Questions

1. Why did Mitch switch? Until today, Yertle signaled that he would delay a Senate vote on removal until after Biden takes office. But two new stories -- this one by Axios and this one by the NYT -- suggest that McConnell now wants to rid his party of the Trumpian stench ASAP.

 

Seems to me that something happened within the last 24 hours. Something changed Yertle's mind. Was it something Trump said?

 

2. Does Donald Trump really believe it? In his heart, does he truly believe that Pence had the ability to make him president? Does he truly believe that he won the election? Specifically: Was he serious when he said (more than once) that he won a landslide? That he won every state? Is he just saying these things, or has he managed to convince himself of this alternative reality?

Does he truly believe what he said today -- that "they" analyzed his pre-riot speech and proclaimed it to be "totally appropriate? Who are "they"? Has he persuaded himself that "they" exist in the real world?

 

3. What the hell does this passage of the 25th Amendment mean?

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

I've boldfaced the words that bug me: "May by law provide." What law? Do you see a relevant law laying around here somewhere? 

 

It would seem that we need a new law to establish such a body. A new law would require the signature of the President -- unless Congress has a veto-proof majority. You know how rarely that happens. Practically speaking, the President would have to sign off on his own removal. 

I was nine or so when this Amendment was passed. Even at that age, I would have seen the problem here, if someone had asked for my opinion. The 25th Amendment is badly written. 

So is the 14th Amendment. 

4. Can someone explain to me how the 14th Amendment is supposed to work?

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. 

But who determines whether aid and comfort was given? Who determines which actions constitute engaging in insurrection or rebellion? 

 

The writers seem to have thought that the answers would always be obvious and inarguable. Right now, it's obvious to me -- and to most Americans -- that Trump incited an insurrection. But Trump will always insist that his words contained no such incitement. He gave a perfect speech, just like that Ukrainian phone call. 

 

Trump is like a '30s mobster who argues in court that the phrase "Take him for a ride" should be taken literally. Any judge or jury will sneer at such an argument.

 

In the current situation, who is the judge and who is the jury? We need someone whose word is final. But the 14th amendment does not tell us who that someone is. 

 

Does the job fall to Congress? If so, how does it express its judgment? A law? A resolution? What?

 

Perhaps, after Biden takes office, this Amendment can be used to unseat the traitors in Congress who aided the insurrection. Maybe it can even be used against Lindsay Graham for this outrage. But I don't see how the 14th can be used against Trump. 

5. Why can't the insurrectionists be tried for treason under the Constitution? This is a question I've asked more than once over the years. Here's the Treason Clause:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

It says "levying war." It does not say "levying war on behalf of some other country." The Treason Clause should apply to any violent action intended to replace democracy with non-democracy. 

There is one famous precedent...

The offense of “levying war” against the United States was interpreted narrowly in Ex parte Bollman & Swarthout (1807), a case stemming from the infamous alleged plot led by former Vice President Aaron Burr to overthrow the American government in New Orleans. The Supreme Court dismissed charges of treason that had been brought against two of Burr’s associates—Bollman and Swarthout—on the grounds that their alleged conduct did not constitute levying war against the United States within the meaning of the Treason Clause. It was not enough, Chief Justice John Marshall’s opinion emphasized, merely to conspire “to subvert by force the government of our country” by recruiting troops, procuring maps, and drawing up plans. Conspiring to levy war was distinct from actually levying war. Rather, a person could be convicted of treason for levying war only if there was an “actual assemblage of men for the purpose of executing a treasonable design.” In so holding, the Court sharply confined the scope of the offense of treason by levying war against the United States.

Okay, but the Court did not say that those levying war were treasonous only if they toiled on behalf of some other country. Theodosia's crazy ol' dad operated on his own behalf.

 

6. Why won't Pence consider the 25th? The Veep knows that Trump's mad minions went to Congress with the intent of murdering Pence. Two new stories confirm that he has had it with Trump: Here and here. 

Mike Pence could -- should -- be president. Right now. He would be as well-regarded as Gerry Ford was in that happy period after Nixon's resignation and before the pardon. 

 

I can only presume that Pence fears violence from the MAGA cult. An increasing number of people are starting to speak honestly about the intimidation factor. 

 

Which leads us to our final question... 

7. How do we end the politics of intimidation and fear?