The Divisiveness Defense (Update)

Is the House of Representatives’ second impeachment of Trump serious? Maybe they’re hoping the threat will push him to resign in exchange for Pence handing him that sweet pardon he can’t give himself, or the invocation of the 25th Amendment which would take the onus off Pelosi and the Dems and shift it onto Mike Pence and what’s left of the Cabinet.

There only being a few days left in the term, and the House both rushing while dilly-dallying its way to a vote, now supposedly set for Wednesday, January 13, when they could have had the deal wrapped up last Friday if it were so critical and necessary, or Monday, or Tuesday. That’s the thing about exigency. If it’s critical, do it now. If you don’t have to do it now, then it’s not critical.

Of course, Mitch McConnell has already used his last exercise of clout to schedule a Senate trial for one hour after Joe Biden will be sworn in as President, giving the Chief Justice enough time to administer the oath, shake hands and make it over to the chamber. Whatever happens, Trump won’t be convicted under the Article of Impeachment until he has completed his term of office. Since he won’t be attending the inauguration, he’ll have plenty of time to get a good seat in the Senate gallery.

If this were a criminal prosecution in court for incitement of insurrection under 28 U.S.C. § 2383, the elements of the crime would be worthy of serious discussion. Did his words “incite”? Was that his intention? Was the lawless conduct “imminent”? Or was this an exercise of Free Speech under the First Amendment that was dangerous, foolish, outrageous, but not criminal? As impeachment is not a legal act as much as a political act, such technical concerns give way to more political concerns.

For that reason, the defense proffered in the New York Times by Representative Tom Reed  (R-NY 23rd District) is about the best one can argue.

[A] snap impeachment will undoubtedly fuel the divisions between our citizens at a time when the wounds of Jan. 6 are still raw. With the start of a new administration and a new Congress, there is a real opportunity to build bridges and unite the American people around our shared values.

Failing to do so will undermine our efforts to bring people together. It may even provide excuses and delusional incentives for those who would incite further violence.

Argued separately, but really just a penumbra of this point, Reed argues that this reinforces the beliefs that drove an insurrection of the Capitol.

Finally, a too-quick impeachment will not suddenly change the minds of millions of Americans who still do not recognize the election of President-elect Biden as legitimate. In fact, rushed proceedings will be seen as validating the view that impeachment is part of a multiyear campaign to delegitimize Mr. Trump’s 2016 election.

He’s not wrong that impeaching Trump now will “fuel the divisions” that have festered for the past four years until the boil exploded on January 6th and spewed pus on the seat of legislative government. Nor is he wrong that it will not change the minds of those who believe that Hugo Chavez returned from the dead to stuff ballot boxes for Biden.

There are many lessons in history about appeasement of those bent on destruction, but we watched them play out over the past four years. After Trump was elected, a thing called “The Resistance” emerged, refusing to recognize Trump as the legitimate president and spending its every waking moment desperately screaming about every offense he committed, real or imagined. They refused to wish him well as the loyal opposition and did whatever they could to sabotage anything that came out of his administration. They wanted him to fail, and they were willing to let America burn just to see it happen. Trump was happy to help.

The tables have now turned, except the unduly passionate wore a viking hat rather than a pussy hat, and ransacked instead of marched. To allow this to influence the consequence of Americans storming their own government is to reward insurrection. Provide incentives and people will act upon them. If insurrection works, then it becomes a legitimate political tool.

More to the point, not taking Trump to task, with prejudice, will not heal the divisions in this country any more than Biden mouthing the words while announcing the givebacks to the progressive wing of the Dems for their votes. Biden won’t be social-justice Liz Warren or democratic-socialist Bernie Sanders, but he will be closer to them than the middle.

And that’s what Tom Reed and the Republicans fail to see when trying to placate the worst of this base. Trump’s votes don’t mean more than 74 million Americans support him, but that some percentage of that rejects the Dems and fears their “reimagination” of America into some radical fantasy. If ten thousand acolytes risked life and limb to go to war as their fearless leader asked of them, it’s a minuscule percentage of Americans, a percentage so trivial that it’s dwarfed by another tiny portion of a nation, transgender people.

So what? We’re a nation awash in loud and violent, but relatively tiny, extremist groups. They drove the narrative over the past four years and served only to push Trump to be the worst he could be. To pander to insurrectionists now would not only be to allow violence once again to drive our national narrative, but to empower Biden to take comfort in the most radical of his party.

The bulk of a nation, hundreds of millions of Americans, don’t scream and riot because they are too busy doing the work that keeps this nation alive and their families fed and clothed, and because they just aren’t violent and destructive people. They were appalled and disgusted by this attack on our Capitol, even if they didn’t vote for Biden. Their unity, the real unity of a nation, demands that the fringe violence be ended. All of it, left and right. We’ve had our fill of crazy and stupid, and a functional, peaceful and honorable nation back.

So no, Member Reed, whatever divisiveness that comes of impeaching Trump as a result of his inciting insurrection is inconsequential. Unity comes from serving the majority of Americans, not bending to the will of the worst, smallest, loudest and most violent crazies on the fringe. Heal this nation by remembering that democracy means the majority rules, whether that means you prefer the elected president or not, and not by fearing the violent crazies.

Update: Per the New York Times, Mitch McConnell supports impeachment.

Senator Mitch McConnell, the Republican leader, has told associates that he believes President Trump committed impeachable offenses and that he is pleased that Democrats are moving to impeach him, believing that it will make it easier to purge him from the party, according to people familiar with his thinking.

36 thoughts on “The Divisiveness Defense (Update)

  1. Skink

    An otherwise shitweasel law professor of mine once said the most productive time a lawyer spends is that spent looking out of a window. It’s then that immediate and often passionate reaction is reconsidered.

    Scott, you and I both initially reacted the same way last week: Trump had to go. We looked out of the window; many in Congress didn’t. And you’re right–pursuing impeachment doesn’t get them what they think they want. Not only can they not complete the process to their own satisfaction, but it only emboldens the fringes. The fringe left pushes for impeachment; the fringe right sees it as more of the same unfair treatment.

    In the end, they’re likely to create more fringes. Is it too late to send them a window?

    1. SHG Post author

      At some point, a decision will have to be made whether this Republic is going to be owned by the fringes or the middle. One screams the loudest and. occasionally, backs it up with violence. The screaming is one thing, the violence is another. Just as we don’t negotiate with terrorits, we don’t appease the violent unless we want more violence when they don’t get their way.

      Trump crossed the line, but he’s just one guy. This isn’t about Trump anymore, but about keeping that Republic no matter what threats the fringes make.

      1. John Barleycorn

        Assuming that you define “terrorist” as an individual or group that advocates perpetrating violence for political ends, this retort of your is straight up fucking nonsense…

        So lets pretend no one needs a spanking and magically somehow the middle is going to negotiate with the “fringe” to keep the republic?

        What does that even look like? Do you think the “fringe” within the tribes just needs to be put in the time-out corner by the “middle”***, and then everything will be fine? Back to the status quo, etc etc…

        Give me a fucking break…. this recycled “middle-centrist” dogma fantasy rhetoric is straight up lazy thinking. Hell, I would settle for competence but that too is long dead! Just take a look at the day care center the House of Representatives has become not to mention the Senate daily making a mockery of the supposedly greatest deliberative body on the planet.

        If the loon-a-ticks are in fact, in aggregate, jointly “running” the supposedly middle majority of the Lunatic Republic, then let them lunatics from both sides draw some more lines on the map of the Republic so they can all have their special Kum Ba Yah stew while they sit in their own shit.

        Wake the fuck up there is no longer a noble purpose to be found, the fucking mail does not get there on time, and the glue of the economic math-s flew off the cliff landed and was swept out to the middle of the pacific ocean and sunk to the bottom of the Puerto Rico Trench.

        But thinking is hard so lets just round it off and hope the filibuster will save us? Besides that stink everyone is smelling from ever corner throughout the land isn’t even real! Right?

        I am afraid the trouble is not people “looking out the window” often enough, the problem is they can not reconcile what they are seeing out the window and don’t even think what they are seeing is “real”.

        P.S. “At some point, a decision will have to be made…” Ya think? Too funny! And here I thought the decision was already made?

        ***Susan Collins first thought during the capitol shenanigans via the Bangor Daily News “My first thought was that the Iranians had followed through on their threat to strike the Capitol..”

        1. SHG Post author

          Do my eyes deceive me, or are you actually trying to make a cogent argument? So what if you fell short, I am deeply moved by your effort.

          1. John Barleycorn

            FYI, I was going to go with this in retort to your, “At some point, a decision will have to be made…” line:

            Do, you figure I should raise the price of my Susan Collins sex dolls now that she has pretty much exposed the fact that bubbles are real?

            Equally cogent but more concise really, all things considered…

            What can I say I am out of practice!


            P.S. Don’t break any finger nails on the Twitters this afternoon… It is “crazy” out there these days….

    2. The Real Kurt

      “Can we send them a window?”

      I agree – defenestration is appropriate in this case.

      Oh, wait. I thought at first you meant “send them out a window”

      The Real Kurt

  2. Ray

    On January 6th this man made Richard Nixon look good in comparison. Arnold Swarzennager said it best in his recently released video as to what all decent Americans should do–very powerful. I think if I were in the House that I would vote to impeach. It might only be symbolic, but sometimes symbolic acts are important. I don’t buy the healing the nation argument for letting this mans disgusting, revolting, atrocious behavior, and his total disregard utter contempt for and debasement of the highest political office in our country get a pass when people died.

  3. B. McLeod

    Because it can’t be done before Trump is put out anyway, the justification that it must be urgently accomplished to protect the nation from his abuses of power is exposed as a false one. Democrats are doing this because they hate Trump, and because they are as infantile as he is. There is absolutely no concern for the public interest.

    On the Republican side of the Isle, it is not merely a concern about a few crazies. As of yesterday, Trump’s updated approval rating was still 33% overall, and 71% among Republicans. A “minority” of voters, certainly, but a large enough minority that Republican office holders will not lightly alienate them. This is why many if not most Republicans will continue to run interference in the efforts to punish Trump. It has nothing to do with avoiding divisiveness, and everything to do with keeping the good will of Trump supporters as he exits the stage

      1. B. McLeod

        Trump. Many of his detractors are demagogues in their own right (or left, as the case may be), envious of his ability to outperform them.

        1. L. Phillips

          Thank you. This post just crystalized a group of thoughts I have been trying to herd into some kind of order over the last week, plus it is firmly attached to the bedrock of “never ascribe to malice actions that can be explained by simple stupidity”.

      2. Hunting Guy

        You’re giving the politicians and general public too much credit.

        They can’t think that far ahead.

      3. Rengit

        My concern with that kind of thinking, establishing a rule and then expecting fair play and consistency, is that too many of our politicians have indulged a lot of demagoguery because rather than remembering that they actually are politicians, they act as if they play politicians on TV or social media. What happens when VP Harris marches with a BLM crowd to, let’s say, a Republican-dominated state house that is going to pass a law providing heavy penalties for and increased enforcement techniques against highway occupations, and she says, “This is a blatantly unconstitutional violation of free speech and the right to protest, without justice there can be no peace, let’s get in their faces and show them what you really think about this bold faced stand to uphold white supremacy”, all the sorts of things that we have had politicians say on TV, and then some of them storm the legislature.

        Do you really think a Dem-controlled House or Senate would impeach, let alone convict, based on this? Kamala Harris was in the Senate, she would know how most of her colleagues would probably come down on this. If there’s not impeachment or conviction, how do you tell not just Trumpy people, but basic conservatives, that such a thing would be very different than the Capitol insurrection? Because it’s a state house, not federal? Because it’s about a law, not an election certification? I doubt these potential distinctions would be convincing to most people, and this kind of scenario isn’t that unlikely.

        1. SHG Post author

          The first step in stopping hypocrisy is to not be a hypocrite. It’s not that big a step. The next one, however, is huge.

      4. CLS

        From the outside looking in, this rush to impeachment–again–looks terrible. We’re still losing people to COVID, not nearly enough vaccinations have been administered or distributed, and the first thing our Democrat controlled government does is yell at the Orange Man.

        If we examine this from another perspective, one can view honest intentions in another impeachment. People are scared after what happened last week and maybe the Congrescritters think this is a measure that will appease their base.

        It’s really a pointless attempt that just gives the Idiot sitting in the White House more attention. Which he loves, and the terminally progressive still can’t grasp this four years later.

  4. Carolynn J Sangerhausen

    History will record that a sitting president incited an insurrection against the United States.
    History will also record our response:

    -either that, Donald Trump got away with incitement to insurrection;
    -or, he paid a penalty.

    1. SHG Post author

      Be cautious about invoking history. It’s got a funny way of seeing things that seem simple at the time but turn out a bit different than expected.

  5. Charles

    Everyone remembers “avoiding divisiveness” as the reason Gerald Ford pardoned Richard Nixon, but that was only one of Ford’s stated reasons.

    In Proclamation 4311 granting the pardon, Ford justified the pardon in part on avoiding further divisiveness and in part on the fact that Nixon already had suffered the indignity of resigning:

    “The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”

    The following day, the New York Times ran the headline, “Ford Gives Pardon to Nixon, Who Regrets ‘My Mistakes'”, with subtitles of “Pain Expressed” and “Ex-President Cites His Sorrow at the Way He Handled Watergate.”

    Our current fact pattern is not the same.

      1. Dan Quigley

        So very sorry, esteemed one. I will try to remember to use the Tube before the lecture. Thanks for the hall pass.

  6. Stephanie

    There is proof of Trump’s call to Georgia’s Secretary of State, that would be part of the impeachment proceedings.

  7. Ray

    He’s now going to speak at the Alamo? Would you believe all this if it were a movie or a Netflix series? Disgusting.

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