Bryan H. Wildenthal, Professor Emeritus at Thomas Jefferson School of Law and Visiting Professor, University of San Diego School of Law, discusses how far Republican Party leaders have gone (and continue to go) to support Donald Trump’s lawless efforts to cling to the presidency...
The “Final Days” of a failed, corrupt, and criminal presidency…for the second time in two generations (I recall as a child hearing the drumbeat of “Watergate” in the news), that is the legacy of America’s Republican Party. As President-elect Biden and so many others keep saying (perhaps out of desperate hope), “this is not who we (Americans) are.” Perhaps not — but it is plainly who a large fraction of Republican politicians are.
Much has transpired since my November 29 JURIST essay asked, in surveying the scope of Republican complicity up to then in President Trump’s brazen efforts to derail American democracy: “Where will this end?” I noted the “devastating setback” Trump and all his Republican enablers had already dealt to freedom-loving people struggling against “military dictators, communist rulers, and fascist demagogues around the world.” I said such authoritarians must be “grinning horribly” (Trump’s special favorite, Russia’s Vladimir Putin, is just one). I observed that the “shining example of America’s highest ideals may now be irretrievably tarnished.”
How much more so today? We now know where Trump’s quest ended. And it may not be over yet. The most pressing issue now is whether he can be removed from office before his term ends — before he perpetrates still more lasting damage to the cause of democracy and freedom at home and around the world. I need not repeat the case for immediate impeachment, which has been stated with blunt persuasiveness by others.
It now appears, however, that Senate Republicans will slow-walk any actual impeachment trial until after Trump’s term ends. Soon-to-be Minority Leader Mitch McConnell (R-KY) has been much-praised for voting to certify Biden’s election — i.e., merely complying with his oath to uphold the Constitution and respecting facts known to all rational observers. But McConnell has smugly noted that the Senate is not scheduled to reconvene for business until January 19, the day before Biden is sworn in.
Once Biden takes office on January 20, he and most Democrats will (and should) focus first on confirming key nominees and passing desperately needed Covid-19 and economic relief. So any impeachment trial of Trump would be delayed still further. By that time the only possible punishment — still, however, crucially important and worthwhile — would be, as the Constitution authorizes (Art. I, sec. 3), “disqualification” to ever again serve as president or “hold … any Office … under the United States.”
Trump has made clear he will not resign. There has been much pointless discussion of suspending him under the 25th Amendment, which was designed for medical incapacities, is ill-suited and not really applicable to the present crisis, and lacks the needed permanent bar from office. The problem in Trump’s case is not presidential “inability” (the focus of the 25th), but rather his ability (and determination) to violate his oath of office.
In any event, Vice-President Mike Pence refuses to invoke the 25th. And with administration officials resigning by the day, it’s clear that what remains of Trump’s cabinet (a gaggle of “acting” secretaries and third-rate bitter-enders) would never provide the required majority support. Pence, like McConnell, has been praised for doing the rock-bottom minimum on January 6 (obeying his oath of office and not attempting a one-man coup d’état during the electoral vote count). Yet Pence, just days earlier, was irresponsibly encouraging the Republican politicians pushing the delusional challenge to Biden’s election.
It is not at all hyperbole to use terms like “coup” (or “attempted coup”), as my colleague Professor Marjorie Cohn and a growing number of others have, to refer to Trump’s efforts to overthrow the election in general, or the January 6 assault on the Capitol in particular. Professor Zeynep Tufekci, one of our most thoughtful writers on technology, society, and politics, argues that we must take coup attempts like these far more seriously and name them for what they are. Tufekci, a Turkish American, draws on her birth country’s experience. She points out that people around the world, with far more experience of such matters than most Americans, use multiple and subtle variations of the word “coup.”
Lest we forget (the supposedly “liberal” media have given it shockingly little coverage), General Michael Flynn, Trump’s first National Security Advisor and one of our nation’s most prominent retired military officers, has publicly called for martial law — in effect a military coup — to reverse the election and maintain Trump in power. Trump then invited Flynn, whom he pardoned for crimes trying to cover up contacts with Russia, to meet with him at the White House, along with conspiracy theorist Sidney Powell. They apparently discussed various outlandish plots and schemes to overturn the election.
On the issue of impeachment, rightwing pundit Hugh Hewitt, in a pathetically dishonest apologia that dares to slander others with the slur of “Trump Derangement Syndrome” (look in the mirror, sir!), quibbles whether there’s “conclusive evidence” of Trump’s private subjective intentions. He dismisses a “fast-track impeachment” as “pointless anti-American revenge.”
But Hewitt concedes Trump’s “negligence” and indeed that he was “deeply reckless” and may face both criminal and civil liability. Hewitt knows perfectly well, as a fellow professor of constitutional law (though he’d flunk my midterm), that meeting such standards is not required for impeachment, a political remedy focused not on personal guilt but on protecting the republic.
House Minority Leader Kevin McCarthy (R-CA) now sanctimoniously bleats that impeachment would “divide our country.” His hypocrisy has been rightly savaged. From the outset, McCarthy was among the most reckless and categorical in endorsing Trump’s delusional and dishonest claims of a “stolen” or “fraudulent” election, thus inciting predictable rage among his grassroots supporters.
McCarthy was among more than 60% of the House Republican caucus he leads who supported a frivolous lawsuit filed directly in the Supreme Court, seeking to throw out election results in four key states and disenfranchise millions of voters. The Court, including all three Trump-appointed justices, unanimously denied relief.
Senator Ted Cruz (R-TX) promised to personally argue that case. McCarthy and Cruz were among 147 Republicans in Congress (eight senators and again more than 60% of the House caucus) who voted — even after the mob attack on the Capitol — to block the certification of Biden’s lawfully and factually indisputable election.
So really? It’s OK to “divide our country” by spewing lies and trying to nullify the votes of the 81 million Americans who elected Biden? But it goes too far to offend the delusions (incited by those very same Republican politicians) of some of the 74 million Trump supporters? It goes too far (“pointless revenge”?) to hold accountable — in a peaceful constitutional proceeding (not even involving criminal penalties) — a president who appears guilty of criminal incitement to violence aimed specifically at the seat of government and the constitutional transition of power, resulting in multiple deaths, including a police officer killed in the line of duty by the mob incited by that president.
That slain officer was a military veteran and Trump supporter. The blood from his bashed head stains Trump’s hands and those of every Republican, like McCarthy, Cruz, Sen. Josh Hawley (R-MO), and so many others who enabled Trump and who appeased and catered to the mob who killed him. Hawley personally gave that mob a fist pump as he entered the Capitol shortly before the attack. He personally, as the sole senator objecting to Pennsylvania’s electoral votes, forced hundreds of his colleagues (many of them elderly, frail, and exhausted, just subjected to a violent, hours-long siege), to stay up hours longer until 3 am, for no legitimate reason whatsoever, in conditions fraught with Covid-19 transmission risks already aggravated by the hours of close confinement during the siege.
As with Shakespeare’s Lady Macbeth, no amount of washing will ever cleanse those stains. No wonder Trump, who postures ostentatiously as a supposed friend of law enforcement, basically ignored the officer’s death. The White House issued a perfunctory written press release a full day later. Flags at the Capitol were lowered promptly to half-staff, but as of two days later, Trump had not responded with any personal public statement, had not contacted the officer’s family to offer condolences, and failed to order flags lowered at the White House or other federal buildings under his control.
In truth, there is no excuse whatsoever for the Senate’s refusal to make itself available for a prompt impeachment trial, which should only take a few hours. The relevant facts are not in dispute. Trump’s statements and their violent results are in plain view of the world. The only remaining issue is what consequences those facts should have, which is left by the Constitution to Congress’s judgment and discretion.
The Constitution (Art. I, sec. 5) gives each House of Congress exclusive and plenary power over “the Rules of its Proceedings.” If a quorum of the Senate, a simple majority — the Democratic caucus plus a handful of Republicans — were to physically show up at the Capitol at any time, they could vote themselves into session, suspend or alter Senate rules as needed, and proceed to a trial. Only cowardice or diehard loyalty to Trump on the part of the few needed Republicans — nothing else — stands in the way.
Professor Hewitt cavils about the history of the ancient Roman Republic and whines that we’ve never had a “rushed impeachment” in American history. Yes, and we’ve never had a president remotely as lawless and dangerous as Trump either. It is Hewitt’s Republican Party that threatens to cause our American republic to follow its Roman ancestor to “collapse”: the result, Hewitt himself notes, “when opposing parties continually raise the stakes, the rhetoric, then the violence, and finally the arsenal of political weaponry.”
But wait. How strange. Should not “violence” go last in that parade of horribles? Let us please use “political weaponry” — peaceful constitutional processes like impeachment — in response to Trumpist violence.
Bryan H. Wildenthal is Professor Emeritus at Thomas Jefferson School of Law, Visiting Professor at the University of San Diego School of Law, and an attorney admitted to the Bar of the U.S. Supreme Court.
Suggested citation: Bryan H. Wildenthal, Trump’s Final Days and Republican Complicity, JURIST – Academic Commentary, January 11, 2021, https://www.jurist.org/commentary/2021/01/bryan-wildenthal-trump-coup-gop-complicity/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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