& Back in the old days down here in the desert, if they didn’t just prop up the chicken-livered culprit in the sway of an old horse’s back, put a noose over his neck and slap the steed on its butt, they would employ a kinder and gentler way of meting out justice. They’d get a bucket of hot black tar and a bunch of chicken feathers, smear the goo liberally over the exterior of the offending spawn of an anthropophagist, decorate him with the plucked plumage, stick him in a tattered saddle on broken-down, knock-kneed nag, and give it a shove toward the setting sun.
“Fly away with your new feathers, knave,” they would cry and cackle at the silhouetted, diminishing speck wobbling westward into the orange glow. “Return again and you’ll dance from a limb.”
Then they’d get on with important things, like quickly forgetting the rotten old bastard, who, by the way, never came back.
This is not to say that the most recent former president of these disUnited States was the descendant of a cannibal, tempting though it might be in light of his demented determination to devour the very flesh of our democracy. It is to say that there are times when one yearns for the old days, when well-deserved justice basked in the glow of common sense quickly applied, and little else mattered.
These days, dammit, we dither. Washington, D.C.: Dither Central.
Among the many subjects of dithering in the district these days is the matter of whether the blackguard in the black overcoat, accompanied by his gang of ticket-of-leave men in shiny suits, should be allowed to ride back into town. The posse of public enemies may have that possibility in mind, thus the growing concern among law-abiding townsfolk. After all, in the words of an old ditty, “how you gonna keep ’em down on the farm after they’ve seen Paree?”
More precisely put, how do we keep one Donald J. Trump from ever, ever, ever again running for President? Or dogcatcher?
Enter the delegations of ditherers. Yr’s Truly chooses not to drag you into the legal morass of impeachment, censure, civil or criminal complaints, etc., etc., etc. You can Google all the options and discussions, should you be so inclined. One you may not find, however, is the idea of a former Colorado member of Congress, who says he’s unearthed an ancient means to ban the Orange Agent from the White House forever, without ever allowing Mitch McConnell or the Republican loonie contingent gum up the works.
It’s complicated, but what in Dither Central isn’t? You can read the Congressman’s reasoning below, and his appeal to “Just Do It.” As in swoosh!
& Confident in knowing that if all else fails, it’s easy enough to find a roofer with a tar bucket, a chicken plucker and and knock-kneed steed, I’m outta here.
By David Skaggs © 2021
The suggestion that the Senate (merely) censure former President Trump for aiding and abetting the January 6 insurrection falls far short of what’s required.
What’s required is keeping a dangerous and scheming man from having access to high office ever again. Not just sending a righteous message to some antidemocrat autocrat in 2040, but disqualifying Trump in 2024. No, this is about much more than letting future generations know that we took this act of treasonous behavior seriously, and said so.
Sadly, with the Senate’s vote to avoid – barely – dismissing the impeachment, we know there won’t be a conviction. But that can’t be the end of the effort to hold Trump accountable and to exact justice for his crimes. Senate censure – however satisfying emotionally and morally – risks being insufficient legally and politically.
The answer lies not in the Impeachment Clause but in section 3 of the 14th Amendment. That addition to the Constitution was passed and ratified after the Civil War, and section 3 was deemed essential to rooting out the evils that remained. The pertinent language reads:
No person shall . . . hold any office . . . under the United States, . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
Section 5 of that Amendment tells us what’s required to give it full force and effect:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This authority to weed out of our political life those unfaithful to the Republic was used a fair amount during Reconstruction to deal with officers and officials of the Confederacy, but then again not until a single case stemming from disloyalty in World War I. Still, it remains “good law” and readily available to those with the determination to use it.
And, if you’re worried, there is no ‘bill of attainder’ problem, either; that constitutional prohibition addresses only criminal matters.
Now, there has been some talk lately about “14 section 3.” Talk is fine, but not enough. What is needed is the hard decision to use it. Passing reference in a censure resolution isn’t enough to get the job done.
A vote to convict by the majority of the Senate, coupled with the House majority vote to impeach, may together be a sufficient predicate. That is, it would mean a majority of both houses of Congress had found Trump “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” What’s missing is a measure “to enforce, by appropriate legislation.”
Any attempt to disqualify Trump from future office will likely be tested in court. So, we need to proceed conservatively. That is, we need “legislation” that will meet a hard judicial test. A challenge to legislation to disqualify Trump likely would be held to standards that see it as punishment, and penal measures are typically construed narrowly to give the benefit of the doubt to those affected.
So, a simple censure resolution by one house of Congress is not up to the task. It will take a law passed by both Senate and House, and signed by the President, that recites and makes findings that Trump’s crimes meet the requirement of conduct that aided or abetted insurrection. It must explicitly call on the authority given to Congress in section 5 to disqualify the culprit.
This is normally a high bar, and it should be. But let’s consider the circumstances that will attend the Senate impeachment trial. By all accounts, the vote to convict will garner a bipartisan majority of the Senate – just not the two-thirds of those present required.
And then what? When will Majority Leader Schumer ever face a more compelling opportunity to do the right thing?
Majorities of both House and Senate will have spoken on the question posed in section 3. Let those majorities act. A joint resolution of the Congress invoking the authority given it in the 14th Amendment takes only a majority vote in both houses.
Mr. Majority Leader, please take this opportunity to capture the will of the majority in the Senate, pass it, and send it on to the House, where the Speaker of the House would receive it with open arms, and bring it to the floor for a confirming vote there.
Please, spare us any temporizing attempt to relegate the 14th Amendment to ancient history and argue lamely that it’s doesn’t apply to the present. These times bear too much parallel to the 1860s to get away with that!
To the majority in Congress who have proclaimed their outrage and their determination to see justice done:
You have the tool you need. Use it!