Matt Gaetz on Impeachment

 

Considering the Consequence of the Snap Second Trump Impeachment

 

On January 13th, 2021, the US House of Representatives voted to impeach President Donald J. Trump for a second time in a mostly party line vote 232 to 197 (with ten Republican voting aye).  This second Snap Impeachment in H. Res. 24 (117th Congress)  was on a single charge of “Incitement of Insurrection”, predicated on remarks made at a political rally at the Ellipse on January 6th, 2021 as Congress was set to certify the Electoral College results for the Presidential Election.   

After certification of the November 3rd election results, President Trump’s term ends on January 20th, meaning that the snap Impeachment, which only acts as a judicial equivalent of an indictment, was in the last seven days of President Trump’s term of office.  The Senate was not scheduled be in session until January 19th and current Senate Majority Leader Mitch McConnell (R-KY) was unwilling to convene in emergency session, so the earliest that the Senate could take up an Article of Impeachment (presuming that House Speaker Nancy Pelosi promptly send it over this time) is 1 p.m. on January 20th, one hour after newly inaugurated President Joe Biden takes his oath of office. 

Any astute political observers understand that this Second Impeachment was not meant to evict Mr. Trump out of the Oval Office but to besmirch his place in history and seek him from exercising any political power after January 20th.  Unfortunately, this political stunt has some serious repercussions for the polity, the rule of law and even the Constitution.

Firstly, there was a rush to remove President Trump.  When the Capitol Siege occurred on January 6th, Trump was only going to be in office for less than two weeks.  When the Snap Impeachment was passed, the 45th President would leave office in seven days. But that perspective only looks towards part of the consequences and not the cause.  Facts about the violence on Capitol Hill have been fluid.  Vital questions such as who were the instigators of the insurrection and why a couple hundred agitators were allowed inside the Capitol.  Thus is seems unwise to rush to judgment, but that did not deter Nancy Pelosi’s drive to impeach Trump again.

A day before the Impeachment vote in the House, the House passed a Resolution (on a purely party line vote) which implored Vice President Pence and the Trump Cabinet to invoke the 25th Amendment, which would (temporarily) remove President Trump and make Pence Acting President pending Congressional assent.   The 25th Amendment was intended for instances when the Chief Executive was incapacitated, not for policy disagreements or “High Crimes and Misdemeanors”. 

 The proper Congressional role in the 25th Amendment is to ratify the Acting President, not to instigate his or her installation.  This Resolution abrogates the Separation of Powers, namely having part of the Legislative Branch leveraging the Vice President with a threat of an Impeachment vote unless Mr. Pence invoked the 25th Amendment.  That kind of sounds like Speaker Pelosi was drunk on power for countenancing that Constitutional breach. 

The Snap Impeachment of 2021 was done at super speed in less than seven days from the Capitol Siege to passing the Article of Impeachment.  The charge “Inciting an Insurrection” is a serious charge, verging on treason, thus one might try to justify an accelerated procedure.  But it that were the case, then why didn’t the House stay in session to actuate the Impeachment.  Instead, the House took the weekend off. The Impeachment was delayed by a voice vote on Monday January 11th rejecting the 25th Amendment Resolution and then passage of the unconstitutional 25th Amendment Resolution on January 12th before proceeding to the Snap Impeachment on January 13th.

 In 1974, the House Judiciary Committee labored seven months drafting the first Article of Impeachment against President Richard Nixon (who resigned before any final Congressional vote). The Impeachment process of President Bill Clinton lasted four months.  Even President Trump’s first Impeachment took three months.  Yet, the slim Democrat majority in the House lead by Speaker Nancy Pelosi managed to pass an Article of Impeachment with three HOURS of floor “debate” and no committee work. 

Unlike in the Impeachment of 2020 when some of President Trump’s staff were allowed to offer some positive input, there was no fact finding or committee hearings before the Impeachment Debate. So the Snap Impeachment ignored precedent.

 It can be argued that an impeachment is like an indictment. Some cynically say that a Prosecutor could indict a ham sandwich with a Grand Jury, as the defendant is not entitled to counsel in that forum.  

But at least in a Grand Jury there is fact presentation rather than ramrodding a predetermined outcome. No fact finding and just a three our debate?  So much for Due Process.

Part of the animus against President Trump is for his brusque manner which agitates people.  The Article of Impeachment which passed cited “Inciting an Insurrection” and pointed to Mr. Trump’s rhetoric as part of the charge.  With that in mind, it was curious that the rules for debate on the 25th Amendment and Impeachment resolution lifted decorum prohibitions.  This allowed members like freshman Representative Cori Bush (D-MO 1st) slanderously referred to the gathering on the Ellipse to the White Supremicist-in-chief addressing White Supremicists (sic).  Not surprisingly, this comes from the same Member who proposed expelling any Congressmen who voted against certifying electors (N.B. bill was dropped on January 5th, the day before the ruckus). With actions and language like Rep. Bush, one wonders who is inciting unrest.

One of the things that were done on the first day of the 117th Congress was rules in the House which barred Members from using gender specific language in legislative business.  Yet when Speaker Nancy Pelosi (D-CA 12th) gave a rare floor speech in favor of the snap Impeachment, she proclaimed  “I stand before you as a wife, a mother, a grandmother, a daughter, a daughter...” 

Guess that rules are only intended to be applied for peasants or the opposition, even silly ones.

Even though the Snap Impeachment was done in an expedited fashion, it was not immediately walked over to the Senate.  While Impeachment Managers were named, including Rep. Eric Swalwell (D-CA 15th) who was recently exposed as having involvement with Chinese spy Fang Fang, the Article was not conveyed to the Upper Chamber for trial. It is unclear when Speaker Pelosi will send over the Article of Impeachment.  For the 2020 Impeachment, Pelosi held the Articles of Impeachment for a month before sending them to the Senate.  So much for a supposed clear and present danger.

With these facts in mind, it is reasonable to conclude that essentially this was not a second impeachment of  impeachment of Donald Trump but more of a show trial, Soviet style which gave the illusion of some system of justice but had a predetermined outcome dictated by the ruling House legislative majority.  Aside from exercising its rightful impeachment power, there were attempts at Congressional dominance over the Executive branch and eschewed principles of due process which have influenced America’s common law heritage. 

But that is only considering the ramifications from one chamber of Congress.  The Senate is where the Impeachment Trial occurs.  This will be made complicated due to timing.  Again, it is unclear when the Article of Impeachment will be transmitted.  If the House Majority truly wanted to eject President Trump from office, it would be immediately sent. The snag with that is the Constitution requires that the Senate immediately take up the Impeachment and can conduct no other legislative business.

The Senate is not scheduled to reconvene until January 19th, and won’t be put into emergency session sooner.  Current Senate Majority Leader McConnell is circulating a draft rule which requires unanimous consent to doing business aside from Impeachment. It is improbable that in such a contentious environment that all 100 Senators grant such a deviation from customary procedure.  So when the Impeachment Article is conveyed, it will dominate Senate business. 

It is conceivable that if House Impeachment Managers present themselves with House Res. 24 to the Senate on January 19th, that McConnell could press the Senate to immediately consider a Motion to Dismiss which could pass by simple majority vote.  Looking at it politically, Democrats can crow that Trump was impeached twice and Republicans are forced to indicate if they still support a besmirched President Trump.  But it is unclear if the Republican caucus in the Senate could hold firm to dismiss. If it is a razor thin vote, it might require current Vice President Mike Pence to break the tie.  If the motion fails, then the Senate would immediately be broiled into an Impeachment trial.

When the inauguration occurs on January 20th, Senator Kamala Harris (D-CA) will become Vice President and surrender her seat in the Senate, but constitutionally she will become President of the Senate.  This role will allow her to break tie votes, which will be crucial in a 50–50 split Senate, thereby giving Democrats the majority.  This means that Senator Chuck Schumer (D-NY) becomes Senate Majority Leader and will call the tunes for the Impeachment trial, but changing the operational rules again could be a sticking point.

House Majority Whip James Clyburn (D-SC 6th) has suggested that the Impeachment trial be delayed to give President Biden his 100 day honeymoon.  That won’t be possible if the House rushes the Article of Impeachment, but that is unlikely.  Presuming the Impeachment is held until May, it will hang over the new President’s head and may well force involvement, either to allay the situation or verbally stumble into taking a stance.

There is a significant Constitutional question as to the propriety of the Impeachment of a President after he or she has left office.  Impeachment is a process in which the legislature brings charges against a civil officer of the government.  Well, after Noon on January 20th 2021, Donald Trump becomes a private citizen again.  It is moot as to whether it would be proper for the Senate to try a private citizen.  Prominent contemporary legal scholars like Cass Sunstein, Alan Dershewitz and Jonathan Turley argue against impeachment of an ex President.  But there is a little historical precedence for it. 

In 1876, there is the example of Secretary of War William Belknap who was investigated by the House for corruption.  But minutes before the Impeachment occurred, Belknap submitted his resignation to President Ulysses S. Grant.  However, the House impeached him anyways and the Senate tried him but failed to get the 2/3ds majority. This issue is not clear cut and would probably prompt judicial consideration which will likely be rejected as a political issue. Then again, it might force Chief Justice John Roberts to consider a difficult issue while proceeding over a Senate trial.

 Why would Democrats go through all of the trouble to impeach a President who was essentially a short timer anyways?  Aside from trying to blot out a Trump presidency either with black marks or essentially cancel him, it would seem that they are scared about his future viability.  Post Presidency Impeachment may not be able to remove Trump but would also barr him from ever holding federal office again.  Considering the 74 million plus supporters who seem undeterred by bad press or even a snap impeachment, Democrats do not want strong opposition in 2024 to a weak Biden Administration featuring Kamala Harris.  Some establishment Republicans would feel safer if the Populist America First movement goes away with Donald Trump. Thus they might encourage impeachment to dampen his pull on the party and they can continue unimpeded in their quintessential District of Calamity (sic) cocktail party.

There is a practical political consideration about a Senate Impeachment trial.  Namely, are there the votes?  Unlike procedural issues, the Senate is required by the Constitution to garner a 2/3rds majority to succeed.  While there may be a few Republicans who despise Trump enough to vote for Impeachment, it would be hard to win 17 GOP votes. Even if Senate Democrats abolish the filibuster and push through Puerto Rican and Douglass Commonwealth (a.k.a. DC)  statehood, they would still have to sway 15 Republicans.

Turncoat Republicans had better hope for success, because an enraged and engaged MAGA wing will primary those who vote for a snap impeachment of Donald Trump.

Then there are the procedural problems with Trump’s second impeachment.  There is only one Article, and that cites “Inciting an Insurrection”. Aside from the plain language of Trump’s Ellipse speech which never incited his audience, it can be shown that trouble was occurring 1 ½ miles away on Capitol Hill before the President finished his speech.  Furthermore, facts from the FBI and mainstream media sources reveal that some agitators who have radical BLM and Antifa connections had been planning for trouble prior to the Capitol Siege.  This information will have to be fleshed out in a fair trial.

Moreover, the Resolution’s language points to Trump’s citation of false information about winning the election. Of course, all Americans (even a President) have the Freedom of Speech, even if it is demonstrably wrong. But by citing Trump's prior speeches and claims, that opens the door for Trump’s defense team to further expose and substantiate all of the election irregularities that state courts, Article III courts and the Supreme Court declined to hear on their cases merits.   That may take a long time and could upset the apple cart about the 2020 elections, further throwing doubt into the legitimacy of Biden’s presidency.  

Then there is the matter of Big Tech.  Social Media giants like Twitter and Facebook censored President Trump when questioning the election.  To add injury to insult (sic), these Social Media Cyber Nannies banned President Trump from even making statements to tell his supporters to go home peacefully.  That may open the door to expose collusion amongst internet companies in Election 2020.  

As the Article of Impeachment proof texts Trump’s remarks to find the most inflammatory takes, context might examine social media’s role in the matter.  That avenue of defense open the door to expose collusion amongst internet companies in Election 2020. If incoming Senate Majority Leader Schumer resists allowing the Trump team a vigorous defense, it will become clear that it is a show trial worthy of a Soviet state or a banana republic (not the kind selling safari clothing).

Since the first FDR term, Presidents have been historically measured by their accomplishments during their honeymoon period (i.e. the first 100 days).  If the second Trump impeachment goes to a real Senate trial, it will overshadow everything.  Thus the Biden honeymood will be like looking at a postcard of Niagra Falls and wondering: "If only..."

However, if some wild cards come up during the trial, such as obvious election fraud or collusion, some may prefer visit Niagra Falls over a barrel, with or without Dr. Jill.

Just as the Biden campaign was not about him but all about Donald Trump, the second impeachment trial of Trump may well overshadow the early Biden presidency.  While the will to get Trump might be widely held among Democrats (and some establishment Republicans), actuating this animus may well impede the ambitions of “The Great Reset”.

Matt Gaetz on a Snap Second Trump Impeachment

 

Trying to Make Sense of the Capitol Siege on the Epiphany

On the Christian calendar, January 6th was the Epiphany, a day of illumination.  In the Constitutional process, it was the day when Congress would consider and ratify the results of the Electoral College.   As President Donald Trump was convinced that election irregularities had stolen his victory from November 3rd, he called for a big Save America rally on the Ellipse to #StopTheSteal. 

Instead of being remembered as a time when defenders of the rule of law in Congress put forth a case that some of the state’s election results were invalid, most people will remember a Siege of the Capitol, in which Congress left in haste, troublemakers overtook part of the building and one woman was shot and killed.  Conventional wisdom will link the rioting with the Deplorables’ March on Washington, and establishment opinion makers will use it as a means to discredit the populist political movement, or even to remove President Trump by a late day impeachment or the 25th Amendment.

In the fog of war, there is a lot of confusion.  So when trying to make sense of the Capitol Siege, there are some things that do not add up.   A basic question is how could agitators so easily breach the Capitol building?  After all, the date was when all federal lawmakers and the Vice President would be gathering at the Capitol for what is usually a pro forma ceremony. It was clear that some objections would be raised and there would be debate over certification. Surely, security plans would afford added protection for the lawmakers.   In addition, Mayor Muriel Bowser (D-Washington, DC) had requested (and received) help from the National Guard while warning residents to stay home.  With that in mind, how did the Capitol so easily find itself in peril?

Deployment of forces certainly was part of the problem.  The National Guard called up was initially tasked with directing traffic around many of the blocked off streets around Capitol Hill and downtown DC.  National Guard typically does not get front line security deployments because of posse commitatus concerns and letting local law enforcement take the lead. In retrospect, it seems silly to have troops play traffic cops when there were a half million protesters going to march up the National Mall to the Capitol to protest “Stop the Steal”.  

One also has to wonder about the Capitol Hill police.  Video from when protestors breached the West lawn perimeter does not depict officers with full riot equipment as they clashed with troublemakers wearing helmets and carrying shields  who later broke into the Capitol.  But there are videos videos both on the West exterior stairs  and the West entrance  which give the impression that agitators were let into the complex by Capitol Police. This seemed strange.

Then one must consider the timing of the Capitol Siege.  President Trump was still speaking on the Ellipse at 1 PM when the Joint Session of Congress met for Electoral College Certification.  Shortly after certification began (ironically when the Arizona objections were raised), was when serious challenges of the Capitol building entrances began.  The Ellipse is at least a mile and a half away from the Capitol. It seems like troublemakers were pre-positioned on Capitol Hill to riot.  Adding to that conclusion is that the House Cannon Office Building and Library of Congress Madison buildings had been evacuated earlier in the day for security concerns.  Moreover, law enforcement found potential pipe bombs near the RNC which had to be detonated.  Kind of odd for conservatives and populists who needed Republican support to air their objections to physically threat the Republican National Committee.

To make sense of the Capitol Siege, it is incumbent to examine who perpetrated the breach.  A facile answer is MAGA types.   While there is no doubt that a multitude of passionate protestors came to Capitol Hill to exercise their First Amendment rights, most milled around the Capitol steps and did not go inside.  But that's hardly the whole story.

Many who were photographed trespassing in legislative chambers or the Rotunda did not fit the bill as quintessential MAGA rally attendees. Giving the BLM salute while sitting in the Senate President pro tem’s seat is incongruous with Trump supporters.  Jake Angeli (aka QAnon Shaman), an agitator dressed like a Viking had been seen at BLM and Climate Change rallies, again not run of the mill MAGA issues. 

 There was an agitator which investigative journalist Ian Miles Cheong identified as an actual white supremecist.  

A rioter who assumed the seat of the President pro tempe of the Senate made the quintessential BLM power gesture. 

Pro Trump protestors stopped Antifa agitators when caught ransacking the Capitol.  At prior DC MAGA rallies in November  and December, Antifa had counter-protests and assaulted peaceful MAGA protesters on the streets.  Where were such agitators on January 6th?  Nonetheless, it seems that fringe elements and agitators were the instigating the violence. 

This is not to imply that some Trump supporters did not participate in the unlawful Capitol Siege.  Leo Kelly, a Capitol Siege participant interviewed by LifeSiteNews  gave an interview saying that he participated in a communal prayer while trespassing in the Senate Chamber.  A West Virginia State lawmaker recorded his storming the Capitol and  was heard directing people in the Rotunda not to do any damage. Ashli Babbet, the woman who was shot and killed by a Capitol Police officer, was a 14 year Air Force veteran who had flown into Washington for the rally. Capitol Police report that three other people died at the Capitol. But some of those casualties may well have stemmed from ordinary health maladies.

It is a reasonable presumption that a relatively small group of Antifa types created chaos on Capitol Hill, breached the Capitol and egged the many disgruntled MAGA demonstrators to participate.  With the prior soft barricades being removed, many from the Ellipse surrounded the Capitol, probably with the attitude that “it’s the peoples’ house”.

In trying to make sense of the fallout from the Capitol Siege, it was easy to see how this violence overshadowed any objections to certifying some of the Presidential Electors due to election irregularities.  It was clear that the 117th Congress was unlikely to accept any objections, considering the slim Democrat majority in the House and Republican Senate leadership coming out against them.  Moreover, Vice President Pence issued a statement claiming that he had no power in the matter other than acting as a ceremonial manner, quashing hopes that some certifications would be sent back to the states. However, the objections to certification would have given a public forum to show the facts in a formal setting, so they would not be dismissed as conspiracy theory.  Alas, debate on the first set of objections in Arizona was interrupted by the Capitol breach.  

When Congress reconvened that evening, some lawmakers who previously considering joining the objectors switched sides, and in general consensus Congress rushed through the certification. Those who wondered about the propriety of certifying states with voting and election irregularities will be left unsatisfied and will likely conclude that President-elect Biden holds office under questionable legitimacy.  Seeing how quickly Republican establishment lawmakers folded under pressure gives the impression of being quislings.  Those groups who make trade of violent street protests as a vehicle for change will feel empowered.  The establishment in the media and on Capitol Hill may well use this as the pivot point to discredit populism and re–establish Deep State authority.

President-elect Biden gave a speech imploring President Trump to condemn the violence and demand an end to the siege. At the same time, President Trump was recording a message for social media urging people to go home and be peaceful.  But tech oligarchs on Twitter and Facebook interfered with distributing President Trump's message and later suspended Mr. Trump until he withdrew that message because it might incite violence and questioned the election results. Now our cyber betters have indefinitely banned the 45th President from Facebook  

It is also odd that more National Guard troops were called up and their mission was changed by Vice President Pence and the Acting Secretary of Defense in conjunction with Congressional leaders. Isn't the President Commander-in-Chief?  If one takes the rumors that Cabinet officials were talking (but not with Vice President Pence) about invoking the 25th Amendment to remove Mr. Trump, doesn't this lend credence to something resembling a coup? 

In the aftermath of the Capitol Siege, many details are distorted or undiscovered so there is not a true Epiphany.  One ought to give some consideration that these events may have been an attempt to actuate a Color Revolution and progressive forces use the chaos to make a play and power and cement their dominance over the body politick.   As noted before, Antifa was not present in their typical garb, but their tactics and some mannerism seemed evident amongst some rioters.  On January 5th, there were caches of bricks, lumber and propane tanks stowed on the street near Freedom Plaza, close to MAGA protest sites.  Those supplies have the hallmarks of Antifa or BLM rioting tools. But with the Capitol Hill Siege being successful, they were not deployed.  

Time will tell if such kinetic tactics will continue in the 46th President’s Administration or will markedly expand to other fringe groups. Moreover, it is unknown if the civic response to this anarchistic agitation create crackdowns on civil liberties or against voices which challenge the Establishment "mainstream".

Post Scriptus 01/12/2021 

There have been indications that there were Antifa Agent Provocateurs who planned to create chaos and egged passionate Pro-Trump protestors to storm the Capitol.

In an extended interview with the Epoch Times, war correspondent Michael Yon noted how organized Hong Kong tactics were evident outside of the Capitol during the siege. In addition, Yon observed how peaceful Pro-Trump demonstrators tried to stop these agents provocateurs and sought to separate themselves from their anarchy.

h/t: The Epoch Times

On Lame Ducks, Christmas Trees and Pocket Vetoes

In response to COVID 19, much of America practically shut down for much of 2020.   Many Americans lost their jobs, particularly in the hospitality and restaurant industries.  Congress passed a few bills intending to funnel stimulus money as a lifeline to these economically vulnerable Americans.  But as the second wave of extreme closures hit parts of America during the holiday season, such payments from Uncle Sam to stem the financial pain are critical.

The fourth COVID stimulus were held up by House Speaker Nancy Pelosi for admittedly partisan reasons.  Prior to the election, Pelosi demanded  $2.5 trillion legislation, which included bailouts of states with underfunded extravagant public pensions.  The Trump White House proposed a $1.6 trillion plan but was willing to increase it to $2 trillion to meet Democrats half way.  Still, Pelosi was intransigent until it appeared that Joe Biden (D-DE) was the presumptive President-elect. So Congressional Democrats only got serious about another COVID stimulus bill until the December rush from Capitol Hill to be home for Christmas

Lame Duck Congress sessions after an election often take a devil may care attitude since the scrutiny of the ballot box won't happen for another two years and some members are not returning to Capitol Hill. 

The Lame Duck 116th Congress was tasked with passing tardy spending bills which were supposed to have been finalized by the end of the Fiscal Year (September 30th).  It seems that the plan from leadership of both parties was to pass a couple of stop gap Federal Spending Bills to buy time from a government shutdown, then rush to pass an  $2.3 Trillion Omnibus Appropriation  Bill that is a Christmas Tree, meaning that there were all sorts of decoration of ancillary legislation which becomes a must pass bill.  

To add to the Slapdash Santa spirit, the powers that be agreed to pass a "skinny" COVID stimulus bill of ONLY $900 million of deficit spending, which earmarked a $600 check to Americans earning less than $75,000. Considering the financial insecurity of many Americans due to COVID, the Christmas rush when it was expected that people would not focus on the goings of Swamp City and the desire for President Trump to mitigate damage to his legacy, this must pass bill was expected to go through..

There were two flaws to this legislative strategy.  While Congress only had a few hours to review a five thousand page bit of legislation before passage, the details started to leak out.  Social media balked when it was discovered that only $190 million the the $900 million is set to go to needy Americans.  The rest of it was a pork Christmas tree, with expenditures for earmarks like $25 million to Pakistan for gender studies, funding for an American Womens' History Museum and an American Latino Museum on the National Mall, and nearly $90 million for Senate building maintenance. This raised the rankles of an already agitated American public. The House passed the combined COVID Relief package and Consolidated Appropriations  measure  (HR 133) by a 359-53 margin and the Senate passed the measure 92-6

The other thing impeding the typical jamming through pork barrel at the end of the year when people won't notice involves the 45th President.   President Donald Trump deems himself a disruptor from the swampy ways of the Deep State.  Even though the mainstream media has been parsing precious little time to President Trump since after the election, the Disrupter -in-Chief leveraged  his social media skills to distribute a viral video.  

President Trump demanded that every American ought to get a $2,000 stimulus check and the bill sent to him should be stripped of the other pork barrel legislation. Trump intimated that he may not sign the tripe bill that was sent to him.  Since Congress procrastinated to nearly the end of the 116th Congress, the President could have a pocket veto--meaning that by doing nothing (keeping it in his pocket) that the legislation fails. 

This puts Congress in a perilous situation.  They recognize that there constituents are really hurting and they will lose confidence in them if they fail on a stimulus, especially when their prior bill was laden with wasteful pork barrel projects that have nothing to do with COVID. While the Comprehensive COVID Stimulus and Appropriations legislation passed by veto proof majorities, a pocket veto does not require resubmission to Congress.  They let legislative time effectively run out for the customary rule of legislation.

The second problem is timing.  The Continuing Resolution only funds the government until December 28th. So if President Trump fails to sign HR 133 and uses a pocket veto, then there will be a government shutdown.  Congress may well get the blame for pushing pork barrel pet projects and giving taxpayers a pittance whereas the President wants to give every American adult $2,000.   To avoid a pocket-veto, they would have to stay in session during the week between Christmas and New Years Day.  And they could not easily do pro forma sessions because the Spending Continuing Resolution expires on December 28th. 

A third issue is populist agitation.  When the 117th Congress convenes on January 6th, they are supposed to certify the Electoral College results.  Since President Trump is positioning his Congressional forces to contest some of the election irregularities in several battleground states.  In conjunction with the Congressional vote, President Trump has called for a rally which he promised will be wild.  Imagine the animus  of a large group of "deplorables" against elected officials who won't "Stop the Steal", but due to their greed and indolence are holding back significant COVID relief packages for ordinary Americans. 

It is unclear if and when additional COVID relief payments are doled out, as well as the fate of contested election.  But because of lame ducks, Christmas trees and pocket vetoes, the next few weeks in Washington won't be as the Establishment had planned.

If Election 2020 Political Football Goes Into Overtime

 

As a political junkie, I have jested with friends and family that Presidential Elections are kind of a Superbowl for me.  Usually, the sturm und drang of a political campaign ends on election day.  In rare occasions, not so much.  Election 2000 stretched out through Thanksgiving that year due to the Florida recount. 

So when my beloved asked me how long would it be until we know who will be President next year, she was shocked when I suggested that it might be until January 4th.  What a fitting way to close out the annus horribilis of 2020.  I think that the field has been prepped for overtime in Political Fantasy Football resulting in a contested election scenario.

Granted, information may change by the hour, but on the evening after Election Day, the Democrat candidate Joseph Robinette Biden is thought to have 264 Electoral College votes, and Nevada is poised to surrender its six Electoral College votes, giving him a squeaker of a victory in the only metric which constitutionally matters.  Incumbent President Donald Trump is disputing an early call of Arizona’s 11 Electoral College votes.  

If Trump carries North Carolina, Georgia, Pennsylvania (battleground states where he is leading) and Arizona then Trump would win 274 votes and be re-elected.  Notwithstanding an outright victory, the Trump campaign has vowed to litigate against many instances of alleged voting irregularities, canvassing violations and potential fraudulent ballots for unvetted late mail in votes. Trump’s legal team has vowed to fight these violations, possibly even petitioning the US Supreme Court. 

This has the potential to impact results in key battleground states like Michigan, Wisconsin, Pennsylvania and Arizona.   If there are substantial cases, this may take time to litigate, which may delay or sway the official reporting of results.   Regardless of judicial outcome, if these violations are compelling, they may sway the process.

To refresh our civics knowledge, we do NOT live in a democracy but a Republic.  So when one casts a vote on election day for President, you are actually not voting for a Presidential candidate per se, you are voting for a slate of electors who then votes for the winning candidate in each state in the Electoral College, the ultimate party school. That’s how it normally works.  But technically, according to Article II Section 1 Clause 2 of the US Constitution, the power to name electors lies with state legislatures.  

Note well, this is a state legislature’s responsibility under federalism, which does not include input from a state Governor.  It is important to note that several battleground states with alleged voting irregularities, like Michigan, Wisconsin and Pennsylvania, have Republican majorities in their legislatures, despite having liberal Democrat Governors.   

It would be extraordinary, but not inconceivable, that Republican Legislatures may be convicted that voting irregularities which do not follow their legislation and would have be addressed when naming Electors for the Electoral College.  Obviously, Democrats would object to having their win overturned, so more than likely an alternative slate of Electors would attempt to be presented to the Electoral College.  And political mayhem ensues.

Presuming that the Constitution is followed, the legislature endorsed delegates would participate in the Electoral College vote on December 14th and that result would be sent to the US Senate. 

On January 3rd, the second duty of the Senate in the 117th Congress after their swearing in would be to ratify the Electoral College vote.  First vote decides the Vice President among the top two vote getters. Then the EC vote for President among the top three candidates. 

Normally, this is a pro forma vote and there is polite applause for whoever won the Election.  But in this scenario, Senators would challenge state slates of Electors.  This should be determined by a majority vote, with a tie being decided by the sitting Vice President (who is in office until January 20th).  If slates are thrown out and neither candidate gets a majority of Electors, then the contested election moves to the House of Representatives.

Even though Democrats have maintained their majority in the House, voting in a contested election is done by Representatives en banc via state.  Republicans have a 26 to 24 state majority in Congress, thus it would point to re-election of President Trump.  If there is not a majority of state delegations electing a President or Vice President by January 20th, then the Rep. Nancy Pelosi (D-CA 11th) or whoever is Speaker of the House at that time,  Acting President until the succession is determined. 

 Historically, there have been a few contested elections. In 2000, the Florida recount was settled by a Supreme Court decision in favor of George W. Bush.

 While the 1960 Presidential election was not formally disputed, the popular vote was only decided by 0.14% in favor of John Kennedy.  It is said that if 10,000 votes switched in four states, Richard Nixon would have become President in 1961. There were allegations of shenanigans in Texas and Illinois.  Moreover, there were 14 unpledged delegates in Mississippi and Alabama cast for Harry F. Byrd.  But Nixon did not want to divide the country so he did not fight. 

The 1876 Presidential Election was a quintessential case of a contested election.  Democrat Samuel Tilden won the Popular Vote but there were difficulties in the  Electoral College.  One of Oregon’s Electors was deemed ineligible as he was an elected official.  But Florida, South Carolina and Louisiana had competing Electors as each party sent slates, amounting to 19 more unresolved Electors.   To resolve this matter, Congress adopted an informal agreement known as the Compromise of 1877 which gave all 20 unresolved electoral votes to Republican Rutherford B. Hayes, thereby making him President.  In exchange, the federal government under Hayes withdrew Reconstruction troops that had been propping up carpet bagging state governments in Florida, South Carolina and Louisiana.  

Prior to the 2020 Elections, Democrats ran an election war game of a close election.  In this simulation Democrat activist John Podesta refused to concede and extracted political promises by threatening that West Coast states, such as California, Oregon and Washington would leave the Union unless they got their way.   This obstinate political modus operandi seems to echo the extracted promises from the Compromise of 1877. 

A hypothetical overtime in political football seems pretty theoretical but strange things have happened in 2020. We may be suffering from the Chinese curse of “May you live in interesting times”, even without  Joe Biden assuming the Oval Office.

Do VP Debates Matter?

 Being an inveterate political junkie, I always watch debates during a Presidential Election cycle.  Of course, take-aways from these contests are often less about substance and more about style or catch phrases.  Experience has taught that impressions are even more the case with Vice Presidential debates.

Before one dismisses the significance of the Election 2020 Vice Presidential debate between Democrat Senator Kalama Harris (D-CA) and Republican Vice President Mike Pence (R-IN), it is incumbent on a conscientious voter to consider the top of the ticket.   Pence is the running mate of a 74 year old incumbent Chief Executive who was recently diagnosed with COVID-19.  Harris is the bottom of a ticket with a 78 year old challenger who many believe is displaying cognitive decline and  has engaged  in what can charitably called  a laid back general election campaign,  These VP nominees may not just be virtue signaling for identity politics or geographical balance to a ticket, but may well inherit the Oval Office.

To prepare for the future, it helps to look back at the recent past to discern tips and tricks for Vice presidential debates.

For me, the most memorable zinger from a VP contest was in 1988, when George Herbert Walker Bush's VP nominee Senator Dan Quayle (D-IN), tried to answer moderators' pushback on his qualifications if he were to become President.  Qualye, who many believe was chosen in part for his youthful vigor to balance one of the last Greatest Generation Presidential candidates, tried to give vague assurances of continuity.  To support his credentials, Quayle compared himself to Democrat icon President John F. Kennedy, who had the same amount of elected experience before becoming President. Democrat Vice Presidential candidate Senator Lloyd Bentsen (D-TX), overcame his debate jitters to utter the ultimate deflating repartee 

"Senator, I served with Jack Kennedy. I knew Jack Kennedy. Jack Kennedy was a friend of mine. Senator, you're no Jack Kennedy."

 

 

 As spontaneous as that sounded, the jibe came from debate prep.  According to Dukakis campaign advisor Susan Estrich in 2004, the stand in for Quayle kept making this JFK comparison, which stunned Bentson.  The Democrat VP nominee asked his advisors if he could say something and they agreed.  The rest was history and comedic fodder for years.  Not that it really helped the Dukakis/Bentsen ticket, which got crushed in the Electoral College in 1988.

For the most part, people rarely remember the VP debates.  Honestly, some political pundits strain to think of losing VP nominees four years later, such as Senator Tim Kaine, (D-VA) First Lady/Senator/Secretary of State Hillary Rodham Clinton's choice in 2016.   At the time, I covered the debate blow by blow.  But it made little impact and Kaine slunk into faded memories, even despite retaining his Senate seat.

Despite being quite occupied with the Romney/Ryan ticket in 2012, I struggle to recall any take away moments from the VP debate between Representative Paul Ryan (R-WI 1st) and Obama Vice President Joseph Robinette Biden.  Some commentators note that Biden smirked and interrupted the Congressman, which seems to be part of Biden's toolbox.  This non-verbal strategy does not accord gravitas to one's opponent; however, depending upon the post debate spin, it risks making the perpetrator look like a jackass.

Sometimes, it helps for a candidate to draw from his or her biography to score points.  Biden is famous for invoking his familial tragedies to draw empathy during a debate, as he did during the dust up with Senator John McCain's (R-AZ) maverick VP choice Governor Sarah Palin (R-AK) in 2008.

For the 2020 Vice Presidential debate, Senator Kamala Harris  should be well experienced, as she participated in six monthly Democrat Presidential Primary debates before dropping out before the Iowa Caucus with virtually no support.  

Harris made the most of her first debate appearance by going after the jugular of front runner Joe Biden by indirectly accusing him of being a racist for opposing school bussing in the 1970s.

   

 Harris' verbal hit must have been preplanned, because the next day her campaign store was ready to roll with "That little girl was me" t-shirts and stylized social media posts.  

In some senses, Harris' hardball did not politically hurt her ambitions,  as Joe Biden chose her to be his running mate (or is that vice versa?).  But in a more intangible sense, that attack leads to a perception of unlikeability and phoniness amongst even  diehard Democrats.  

Mike Pence's style is certainly less confrontational than President Trump's demeanor. Pence has a well earned reputation as an Evangelical Christian, so don't expect bombast or invective.  But before successfully being elected to Congress in 2000, Pence hosted a syndicated daily radio talk show for seven  years.  Pence branded himself "Rush on decaf", meaning that he was just as conservative as Rush Limbaugh but without the bombast.  Pence also hosted a weekend public affairs television program.  Skill sets developed from these experiences, such as being comfortable on camera, calmly discussing issues and controlling time, might be quite helpful during a debate.

One of the distinctive qualities of the Biden/Harris campaign is controlling the media narrative, as both candidates eschew taking unscripted questions from the press and have extremely limited campaign events which are meant for television. The mainstream media has not hidden their support for the Democrat ticket.  Thus this might be the opportunity for Republicans to impeach candidate Harris by posing hard questions. For example: "Senator Harris, how did you reconcile Joe Biden's opposition to school bussing with your hurt feelings  over racism?"   On the one hand, if Pence fails to propose such pointed questions, it is a lost opportunity.  On the other had, would soft spoken challenges get ignored and make the interrogator inept?

One of the major criticisms of the first Election 2020 Presidential debate was the disrespectful over-talking and insults between the participants.  There is little danger of those traits from Mike Pence.  That is not as sure of a bet with Kamala Harris.  Harris played the adult in the room for the second 2020  Democrat primary debate, which is easy to do with a crowded stage, but that may come off differently one-on-one.

It seems that the Biden/Harris campaign is banking on a visual perception to sell a major component of their campaign.  Due to COVID-19, Harris insisted that the daises be placed at a safe 12 apart.  In addition, the Democrat debater and the moderator will be surrounded by a plexiglass barrier.  This staging may draw attention to the Biden/Harris contention that the Trump Administration has been inept in handling the viral pandemic.  In marked contrast, Vice President Pence declined the see thru cage, which also may be sending a message.

For those that eat, sleep and breathe politics, the Vice Presidential debate will be of temporary great import.  But my visceral instinct is that it will have little impact, aside from confirming impressions of the candidates. In this cycle, that impression may not be a good thing. 

 

Press-ing Hypocrisy

Chris Plante is wont to say that:  "If it wasn't for double standards, Democrats would have no standards at all."  This obviously includes Democrats with media credentials in the White House press corps.  The latest White House press briefing included the perennial gotcha game, trying to make headlines cajoling (really pestering) the Press Secretary to mouth phrases that can be spun into controvery.  But it also had Press behaving badly.  The credential questioners turns into a filibustering debate with the President's Spokesperson, and not stopping until they got their prize.   


Much like her boss, Kaylee McEnany is raring to counterpunch and put the Press in their place.  The media was having a melt down over the debate, when President Trump refused to be slandered by his opponent and interjected challenges.  McEneny pointed out their hypocrisy. 

Reconsidering Trumpian Brusqueness

 

Debating the Debate Take Aways

Presidential debates are not like Oxford Union style debates, which can be scored on points and form. Often, the policy points do not matter.  What often is the take away from a presidential debate is a zinger (usually pre-planned) or some canned ham (scripted witticism).  Occasionally, the demeanor or appearance of a participant is what is long remembered.  Then there are the blunders, both verbal and non verbal.

To give an example of how seemingly superficial factors sway voters, consider the dichotomy of perceptions that people had about the Kennedy/Nixon debate in 1960.  Those who listened to the debate on radio generally thought that Vice President Richard Nixon won on points and substance.  People watching on television, however, thought that Senator John F. Kennedy (D-MA) won the day as he looked collected as well as tan and rested. 

[L] Vice President Richard Nixon (R-CA)  & [R] Senator John Kennedy (D-MA) during 
1960 Presidential Debate, Sept. 22, 1960

 The rest of the story touches upon Nixon’s demeanor, health, and appearance.  Television viewers opined that Nixon looked nervous.  Despite being a ground breaker for long form televised ads (the “Checkers” speech from 1952), the camera did not love Nixon.  He had nervous demeanor which did not display well. Nixon came to the debate coming from a campaign appearance, whereas Kennedy had polished talking points which he rehearsed with aides the weekend before.

 On top of that, Nixon refused television make up as he heard that Kennedy had declined TV make up.  Instead, Nixon tried to  his five-o-clock shadow with “Lazy Shave”, which melted off under the hot television lights during the debate. That contrasted with the clean shaven Democrat challenger. 

[L] 1960s Lazy Shave Ad [R]Button of New York Review caricature by David Levine

Nixon also looked in pain, green and sallow.  This is attributable to being hospitalized for 12 days during the general election campaign due to a Staph infection.  These deficiencies really came across to the television audience.

Zingers are common during presidential debates, as they are the source of post debate water cooler humor and can crystalize a perception of a candidate.  Take President Barack Obama’s quip to ex Governor Mitt Romney (R-MA) in 2012 when Romney opined that America’s major foreign policy concern should be the Russians.  Obama joked: “The eighties called and wants their foreign policy back.”.  This painted challenger Romney as out of touch with a sardonic smile on his face. 

Sometimes zingers have some substance to them.  After President Ronald Reagan had a shaky first debate in 1984, there were concerns that the 73 year old President might not be up to a second term.  But in the second debate, Reagan was prepared for this issue and said: “I will not make age an issue in this campaign.  I am not going to exploit, for political purposes, my opponent’s youth and inexperience.”  Everyone laughed, including Reagan’s opponent ex Vice President Walter Mondale (D-MN).  That charming canned ham dispelled any doubts and Reagan went on to win in a landslide. 

An awkward phrase tossed out during a debate can come back to haunt a candidate.  During the 1976 presidential debate, incumbent President Gerald Ford was attempting to fend off a challenge by then Governor Jimmy Carter (D-GA).   President Ford asserted that there was no Soviet domination of Eastern Europe. The moderator was incredulous at this answer and Ford offered examples of how the people of Yugoslavia, Romania and Poland do not feel dominated by the Soviet Union. 

 

This incredible response was given at a time that there were Eastern Europe behind the Iron Curtain and within Soviet hegemony of the Warsaw Pact.  Later, Ford’s campaign tried to spin that the spirit of Eastern Europe was never dominated by the Russians. But that blunder was a stand out blunder and may have tipped the scales of an election.

Body language can deliver debate body blows to a campaign.  During the 1992 Town Hall Presidential Debate between incumbent President George H.W. Bush, challenger then Governor Bill Clinton (D-AR) and Reform Party candidate H. Ross Perot, there were timed questions and answers between the three candidates and the audience.  The camera caught President Bush “41" looking at his watch.  

[F] President George H.W. Bush & [B] H. Ross Perot at
Richmond Townhall Debate, 1992

 He may well have been figuring out what portion of the debate they were in to switch tones or emphases.  But the spin from this Richmond Town Hall debate was used as a cudgel later in the campaign to show that President Bush was bored and out of touch.

With this background in mind, we need to consider the expectations game and the later spin.

[L] President Donald Trump and [R] ex Vice President Joseph Biden 
at the Presidential Debate in Cleveland, OH Sept. 29, 2020

Former Vice President Joe Biden (D-DE) spent the better part of a week putting an early lid on campaigning, supposedly doing campaign prep.  Cynical sorts have suggested that the Biden campaign may have been adjusting the candidate’s clock to avoid “sunsetting”, which would not have Joe at his best.   Many Republicans questioned the vigor of Biden’s campaigning and though he might not be physically or mentally up to the job.    However, expectations had been set so low, that a sympathetic news media could proclaim Joe Biden’s debate performance as a triumph if he merely appeared.   

The first (and possibly only) Election 2020 Presidential Debate in Cleveland was a food fight between an incumbent street brawler and “Lunch Bucket” Joe who on prior occasions has threatened to beat up his opponent in back of the school.  Let’s not forget the third debater in this supposedly mano-a-mano imbroglio, moderator Chris Wallace. 

In the first minutes of the debate, Wallace lost control.  But instead of letting the principle fighters duke it out, Wallace seemed to tag team with Biden, asking candidates questions pointedly rooted from a progressive perspective (climate change, racial justice, COVID-19 and “science”), interrupting Trump when he was on a roll, not allowing retorts to obvious distortions, prompting Biden when he answered the wrong question and not allowing pressure when Biden refused to answer.

Biden’s performance of surviving the Cleveland debates may give him the ability to avoid sharing the stage with President Trump for the remainder of Election 2020 because of the unpresidential atmosphere.  But calling his opponent a clown, a perpetual liar and a racist had nothing to do with this so c’mon man (sic).  Such a strategy would align with a campaign which has been critiqued for “Hidin’ Biden”, giving structured pressers with preplanned questions and responses typed out on a teleprompter.  Biden’s staff may feel like they got the credibility which they needed, the debate cast Trump in a negative light and further debates might cause unforced errors.  But in the post debate hubris, Biden’s staff promised to do all of the scheduled debates.

President Trump did not do much debate prep but seemed to wing it. He lived up to his reputation of counter punching and raring for a fight. Honestly, it was not pretty. Trump used sarcasm, redirection and interrogatories to verbally attack his opponent.  For those who liked Mr. Trump’s scrappy style, they may have been pleased. Those who are anti-Trump were not going to be won over.  The unstated objective may not have been to sway undecided voters, but to convict the base while dividing the opposition.

For instance, “Moderator” Wallace asked the question about race, Trump keyed in on Biden’s 1994 lead on the crime bill when he kept referring to Super Predators, which still rankles the Black community. Then he shifted his answer to law and order.  This has elements of answering the question that a debater wants, painting the opposition and playing to your strong suits.  Trump could have touted his Administration’s success in the 2019 prison reform bill, which aided disproportionately impacted African Americans, but he did not.  Was this a missed opportunity? Perhaps.  But Trump wanted to do a quick hit on his opponent and then segue to a prominent campaign theme of law and order, which is a sharp contrast to Biden.  Despite making inroad in polling African American men (presumably from economic opportunity), it is likely that Trump was trying to depress Black turnout for Biden, which has been taken for granted by Biden (e.g. “You ain’t black if you aren’t voting for me” from the Breakfast Club).

Trump’s pivot on the question to law and order plays well with communities that peaceful protests caused burnt out small businesses.  In instant polling on Telemundo, Latinos disproportionately thought that Trump won the debate, which seemed linked to law and order. This was further cemented when Trump pressed Biden on which law enforcement groups endorsed the Democrat, and there was no reply at all.

When the topic shifted to public health and insurance, Biden wanted to tout the virtues of Obamacare and paint President Trump as heartless. Trump wanted to show that Democrats want to wipe out private insurance and pointed to the Bernie Sanders manifesto which Biden supposedly had bought into towards the end of the primaries.  Biden insisted that the manifesto was not his plan and distanced himself from Sanders.  Trump chimed in that Biden just lost the left. Obviously, Bernie bros will not be happy that they were pushed to the side.  That might dampen some turn out on the left, even if was a “necessary evil” so Biden might triumph.

The debate in Cleveland did not feature a spin room, but that did not really matter because the mainstream media had their narratives already established.  Biden survived so he thrived.  Trump acted “unpresidential”.  In addition, it echoes the Biden campaign’s narrative that “this clown lies all the time”.   More establishment Republicans tsk tsk the street brawl flavor of the debate.  Some commentators on the right lament missed opportunities. It certainly did not look pretty.

In rereading the debate transcript, Trump was able to strongly reinforce his law and order message, offer negative news about Biden family corruption which the “fake news media” has ignored, and shown that Biden is a politician who is light on accomplishments in 47 years of public life and lacks leadership now.   If Trump did not have to debate Chris Wallace, there were some instances which Biden’s ramblings might have shown that he’s lost some steps, but Trump’s challenges redirected the contentious conversation.

Time will tell if there will be more presidential debates in Election 2020 and what messages will resonate among the electorate.