The rule for impeachment states that two thirds of the “members present” are required to vote to convict. We have 100 senators and all the pundits keep talking about the 17 more votes needed to make a two thirds majority of 100 (assuming 50 Democratic votes and 5 Republican votes to convict) – 67 votes. But what if some senators skip the vote? It seems they cannot appear and then vote “present” because then their presence adds to the total present, but if enough senators failed to show up such that 55 votes in favor of conviction reached two thirds of those present, then Trump would be convicted. I can see a situation whereby some senators decry the whole thing, calling it unconstitutional, and boycott the event, which plays to their base yet also avoids their vote tied to future convicted associates from the planning of the January 6th riot.

• 

It is the weekend, with Joe Biden as actual sworn-in President 75 hours ago. The impeachment articles have been forwarded to the Senate and the trial delayed two weeks. This delay, claims Mitch McConnell, gives Trump’s defense team more time to prepare. This delay, claims the Biden administration, allows for cabinet members to be installed and urgent legislation to be passed (perhaps). This delay places the horrific events of January 6th two weeks further in the past, further receding from immediate memory. This delay also enables further facts to be developed about that January 6th episode.

The Republicans are calling for unity, let bygones be bygones, healing; that all sides bear a role in the riots (Kevin McCarthy), that no way will 17 Senators EVER vote to convict Trump, and, most of all, that the entire trial is wrong because how can you impeach someone already removed from Office? Some believe we are seeing an enormous struggle between those who want to remain on the Trumpist train (and base) and those who want to cut Trump loose to save the Republican party.

As regards the question of impeaching someone after leaving office, this was done once before after the Civil War with a cabinet member. More important, people will argue that if Trump is not tried, then basically any future President will be able to commit crimes between an election and his or her successor’s swearing in, ie essentially promising that the circus we all just saw will happen every election.

I argued in the previous post that the impeachment trial should be delayed, if ever held, because each day of delay adds data to the evidence record. I would add that now some Democrats are speaking of the 14th amendment as a way to punish seditionists from forever holding office again – Trump and others – entirely separate from the impeachment process.

Now, what about the evidence? I am following four threads, each of which, if confirmed, might well be sufficient to convict Trump no matter what the political calculus, but each of which might also show nothing at all. There is a fifth thread, though, which in my opinion nobody is yet paying enough attention to, sitting right in front of our eyes.

Here are the four threads:

First, the near total lack of police and National Guard presence before the riot, during a well publicized protest which even the President said would be “wild,” and then the delay of calling out the National Guard once the riot and invasion began. The bureaucratic excuse seems to be the “fog of war” and a “lapse” and “missing the danger.” Others suggest that the police were withdrawn to enable the invasion. It seems that Mike Flynn, disgraced former National Security Advisor, liar to the FBI, pardoned by Trump, who called for martial law before the riots, has a brother, Charles, also in the Army, who was in a meeting of Army staff telling the Capitol Police and the DC Mayor that no, they would not get National Guard support. It might have even been Flynn’s brother who told the Mayor and the Chief of the Capitol Police the optics were bad for the National Guard. Coincidence? It seems the Army has changed its story of what happened at that meeting at least twice. Why? Trump fired Mark Esper, SecDef, November 9th, and replaced him with loyalists. Were any staff changes made at the office Flynn’s brother was in (the one taking those calls)?

Second, it has been revealed that a large number of individuals and groups closely linked to the Trump campaign were funded by the campaign coffers to organize and set up the January 6th gathering. Who were these people and were they coordinated? There is of course no crime in organizing a protest, and this all may well have been entirely innocent, but information is emerging that suggests a well organized effort to bring to DC a motivated, and angry, crowd of people enraged by an election Trump had falsely been declaring stolen for weeks. If this gathering was not spontaneous, or organically driven (as was, for example, the “pink hat” march in 2017 the day after Trump was sworn in, a million people marching peacefully) how much involvement did Trump or his minions have? One of the organizers, now on the run, is on video stating he organized this with three Republican Congressmen. This all could have been simply organizing a protest, but the fact that many of the organizers have been scrubbing their social media pages since raises questions.

Third, the FBI reports that some groups at the protest (The Oathkeepers? The Proud Boys? Other militias?) had preplanned the invasion, had shared data, used radios, had a specific plan to invade and capture, even kill, legislators and the Vice President, and it was recently disclosed that text messages or emails have surfaced showing real-time communication between the rioters and someone else telling the rioters where the legislators were hiding in the building. There is evidence at least one legislator gave a tour to many people the day before the riot, despite there being no tours because of Covid, perhaps to recon the layout of the building. Who was advising the rioters? Were these specific plans and efforts linked to the organizers of the march above?

Fourth, just last night the New York Times provided a detailed report that appears to confirm that Trump was trying to oust DOJ officials in Georgia right before this riot such that a new official, appointed by Trump, could force Georgia to disqualify its certified electoral count. This is not linked to the riot, of course, but is a clear crime and further another data point showing the breadth and depth of the efforts to stop the certification of an election Trump lost.

I am pretty sure that between now and February 8th when the impeachment trial is set to begin we will have much more information about the four items listed above. Maybe all this has been a colossal inept bureaucratic series of stupid errors, complicated because it does seem that some groups were in fact planning to raid the Capitol and cause mayhem, stop the certification, in which case get ready for Republicans to start talking about “excising bad apples” – among whom might be a few Congressmen or women. I have always been the first to argue that 99 times out of 100 a screw-up happens, not a conspiracy. However, in this case I think we need to be careful, mainly because of the fifth item, right in plain view:

As soon as the riot began, it was obvious something was out of control. Calls, desperate calls, were being made to the Army for National Guard help. Trump and his people were watching the riot unfold on screens at the White House. I know this because, before he went down to speak to the crowd, there is a video Don Junior made of everyone watching the screens. Junior’s girlfriend was dancing, everyone beaming, everyone giddy, it seemed, excited, almost as if they were expecting something to happen. So Trump could see on the screens before him the fighting, the damage, the tear gas. It is what he did then – or failed to do – that, in my mind, is most damaging of all. He did not step out and call an immediate press conference to order everyone to go home. He did not Tweet to the world to stop this, cease, stop the violence. He did not call his Army and ask where the hell the National Guard was.

Worse, he did not call Mike Pence or Nancy Pelosi or Mitch McConnell and ask them how they were doing, whether they were safe. Instead, and this is most damning of all, he was calling senators, who were in lock down hiding from a raging mob, and demanding they support objecting to the certification of the election.

Just as bad, in the days since, as far as I know NOT ONE of those Republicans who voted to overthrow the election even after being attacked by a mob has come forth to declare the election was valid, that Biden won fair and square, that the “stolen election” thesis was a lie. Not one. It thus almost looks as if at the best they were all happy to go along if the election WAS overturned, and at the worst some or many of them knew exactly what was going to happen and were fine with it. Just as, based on his behavior after the mob invaded the building, it seems Trump, too, at best was happy to accept the overturning if it happened and at worst has planned the whole thing himself, with his minions, weeks ago.

Now that, that is a conspiracy.

• 

One argument being made by Trump supporters and many Republicans is that this impeachment is all rushed, careless, wrong. The House impeached (the indictment) a week after the January 6th events, which are being called an insurrection but others are calling a riot, or protest. The action was urgent, fast, and the most bipartisan vote ever (which is not saying much, frankly). One of the issues here is that the reason to move so fast on impeachment was to get Trump from office, but the impeachment won’t do that. January 20th will, assuming peace is largely kept in the coming days. This means the main motivation to take action – removing Trump from office – will then be moot, not to mention that removing a President by impeachment after he has already left office is something that has never been done before. There will surely be legal battles over this.

I am positive that if the Senate went to trial now there would not be the 17 Republicans to convict – the immediate crisis will have passed, Trump will be gone, etc etc. Surely, too, Senators will cry out for further evidence, for an ongoing investigation to be completed. So, if he were tried now, Trump would not be convicted, meaning, he would be found innocent, or so he and his backers will claim. He will claim this as further confirmation of the witch hunt against him, and for many many people he will be right.

I believe Pelosi should not pass over the articles to the Senate for at least 3 months, if ever, and if she has already done so, then Schumer should sit on them.

There is a huge investigation going on right now. There seem to be 3 key elements. First is the allegation Trump incited this riot with his speech. This seems clear to many, including me, but this is being argued and in the end is a judgement. Nowhere did Trump or any speakers that day say enter the building, capture anyone, or kill anyone. MAYBE they only thought a huge screaming mob would cause those inside to not certify the election, delaying things. This they will argue. This may be true.

What Trump did, or failed to do, AFTER the raid began, the second element, is hugely important, and less able to be discounted. Trump did not immediately call for the invasion to stop, or call out the Guard. In fact he told the rioters he loved them. Not a good look.

The third element – was there a conspiracy to make all this happen – is most important. Rumors are flying, all of which need confirmation. Did Congressional members bring in MAGA members the day before to recon the building? Or were they stupidly just bringing in constituents to just look around? Did the rally organizer work with 3 Congressmen to set all this up, and if so, was the raid the aim? Were there Capitol Police in on the deal? Most important, perhaps, WAS the National Guard told to stand down on orders from Trump or someone in his circle? What did the President know and when did he know it? I am sure millions already believe that all this, and more, happened, but strength of belief is not a fact. Anyone so certain is just like those who believe without evidence the election was stolen. IF during the coming days some or all of these elements are confirmed, each additional element becomes evidence for any trial, evidence these 17 Republican senators will need. Without it, Trump will not be convicted if there is a trial. If he is convicted, after a trial, any concerns about Trump taking this to the Supreme Court and being found innocent are valid, but, again, if evidence exists, each piece makes it harder for the Court to forgive him.

I have always argued that when considering whether something is a conspiracy or simply a colossal botch-up, 99 times out of 100 the latter wins, even in this case here. It COULD be that this rally got way out of hand, a bunch of over zealous fans making a terrible mistake, and mark my words this is going to become the talking point in the days ahead. It COULD be that most if not all those protestors rushing into the building were caught up in a fever, blind to the outcome. It COULD be that those bent on violence, those who pre-planned those actions, did so entirely separate from Trump. This argument may be countered of course by film of clearly drilled and organized teams rushing the building, directions about the building layout, calls for death, lack of police protection, and a host of other things, but raw video and snippets of real time action need to be linked and confirmed. For example, if phone records link Trump to rally leaders, or if, say, Trump’s social media-following staff were following all those sites clearly planning violence on the 6th, that would be evidence impossible to ignore. Interpretations of what was meant by words, or inferred from nods and winks, while entirely likely to confirm for many a crime, is somewhat “slushy” in my opinion, surely more “slushy” than dots connecting pre-planning to seizing the Capitol and others to stop certification of the election.

I know there are those among us who are certain the election was stolen. For these, only a statement by Trump, and all those who voted to overturn the election, confirming that the election was fair, Biden elected, and their allegations a falsehood will start any process toward changing minds. It has been encouraging to see some commentators and officials making this arguement. I also know there are those among us who are certain this was a total plot to seize the government, overturn the election, and install Trump back in the White House based on what has been disclosed so far, but, absent clear and convincing evidence linking Trump DIRECTLY to a conspiracy, nobody else will share their view, and, even then, it is likely some will NEVER share that view, just I know there are some who will NEVER believe this election was without major fraud. The possibility exists, too, as mentioned before, that rather than a great conspiracy this was a total botch-up, with various nefarious actors and extremists running their own game, and Trump and his team too blind or thoughtless to see that words and tone have consequences, in which case this was NOT a coordinated terrible conspiracy but a classical combination of terrible security, oversight, stupidity, ignorance, cultural blindness, and carelessness.

The impeachment process has been likened to a Grand Jury event, wherein the House decision is like a Grand Jury handing down an indictment, and the Senate trial like a court of law trying the case. Insurrection is the charge, it seems. The enormous investigation now going on will gather data, and evidence, connect dots, or not, find sources, get some to inform on others, track phone logs and text messages, determine how widespread the plan was to kidnap or kill Pence and members of Congress (if there really was such a plan), and hopefully document how close Trump and his people were to the invasion – for example, did Trump’s social media tracking people (he had at least one such) track those sites where the violence was clear, the planning obvious, the intent obvious? Are there call logs or even testimony confirming that the lack of Guard presence and abundance was discussed ahead of the 6th with the intent to open the Capitol to access? Given the grave seriousness of the charge, it seems wise to gather data, develop the facts, determine just what went on, the intent and motive, all of it. Once that is done it will become clear what happened – whether Trump helped create the conditions for such a riot (bad enough) or whether the riot was part of a much larger and more sinister plan. Only then can a Senate trial proceed properly, I believe, although once the facts are developed it may well be that criminal charges, even for an ex-president, are more appropriate.

We still have to get through the next few days without blemish or disaster, but I think even Trump, now, has called for no violence this weekend. It would be best if he stated the election was fair and Biden won fairly too, and I still hope he will. But as far as the Senate trial? If you have it at all, only do it after we know exactly what happened. If there was a huge criminal conspiracy, throw the book at those involved. If it was terrible judgement and a sloppy choice of words happening while a protest got way out of hand, but not a devious plot, so be it. That is bad enough.

• 

We stand before a fork in the road, or at least that is how this feels after several days with a near addiction to news feeds, watching the events unfold in real time, hour by hour. Yesterday I argued that an immediate way to help lower the temperature would be for everyone who had supported Trump’s lies about fraud to come forth and publicly disavow those lies, under the view that somehow we must agree on a shared set of facts for any healing to begin, but this does not seem to be happening, not yet. Some are hell bent on impeaching Trump, others on blaming the liberals, democrats, and antifa for what happened. And, instead of facing what happened last week, some are arguing that if anyone is held accountable this will only inflame things further.

On the one hand there appears to be movement toward finding some kind of resolution to put this behind us, and prevent further chaos (this is one fork). Most recently are reports that McConnell favors impeachment as a way to exile Trump from the party, de-fang him, save the party for the future, and with a few Republican House members and leaders now supporting that action, this may come to pass in the coming days. Others talk of censure, or using the 14th Amendment, to make people accountable. Each hour brings further videos and reports of just how bad it was in that building last week, just how well organized portions of this were, just how inflammatory were the speakers encouraging people to go to the Capitol, just how dangerous the next few days may be with FBI reports of armed activity in DC and every state this coming weekend. So, on this fork – everyone in leadership somehow coming together to reach a solution – there may be accountability but it seems the chances for chaos in the coming days might be greater from the seditionists among us.

On the other hand, I think there is an equally good argument, maybe even a stronger argument, that this coup attempt is continuing (the other fork in the road), and will come to a climax this weekend. I say this partly because so few of those who promoted the Lie have come forward to now agree the election is over and fairly won. Some are saying Biden won – Gym Jordan for example – but still preface with the statement about “concerns” and “illegality” – ie, they continue to state publicly the election was fishy, and this only reinforces those out there who believe the election was stolen. The President has no remorse, no regret, no apology, no contrition. He continues to argue he made a perfect speech. When he said, before leaving for Texas and again at Texas, that “violence is bad” but immediately then said impeachment will make people angry, very angry, it seems he was encouraging his supporters to carry on. With no admission from Trump he did ANYTHING wrong, it seems clear his minions will try to come again to DC and the 50 states to express their rage. Will they surround the Capitol and White House to stop the transfer of power? Will there really be attacks on all the State capitols? Imagine the chaos, the violence, then. Then, will Trump declare Martial Law to keep the peace? Defer the inauguration? Stay in power? Is this the plan?

One aspect is crystal clear: whether Trump is impeached or not, whatever violence falls upon us will fall, because if he is NOT impeached he requires violence to carry the day, which suggests that no matter what happens we will have to deal with armed and angry citizens, either fork we take. Either fork, because these people have had a taste of this, now, feel emboldened, feel justified, are enjoying this.

I remember 1974, August, very well. In the end, the very end, (like, the last few days) Republicans went to Nixon and told him to leave or be impeached. I had forgotten that for most of the Watergate scandal – 1972 to 1974 – most in Nixon’s party supported him, right up to the very end. In the end his party confronted him and that is what it took to get him to leave. Mr. Nixon departed peacefully. Nixon did not have an army of militias and groups and armed believers trying to keep him from leaving office. Today, I remain entirely unsure whether those Republicans who voted to overturn the election even after the riots ended are now coming to their senses, at least as regards the Constitution, or whether they have decided, in their bones, it is better to ride with Trump to a new government paradigm, regardless of the cost.

I guess we’re going to find out.

• 

It feels as if a train is rushing headlong down a mountain, faster and faster; the brakes are smoking; the engineer in the cab is drunk and passed out; around the turn through the tunnel lies a trestle uninspected in 150 years, and the passengers in the cars are holding on tight to the wooden seats wondering what to do….As I write this it seems the Congress is soon to impeach Trump a second time, there is energy to expel anyone in Congress who voted to overturn the election after the riot ended, the FBI is reporting planned protests in the Capitol and all 50 states before the 20th, many of those who voted to overturn the election are now begging for healing and peace, right wing news outlets are seemingly more outraged about Trump’s loss of Twitter and Parler than the escalating cycle of violence and the death of five people Wednesday, and even today many members who voted to overturn the election a week ago continue to claim fraud, even knowing that not to be the case.

There are surely many things that can be done to lower the temperature, to protect our Capitol in the coming days and at statehouses around the country, to call to account as many rioters as can be found, to conduct a fair investigation as to how it was the Capitol was so lightly defended Wednesday despite all the clear warnings available on public media outlets.

But what one thing can be done, TODAY, that would go furthest to lancing this balloon of fear and insurrection that has suddenly emerged among us? This whole sorry series of events has resulted from many things, but surely the largest among them is the allegation, stoked by Trump and then all his minions for months, and especially since November 3, that this election was stolen, that Biden is not the proper new president. Millions of people now believe this, firmly. I don’t expect to see Mr. Trump on the television owning any of this, unfortunately. Nor do I expect any of his immediate minions in his family or cabinet to step forward. He is leaving, as are his minions and cabinet.

However, there is a group with a vested interest in holding on to their jobs, and those are all those members of Congress who, even after a riot that nearly killed some of them and toppled the government, nevertheless persisted in promoting the Lie that the election was stolen, something surely each and every one of these members know to be false. It may be that this coup – for that is what this was, or maybe is, a coup – is ongoing and long planned, and some of these members know this, are even part of it, but, even so, the FIRST THING that can be done to lower the temperature, remove us from the toxic legacy of the Lie, and perhaps give these members a chance to save themselves from being thrown out of Congress for sedition, would be this:

Every one of those members should call a press conference and issue a statement stating the following: 1) The election just completed was found without fraud; 2) they believe the election was fair; 3) the allegations of fraud promoted by Trump and themselves were a lie and they confirm they were and are lies; 4) Joe Biden is the rightful president elect of the United States; 5) violence and riots have no place in our system; 6) Trump should leave office at once, and 7) we must all work together from now on to help Joe Biden be successful because if he is successful then we will be successful.

I am not saying, if these members confirm that the Lie was told, they supported it, and they were wrong, that this will change anyone’s minds, but had they done this even before November 3 we would not be in this place today. This statement would begin the accountability in a direct, rapid, and clear manner, right now. I think it will help. And we need all the help we can get. If these members all did this, right now, today, I for one would be happy to leave them in office, though personally I think they deserve no office, because we have enough battles to fight right now without adding more fuel to the fire. A statement such as the one above would go a long way, I think, toward pulling the air from this toxic balloon.

Just a thought….