In 1967, the Doors released its second album “Strange Days.” The last track on the album was entitled, “When the Music’s Over.” On Saturday, watching the Senate vote “guilty” or “not guilty,” the song’s refrain kept running through my mind: “When the music’s over, turn out the lights.”
Just before 4:00 p.m., the music almost stopped and the lights got dimmer. By a vote of 57-43, Donald Trump was found not guilty of a crime the majority of the senate found that he had committed. There’s a lot I could say about these proceedings. Let me begin by saying that given the evidence, the vote shouldn’t have been this close.
Before I begin explaining why the music’s almost over, I’d like to touch on some of the positives. First, the vote was the largest impeachment guilty vote in history ever cast to convict a president. It was also the most bi-partisan “guilty” vote. For better or worse, history was made.
Second, the performance of the House Managers. Well prepared, they presented the evidence, squared with the law, in an understandable way. Had this been a legal rather than political proceeding the outcome would not have been in doubt. They were all that good.
Now to the negatives beginning with the president’s lawyers. I was critical of Bruce Castor’s presentation on Tuesday. As a result of Trump’s displeasure with Castor, he hired Michael van der Veen. Due to van der Veen’s presentation and conduct I gained a new found respect for Castor.
Mr. van der Veen attempted to conceal his lack of competence regarding relevant law and the impeachment proceedings, he fell back on exhibiting unprofessional outrageous behavior. He accused the House Managers of various acts of professional misconduct, all without any evidence, that had he done so in a Philadelphia trial court might have earned him a visit with the Pennsylvania Bar Counsel.
When he wasn’t complaining about the his limited time for trial preparation, he covered up his lack of preparation by blaming the House Managers for late transmission of exhibits they intended to place in evidence. The exhibits were transmitted within the time frames set out in the Rules, and when he was confronted with that fact, he raised his voice still higher.
Raising his voice and blaming others for his shortcomings, Michael van der Veen is the quintessential Trump lawyer. My favorite was when in his close he blamed democrats for the January insurrection. That was priceless.
Having said that, van der Veen did what any attorney might do when confronted with the fact that his client had no legal or factual defense - he pounded the table. Actually he knew two things: the jury was fixed and all he had to do is float any number of theories which they could use to justify their predetermined verdicts. Of all the nutty theories he offered, “jurisdiction” was today’s lucky winner. I’ve addressed this jurisdiction previously and will not do so again. I’ll just say that of the four theories offered by Van der Veen, jurisdiction was the lamest so no wonder 43 members used that to justify their not-guilty verdicts.
Second, the Republican jurors. It was no secret that Trump would be acquitted, the only question was how many - if any - republicans would vote to convict. As it turns, 7 cast guilty verdicts. But before we congratulate them for integrity and courage, keep in mind that only one, Murkowski, is up for re-election in 2022. The other six have no races in 2022 or are retiring at the end of their terms.
Still, it did take some courage for the not-so magnificent seven to vote “guilty.” The sun hadn’t set and Senator Cassidy was censored by his own Republican Party home in Louisiana. Senator Sasse had previously been censored by the South Dakota state republicans. Their phones and emails must have blown up with all the Red Hats calling/emailing. I’m sure others have had to endure similar treatment.
This is what one gets for doing the right thing, deciding on the facts for the nation’s interests rather than on their own political self-interests. The music’s volume is getting lower and the lights dimmer.
The other 43 acted disgracefully toward their office, the gravity of the proceedings, and to the country as a whole. Some acted as frat boys such as Josh Hawley sitting up in the Senate gallery, legs draped over the seats. Others like Mike Lee wanted to give Trump a ”mulligan.” And still others like Graham called the proceedings “absurd.”
But there’s a three way tie for the Disgraceful Behavior Award. The winners, senators Cruz, Graham and Lee openly collaborated, coordinated, and advised the president’s legal team. Violating their sworn oaths with impunity, they were never sanctioned or even cautioned. This behavior was not merely disgraceful, it was outrageously disgraceful.
Third, the impeachment process itself. I’m torn on this: one the one hand, it’s supposed to be difficult to remove any public official from office; on the other hand, if inspiring an insurrection against the government he leads is not worthy of conviction, then what is?
The framers of our constitution were acutely aware of twin evils: that some officials would not behave honorably, and that the legislature might abuse its power by gratuitously removing a president or a judge. Thus the genesis of the House being granted the power to impeach, but the power to try the case resided with the senate.
Throughout the the 1787 convention, the framers needed to balance the need for a strong national government with it not being so strong that it becomes oppressive. Thus the three co-equal branches, with the legislative branch divided in to two separate chambers, each with specific powers.
The Senate was seen as the more deliberative chamber, the one to cool the passions of the House. Members of the House were, because of two year terms of office, closest to and reflective of the the views of their constituents. On the other hand, members of the Senate, serving six year terms and not being immediately responsive to the pressures of their constituents, could act more rationally in the longer term interests of the nation. It was in this sober, rational chamber that the power to try impeachments was placed. However, even with that, conviction hinged on being able to obtain 2/3 of those voting to convict.
For this to work we had to rely on Madison’s view of a rational officeholder, one would would put his constituents’, and thus the nation’s interests before any other considerations, specifically the officeholde’s own personal and political interests. In Federalist 10, Madison warns about the creation of factions, organized entities that could well look to advance its own interests even at the expense of the nation’s.
(Irony alert: Madison, along with Jefferson were founding members of the Democratic-Republican party 10 years later. But in their defense, the Federalist Party had already organized. So endeth the dream of rational men [it was always men in those early years] acting rationally.)
To paraphrase Holden Caulfield in Catcher in the Rye, if Madison could see what they’ve done to his government, he’d puke.
This brings me to “high crimes and misdemeanors.” I’ve discussed the history and meaning previously so I will not do so again. But I heard an example that might be useful:
Suppose a president, on Martin Luthe King Jr. Day in 2019, led 20 other individuals dressed in Klan robes with swastika armbands and goosestepped down Pennsylvania Avenue. Is what he did illegal? No, that statement is protected - abhorrent but protected - expression. But could it be impeachable conduct? Yes, especially if it either intentionally or unintentionally incited riots.
In this recent trial, the president was charged with inciting an insurrection against a co-equal branch of government performing its constitutional duty. He tried to stop the certification of votes - not all votes, just the 81 million votes that elected Joe Biden. Five people died, about 140 injured - some seriously - and public officials, including the Vice President, were seconds away from being captured by the raging mob.
In other words, the insurrection was against us, all of us, for had he succeeded democracy as we know it would have died.
In other words, when the music’s over, turn out the lights. And the music is almost over.
Although van der Veen tried to turn the impeachment trial into a criminal trial, this was no criminal trial. The jurors in this impeachment trial were victims of the crime committed by a known perpetrator. And 43 “jurors” who were victims of a crime acquitted the perpetrator they knew to be guilty.
Why did they do it? Political self-interest. Some are running for re-election in 2022, others are gearing to run for president in 2024, while still others - one other in particular - were trying to hang on to their power.
The latter was exemplified by Mitch McConnell, this year’s winner of Hypocrite of the Year Award. (Obviously it’s award season.) Granted it’s only February but his speech after voting to acquit on illusory “jurisdiction” grounds unequivocally laying culpability on the man he voted to acquit was a highlight of senate hypocrisy and a low-light for democracy.
The music’s getting harder to hear, and the lights are dimming.
So what do we do to increase the music’s volume and brighten the lights? One place to start is the rejection of ”leaders” with autocratic agendas. We know who they are, they’ve shown us. They seek power not to serve the nation’s interest but their own. We saw this over the past four years, we saw it during that last few weeks, and we saw it in stark relief last week.
We need to reform elections to permit everyone the opportunity to vote rather as some might do and suppress the vote. We have already seen attempts at local and state levels to suppress the vote in the 2022 elections. We know who these officials are and we need to confront them at every turn.
And we need to take the money out of politics. The corrosive effect of big money concentrated in a targeted way has been obvious for years.
And finally we need to reject the real fake news and alternative facts and embrace verifiable commonly held facts. We need to support real journalism and reward serious scholarship. And this will take hard work, work most of us either haven’t the time or the inclination to do. But we have to recognize that the act of voting is merely the entry level of citizenship in a democracy. Real civic action requires active engagement with public officials in support of our communities and our nation.
Democracy is the most fragile of all political structures. That’s why there are so few in the world. History shows that our democracy is perhaps the oldest and continuous governing structure of its kind. To continue this streak and preserve it for our progeny we all have to work hard, together, as citizens.
I won’t repeat the sage words of Ben Franklin concerning a “republic.” I’ll only repeat the words of the poet Jim Morrison: when the music’s over, turn out the lights.
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