in terms of judging how individual states conducted their elections which led those states to certify the appointment of electors.  The only role Congress has is judging how those electors cast their votes to ensure they were done in a regular manner.  An irregular manner might be, for example, Congress finding out electors had been bribed to change their vote.  

Today highlights yet another problem with the Electoral College.  What if both houses of Congress were solidly controlled by Republicans and the vote, especially the electoral vote, had been closer?  One could see Republican members of Congress who are wanting to curry favor with President Trump simply voting to hand the election to Trump.  Sure the Constitution does not allow them to do that, but in the Trump era we have learned that constitutional limits and democratic values don't mean a lot to many Republicans.

Fortunately, it looks like a sizable group of Senate Republicans have realized that trashing the Constitution to ingratiate themselves with losing presidential candidate Donald Trump is not worth it.  This is especially true given the fact Trump's antics have now cost Republicans two Senate seats in Georgia and control of the U.S. Senate.

As I've warned on these pages before, the problem with the Electoral College is not that a President can win the electoral vote while losing the popular vote. The problem is the archaic machinery that is associated with how the Electoral College works, including that electors are real people, not numbers.  A reform to the Electoral College could be the elimination of actual electors so that the award of electoral votes is automatic upon state certification. 

Make no mistake about it, what the Sedition Caucus is doing today undermines federalism and American democratic values. There is nothing remotely  "conservative" or patriotic about what they are doing.  They are advocating burning down our Republic to ingratiate themselves with Donald Trump and his personality cult.  It's disgusting.

OOP's short takes:

  • Prior to November's election, Trump had to know that it was likely that Biden would win the popular vote in states with sufficient electoral votes to win the election.  Yet, Trump seems genuinely surprised that Biden will be declared the winner today.  I expect that Trump was advised of the convoluted, archaic process leading up to today and simply assumed that Republican local, state and national officials would use their role in the process to hand him the election.
  • Appointed Republican Senator Kelly Loeffler proved to be a spectacularly bad candidate.  She might even be as horrific a candidate as former Arizona Senator Martha McSally, who also only made it into the Senate via gubernatorial appointment.  Not ironically, both Loeffler and McSally stupidly lashed themselves unapologetically to Donald Trump in a swing state where Trump was not particularly popular and the voters were clamoring for someone who would be independent-minded.
  • After the Georgia debacle, it appears some Republicans in Congress are finally turning on Trump, apparently hopeful that we will simply forget the fact that for four years they have enabled the very worst behavior from Trump.   Hell no.  We should never forget how how these Republicans trashed the conservative movement and the legacy of Ronald Reagan to go all in on Trump's ugly brand of politics.
  • I really think Congress should consider impeaching Trump for that phone call to Georgia Secretary of State Brad Raffensperger in which Trump strongly suggested that Raffensperger could be prosecuted if he didn't manufacture enough votes to give him the election in Georgia.  (Yes, an ex-President can be impeached.)  I cannot imagine any behavior being more impeachable than that.  I am not so sure that Republican Senators will be that thrilled about supporting him once again, particularly since he'll no longer be in power.  While Trump will be out of office in two weeks, the impeachment process would disqualify Trump from ever running for President again.  I know a lot of Republicans in Congress, particularly, in the Senate where the 2/3 vote is needed, would like that outcome.  Whether they would publicly vote for it is a lot more questionable.

Democrats Win Both Georgia Senate Seats, Gain Control of the U.S. Senate

It's 5:30 a.m., and 98% or the vote has been tallied in the Georgia Senate runoff contest.  Democrats are on track to win both seats, making the Senate 50-50 with control going to the Democrats as Vice President Kamala Harris will be in a position to break ties.

Both party caucuses in the Senate have already elected their leaders, but now that the Democrats will be in control they will swap titles.  As the new majority leader, Chuck Schumer will control the agenda.  Democrats will chair all Senate committees and have a majority on every committee.

As of writing this, Democratic challenger Raphael Warnock leads Republican Senator Kelly Loeffler with with 50.6% of the vote.  Several media outlets have already declared him to be the winner.  Democratic challenger Jon Ossoff leads Senator David Perdue with 50.2% of the vote and has a raw vote lead of 16,370 votes.  Almost all of the remaining vote to be counted will be coming from heavily Democratic counties in the Atlanta area.   

There are also some 17,000 military and overseas ballots to be counted.  The military ballots tend to run more Republican while the overseas ballots favor Democrats.  Ossoff has not been declared the winner by any media outlets and will face a mandatory recount if his win total is less than .5%.  It looks like he may exceed that amount, however.

OOP's short takes:

  • I hopped on Twitter a couple times last night expecting that Trumpers would be talking about how Perdue and/or Loeffler were going to win the election.  I was surprised though that none of them were saying that.  Instead, all they talked about, even when Perdue and Loeffler were ahead, was that the Democrats were cheating to win the two Senate seats.

Tuesday, January 5, 2021

Ogden on Politics Predicts Georgia Runoff Senate Races

I am, finally, ready to make a prediction in the two Georgia Senate run-off races that will decide control of the United States Senate.

After the general election, I believed Republican Senators David Perdue and Kelly Loeffler were solid favorites to win the run-off election necessitated because no candidates reached 50%.  Perdue, in particular, fell only a few thousand votes short of the threshold which would have allowed him to avoid the run-off.

The Democrats have not won a runoff election in the last few decades in Georgia.  The reason is simple.  A lot fewer voters show up for the runoff than the general election which proceeded it.  That favors Republicans who are much better at going to the polls on a consistent basis.  Democrats, and particularly African-Americans who vote heavily Democrat, often skip elections that are not the main event, the quadrennial presidential election.

So Perdue and Loeffler were solid favorites in my mind...until the early vote started coming in.

As of writing this, over 3 million Georgians have cast early votes in the runoffs.  The highest turnout in a runoff in Georgia is 2.1 million.  So Georgia is already nearly a million votes ahead of its highest turnout runoff election and "election day" has not happened...or, I should say, is only today happening.  In November, 1/3 of Georgia's total vote came from votes cast on Election Day.

The three types of ballots, and who they favor is listed below:  
Absentee Ballots (heavily Democratic)
In-Person Early Voting Ballots (modest Democratic edge)
Day of Election Ballots (heavily Republican)
The characterization above applies to a battleground state like Georgia, and takes into consideration that, this cycle, President Trump has been extremely dismissive of mail-in absentee ballots and encouraged his supporters to vote in person, on Election Day.

Looking at the votes cast, and likely to be cast, I did an analysis based on the percent each party's candidates is expected to get from each tranche of votes:


For the record, just under 5 millions Georgians voted in the November election.  A 4.5 million turnout in the run-off would be an incredible turnout.  

So by the above analysis, the Democratic Senate challengers will win the election by nearly 45,000 votes.  That is actually a pretty conservative analysis.  The Dems will probably get a higher percent of the absentee ballots than 65%.  (Biden would regularly get about 75% or higher of the absentee ballots in battleground states.)  And the Democrats' 55% share of the Early In Person vote is probably a few percentage points too low.  I am also skeptical that, given Trump's constant assertion that the Georgia election was rigged against him and his beratement of Republican state wide officials, that the GOP base will turn out like usual.  In other words, I have doubts that 1.5 million voters will go to the polls today.

So my prediction:  Democratic challengers Jon Ossoff and Raphael Warnock narrowly defeat their opponents, Republican Senators David Perdue and Kelly Loeffler.

Then again, I could be wrong.

OOP's short takes:
  • The idea of runoff primaries and runoff general elections when a candidate did not get 50% is a rarity in American politics and is mostly found in the Southern states with heavy African-American populations.  It was designed by the Democratic Party as a way of diminishing black voting clout at a time during which African-Americans voted heavily Republican.  There was a fear that the significant black population would vote together and nominate/elect black candidates, or white Republicans, with a plurality of the vote in multi-candidate fields.  With the run-off election, Democrats, in particular white Democrats, knew that they would always prevail in the runoff given the larger white population voting solidly Democrat.
  • The irony is that Georgia Democrats are blaming Republicans for the runoff election system that their party designed.
  • As far as those dismissing my prediction outlined above, I would remind them that in November I picked 49 of 50 states correctly in the presidential contest, including Georgia.  (I only missed North Carolina - barely.)  We don't need to discuss any of my other election predictions I made that cycle.  Irrelevant.
  • I think there might be as much as a 50% chance that Trump faces prosecution for the phone call in which he tried to pressure Georgia Secretary of State Brad Raffensperger to "find" enough votes to let him win the Peach State.  The problem for Trump was that when he made the call Raffensperger was sitting in his Atlanta office.  Thus, the decision on whether to prosecute Trump will be a decision made by a Democrat, Fani T. Willis, the newly-elected Fulton County District Attorney.  A federal pardon won't stop the prosecution and Georgia doesn't have a gubernatorial pardon so Governor Kemp cannot help him.  Not that Kemp would be inclined to help Trump given how the President has attacked him.

Monday, January 4, 2021

Trump's Phone Call to Georgia Secretary of State Reflected Unchecked Corruption; Sedition Caucus Still Plans to Try to Subvert American Democracy Wednesday

Last night, the Washington Post published the audio of a phone conversation between President Donald Trump and Georgia Secretary of State Brad Raffensperger.  In addition to Trump and Raffensperger, others were on the phone call including attorneys and staff members.

CNN reports that the White House had made 18 attempts to reach Raffensperger by phone before being successful on Saturday.

The decision to record the phone conversation was made by Raffensperger.  During a previous phone call from Lindsey Graham, the South Carolina Senator had suggested he find a way to throw out legally cast votes to let Trump win Georgia.  When Raffensperger reported publicly what Graham had asked him to do, the Senator claimed Raffensperger was lying  Raffensperger was not about to let that happen again, hence the decision to record Trump.  Still, Raffensperger did not plan on making the recording public unless the President later attacked him and misrepresented what they had talked about during the phone conversation.

Georgia Secretary of State
Brad Raffensperger

It didn't take long for that to happen.  Slammed with a Trump tweet, the audio recording was leaked to the Washington Post. 

During the phone conversation, Trump is heard peddling various conspiracy theories he had read about on social media, or "Trump media" as he called it.  When Raffensperger would point out a conspiracy theory wasn't based on facts, Trump would simply move on to another conspiracy theory.

Let me reiterate.  This phone call took place this Saturday.  The election took place two months ago.  The Georgia election results were certified on November 20th and then recertified on December 7th after the completion of a mandatory recount.  The results have been signed off by the Governor.  After certification, the Georgia electors met and cast their ballots for Joe Biden. Those electoral votes were cast three weeks ago.  That Trump thinks the Secretary of State could now step back in and unilaterally change the election results speaks volumes about his complete ignorance about the process.

During the phone call, Trump made it clear the number of additional votes he was seeking that Raffensperger award him - 11,780 - the exact number of votes Trump needed to overtake Biden in the state.  Trump said he didn't care where Raffensperger got those votes as long as he found them.

Trump told Raffensperger that if he did not change the results he could be exposing himself to criminal prosecution.  Since Trump's Justice Department has the power to prosecute Raffensperger, it was more than a warning - it was a threat.  Trump's attempt to intimidate Raffensperger could well amount to violation of federal and Georgia law.

One thing that didn't get enough coverage was that, during the phone call, Trump suggested that if Raffensperger did not change the Georgia vote totals to favor him, Trump would throw the GOP Georgia Senate candidates under the bus by revealing "facts" at tonight's rally about how Raffensperger and Governor Kemp had rigged the November election against him.

I listened to the entire one hour phone call.  None of it came as a surprise.  That Trump is ignorant, uneducated and peddles conspiracy theories as fact is old, old news.   Sadly, the phrase that best describes Trump's performance during the phone call is "unchecked corruption."

For more than four years, Trump has acted in a lawless manner.  In 2016, Trump's campaign warmly accepted help from the Russians to win the election against Hillary Clinton. Then when the matter was being investigated, Trump obstructed justice, including lying under oath in a statement he gave to Robert Mueller and dangling pardons for witnesses who refused to cooperate, pardons which he is now handing out.  Then in 2019, Trump attempted to use already appropriated military aid to try to bribe Ukraine's President into announcing a phony investigation into Hunter Biden, which announcement Trump could then use against his chief political rival Joe Biden.  Throughout his presidency, Trump has also used his position to personally profit, despite the Constitution's emoluments clauses.  

Through all this Trump's supporters in Congress gave him a pass EVERY TIME.  As a result, Trump knows he can be as corrupt as he wants to be and his Republicans enablers will always have his back.  When he made that phone call Saturday, Trump had no reason to think that any of his supporters would turn on him.

One has to wonder how many other of these phone calls Trump made.

OOP's short takes:

  • I cringe every time the media label as "conservative" the members of the Sedition Caucus who, on Wednesday, will argue that Congress should override the results of a democratic election and award Trump a second term.  Real conservatives believe in free and fair elections, and state and local control of those elections.  And real conservatives also believe in democracy not autocracy.  Members of the Sedition Caucus are as far from being "conservative" as one can be.
  • Last week, Indiana Senator Mike Braun announced he is joining the Sedition Caucus.  On the House side, Hoosier Representatives Jim Baird, Jim Bank, Trey Hollingsworth, Greg Pence and Jackie Walorski will make the Sedition Caucus' case for autocracy over democracy.
  • Since they are supposed to be considering election "fraud" and efforts to rig the election, one wonders if those seditionists will bring up the Trump-Raffensperger phone call and others like it that the President might have made?  I'm guessing "no." 
  • News is breaking that the House is preparing a censure resolution for the Trump's participation in the phone call. Of course, Republican House members are responding that the phone call was perfectly fine because everything Trump does, no matter what, is always okay.
  • I used to believe that real conservatives might choose to walk away from the GOP should Trumpism become permanent. Now, I'm starting to believe that it will be Trumpers leaving the GOP to form their own party.  Yeah, good luck starting a political party which has no philosophy except cultish worship of "Dear Leader."