My Take

I didn't sleep well last night, and I'm sure many other Americans were in the same boat.  I don't quite feel the same rage I did yesterday evening, but I've been fixated on this stuff all day today.  So I'm writing this post mainly to get it out of my system.  We'll see tomorrow whether there is any change in how I'm doing.  Another reason to write this, however, is that we're bombarded by news that by its very nature focuses on the very recent past (the last two or three days).  I think we need to look further back and connect that look to the present.  Doing that won't help at all manage the next 13 days.  But it should be useful in considering what should happen once the Biden-Harris Administration has taken over, preferably after a smooth transition.  

I want to focus on two things to give some structure to this analysis.  First, Trump seems to have a tendency to accuse the opposition of crimes that he and his cronies have actually committed.   Since the election he has been complaining that the election was stolen.  Did Trump and his cronies steal the election in 2016?  This question needs to be hammered on.  Prior to writing this piece I did two Google searches, one on truth serum, the other on polygraph tests.  Based on what I found, neither are considered very reliable.  So I won't consider them further here.  But I will speculate about Trump being imprisoned for sedition, where his guilt of that crime is as plain as day.  Once imprisoned, he needs to be interviewed, repeatedly, with those interviews recorded.   There may very well be other issues to ask about apart from whether the election in 2016 was stolen, such as how his personal debt impacted his decisions as President and why he refused to have his tax returns made public.  And, of course, a complete psychiatric profile needs to be developed.  Nevertheless, it would be good to hear what he believes happened in 2016.  

The other issue is about the various Republican Members of Congress who have ultimately recognized the election of President Elect Biden and Vice President Elect Harris, so seemingly want to absolve themselves of any earlier complicity in the misdeeds of Trump.  That will not wash.  What is needed is to make that complicity explicit and then hammer on it repeatedly.  At a minimum, these Republicans need to acknowledge what they have wrought.  After that, they should either resign from office or atone in a way that is evident to their Democratic colleagues and to Democratic voters.   By focusing on these Republicans here, I'm certainly not absolving those other Republican Members of Congress who haven't recognized the election. They have to be dealt with as well.  At the end I'll mention a few thoughts about that.  The point here is that they are on record with a list of their names available now. 

Items to consider to address these issues are:

1. The Mueller Report
1. Would a fair reading of the report warrant an impeachment of Trump on the merits, not on the politics?  Focusing on the merits, would this be a close call or a slam dunk?
   
2. The politics seemed to dictate that there would be no impeachment as long as the Republicans held a majority of the House.  And there would be no conviction, in the event of impeachment, as long as the Republicans held a majority in the Senate.
   
2. Attorney General Barr's successful effort to deep six the Mueller Report
1. Barr is but one of many Trump appointees who protected Trump from what may have seemed at the time to be a political witch hunt, only to subsequently fall out of favor with the President.
2. In hindsight, would Barr himself feel his actions with regard to the Mueller Report were warranted, or were they enabling Trump and set the stage for the recent events.
   
3. The actual Impeachment
4. The pro forma Senate Trial after the impeachment

In coming up with this list I'm following a suggestion by Masha Gessen published in the New Yorker soon after the election, Why America Needs A Reckoning With The Trump Era.  One imagines that President Biden would appoint a Trump Era Commission (I hope the name of the commission is better than that) and includes luminaries so the recommendations of the commission are taken seriously.  I would expect the chair of the commission to be Chief Justice John Roberts (who might have to recuse himself when the Senate Trial is considered), Michael Mukasey who was the last Attorney General under President George W. Bush, and Eric Holder who was the first Attorney General under President Barack Obama would be members, as would some prominent law school deans, with balance between those leaning Democrat and those leaning Republican part of the consideration concerning who was chosen.  

I also want to note that it would be an impossible standard to imagine that all Americans will accept the recommendations of such a commission, especially those in Congress who did not accept the Biden-Harris election results and those who are like minded with the people who stormed the Capitol.  But the remaining Republicans in Congress, and especially their wealthy supporters, must accept these conclusions, even if they are scathing in pointing out their negligence and tacit enabling of Trump's malfeasance.  There then is the question about what punishment should ensue after that.  Let's leave that question for a bit and turn to another that needs some answering, though I'm no lawyer so won't pretend to give a real answer here. 

Consider the possibility where the Commission concludes that, in so many words, Trump did steal the election in 2016 and committed a variety of illegal acts to do so.  That would make his entire Presidency illegitimate.  Particularly relevant for the discussion here is whether the Pardons he has recently handed out to his co-conspirators remain valid.  (There is also the issue of all those judicial appointments.  I've taken that up some in a previous post.)  If these pardons stand, then it would seem the co-conspirators would have little reason to testify in front of the Commission except to market their up and coming book (I assume most will generate income that way). If the pardons would be negated, the testifying a la plea bargaining would seem what should be expected.  Which of these would be the outcome I can't say, but it needs to be determined.  The way the Commission would proceed will depend on this.

Regarding punishment, let me say that the punishment would be for hyper partisanship leading to negligence, thereby enabling President Trump's malfeasance.  In my mind, Senator McConnell as the Majority Leader should be forced to resign, but that needs real pressure behind the scene to achieve that outcome.  In an earlier post, Tough Love for Republican Enablers of Trump Who Will Still Be Serving in Government in 2021, I wrote the following:

I'm sure the reader wants to know what sort of actual punishment will serve as this tough love.  I want to know too.  The ideal punishment would achieve the goals but then not be recklessly used by future generations, when there is no need for it.  I'm not fully conversant with the powers the Commander in Chief can wield, but this much I would be willing to offer.  Suppose the then President Biden aggressively exercises some power and perhaps abuses power to a certain extent.  (Following Trump would seem to give some license to doing that.)  Congress would then want to curb that power and Biden would agree to legislation that does that.  Passing the legislation would reign in future abuses, one would hope.  Until the legislation is passed, the power would be used quite aggressively. 

By means of illustration, suppose the President asserts that for National Security reasons, Senator X must be detained indefinitely and while in detention the Senator will be incommunicado, even with family. Likewise, this will happen for Representative Y, Federal Judge Z, and even one of the Supreme Court Justices appointed under Trump.  President Biden will say that others who might potentially receive such punishment can avoid it either by resigning or, in the case of elected officials, by stopping the obstruction and playing the game as it should be played. Then, let this sink in for a while, become the new normal for a certain amount of time, and let the frustration on the Republican side build, while the cooperative behavior in Congress also increases. 

Now imagine that the first to be detained are those Senators who did not recognize the Biden-Harris election and the next on the list are some of the Representatives who did likewise.  Biden doing this might truly scare Republican Members of Congress.  He is everyone's Uncle Joe, and this would be a very mean thing to do. Yet it would be a perfect getting even activity, and since his predecessor abused his office, it opens a window for Biden to do likewise.  This can be accompanied with something that sounds more official, a Censure, but the reality is that the Censure is of symbolic importance only. There is no other punishment that comes with Censure.

It seems to me that ultimately the hyper partisanship can end only if the big Republican funders reach the conclusion that it encourages things to get out of hand.  To them, Trump was a disaster.  Yet now there is a competition of sorts among certain Members of Congress to become the next Trump clone.  These high rollers need to lessen their expectations on their traditional objectives - less taxation and less regulation - to move us off this path to fascism, which is where this seems to be going now.  To prevent that, it might not be so bad for the Democrats to be in control for a while.  We're not out of the woods yet, for sure.  But, at least, there does seem to be a path where we can return to something that seems normal.