Category Archives: The Left

House Committed Six Violations of the Constitution During Impeachment: Alan Dershowitz

One of many examples where apparently the law does not apply to the Left if it is inconvenient.  mrossol




Updated: January 16, 2021

Harvard Law professor emeritus Alan Dershowitz said that the House violated six independent points of the Constitution when impeaching President Donald Trump.

In an interview with Newsmax, Dershowitz said: “They violated the free speech provision. They violated the impeachment criteria. They violated the bill of attainder. They violated due process, on and on and on.”

“How can you impeach a president for a speech that is constitutionally protected?” he said.

Alan Dershowitz
Alan Dershowitz attends Hulu Presents “Triumph’s Election Special” produced by Funny Or Die at NEP Studios in New York City on Feb. 3, 2016. (John Lamparski/Getty Images for Hulu)

The law expert said that Congress is not above the law, but that ironically, they have protection from culpability for what they do on the Senate floor.

“But the only sanction is to vote them out of office and to bring them to trial in the court of public opinion,” Dershowitz told host Carl Higbie. “Senators and congressmen are immune from lawsuits for what they do or say on the floor of the Senate, so there can’t be any personal lawsuits.”

“The Constitution is very clear, the purpose of impeachment is removal,” he said. “The Senate cannot try an ordinary citizen.”

On a single article of impeachment, the House voted 232–197 to impeach President Trump, on Wednesday for “incitement of insurrection.” Democrats and 10 Republicans contended Trump incited the Jan. 6 breach of the U.S. Capitol.

Trump is the third president to be impeached and the first to be impeached twice. No president has ever been impeached and convicted, and no president has ever been placed on trial after leaving office.

A single seven-hour impeachment hearing session constituted the fastest impeachment in U.S. history.

Speaker of the House Nancy Pelosi appointed Eric Swalwell (D-Calif.), who recently came to the spotlight for his alleged intimate relationship with a purported Chinese spy, as impeachment manager.

Some legal experts argue holding an impeachment trial after Trump leaves office violates the Constitution.

“Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment,” J. Michael Luttig, a retired federal judge, wrote in an op-ed.

Others say a trial could commence.

“Of course, you can impeach, convict, and disqualify a former officeholder,” Gregg Nunziata, a former Senate Judiciary Committee lawyer, said in a tweet. “This view is supported by English custom, Constitutional text and structure, original understanding, and continuous Senate precedent.”

Under the U.S. Constitution, the Senate conducts an impeachment trial when the House impeaches a president. The upper congressional chamber can acquit a president or convict him. A two-thirds vote is required to convict. When the House impeached Trump on a separate matter in 2019, the Senate voted to acquit him 21 days after the trial started.


Impeachment is more dangerous than Trump – UnHerd

Impeachment is more dangerous than Trump

The most apt parallel for the second impeachment of Donald Trump may not be any other of the three previous presidential impeachments, including his own just over a year ago. It may instead be the PATRIOT Act, which was passed in the heated emotional aftermath of the September 11 attacks, with negligible debate afforded to the long-term implications of what Congress was enacting. Reason and deliberation had given way to a collective desire for security and revenge, and thus the most sweeping curtailment of civil liberties in the modern historical record was approved. Those who departed from the swiftly assembled consensus could expect to be denounced as sympathisers to terrorists.

Likewise, if you deign to raise concerns about the implications of this sudden impeachment sequel — or any of the other extraordinary actions taken in the past week, such as an ongoing corporate censorship purge of unprecedented proportions — you can expect to be accused of defending or supporting the “domestic terrorists” who carried out the mob attack on the Capitol.

Nancy Pelosi, the Speaker of the House, rationalised rushing through Wednesday’s impeachment resolution at spell-binding speed — by far the fastest impeachment process ever — on the grounds that Trump posed a “clear and present danger” to the country, and needed to be removed immediately. “Imminent threats” of various stripes also have a long history of being cited to justify sweeping emergency action, such as the invasion of Iraq. Often upon further inspection, the purported “threat” turns out to have been not so “imminent”, or in fact to have never existed at all.


But as rushed as the impeachment was, if the purported emergency conditions were truly so dire as Pelosi maintained, she could have theoretically summoned the House to convene the day after the mob attack and impeach Trump right away. Congress convened the very next day after the attack on Pearl Harbor to declare war on Japan, for example. Instead, Pelosi waited a full week, and gave everyone the weekend off in the interim. Trump, alleged to be in the process of orchestrating a violent “coup”, was allowed to remain in office unimpeded with access to the nuclear codes for seven days.

Nonetheless, with a total of two hours of perfunctory debate — and no hearings, fact-finding or meditation on the relevant Constitutional Law considerations — Trump was impeached for the second time. As such, the text of the impeachment article will now be permanently embedded in the fabric of American governance.

One wonders who even had a chance to actually sit down and read it. The article, which charges Trump with “incitement of insurrection”, is far-reaching in its potential implications. “Incitement” is an extremely narrowly circumscribed doctrine in US law, and for good reason: anyone who engages in inflammatory but protected political speech could theoretically be said to have engaged in criminally punishable “incitement” without the shield of the First Amendment. If someone who hears your speech chooses on their volition to engage in violent or criminal conduct, you in almost all circumstances cannot be prosecuted.

This new impeachment changes that equilibrium. The one quote cited from Trump in the article to demonstrate his alleged “inciting” speech was: ‘‘If you don’t fight like hell you’re not going to have a country anymore.’’ That line — which could have been uttered by Trump in about a thousand different contexts over the past five years — is alleged to have “foreseeably resulted in… lawless action”.


I witnessed countless instances of political speech expressed by activists, journalists, and others during last summer’s protests and riots which under the same standard could have been deemed to have “foreseeably resulted” in “lawless action”, such as attacks on police or destruction of property. But there was always a presumption that the speech was nonetheless protected under the First Amendment. The new “Trump standard” codified by this impeachment could have drastic implications for the the future, should it be applied more widely throughout US jurisprudence. Impeachable “incitement” is also unlikely ever to include statements by a president “encouraging” violence by way of, say, military force.

Still, Trump’s statements on 6 January  — just like a seemingly infinite number of others over the past five-plus years — could surely be worthy of political rebuke or censure. Indeed, Trump has already been rebuked. He’s been roundly condemned by his own party and administration. His main communications platform, Twitter, has banished him. His high-profile supporters are being systematically nuked from social media writ large. He’s been made to issue several humiliating statements conceding defeat and “disavowing” the MAGA mob which marched in his name. The bozo rioters at the Capitol were undoubtedly inflamed by a barrage of lies and conspiratorial delusions that Trump churned out on an almost hourly basis since losing the election — that’s beyond dispute.

But it was still clear pretty soon after the mob intrusion began last week that the most significant consequences from what occurred would arise not from the intrusion itself, which was dispersed by agents of the state in a matter of hours. Rather, the real consequences would stem from the predictably rash over-reaction. The more extreme the characterisation of last Wednesday’s events, the more emotional ammunition that lawmakers have to demand whatever extreme remedial action they had been ideologically committed to pursuing anyway. This goes well beyond the expedited impeachment, and into the corporate censorship purge which has now radically altered the principles undergirding the open internet.

Alexandria Ocasio-Cortez, the most high-profile member of the Left-wing Congressional “#squad”, has claimed that she narrowly escaped assassination at the Capitol and has thus been “traumatised”. Evidently she will be publicly working through this “trauma” on Instagram. It is also her contention that half of the House of Representatives (over 200 people) had been on the verge of mass execution. This style of political rhetoric has already been marshalled by “AOC” and others to demand corporate censorship on a vast scale, and successfully so; last week she tweeted pressure on Apple and Google to expel the alternative social media platform Parler from their app stores, and the corporations quickly obliged.

Amazon, falling like a domino, then completely terminated Parler from its web hosting service — effectively killing the site. As perhaps the country’s most influential Democrat by online following, AOC is someone who these tech corporations have an interest in appeasing, especially as Democrats enter full control of the federal government on 20 January. Her exceedingly dramatic recounting of what transpired during the mob intrusion is a powerful tool in her arsenal.

Curiously, the most putatively “progressive” members of Congress seem to be the most exercised about resurrecting concepts that sound like Woodrow Wilson suppressing dissidents in wartime. Mondaire Jones, a highly touted “progressive” incoming freshman Congressman, took to fulminating on the House floor during the impeachment proceeding about “treason and sedition”.

Congresswoman Carolyn Maloney further declared from the floor of the House that Trump had “wilfully incited an armed insurrection”. Which is again another curious characterisation, because while a Capitol Police officer was in fact killed in the melee, the only person against whom armed, deadly force was used against was Ashli Babbitt, a Trump-supporting Afghanistan and Iraq War veteran who was shot dead at point-blank range by an officer.

Any rational observer who has the capacity to detach from the temporary passions of the moment should be able to recognise that the United States government was never at risk of being “overthrown” by the chaotic band of yahoos who stormed the Capitol. All they accomplished was to delay the certification of Joe Biden’s victory by a few hours. They also humiliated the man they apparently thought they were valiantly coming to the defence of; even Kevin McCarthy, the Republican leader of the House, took to the floor during the impeachment session to declare that “Antifa” was not to blame for the chaos which unfolded, and blamed Trump as bearing responsibility for the events. Indeed, the full force of state and federal law enforcement power is now being deployed against the intruders, and many — perhaps hundreds — will be going to prison.

Reminiscent of the post 9/11 period, the “crisis” of the past week has been seized upon to execute a pre-existing agenda. Impeachment, purges, the militarisation and lockdown of the Capitol — it’s only the beginning, and it’s all happening with hardly even a peep of criticism or moment for reflection. Given this historical continuity with the events of 2001, it was therefore fitting when Steny Hoyer, the Democratic Majority Leader in the House, went out of his way Wednesday afternoon to herald the valour of Liz Cheney — daughter of the architect of US policy after 9/11, Dick — who was one of the ten Republicans to vote along with Democrats to impeach.


The Antifa thugs shame America

And the left, the MSM, cannot, for the life of them, figure out why conservatives (that’s Trump supporting thugs…) have lost faith in a level, fair playing field. This is not complicated. Thank you, Douglas Murray. mrossol

The Antifa thugs shame America

If Rule 101 of writing a book is “Turn your phone off”, then rule 101 of publicising a book is “get it banned”. The rule was once again proven this week as Andy Ngo’s forthcoming work Unmasked: Inside Antifa’s radical plan to destroy America became the Number 1 bestselling book on Amazon US. That is, the number 1 bestselling book in the English-speaking book market. How did it happen?  Because as well as being contemptuous of the laws of American society, Antifa turn out to be ignorant of the rules of the publishing industry.

For anyone unaware of him, Andy Ngo is a young American journalist who has spent recent years reporting on Antifa’s activities in Portland, Oregon, among other places. For years he has attended Antifa events (first openly, subsequently undercover) and through video, photography and written reports has testified to a reality which most American journalists either ignored or treated as an unimportant sideshow. As well as appearing in mainstream publications such as the New York Post Ngo’s journalism has caused waves online where he has attracted a huge social media following.

In the summer of 2019, while reporting on an Antifa rally, Ngo was attacked by a mob, who recognising the young journalist, attempted to stop him reporting and seriously assaulted him. The resulting injuries saw Ngo hospitalised with a brain haemorrhage. It was the moment when many people first saw the reality not just of Antifa violence, but of Antifa’s delight in violence.

Ngo is everything the progressive Left should be in favour of. The son of Vietnamese immigrants to America, he was raised in Portland and, while doing a Master’s degree at the local university, began his career at the student newspaper.

It was there that I first noticed him. He showed himself to be one of the insightful people of his age who had seen through the identity politics that were roiling their generation. Ngo had pointed out that as a person of colour, of immigrant heritage who happened to be gay, his politics and outlook on the world should have been ordained for him. The radical left clearly thought they should be able to speak for him, and yet they clearly did not. Ngo asserted the right — whatever his characteristics — to be allowed to think for himself and not to be told that he had to fall in line with some specific political project because of his background.

In subsequent years, as he progressed with his journalistic career, Ngo was consistently not just treated differently but singled out for specific attack. As his reporting from his home town began to get noticed the radical Left tried exceptionally hard to take him out. Online campaigns increasingly influenced mainstream publications to claim that Ngo was in some ways a partisan, political actor, motivated by malice and bigotry. Since it is hard to portray a quiet gay member of an ethnic minority as some kind of alt-right, white nationalist they made the most extreme claims possible about him, following the tactic that if you make the most outlandish and damaging allegations about a person then some of it will stick.

They partly proved the utility of that tactic. Antifa and their fellow travellers spent years claiming that Ngo was in league with the far-Right and that his presence reporting from demonstrations by “the Proud Boys” and other Right-wing groups was in fact proof that he was a member or supporter. Having got away with such claims they pushed further, pretending that the person they were targeting was in fact targeting them.

They claimed that by identifying individuals who had been at protests, or who had been arrested, Ngo was “doxing” (releasing the home address or other personal details) of rioters. In fact, as so often, they were simply accusing an opponent of doing something that they were doing themselves. A campaign of harassment by Antifa activists picked up pace. Forced to get security cameras at his parent’s home, Ngo filmed Antifa activists turning up there. On one occasion they did a pseudo-intelligence service sweep to “affirm” that the address was one Ngo lived at. On another they turned up in masks with Ngo’s own face on them. It was a campaign of harassment that the Portland authorities took no interest in.

Even when Ngo was seriously attacked the same authorities could not rally themselves. When a journalist was assaulted and hospitalised in broad daylight — on camera — the Portland city politicians and police spent no time trying to identify what had happened or who might be culpable. To date, nobody has been charged for the attack. If things continue to go badly wrong in the US one reason will be that so many people were able to see — spelt out in actions as well as words — that elected officials and law enforcement took so little interest in the activities of far-Left militia groups that they allowed them to pick journalists off with impunity.

So it has gone on. Last October, while in Portland ahead of the US election I went on a tour of the Downtown area of the city with Ngo and was disgusted to see graffiti everywhere calling for his murder. “Kill Andy Ngo” was written in huge blood-red letters on the boarding of one of the endless number of buildings boarded up because of riots. The one remaining statue in the centre of town (a World War II memorial) was also plastered in graffiti attacking him. In most of the developed world, having your city daubed in graffiti calling for the murder of a journalist would be regarded as a matter of shame. In Portland the authorities clearly did not care, and none thought it worth acting on.

Last November the ineffectual Mayor of the city, Ted Wheeler, was re-elected over an Antifa-backed candidate. To say that he has lost control of his city is an understatement; the city authorities have allowed rioting for months, even resisting federal requests to assist law enforcement. Wheeler was chased out of his own apartment block and earlier this month was assaulted in a restaurant. None of the placation seems to have worked.

But this week the activists of Antifa returned to one of their favourite targets: the journalist whose factual reporting seems to get under their skin so much. Learning of the imminent publication of Ngo’s book they began a campaign to try to force bookstores in America not to stock Ngo’s book.

Their targets included Powell’s bookstore in Portland, where a group of Antifa protested this week, screaming at management and causing the bookstore to close as a safety precaution. The shop pleaded for mercy, insisting in a published statement that “This book will not be placed on our shelves… We will not promote it. That said, it will remain in our online catalog. We carry a lot of books we find abhorrent, as well as those that we treasure.”

America’s fearless and impartial media covered this as well as can be expected.  In a report on the Portland bookstore protest ABC news wrote that “Author Andy Ngo is known for aggressively covering and video-recording demonstrators.” What is this “aggressive” coverage? How does it differ from ABC’s own brand of journalism?  Does ABC favour “mild” reporting or “milquetoast” video-recording of rioters? Apparently so.

The “news organisation” continued: “In 2019, Ngo said he was targeted and suffered brain injuries when he was assaulted while covering protests in Portland.” What is this “said he was”? Either Ngo was assaulted and hospitalised or he wasn’t. It should not be hard for ABC to find this out for themselves. But in this and other ways, the effectiveness of Antifa’s tactics over recent years can be seen. Spread enough ordure around a figure, find people in the mainstream media sympathetic to some of your aims and intentions and you can subtly or not so subtly rewrite and reframe actual events and cast a victim as some type of sinister perpetrator.

For now Antifa’s tactics have worked not just in influencing some of the mainstream media but in — among other things — chasing Ngo from his home, and indeed out of his country of birth. Like his parents before him, Ngo has ended up leaving a country in which his life is in danger. That this country is the United States is shaming.

But there is one upside. Attempts to ban books do not go down well in all quarters outside of Oregon, and ahead of its release next month UnMasked shot up the online bestseller lists. And if bookstores do not stock the work then they will simply lose even more business to their online competitors. Amazon will still sell it, and this week UnMasked was selling in droves. Andy Ngo is not a victim, but thanks to Antifa he is now a Number 1 bestselling author. Which is the best reply imaginable.


What Legislative Powers Are Left for Impeachment to Defend?

Donald Trump’s presidency has visited unique miseries on U.S. governance, some of his making and many the doings of his opponents. But his parting infliction of chaos is the most illuminating.

The key is to understand the nature of President Trump’s offense, and precisely why the Senate may yet find it difficult to convict him for it despite Wednesday’s impeachment in the House. The offense for which he is almost certainly impeachable was the speech he gave the day of the Capitol Hill riot that incited a mob to obstruct Congress’s deliberations.

This must be the closest a president has ever come to the sort of infraction the Founders had in mind when they wrote the impeachment clause. Much of their political thought was stimulated by the English Civil War of the 1640s, sparked by Parliament’s attempts to defend its privileges against King Charles I (whose head parliamentarians ultimately claimed). That conflict between crown and Parliament has preoccupied English-language political philosophy ever since. Less time separated America’s founding generation from those events than now stands between us and the founding.

But what will Congress do about it? The Founders provided for political impeachment and conviction as the remedies for a dangerous executive. But to work, the mechanism requires a legislative branch deeply invested in and jealous of its powers and prepared to go to the political mat to defend them.

No wonder the current impeachment drive may falter, since today’s Congress is anything but protective of its unique institutional role. The House speaker who pushed forward impeachment this week is the same Nancy Pelosi who famously admitted in 2010 that Congress would have to pass the Affordable Care Act “so you can find out what’s in it.” Whatever figurative point she thought she was making, the statement was literally true: Most of what Congress did was hand executive agencies vague instructions to write new regulations, the full content of which would be as much of a surprise to legislators as anyone else.

This congressional abdication of lawmaking authority to executive agencies has become routine over the past few generations and under both parties. But if the speaker took no issue with handing the executive branch control over one-sixth of the economy, what congressional privileges does she think are left for her to protect from it now?

At other times Mrs. Pelosi has shunted legislative authority over to the mob. She said in July that “people will do what they do” when asked whether the City Council should have been consulted before rioters tore down a statue of Christopher Columbus in her childhood hometown of Baltimore. Apparently she thinks so little of legislative institutions that she believes they shouldn’t even decide which statues occupy public land.

Once the article of impeachment wends its way to the Senate, it will be in the hands of Democratic Leader Chuck Schumer, whose respect for the division of powers is similarly suspect. He’s the one who warned Supreme Court justices they would “pay a price” if they ruled in a way he didn’t like on an abortion case. Not only was this an attempt to bully the judicial branch, but an abdication of the legislature’s privilege to write statutes. Mr. Schumer pressed the Supreme Court to use its ruling to craft de facto laws that Democrats can’t pass in Congress.

All of this matters now because greater institutional confidence would have helped the House to draft articles with a better chance of securing stronger bipartisan support—and a Senate conviction. The heart of the matter, and the House’s articles of impeachment, is the assault on the Capitol on Jan. 6.

Yet Democrats couldn’t resist the temptation also to include, both in the article and in their floor speeches Wednesday, complaints about what a sore loser Mr. Trump has been these past two months, and extraneous matters such as a phone call to Georgia’s secretary of state that didn’t impede Congress’s prerogatives.

Those items take up space amounting to roughly one page out of the four in the article of impeachment the House passed. They also make it hard for Republicans to support because they are political complaints. The president’s offense is institutional, but a House that every day loses a bit more of its self-awareness now can view Mr. Trump only through the lens of partisan distaste. If one thing could give Senate Republicans a rosier view of the president, it was this sort of chicanery.

The perverse irony is that this means Mr. Trump was right all along. His promise to “drain the swamp,” targeted at Washington’s unelected and crony technocrats and political operatives, was nothing if not a pledge to restore power to elected officials (by which he meant primarily himself).

Now if he escapes conviction in his final days in office, it will be because the elected lawmakers who should have benefited most from this bog clearance have so thoroughly forgotten their constitutional role that they can’t defend it from the president.

Appeared in the January 15, 2021, print edition.

Source: What Legislative Powers Are Left for Impeachment to Defend? – WSJ