Random Thoughts – Randocity!

Republican Brinkmanship

Posted in botch, government by commorancy on February 13, 2021

The Republican party has a cancer within. That cancer is fairly obvious as well. You might be thinking, “Well, what is that cancer?” That’s today’s article. Let’s explore.

Democrats

Before I get into the meat of this article, let me be perfectly clear. The Democrat party isn’t a bunch of saints. Oh, no no no. These Democrat Senators and House representatives have their own fair share of problems, too. It’s just that at this very moment, the Republican party is in much more shambles than the Democrats. At least the Democrats did not urge their constituents to lay siege to Capitol Hill. The Democrat party is also at least holding onto the purpose of their platform unity and party, unlike many in the Republican party.

Note, I’m not planning on getting into the ‘right’ vs ‘left’ arguments in this article. Why? Because the cancer within the Republican party has nothing to do with ‘right’ vs ‘left’ points of view and everything to do with embracing the wrong ideology for this political party.

Republicans and Trump

The Republicans (also known as the Grand Old Party or GOP) is a party that stretches back to somewhere around 1854. Today (or at least prior to Trump’s election as President), the party’s platform primarily espoused conservative leanings and smaller government. Not all party members believe in that point of view, but most of the Republicans do.

Enter Trump in 2016. Trump is a capitalist businessman who is the child of a wealthy well-to-do real estate family. Much of his fortune was inherited from his parents. However, he has also made a mark for himself in real estate. His tactics have been mostly ruthless in his business dealings. That became fairly obvious fairly quickly once he took office as President, but it should have been obvious on his earlier TV reality show, The Apprentice… where the point was to fire those who didn’t perform. That firing action is actually a key element of the show and you could tell that Trump actually enjoyed every minute of that segment. One might even assume that Trump enjoys inflicting pain on others.

As Trump stepped into power, so began his concerted effort to win the 2020 election even in 2016. He sowed seeds of discontent and doubt surrounding the election early. His whole “mail in ballot” rhetoric began very early in his tenure as President and then he ramped it dramatically over time. It was clear that Trump intended to try and subvert the election process in some way if he could. He sowed these seeds early to let the weeds grow, and grow they did.

He gained a substantial following of people with extremist points of view… with people who wholeheartedly believe conspiratorial efforts are under foot. That, most importantly, the Democrats hold enough sway and power to actually subvert an election… never mind that the Democrat party is no more or less powerful than the Republican party. In fact, the Republican party was more powerful than the Democrat party with Trump elected, yet Donald Trump needed to pretend that the Democrat party had the upper hand so he could force lies down people’s throats.

More specifically, Trump offered a big election lie that somehow the Democrats subverted the election and managed to get Joe Biden elected by cheating. Trump tried time and time again to put forth his election rigged assertion in court. Every court that reviewed his claims dismissed the suit as meritless… yes, even from judges who were appointed by Trump himself. None of the judges would entertain that the election was “rigged”. Trump simply had no proof. However, there were a lot of statements from people who claimed to work for the election, but they were simply statements with no proof to back up the claims. They were mere accusations, or lies, if you will.

Trump’s Presidency

As Trump grows his presidency through his 4 years, he begins facing the real possibility of being a one-term president. He realizes that the populous could, in fact, choose a new candidate and force Trump out. Trump has already admitted that he’s not a good loser. Well, that’s as obvious as the day is long. To avoid his being ousted, Trump begins the election lie early… by targeting mail-in ballots. His attack on mail-in ballots is the basis for beginning the “big lie” that grew and grew over time… particularly once it was clear that Trump had lost both the popular vote and the election and the fact that COVID-19 more or less ensured mail-in ballots.

After his lie begin in earnest, Trump was relentless in perpetuating this lie every day after the election closed. Not only did he perpetuate the lie using his voice via videos, he perpetuated it on Twitter and social media and by enlisting his Republican party-mates to help him perpetuate his lie. He even enlisted his attorney to lie for him. Anyone Trump could enlist to perpetuate his lie he would manipulate and use. Trump’s lie agenda stopped at nothing to make sure his lie could reach far and wide.

This lie not only continued unabated, it grew to a point where gullible voters began believing this lie because such news services like Fox News perpetuated this lie through its very own anchors spreading false narratives. Even to this day, Trump still insists on perpetuating this election lie… an outrageous lie that is actually so absurd that anyone with half a brain can realize there’s no possible way that the election could have been rigged in the way that Trump has claimed. Trump could have at least tried to come up with an election narrative that was even marginally believable, but he didn’t. You don’t have to be a Republican or a Democrat to see the absolute absurdity in his lie.

Republican Party

The lie by itself wouldn’t have been a problem on its own. However, it’s how Trump mobilized that lie into action by extremist groups that led to the riot on Capitol Hill on January 6th.

Trump supporters would like to disconnect each linked event from one another and claim that the whole isn’t the sum of its parts. Meaning, that Trump’s connection to Qanon months earlier had nothing to do with those Qanon groups that up showed up on Capitol Hill on January 6th. Again, anyone with half a brain could figure out that these events were conclusively linked. One would not have happened without the other. It was these series of events that are all linked together and which led up to the riot on Capitol Hill.

Trump can most certainly feign ignorance over the matter, but that’s not only disingenuous, it’s an outright lie. Trump knew most certainly who Qanon was months before the election. He knew exactly what they were capable of doing… that’s the reason he invited them to Capitol Hill. That’s the reason he invited all of those extremist groups to Capitol Hill. You can’t invite extremist groups to an event and then not expect extremism to occur. That’s like hiring a clown for a party and then claiming you didn’t know the clown would act like a clown.

Speaking of parties, let’s move into the meat of this article. The Republican party has allowed and indeed perpetuated Trumps lies and cancer to infect the party. The party has even endorsed elections of people into House and Senator Republican roles who have extremist viewpoints and potential extremist affiliations. In other words, the Republican party appears to have been infiltrated by extremist groups. Yet, the Republican party turns a blind eye to all of this.

Republican Insanity

The Republican party was formerly about conservatism, smaller government and lower governmental spending. Today, the new extremist version of the Republican party is more about bearing arms to coerce people into action and tell lies that get people to mobilize. That form of extremism has no place in any political party, Democrats, Republican, Libertarian or Independent. Governing people in congress is about words, not about violent actions.

Worse, these extremist republican party members… who will remain nameless because you know who you are… are about as dumb as a brick if they think the American people (Republican or Democrat) won’t see through their failures and lies while in office.

For example, by ignoring the Impeachment trial, by failing to vote to convict, that sends a clear message, not that Donald Trump is innocent, but that the Republican party is firmly corrupt. Any elected Republican who actually believes that the extremist Republican contingent is large enough to vote to keep these sad lying sacks in office is literally delusional.

The vast majority of Americans, Republican or Democrat, do not hold extremist beliefs. They do not believe that guns and violence are the answer. Most Americans know that guns and violence aren’t an answer. Yet, you have an elected Republican official holding up his fist in solidarity towards known radicalized extremist groups who believe in conspiracies… people who are the exception, not the rule. What does that solidarity say? It doesn’t say good things. As I said, the vast majority of Americans believe in the rule of law, not in radical extremist agendas, such as attacking Capitol Hill by beating cops over the head with the American Flag or by pummeling them with fire extinguisher.

For so many duly elected Republicans to actually believe in violent extremism says that these people are literally delusional. Worse, these elected people aren’t likely to remain in office come next election… if those elected officials can even manage to remain in office that long. Few Americans want someone who’s literally loony toons representing them… particularly people who endorse violence against other Americans.

Impeachment Voting

What it comes down to is how these Republican Senators choose to vote. Their vote says all that it needs to say about those in the Republican party.

Literally, President Trump incited into action groups known to have extremist tendencies. He used ‘fighting words‘ like ‘Fight Like Hell’ which is not in any way protected speech. Inciting people into action regardless of whether you knew that it would erupt into violence, but that did is enough to exempt those words from First Amendment Rights. The sheer action caused by the utterance of the words ensures the words are not protected speech.

A number of people have tried arguing Trump’s ignorance of Q and their motives. Yet, those arguments are effectively invalid. You might not know the first time, but you would definitely know the second time. Inviting known extremist groups to a rally and then setting them loose with those words defines those words as ‘fighting words’ which are excluded from First Amendment protections.

These Republicans who wish to ignore all of the above and attempt to paint a picture of an ignoramus President is about is sincere someone running a red light camera and stating the picture is not them, when it clearly is.

We have not only the speech that President Trump let loose just minutes before the riot, but we also have images from within Capitol Hill showing the damage inflicted not only on the building grounds, but the injuries sustained to the police and the deaths which occurred. It clearly shows a sad day for America when a sitting President lets loose an extremist mob on Capitol Hill to inflict as much damage as they can.

It gets worse when the President sits idly by and does nothing to stop the mob and everything to reward them with the words, “We love you. You’re very special.” What rational President does this to his own party members?

Capitol Hill Police Involvement

Some have argued that part of this blame is on the Capitol Hill police being unprepared. To a degree, this is true. If Capitol Hill police had adequately prepared for a mob to descend on Capitol Hill, it’s entirely possible the mob wouldn’t have even breached the perimeter. Shoulda-woulda-coulda. While the police do have some culpability in not properly and adequately preparing for a mob that day, Trump shouldn’t have even held a rally that day. Yet, he did.

Trump’s sole goal was to disrupt, stop and halt the counting of the electoral college votes. He wanted the whole thing to fall apart… not that halting the vote count would have stopped Biden from taking office as the electoral college vote verification is largely a symbolic gesture.

Still, the disruption from the mob only delayed the inevitable. The vote count proceeded later into the evening after the mob had disbursed. What Trump hoped would happen, didn’t. Yet, the event occurred, terrifying members of congress, including the Vice President.

Republican Senators

What it comes down to in the ongoing impeachment trial is that many Republican Senators are treating the impeachment as if it’s a joke, that it’s not real. It is real and it’s going to go down in the history books. Additionally, those who vote against impeaching Donald Trump are likely to lose their position, not keep it.

Why? Because the American people don’t like lying, cheating, violence condoning, delusional people representing them. Any elected Republican Senator who believes that voting against impeachment will somehow curry favor with the voters will instead find themselves out of office come next election, if not sooner than that by being forced out or recalled. If you want to stay in office, they must to vote for impeachment.

Voting for impeachment means to uphold the constitution, America, disavow violence and prevent a morally bankrupt President from trashing the presidency on the way out. Voting against impeachment means that that Senator believes in selfishness, that violence is the answer and that a President can do whatever they want whenever they want. That’s not why Senators are voted into office. If you, as a Senator, cannot even do the job you were voted into office to do, then expect to be expelled… if not immediately, then at the next election.

Simply put, voting against impeachment means you are an untrustworthy Senator. If a Senator thinks that America will reward them for being untrustworthy, they’re completely delusional. America will not reward you with another term for perpetuating a baseless lie… a lie that proves that you are untrustworthy.

Make No Mistake

Republicans also seem to be under the delusional belief that they were somehow protected during the Capitol Hill riots. I can guarantee you that ANY party member would have been attacked if found: Republican or Democrat. You can’t tame a mob. If any of those mob rioters had found a sitting Senator or House member of any party, the mob members would have acted first and asked questions later. Meaning, Republican or Democrat wouldn’t have mattered to those extremists. They would have attacked any member of congress on sight if they had been able to.

Republicans seem to be under some delusional belief that those extremists were only after the Democrats. Wake up! They were after you too. Certainly they were after Mike Pence. They were after and would have attacked ANY congressional member of any party affiliation without hesitancy. That Republicans seem to think that they were somehow protected during the mob incursion is an insane point of view which is justified in their own minds, but has no basis in reality.

If you can manage to get another Republican President elected in your lifetime, you’ll be lucky. It’s going to be a very long time before much of America will trust Republicans, particularly if the majority of Republican Senators vote against impeachment. Wake up, Republicans… do what’s right before it’s too late to salvage what’s left of your shattered party. Many Americans have been wanting to do away with the two-party system. Well, this may very well be the opportunity to make that a reality.

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Should the Senate conclude Trump’s Impeachment Trial?

Posted in business, government by commorancy on January 21, 2021

Now that Donald Trump has left office, some Trump fans believe the completion of the impeachment process is now “unconstitutional” and “null and void”, since Trump is no longer President. Let’s explore if this is true.

In or Out of Office?

Let’s understand the laws of our land to understand better the constitutionality of the impeachment process. While the constitution is mostly clear on impeachment, it’s not 100% clear on when and how impeachment may occur under ALL possible circumstances and conditions. This is why interpretation must occur in these special cases. However, interpretation doesn’t mean pulling conclusions out of the air. Instead, it means looking for existing precedents of law in which to guide that interpretation to logical and legal conclusion.

Constitution Excerpts

Let’s look to the United States Constitution (link to a PDF version) to read its language regarding impeachment:

Note that any italics, bold, highlights or <sic> have been added by this author for clarification purposes.

The House of Representatives shall chuse <sic> their Speaker and other Officers; and shall have the sole Power of Impeachment.

U. S. Constitutution => Article I => Section 2

The above section defines which arm of the government handles Impeachment… The House of Representatives. So let’s learn about the Senate’s role in the impeachment process.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Constitution => Article I => Section 3

The above section defines the Senate, its powers and how the Senate handles cases of Impeachment. Clearly, the Senate is defined to ‘try‘ (or perform a Trial) for all Impeachments. It also explains how the affected Party will be handled by law upon conviction. This section also defines the requirement of a two-thirds agreement in the Senate for the Senate to convict an Impeachment. Less than two thirds agreement and the trial concludes in acquittal. The two-thirds is strictly for agreement on removal of the President. A simple majority is required to agree on whether the person can hold office again. Both votes are separate. This does mean, then, that it is possible to acquit for removal, but convict for preventing the person from ever holding office again.

To recap so far, the House of Representatives is given the power of Impeachment solely. The Senate is given the power to preside over the Trial of that Impeachment solely. To clarify further, the House performs the impeachment and the Senate performs the Impeachment trial AFTER the House adopts the Articles of Impeachment and hands those approved articles to the Senate. The Senate puts forth and votes on the remedies should conviction occur.

These excerpts above describe the overview of Congress’s responsibilities and role for impeachment, but not the exacting details of how the process operates. We’ll dive into the details shortly below.

Just below, these excerpts describe Presidential responsibilities, powers and, yes, impeachment.

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

United States Constitution => Article II => Section 2

The above section and article is intended to describe the President’s extent of powers… “except in cases of impeachment“. This means that the President’s powers do have constitutional limits “, specifically in cases of impeachment.

Because this is both the United States Constitution and a legal body of law combined, it must be interpreted not only by constitutional standards, it must also be interpreted by legal standards. Unfortunately, the above isn’t the only mention of the term impeachment within the United States Constitution. Thus, we must press on to better understand how all of the sections together both combine and define what impeachment is, but also the extent to which it functions. With that in mind, I’ll come back to describe more about the constitutional language after all articles and sections have been quoted both above and below.

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

U.S. Constitution => Article II => Section 4

This section describes to whom impeachment applies and under which specific circumstances.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed

U.S. Constitution => Article III => Section 2

The above section describes to which Trials a jury applies and where those Trials should be conducted. Clearly, impeachment is excluded from trial by jury and also excludes holding it in a state venue, choosing to hold Impeachment Trials in the Senate chambers. Note that this language incidentally also defines powers of the Judicial branch of government by describing the Executive and Legislative branches. Because all three sections of government are so interlinked in each other’s processes, it would be impossible not to describe portions of the Judicial branch when discussing the powers and responsibilities of those in the Executive and Legislative branches, which is why this Judicial language is included in these sections.

This clear intent here is that the framers did not hold any branch of government above the laws of the land, but instead chose to institute a separate trial process when the President has willfully broken laws. One can argue the ultimate intent of the framer’s wishes here as “special treatment”, but the constitution is specific on these matters.

Before I continue quoting sections from the Constitution, let me stop here and discuss this “special treatment”. The framers clearly missed here. I understand that they felt that the best Trial by the President’s peers was via Congress, but “special treatment” does, in fact, tend to hold the President above the laws of the land. Where an ordinary citizen is granted no such special treatment, the President is given this “special treatment” after having broken laws of the land. Not only can’t the President be held to the laws of the land, the only power with which to uphold the laws of the land on the President is solely through the House’s Impeachment and Senate’s Impeachment Trial powers. Barring these specific actions and remedies, the President’s actions cannot be held to the general laws of the land, thus the President is essentially given prosecutorial immunity while he holds office, “except in cases of impeachment“. Impeachment is, then, the only legal action and remedies afforded the Legislative branch to remove a willfully criminal President.

Let’s keep in mind that the House’s successful Impeachment and the conclusion of the Senate’s Impeachment Trial are both separate, but part of the same process. The Senate’s Trial portion is simply an extension of the House’s Impeachment resolution. The Senate’s Impeachment Trial cannot exist without the House’s Impeachment. Likewise, the Impeachment process is incomplete without the Senate voting to convict or acquit. In other words, it is a misnomer to call successful Impeachment of a President when the Senate’s conviction has not yet occurred… only half of the process has been completed. Impeachment means both the House’s portion of Impeachment AND the Senate’s Trial to convict or acquit. Only after completion of both houses together is this considered successful Impeachment (regardless of outcome).

However, many believe that completing the successful adoption of the House’s Articles of Impeachment alone is enough to call the President Impeached. No. You can’t call the President Impeached when only half of the process has been completed. The term, Impeached should only be used to describe a President after both portions of the impeachment process (the House and Senate) have successfully fulfilled their duties and obligations to the constitution and both the House and Senate have agreed and Convicted (or Acquitted) the President, thus removing him from office and voting to rescind that person’s ability to ever hold office again or, alternatively, allowing him to continue to serve acquitted. That is what both Impeachment and Impeached should mean. Anything less degrades the Constitution and dilutes its power as a Constitutional body of law. Unfortunately, even the framers have chosen to ambiguously use the term “impeachment” within its text, such as the ever-vague “except in cases of impeachment” phrase.

Dictionaries, however, believe that it is enough to “charge” (accuse) someone of wrongdoing to use the word Impeach. I disagree with this Dictionary viewpoint. The United States was founded on “Innocent until proven Guilty”. Accusing someone of something is tantamount to “Guilty until proven Innocent”. Without successful completion of the Senate’s portion of an Impeachment Trial, the person is being stated as guilty without having been given a fair trial.

Let’s also understand that for a trial to be fair, it must also be expedient. Our constitution requires not only Trial by Jury (“except in cases of impeachment“), there is no specific definition in the Constitution of how fast the Trial must be conducted, just that it is “speedy”. However, we already know that without verbiage stating exceptions in the Constitution, everyone has the right to an expedient trial, which is guaranteed by the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. <sic>

United States Constitution => Amendment VI

As we know from far above, Impeachment is given certain legal exemptions. However, barring specific exemptions, the rest of the Sixth Amendment’s provisions still apply to the Impeachment trial. This is a basic tenant of law. Thus, this Amendment specifically includes the right to a “speedy” and “public” trial. These provisions are not explicitly excluded in any of the Articles above. As we know from Articles above with regards to Impeachment, a “Trial by an impartial jury of the state and district wherein the crime shall have been committed” IS excluded by Article III, Section 2, which empowers only the Senate to perform this Trial. All else remains in full force and effect.

As for “speedy”, as I’ve said above, there is no specific amount of time set by the framers. This is left up to interpretation. Speedy might be a month or two tops. After six months, that would be considered by most as no longer speedy. No one wouldn’t consider ‘years’ as speedy. Common sense here must prevail. Speedy should be defined as whatever it takes to conduct the trial in a fair manner so long as the process is not interrupted by unnecessary and foreseen procedural or logistical delays. It is then on the Court, or in the case of Impeachment, to perform and conduct a Senate Impeachment Trial expediently once all conditions have been satisfied to begin the trial.

Constitution Verbiage

Here we end all the constitution’s language regarding Impeachment. From here, we must consult the House’s and the Senate’s rules to learn more. Here are the House’s rules. Specifically, here’s the preamble of the House’s rules on impeachment…

Impeachment is a constitutional remedy to address serious offenses against the system of government. It is the first step in a remedial process–that of removal from public office and possible disqualification from holding further office. The purpose of impeachment is not punishment; rather, its function is primarily to maintain constitutional government.

Deschler Ch 14 App. pp 726-728; 105-2, Dec. 19, 1998, pp 28107-9.

Lewis Deschler admits that the House’s portion of Impeachment is the “first step” in the Impeachment process. Because there are multiple steps, that means that until all steps are completed, the process is and should be considered incomplete. It also states that Impeachment is not intended to be punishment, but to uphold (and protect) the constitution.

I’d additionally argue that no one is above the law. Impeachment firmly placed within the Articles upholds that viewpoint. The bar for Presidential crime is obviously much higher than those of ordinary citizens, but Impeachment is a power given by the framers to Congress to remove someone who is willfully criminal while holding the office of President.

Some might consider this a naïve point of view. To some extent it is. Assuming that a person elected President won’t and can’t willfully damage to the Constitution is naïve. To diverge a little, the framers are overly trusting. They believe that people placed into these higher levels of power won’t do damage to the very voters who voted them into office. As I said, naïve. The constitution isn’t, by any stretch, a perfect document. The framers were also well aware of this fact, thus the reason it can be amended. The point wasn’t to make the initial document perfect, but to make it passable by those in power at the time. Viewpoints, even then, made it difficult to achieve consensus. Thus, the Constitution is the very definition of a set of compromises which all of those compromises achieved the signing of the Constitution. That’s why it’s not a perfect document. That’s why there are holes. That’s why some aspects are left ambiguous and left open to interpretation.

Lewis Deschler

So, you’re probably asking, “Who exactly is Lewis Deschler?”. Wikipedia describes him best:

Lewis Deschler (May 3, 1903 – July 12, 1976) was the first, and longest-serving, Parliamentarian of the United States House of Representatives. He started his term on February 1, 1927,[1] during the 70th United States Congress following the retirement of Lehr Fess. Prior to Deschler becoming Parliamentarian, the position was referred to as the Clerk at the Speaker’s Table.

https://en.wikipedia.org/wiki/Lewis_Deschler

Wikipedia goes on to say:

Deschler served as the Parliamentarian from 1927 until his retirement on June 27, 1974, during the 93rd United States Congress.[2] He was an important advisor to many congressmen during his employment, including advising House Speaker Carl Albert on the tax fraud investigation of Vice President Spiro Agnew[3] and the impeachment of President Richard Nixon.

https://en.wikipedia.org/wiki/Lewis_Deschler

While in office, Lewis Deschler authored and modified many of the House’s rules on impeachment and how the House conducts the Impeachment process… which has significantly influenced this process and how our present House today manages and conducts Impeachment proceedings. I’ll leave you to search for and find out more about both Lewis Deschler and his contributions to see how the U.S. House manages not only Impeachment proceedings, but other House proceedings.

Senate Rules

Now that we’ve reviewed the House Rules (you have haven’t you?), we need to review the Senate Impeachment Trial rules. More specifically, this section from the document, RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS:

Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday
excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.

https://www.govinfo.gov/content/pkg/SMAN-104/html/SMAN-104-pg177.htm

This is the section that discusses a speedy trial… or, at least, how quickly the Senate must act after receiving the Articles of Impeachment from the House of Representatives. It doesn’t state how fast the trial must progress, but it at least states when the Article of Impeachment must be acted on by the Senate.

Double Jeopardy

Someone asked me, “Why isn’t there double jeopardy on impeachment?” Let’s understand double jeopardy. Double jeopardy excludes a person from being tried twice for, and here’s the important point, the same or a very similar crime.

Trump’s first and second impeachments are not for the same crime nor are they similar. So, even were double jeopardy applicable to the impeachment process, double jeopardy wouldn’t apply in this case. Both impeachments are for entirely separate crimes.

Though, I’m not sure why Congress would ever vote to impeach a president twice for the same crime in two separate impeachments. It doesn’t make sense why this would ever happen. I’m not even sure that congress would ever attempt to do this simply because of double jeopardy.

Congressional Failure

With the above said about double jeopardy, part of the problem that leads to this thinking is the failure of congressional leaders to do their own jobs. For example, if the Speaker of the House fails to submit the Article(s) of Impeachment to the Senate, the process cannot conclude.

This leaves the impeachment process incomplete. Such a failure doesn’t allow the accused to prove their innocence on the charges. Not only may this violate the right to a speedy trial, it leaves the accused effectively marked as guilty. That’s not how our system is supposed to work.

If Congress is serious enough to bring Article(s) of Impeachment against the President, then they should be serious and professional enough to see the process through to conclusion. By not completing the process, those responsible should be held liable and penalized for their failure. Specifically, if the Speaker of the House fails to submit the successfully passed impeachment documents, that should jeopardize their Speaker of the House standing. Meaning, they should be deposed and see another representative appointed. If the Speaker of the House fails to do their job, then it’s important to replace that person with someone who will do the job. It is every representative’s responsibility (and oath of office) to uphold the constitution. Failure to uphold the oath of office means the representative needs to be held accountable for that failure including censure or removal from office or position.

Unfortunately, because congress tends to vote on their own matters to affect how they perform their own jobs, checks and balances tends not to apply in these types of votes. This means we usually see Congress fail to apply such penalties that would ensure people do their jobs while in office. Yet another constitutional failure by the framers to prevent conflict of interest problems like this. I digress.

Exceptions, Pardons and Interpretation

Here’s one big last thought before I end this article. Above, there is an excerpt that defines Presidential powers. Specifically:

… [The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment

United States Constitution => Article II => Section 2

This portion is mostly self-explanatory. Again, the President is given the power to grant reprieves and pardons… except in cases of impeachment. Again, unfortunately, the framers left this statement mostly ambiguous. There are several possible interpretations of this verbiage:

The first interpretation suggests that a successful House impeachment alone rescinds the President’s power to “grant reprieves and pardons”. This means that ANY pardons or reprieves that the President attempts to grant AFTER a successful House impeachment is no longer legal. In other words, the President forfeits his power of pardons and reprieves after a successful House impeachment. I believe this interpretation is only partially correct, so let’s continue.

The second interpretation suggests that the text “except in cases of impeachment” suggests the word impeachment to mean that it requires both the full House and Senate processes to conclude in both impeachment and a conviction. The constitution is unclear on this usage and definition of the word ‘impeachment’, but this is also where logic fails.

The second interpretation then suggests the following conditions must be met:

  • A house impeachment must occur
  • A senate conviction must occur
  • Once a conviction occurs, the sitting President will be removed from office
  • A conviction might also prevent the then former President from running for office again

Once a President is convicted and removed from office, there’s no need to request surrender of the pardon power.

This third even more narrow interpretation of “except in cases of impeachment” applies only to offenses covered by the impeachment itself. That’s not specified in this clause. That’s an interpretation and that interpretation seems incorrect. Applying the second interpretation to the third, a President who is fully impeached and convicted can no longer issue pardons and reprieves anyway because they will have been removed from office. Therefore, there is no logic to this interpretation. Again, the framers would have realized this glaring logic error. So…

A fourth interpretation strongly suggests that the framers did realize the above logic error in the second and third interpretations AND they further understood that there is a delay between the time the House passes the impeachment article(s) to the Senate. The framers understood this two house setup can cause delays in the process. This delay leaves the President in power to continue office duties until the Senate Trial begins and concludes. A trial is a trial and can last weeks mulling over evidence. Thus, forfeiture of the power of pardons and reprieves is intended not narrowly for offenses related to the impeachment itself, but for all pardons and reprieves of any kind until the Senate trial concludes. This logic makes the most sense from the framers perspective to prevent the President from passing a flurry of pardons of any kind, which may conceal pardons and reprieves related to the Impeachment. This surrender of power also renders self-pardons for any reason impossible. It the trial acquits, there’s no need for self-pardon. If the trial convicts, the President is removed from power.

This clause’s verbiage then fully implies that the power to grant pardons and reprieves is entirely surrendered after a successful House impeachment. I believe that this is truly what that the framers had intended. Why? Because without this clause, an impeached President can pardon not only themselves for their impeachable offense(s), they can pardon anyone else involved in the action that caused the impeachment. The point here is to stop the President from using pardons and reprieves to avoid Senate prosecution for themselves and their accomplices, regardless of whether the pardon or reprieve appears related or not. This clause additionally prevents “out of sight, out of mind” and “flurry” pardons and reprieves after the House successfully impeaches, but before the Senate trial concludes. The House and Senate should be focused on the Impeachment process, not on reviewing every pardon and reprieve for relationships to the Impeachment. Halting all pardons and reprieves until the Senate’s trial concludes makes the most logical sense and keeps Congress’s focus on the Impeachment, not on Presidential diversions.

Clearly, if the Senate trial concludes in acquittal, then the impeachment is nullified and all powers are restored to the President. If the Senate trial concludes in conviction, then the President is removed from office thus preventing any further pardons and reprieves by that action.

Currently, I believe that the “except in cases of impeachment” verbiage is being taken too literally to cover only and narrowly such pardons and reprieves that appear directly related to the specific “case” of the impeachment itself. I don’t believe that this extremely narrow interpretation was the framer’s intention. Instead, as in the fourth interpretation, I believe the framers intended this phrase to see the President fully surrender the power pardons and reprieves until both the House and Senate conclude both portions of the impeachment and conviction process. This does two things:

  1. It forces congress to abide by a “speedy trial” to…
  2. Quickly give the President back all powers afforded the position or remove an offending President from power

One last word for this verbiage. This verbiage appears intended as a forward looking statement. Meaning, it halts future pardons and reprieves from the date the impeachment is passed by the House. It isn’t intended to touch past pardons or reprieves issued prior to the date of successful impeachment. This makes logical sense because it is assumes that the President’s actions prior to successful impeachment are sincere and trustworthy. That means all past pardons and reprieves should be left standing. Nullifying past pardons and reprieves prior to impeachment could be exceedingly difficult to “undo”. I don’t believe the framers intended for this exception to encompass past actions and/or retroactively apply to all past pardons and reprieves.

Putting it all Together

What does all of the above really mean for Donald Trump’s second impeachment? Some have theorized that because Donald Trump is no longer president that the Impeachment proceedings should be dropped and/or isn’t constitutional. That’s not how legal agreements work. They don’t just disappear because one small piece is unenforceable. Typically, if a condition presents that nullifies a portion of an agreement, the remaining portions of the agreement remain in full force and effect. To extrapolate that to the constitution, stating that because Donald Trump is no longer President means that the impeachment section is no longer valid. Let’s understand why this argument might or might not apply.

That argument would be true if the impeachment proceedings were to begin AFTER his exit from office. However, even though Donald Trump’s presidency has ended, this fact doesn’t nullify the impeachment proceedings that constitutionally began while he was still in office. Because the two constitutional remedies for impeachment include 1) removal from office and 2) prevention of holding future office, only one of these two remedies is nullified by Donald Trump’s exit from office.

What that means is because the process began while Donald Trump was still President, the process is still valid after his exit from office. To say otherwise is like saying that because you ran a red light and because that condition no longer exists, you aren’t in violation. No, you’re not presently in violation, but you WERE in violation at the time you ran the red light. Not being in violation now doesn’t absolve you from having been in violation at the time that you ran that red light. If law allowed for a “now” concept only, no one could ever be held accountable for past deeds. This is why this legal precedent, usually defined by a statute of limitations, is applicable in nearly every legal circumstance. Not all crimes have statute of limitations, however. Those that don’t usually mean you can be tried for that crime at any point in time. Thus, this legal concept is applicable to Donald Trump’s impeachment.

Additionally, law doesn’t allow for the “now” argument. This argument doesn’t apply to running a red light (unless the statute of limitations has expired) and it doesn’t apply to Donald Trump’s change in President status. He WAS President at the time when his “high crimes and misdemeanors” occurred. That’s what matters. His change in status does NOT matter. Further, because “step one” of the Impeachment began while Trump was in office as President, Congress must now do their duty and complete this process regardless of Donald Trump’s change in status. This process is now (and was then ) already underway .

Sure, Trump can no longer be removed from office as one of the two remedies, but the remedy to prevent him from ever holding office again must still be decided by the Senate. For the Senate to not to do their duty to uphold the remaining “in force” portions of the Constitution means those Senators are not upholding their constitutional oath and duties of office. Regardless of the Senate’s outcome of the Impeachment trial, it must be urged to complete this process. Without completion of this process, the constitution is weakened. The point to the constitution is to empower those who are tasked to do the will of the people to uphold the will of the people and simultaneously uphold the statutes defined by the United States Constitution.

To do otherwise, such as not completing the impeachment, only diminishes the power of and serves to dilute the function of the Constitution as the heart and soul of our democracy.

Flurry of Pardons on the Way Out

As for Donald Trump’s over 100+ pardons on his way out of office, these pardons and commutations should be considered invalid based on the fourth interpretation (above) of Article II, Section 2’s “except in cases of impeachment” clause. Since he had been impeached by the House prior to his final flurry of pardons and reprieves, all of those pardons and reprieves should be invalid because this clause sees to his surrender of that Presidential power for the duration of the Senate’s impeachment trial. Further, since Trump is no longer in office, he won’t be able to redo those 100+ pardons and reprieves, even should the Senate trial conclude in acquittal. I won’t get into what this interpretation means for his first impeachment as that only serves to heavily muddy these already extremely muddy waters.

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Cytokine Storm Syndrome: The Drug Trial That Went Wrong

Posted in botch, business, medical by commorancy on October 13, 2018

Here’s a story about six men, in 2006, who endured the fight for their lives after a drug trial went horribly wrong. The above program runtime is 58m 15s. Let’s explore.

Method of Action

As soon as the method of action of this drug was revealed in this documentary, my first thought was, “Uh oh”. Trying to teach the immune system to do anything is somewhat akin to attempting to steer a flood away from a town. The immune system attacks foreign invaders. That they injected this drug not knowing exactly how many receptors it might bind to was a severe “UH OH” moment before I even watched this. I already know how unpredictable the immune system can be. To intentionally try to tame the immune system to solve a medical problem is essentially playing with fire.

Too Many Mistakes

There were a number of mistakes made during this trial as well.

  • Not enough separation between patient injections
  • When reactions began to occur, the trial should have been halted until determining each injections patient’s reaction extent. Isn’t the point to document the reactions?
  • Waiting too long to determine the problem and attempt countermeasures.
  • The trial doctor was horribly uninformed of reaction possibilities
    • Because doctor was uninformed of side effects, the facilities were ill prepared to handle what came after
    • Not enough drugs or equipment handy to handle medical complications

Trial Paradigm Failure?

The 10 minute separation between the patients was far too quick a succession, particularly when you’re screwing with the immune system, to fully understand how the drug might react. When the first patient began experiencing problems, the trial should have halted further injections to assess the already injected patients. This trial simply threw caution to the wind and endangered all of its trial participants even when they had huge red warning flags from patient 001.

That the doctor wasn’t self-informed on the possible reactions and had to spend valuable time to seek information later, “Wow”. If that’s not the very definition of uninformed, I don’t know what is. Before a single vial was injected, the doctor should read and understood each and every possible manufacturer side effect including having enough known remedies handy. You can’t know what you don’t know, but you can know what is written down by the manufacturer. Not reading and comprehending that literature fully before starting the trial is a huge mistake. If he had fully understood the ramifications of cytokine storm syndrome before injecting a single patient, he could have had started countermeasures much, much sooner in these patients.

If he wasn’t proficient in cytokine storm syndrome, he should have had a doctor on standby should the patients need another opinion.

The almost fatal mistake here was the attending doctor bought fully into the hype of the manufacturer that “nothing bad” would happen after injection. That’s called taking things for granted. Trial drugs are experimental for a reason and must be treated with all of the seriousness and respect they deserve.

Patient Trials

While it’s critically important to trial medicines in humans, it’s equally important to perform those trials in as safe a manner as humanly possible. This includes performing these trials in facilities capable of handling the load of every patient in the trial potentially crashing. If there’s not enough equipment in the hospital facility to handle that number of simultaneous crashes, then the trial needs to be moved to a hospital that can handle this patient load.

No trial clinic should be waiting for ambulances, equipment and medicines to arrive from around the city. All of this should be immediately on-hand, ready and waiting. To me, that’s a huge failing of the company that scheduled this trial. That company should definitely be held accountable for any problems that arise from being ill prepared at its clinic facilities.

Cytokine Storm Syndrome

One of the possible side effects after the doctor read the manufacturer’s literature of the trial drug TGN-1412 was a cytokine storm. He only read this after the trial had started and patients were already suffering. Cytokine storm is when the body’s immune system reacts systemically over the whole body. It can cause basically rapid shutdown of organs including fever, nausea, redness (heat) because the body’s immune system is attacking… well basically everything. That this reaction was fully documented in the drug’s literature is telling. It says that the manufacturer knew this was a possible complication, yet the trial doctor didn’t look at this literature until it was nearly too late.

Of course, by that time other doctors had been consulted in the midst of crashing patients, these other doctors felt the need throw their own wrenches into the works by claiming the drug itself may have been tainted or improperly stored, prepared or handled… possibly causing these patients to have an systemic infection. Throwing this wrench into the works was also reckless by those additional doctors who joined in on the action. Perhaps they needed to also ready the manufacturer’s literature before jumping to that conclusion.

It’s good that someone finally decided the correct course of action was to treat for cytokine storm as the manufacturer’s reactions suggest, but not before one of the trial patients had ended up with dry gangrene losing his fingertips and parts of his feet. A horrible ending to a drug trial that was ill prepared and improperly staffed for that kind of a drug reaction.

Hindsight

I know it’s easy to both see and say all of this in hindsight. But, I have worked at many companies where the all mighty buck is rules… basically, “Do it for as cheaply as possible”. The saying, “You get what you pay for” applies in every situation. I’ve worked for many organizations that blaze ahead with projects without fully evaluating all consequences of their actions. They do this simply because they want the product out the door fast for the least amount of money. They don’t care what problems might arise. Instead, they deal with the problems along the way. If that means throwing more money at it later, so be it. Just don’t spend it now.

To me, that’s reckless. Thankfully, I have never worked for a medical organization at all. I’ve chosen to stay away from that line of work for the simple reasons of what this level of recklessness can do when put into the hands of medical organizations. This trial should be considered the very definition of reckless and what can happen when the all mighty buck is more important than patient’s lives. Thankfully, the NHS stepped in on behalf of the patients and treated them as the sick patients they were, not guinea pig trial participants.

I encourage you to watch the program in full. Then please leave a comment below if you agree or disagree.

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