The case against letting Trump off on a technicality in the upcoming impeachment trial

Hardliners like Lindsey Graham have already threatened to drag the upcoming impeachment out into an endless circus if Trump’s critics are too mean to Lindsey’s guy. He threatened to end all other legislative business while extending the unfair trial by unscrupulous means. A real credit to his race, Lindsey.

Rand Paul, who complained (without basis in fact) that all of Trump’s lawsuits (hundreds, literally) related to alleged massive election fraud were thrown out for procedural reasons, like “lack of standing” and that, therefore the merits of the election fraud cases were never reached. Of course, a few were dismissed for procedural reasons, but the bulk of the hundreds of Trump’s election-related lawsuits were dismissed based on their lack of merit as lawsuits. I loved this Trump appointee’s detailed dissection of one federal case brought by Trump’s army of lawyers. [1]

Now Paul, the well-spoken American Republican/Libertarian/Extremist, is standing by his claim that Trump’s impeachment is barred by a procedural hurdle– his colleague Mitch McConnell did not call the Senate back from its break in time after the House impeached Trump. Therefore, says Paul, the impeachment is unconstitutional. End of story, we don’t reach the merits of what Mr. Trump may or may not have done that might disqualify him from ever again abusing the power of his office to foment an anti-democratic riot, because the constitution forbids it. As James Madison and the other Framers surely intended, if you follow the reasoning, political calculation, whatever you want to call Rand Paul’s legalistic canard.

Former White House Counsel Bob Bauer wrote an excellent op-ed, The Republican Argument Against Impeaching Trump Is Dangerous, that lays out the thinness of this absurd “constitutional” argument against impeachment. Impeachment, Bauer informs us, was first and always concerned with disqualifying corrupt officeholders who perversely abused their power from ever holding power again. At one time impeachment did not include removal from office at all, it was generally used after a malefactor’s term was over to prevent them from attaining elected office again. Beyond the weak “constitutional” claim, signed on to by 45 of 50 GOP senators, signaling their readiness to let Trump slither through this high-sounding run-out-the-clock procedural loophole, Bauer underscores the danger of letting an unprincipled demagogue provoke insurrection during his last days in power and then finding that his being out of office is punishment enough.

Though this may all seem self-evident, Bauer does an excellent job illuminating the matter, and what’s at stake for our experiment in democracy.

[1] From that decision:

(After analyzing standing, which is based, in part, on having suffered, or being about to suffer, a concrete, cognizable legal injury the court has jurisdiction to address)

Second, even if Plaintiffs had standing, their claims fail on the merits.

Plaintiffs essentially ask this Court to second-guess the judgment of the Pennsylvania General Assembly and election officials, who are experts in creating and implementing an election plan. Perhaps Plaintiffs are right that guards should be placed near drop boxes, signature-analysis experts should examine every mail-in ballot, poll watchers should be able to man any poll regardless of location, and other security improvements should be made.

But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials. See Andino v. Middleton,— S. Ct. —, 2020 WL 5887393, at *1 (Oct. 5, 2020) Case 2:20-cv-00966-NR Document 574 Filed 10/10/20 =- (Kavanaugh, J. concurring) (state legislatures should not be subject to “second-guessing by an unelected federal judiciary,” which is “not accountable to the people”) (cleaned up).

Put differently, “[f]ederal judges can have a lot of power—especially when issuing injunctions. And sometimes we may even have a good idea or two. But the Constitution sets out our sphere of decision-making, and that sphere does not extend to second-guessing and interfering with a State’s reasonable, nondiscriminatory election rules.” New Georgia Project v. Raffensperger, — F.3d —, 2020 WL 5877588, at *4 (11th Cir. Oct. 2, 2020).

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