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By Ted Folkman of Rubin and Rudman LLP

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American Carnage

Officers with guns drawn in the House of Representatives

Like a lot of other people, I knew from before 2016 that Donald Trump would be a moral and political catastrophe for the country. Read the posts (more than fifty of them, going back to late 2015). But despite four years of this, it is still shocking, horrifying, and humiliating to see an armed, seditious insurrection take over the Capitol—and even more shocking, horrifying, and humiliating to know that the head insurrectionist is the country’s chief law enforcement officer. If it were not for the professionalism, patriotism, and commitment to the law of the nation’s military officers, I have no doubt that we would be living through a true coup d’état today and not just thousands of alienated and ignorant minuteman cosplayers who believe everything Trump and his craven enablers in Congress, the Republican Party, and the right-wing media have been telling them for years.

The Republican Party has been a party of lies for years, and those influential Republicans who have just tolerated the lying that Trump and others have been doing are to blame, too, because they have enabled someone whom they uniformly described, before his election, as unfit for office. Trump couldn’t help lying even when delivering his reluctant statement to the insurrectionists this afternoon: “Yes, the election was stolen by the Democrats and you’re right to be upset, and we have to do something about it, but please go home.”

I was struck by what Sen. Ted Cruz said in the Senate before the mob forced the proceedings to be suspended. In essence, he said that millions of Americans believed the elections were rigged, and that is why Congress needed to sustain the objections to the certificates of electors’ voters. But why did millions of Americans believe that? It’s not because it’s true. It’s not because there’s evidence that it’s true. It’s because Donald Trump and his gang, enabled by people like Senator Cruz and the right-wing media, have said so. One can only hope that today’s events will give Senator Cruz, Senator Hawley, and the other objectors pause—but I doubt it.

What should we do now? I will skip over my traditional main answer to all such questions (civics, history, and humanities education! Character education!) and give some more immediate thoughts:

  • Congress should impeach Trump tomorrow and remove him from office tomorrow. It could be done if the will were there.
  • Every insurrectionist whose face appears on the many public videos available, not to mention the security footage that I am sure exists, should be prosecuted. Yes, they are fools who were taken in by hucksters and they probably believe they are in the right. It doesn’t matter.
  • The National Guard should be deployed at the Capital to allow the Congress to do the work of government.
  • Those Republicans who are not okay with the fascistic direction of their party should either quit and start again, or else find a way to take control of the party back from those who have proved themselves unsuited to lead.
  • The new Congress, after the inauguration, should seriously consider legislation to remove the President’s broad emergency powers and to rein in the executive—which will require Congress once again to be in the business of legislating on a bipartisan basis for the public good.

Ted Folkman

6 responses to “American Carnage”

  1. Gilles Cuniberti

    Dear Ted,

    I understand your anger. But I fear that it was stupid to impeach trump then, and it would be stupid to impeach him now. You will make him even more a martyr, and he will be back in four years.

    Do not forget: he got about 50% of the votes this time. Do not provide him with the few extra votes he will need in four years.

    Gilles

    Reply
    1. Ted Folkman

      Gilles, “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.” So impeachment actually is the way to ensure that he cannot run again for office.

      Reply
  2. Robert Boylan

    Don’t agree. In a pure and idealized Athenian democracy (with a very limited franchise),citizens exchanged ideas and reached a consensus. At least that was how it was supposed to work but probably never did. In the real world of the 21st century, leaders have a role to play. They must stand for moral rectitude and act on their principles rather than follow the path of least resistance. You say he’ll be back in four years but the impeachment clause forbids an impeached President fro ever holding a position of profit or trust under the government of the United States and it cannot be erased by a presidential pardon. Sen. McConnell is the key. Given the fact that his wife just resigned as Transportation Secretary, with his apparent approval, impeachment could succeed as it should.

    Reply
  3. hardreaders

    I assume Robert Boylan is replying to Gilles Cuniberti? If so, then generally I agree with R.B. and not with G.C. (except the part about Elaine Chao–I wouldn’t read anything into that; she’s just another rat jumping ship, except that this one’s already in Davy Jones’ Locker).

    To Attorney Folkman’s OP, I also agree for the most part. But I’m just a bit curious about the last bullet. Were emergency powers at all implicated in this or other recent events? Maybe I missed that part, but I didn’t think they were. So this bullet feels like somewhat of a non sequitur.

    Yes, I take it Trump has used them more than some predecessors. But AFAIK they tended to be for specific things like his pathetic spite wall and “Gyna” tariffs. They also tended to have some foreign policy component to them. Ironically, as it seems to me, the one time it would actually have been appropriate to deploy fulsome emergency powers domestically–for COVID, of course–he was extremely reluctant and stingy. Likewise, his minions all screamed bloody murder whenever a D governor tried to wield state-level emergency powers. So I think if anything Rs are more committed to the principle that gov’t should be deprived of all power whatsoever to do something that’s actually beneficial, or least beneficial to anyone not a rich white cishet Christian (sometimes court Jews are ok, maybe [before anyone starts to protest note that I am a card-carrying member of the Tribe]) male.

    Given the above, I would be very leery of any efforts to twiddle with emergency powers. In fact, I would be particularly suspicious if those efforts were bipartisan. It’s quite possible that Biden may want to use emergency powers more generously for COVID once he assumes office, so Rs might actually jump at the opportunity to kneecap him by dialing back emergency powers before he even gets the chance.

    That’s not to say things like the wall and tariffs weren’t extremely problematic, but presumably those can be addressed by targeted fixes instead of an unnecessary bazooka/mosquito approach.

    (PS no matter how much I try, I can never understand the centrist infatuation with bipartisan for the sake of it. Just remember that the most popular legislation around these days (ACA) passed on a party-line vote, while DOMA and the Patriot Act were overwhelmingly bipartisan. Yay comity and reaching-across-the-aisle!)

    Reply
    1. Ted Folkman

      Regarding emergency powers: Congress assumed, when it enacted various emergency laws, that there was little or no danger that the people would elect a demagogue who could abuse them. But we did elect a demagogue—fortunately an incompetent demagogue. We need to be better prepared for next time, and the way to do that is to cut the imperial presidency down to size. But that means Congress once again assuming the burden of policymaking and legislation for the nation.

      Reply
  4. hardreaders

    I get what you’re saying, and I tend not to disagree, but you’re also speaking in generalities. Can you point out some specific examples–beyond what I’ve listed already–where Trump egregiously abused emergency powers in a way that was completely unexpected?

    For the ones I listed, the issue with the border wall as I understand it turned out to revolve around mostly (1) improper reallocation of some funding sources and (2) whether references such as “border fencing” could be non-frivolously interpreted to include something out of Game of Thrones. Those issues seem fairly discrete and quite amenable to targeted legislative fixes, a number of which I believe have been proposed already by those in the know. Not really earth-shattering stuff there. Likewise for the tariffs. It’s just a tax on imports. So amend the relevant statutes to expressly prohibit or limit tariffs and similar things. (There’s also the travel ban, if you want to include that in the emergency powers category. Again, that involves one particular statute…)

    If you are proposing more wholesale and wide-reaching modifications to the emergency powers, like I said at the start, can you explain why and what other specific abuses were committed to necessitate that?

    As for the “Congress should just do something and make everything wonderful!” argument, that just seems like the centrist party line to me. We all know from Civics 101 that Congress isn’t monolithic right? The Senate for example can have different permutations of Ds and Rs. So when Ds are in the minority, are you blaming them for not getting emergency power reform legislation passed? I’m not aware of any magic spell they can recite to suddenly be in the majority and start passing legislation. What I’m mean is, if you think Congress is at fault, and Rs have the majority, surely the Rs specifically–and not a fictional, single “Congress”–shoulder the lion’s share of the blame for failing to exercise their majority powers, right? You may also have heard this referred to as “Murc’s law”. The Ds would gladly make the necessary changes, but you sort of need a majority (and filibuster proof, at least for now) to do that, and the Senate has a built-in permanent gerrymander that favors red states with more trees, rocks, and dirt than actual inhabitants.

    You can probably see a lot of similarities to the discussion about Happy at this point. And then given all the legislative obstacles to implementing the changes you claim to want, are you going to begrudge Ds who seek these changes and their fellow-travelers from pursuing the litigation path? Even if you don’t, the deck is also stacked against them in the circuit courts and SCOTUS, as we’ve seen in the border wall, travel ban, etc. litigations. And gee, I wonder who appointed most of those judges/justices who keep ruling against them? I don’t think it was a Democratic president.

    So what I’m saying is, the blame isn’t exactly distributed evenly here. Which is again why this constant rote insistence that *both* sides have to compromise/reach across the aisle, etc. always boggles my mind. Finally, let’s be quite clear. “we” did *not* elect a demagogue. As you know, most people voted against him–twice!–so don’t put it on them.

    Reply

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