Multitasking in DC: Impeachment trial and regular business

It’s been said that multitasking doesn’t work as human beings are only inherently capable of doing one thing at a time. And if what’s actually involved is constantly toggling between different activities, this will impair overall results. The myth of multitasking, Nancy Napier, psychologytoday, 5/12/14.

Rather than saving time, [“the start/stop/start process” in the human brain] costs time (even very small microseconds). It’s less efficient, we make more mistakes, and over time, it can sap our energy.

Something analogous has been happening in the Nation’s Capital, albeit on a far larger scale, as the US Senate has been conducting an historic trial of an article of impeachment against former President Donald Trump while the Biden administration pursues an agenda to address the Covid pandemic and a host of other areas in which major policy changes are supposedly needed.

That’s not to say we support the Biden agenda, indeed we have major reservations about it, but the attempt to do too many things at once may be making things worse. Anyway, here’s a multi-track report on the current state of play, covering the impeachment trial (now thankfully over) and other key thrusts.

I. Impeachment trial – The article of impeachment charged that former President Donald Trump incited his supporters to insurrection (culminating in the breach of the Capitol on Jan. 6 just as Congress was beginning its count of the Electoral College votes resulting from the November election). The Senate trial began on Feb. 8 and was ended by a Senate roll-call vote around 4:00 PM on Feb. 13.

The trial was conducted by (A) the House Impeachment Managers (nine Democrats led by Rep. Jamie Raskin of Maryland), who had been deeply involved in drafting the article of impeachment passed by the House on Jan. 12, and (B) three Trump attorneys (Bruce Castor and Michael van der Veen from Pennsylvania, and David Schoen based in Alabama) who had been hired and started work only a few days before the trial began. Most if not all of the House Impeachment Managers were attorneys, so we will refer to them as the “prosecutors” and members of the two legal teams as “counsel.”

The action consisted primarily of presentations by counsel, taking turns for the respective sides. Each side had two hours for opening arguments. Both sides were then allowed up to 16 hours (of which the defense used only three) for the presentation of evidence (consisting of videotapes showing actions and statements covering an extended period before the breach, the breach itself, and developments in the hours thereafter, none of which was subject to verification or effective challenge).

Then there were to be up to four hours of questions from the jurors (Senate members), with counsel allowed 5 minutes to respond (2.5 minutes if a question was addressed to both sides), followed by an opportunity for a vote on whether or not to hear live witnesses with an understanding that discovery (depositions and document requests) would be available if live witnesses were to be called. Absent the calling of witnesses, the proceeding would be concluded by closing arguments (two hours per side) followed by a vote to convict or acquit the former president.

The two sides made extensive use of videos in their respective presentations, in effect presenting oral argument with props. In the course of the five days, a good deal of the videotaped material was shown twice or even three times.

The footage of the breach of the Capitol was ugly, and the prosecutors blamed it squarely on Mr. Trump’s alleged motives, words and actions. The defenders pointed out details that had been edited out and also presented material designed to show that Democrats had engaged in behavior that was not all that different from the charges against the former president.

Several of the prosecution talking points struck us as unproven and/or dishonest, notably the following:

•January exception – The defense had argued that the impeachment trial was unconstitutional as the Constitution only provides for impeachment of officials who are in office and Mr. Trump was now a private citizen. This seems a reasonable reading of the text, which provides that a conviction on impeachment charges will result in removal from office and (not or) a bar on future government service. Legal experts differ on the point, however, and the prosecutors cited a letter signed by over 100 of them in support of the opposite conclusion.

Under the defense view, the prosecutors went on to argue, a president could commit heinous acts at the end of their term of office and then leave office before an impeachment and Senate trial could take place. Such an “January exception,” it was claimed, would allow a rogue president to commit “high crimes and misdemeanors” while escaping accountability.

The defense pointed out that in such a situation, the rogue president turned private citizen could be prosecuted in the courts for criminal behavior – as indeed might conceivably be attempted in Mr. Trump’s case – so the supposed lapse of accountability was illusory. No matter, the prosecutors continued to insist that the Senate’s jurisdiction was clear and had been conclusively settled by the initial vote of Senate members to start the impeachment trial.

•Big lie – This term famously originated in Nazi Germany when Hitler et al. believed that the German public would believe anything if they heard it from official sources often enough. Similarly, according to the prosecutors, former President Trump had bamboozled his followers by telling them repeatedly that he had won the election and the victory had been stripped away by widespread voting fraud.

One problem with this analogy is that Trump’s claims about the election results were repeatedly belied by media reports, etc., so he obviously wasn’t in a position to test the “big lie” theory. If anyone’s ideas were canceled out, it was those of Trump and his supporters.

More fundamentally, the prosecutors made no effort to identify the alleged defects in the election results and demonstrate that they were, as claimed, an artful fabrication. Repeated assertions that Biden won by 7 million votes were irrelevant as presidential elections are won or lost based on electoral college results, not the national popular vote total. The outcome may well have been determined by electoral irregularities in two or three “battleground states” (e.g., AZ, GA, MI, NV, PA and WI), which to a large extent resulted from mismanaged changes in voting procedures for the 2020 elections

This isn’t to say Trump actually won the presidential election, that was certainly never proved, but his claims deserved a far more serious hearing than either the media or the courts gave them. In our view, therefore, the repeatedly used “big lie” analogy was improper, designed to inflame rather than inform.

•Fight like hell – As was well known, former President Trump enthusiastically (if perhaps unwisely) supported a last-ditch challenge to the congressional certification of the Electoral College votes that was scheduled to take place on Jan. 6. He urged his supporters to come to DC for a “Save America” rally on Jan. 6, and he addressed a large crowd on the Ellipse in a speech that began around noon on that date and ran for 73 minutes. The final days of the Trump presidency, part 4, 1/13/21.

During the course of this speech, and also in prior statements, the president told his supporters that they needed to “fight like hell” for recognition that electoral fraud had taken place and must be rectified. He also encouraged the crowd to walk down Pennsylvania Avenue and let the members of Congress know how they felt about the matter.

But it’s not true, as the prosecutors repeatedly claimed, that Trump’s must have known that the crowd would act on his suggestion by breaching the Capitol to disrupt the proceedings that were in process. To the contrary, as was specifically stated in his speech, his goal could have been to support a constitutionally proper (albeit arguably unrealistic) challenge to the Electoral College results of various states. Speech transcript,
1/6/21.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today we will see whether Republicans stand strong for integrity of our elections, but whether or not they stand strong for our country, our country.

This was not the first time electoral college results had ever been challenged in Congress, House Democrats (including Rep. Jamie Raskin in 2017) had done the same thing, although this was the first time that the objections were going to be supported by one or more members of the Senate so as to trigger an inquiry into the matter.

As for the use of exhortations like “fight like hell,” it wasn’t difficult to show - as the defense team repeatedly did – that numerous Democrat leaders had used the same or similar expressions without anyone accusing them of inciting insurrection. Dems lose their minds over Trump saying “Fight like hell,” but here are all the times they've said it, Grant Atkinson, westernjournal.com,
2/11/21.

•Trump’s mob – One of the prosecutors conceded that some people may have attended the Save America rally for lawful purposes, but this was cancelled out by repeated references to “Trump’s mob,” an “armed mob,” etc. Such a characterization was over the top. The final days of the Trump presidency, op cit.

While there were aggressive people in the mix, no doubt, many participants had simply come to demonstrate their concerns about the puzzling (to them) outcome of the presidential election. Here’s how one observer (who was at the rally but didn’t participate in the march to the Capitol) perceived the crowd: “A more disparate group of people would be hard to imagine. Families with young children in tow, teenagers, college kids, church groups, choir groups, farmers from Oklahoma, “seasoned” citizens, veterans, and the Proud Boys who were probably responsible for the violence.”

Is it clear that Mr. Trump knew violence would ensue after he lit the fuse and sent his supporters down Pennsylvania Avenue, or did he simply envision they would mass outside the Capitol and make a lot of noise that would be duly noted by the members of Congress inside?

Probably Trump was as surprised as anyone (including your faithful scribe, who was watching the TV coverage), when rioters began scaling walls, breaking windows to gain entry, and collapsing the Capitol Police defensive perimeter so unauthorized people could freely wander into the building. And by the way, it turned out that the efforts of said rioters had been preplanned and were set in motion well before the president’s speech ended.

Bottom line, the “Trump mob” reference is not only misleading but insulting to the vast majority of attendees at the rally. It tends to support claims that the real motivation of the impeachment proceeding was not to punish the former president for his behavior, but rather to demoralize his supporters and speed the decline of the Republican Party.

•Double talk – Perhaps the most disturbing part of the case for impeachment was the analysis of Trump’s statements and actions while the Capitol breach was in process. He allegedly didn’t take steps to call in the National Guard (although others did), inquire about the safety of Vice President Mike Pence and other leaders, or quickly get the word out to the rioters to cease and desist immediately. Far from being dismayed by what was going on, he reportedly seemed “delighted” that the vote certification exercise had been suspended. See, e.g., House Republican pleads for Pence, Trump aides to speak out on Jan. 6 insurrection, Kyle Cheney, yahoo.com, 2/12/21.

President or not, Trump wasn’t present at the scene, and he may quite possibly have been unclear as to exactly what was going on. Defense counsel suggested that the prosecution had not offered any real evidence of his intent and state of mind, and was simply engaging in speculation.

The prosecutor response was that having been invited to appear at the Senate trial and testify, subject to cross-examination, the president had chosen to decline. “If it were me and I was innocent of such a horrific act,” said one of the prosecutors (this is a paraphrase), “I would have wanted to clear my name.”

Wasn’t this a comment on the defendant’s invocation of 5th Amendment privilege not to testify in his criminal trial, which as any first year law school student knows would not be grounds for any negative inferences against him.

The prosecutors insisted, however, that an impeachment proceeding was like a civil trial in which a defendant’s unwillingness to testify may be pointed out. After all, there would be no jail time if the former president was impeached; the only consequence for him would be that he would never be allowed to hold federal government office again.

No wonder a defense attorney observed that defendants in a parking ticket case get more “due process” than prosecutors wanted to provide for Mr. Trump in this proceeding.

* * * * *

The plot thickened on Saturday morning, Feb. 13, with the prosecutors unexpectedly signaling that they wanted to introduce some live testimony after all and the defense team firing back that they would like to call some witnesses as well and would start by demanding the depositions and other discovery that are customary in normal trials. A roll call vote approved the calling of witnesses, a development that could easily have stretched the impeachment trial into a several-month exercise.

Ultimately, cooler heads prevailed (kudos to Sen. Lindsey Graham) and a deal was worked out. Counsel then delivered their closing arguments, and a vote was held. Seven GOP senators and all 50 Democrat senators voted “guilty;” 43 GOP senators voted “not guilty.” The 57-43 vote fell short of the 2/3 requirement for conviction, so the president was acquitted.

Thus ended a proceeding that served no apparent purpose under the circumstances and was poorly handled to boot.

II. Biden administration - Presidential actions (executive orders, proclamations, etc.) are being posted in reverse chronological order on the White House website with lengthy titles and no reference numbers. To make presidential actions easier to track, we have started and plan to maintain a chronological list. Biden administration forges ahead, Appendix A, 2/1/21.

Fifty-three presidential actions have been issued to date, with a dramatic burst of activity at the start that has now slowed to a trickle. Here are the totals to date: Week one (Jan. 20-24) – 27; week two (Jan. 25-31) – 12: week three (Feb. 1-7) – 11; week four (Feb. 8-14) – 3.

The heavy use of presidential actions in the early going seems out of keeping with the president’s pledge to seek bipartisan consensus and strive to unify the country.
Action 1, Proclamation of a day of national unity.

Other observers have reached a similar conclusion. See, e.g., Executive overreach, Frank Wright, Townhall.com,
2/12/21.

. . . the Biden administration’s current Sisyphean flurry of executive orders can only be seen as a rank admission of leadership failure—of an inability to build a governing consensus. What’s remarkable here is President Biden’s demonstrable unwillingness to even try.

Of course, no firm conclusions should be reached about presidential actions without reviewing them – as we intend to do over time. Previous blog entries have reviewed half a dozen actions of a general nature (Biden administration forges ahead,
op. cit.) and a slew of Covid-related actions.

It strikes us that the new Covid approach is not all that different from the former approach and will probably achieve similar results. The new Covid response plan,
2/8/21. Here's a subsequently published column that supports this view. Joe Biden’s Covid schooling, Kimberly Strassel, Wall Street Journal, 2/11/21.

The new administration has spent every minute talking coronavirus. Yet 90% of its energy has gone to trashing its predecessor and resetting expectations, not to any sweeping policy change. Logistically, it would seem Mr. Biden inherited a fine plan after all. In the few areas where he might actually force improvement—notably reopening schools—the president has whiffed.

Stay tuned for our coverage of other presidential actions, notably the green energy, immigration, and equity installments which appear to be hugely consequential.

III. American Rescue Plan – As previously reported, the Covid pandemic relief bill is slated to be passed with 51 votes using the budget reconciliation process – one more indication that the new president’s promise of unity is basically cosmetic versus substantive. The new Covid response plan, op cit.

Notwithstanding a solid procedural objection, it now appears that a $15/hour federal minimum wage (to be phased in over four years) will probably be included in the package even though it is not a budget-component item. The Senate’s Byrd call, Kimberly Strassel, Wall Street Journal,
1/28/21.

Even as the two senators [Joe Manchin of West Virginia and Kyrsten Sinema of Arizona] vow never to bust the filibuster, their Democratic colleagues are plotting instead to bust the Byrd rule. Progressive groups are ramping up pressure on Democrats to load the Biden agenda into reconciliation bills, then simply overrule the parliamentarian when she finds them in violation of the Byrd rule. A recent Vox piece lectured that the decision of an “unelected bureaucrat” does not equal “a divine command.”

This development is ironic given President Biden’s recent remarks about the importance of getting workers back to work and the Congressional Budget Office’s prediction that this hike of the minimum wage would reduce the number of US jobs by some 1.4 million in 2025. The budgetary effects of the Raise the Wage Act of 2021,
Feb. 2021 (download PDF). Even assuming that minimum wage laws make sense under some circumstances, this does not appear to be a good time for such legislation.




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