Forensic News Roundup: The filibuster returns
January 25, 2021 8:32 am
The facts come out
Former President Trump allegedly conspired with a Justice Department official to fire then-acting Attorney General Jeffrey Rosen in order to force Georgia state lawmakers to overturn its presidential election results. The plan, developed earlier this month, involved sending a letter to Georgia officials, falsely saying that the department was investigating serious fraud claims and to withhold final certification of Biden’s victory. Co-conspirator Jeffrey Clark – acting head of the DOJ Civil Division – replace Rosen (non-paywalled).
When other top department officials learned of the scheme, they threatened to resign en masse if Rosen was ousted. Trump ultimately decided mass resignations would overshadow his false claims of voter fraud in the election.
Who is Jeffrey Clark?
- After 16 months in the Republican Senate, Clark was confirmed as chief of the Environment and Natural Resources Division in 2018. The final vote was 52-45-3, with only two Democrats (Manchin and McCaskill) in his favor.
- He had previously represented BP in lawsuits over the Deep Water Horizon oil spill, the largest in U.S. history, and consistently undermined climate change science.
- In 2019, Clark unlawfully practiced law (without a license) for months while representing the federal government.
- Most recently, Clark played a key role in the DOJ’s decision to intervene in E. Jean Carroll’s defamation case against Trump.
Pennsylvania Rep. Scott Perry (R-PA 10th District) introduced Trump to Clark, knowing the latter was sympathetic to Trump’s unfounded election conspiracies. The New York Times reported (non-paywalled) that Clark and Trump talked multiple times, even secretly meeting in person, without alerting Rosen – a violation of DOJ policy. In addition to providing the introduction, Perry also conspired with Clark and Trump to develop their plan to oust Rosen and overturn the Georgia election results.
Pennsylvania Attorney General Josh Shapiro responded to the report of Perry’s involvement by suggesting that Congress use the 14th Amendment to expel Perry from the body.
In his final weeks in office, Trump also pressured the Justice Department to file a lawsuit with the Supreme Court asking to overturn the election results. An outside lawyer working for Trump reportedly drafted the brief Trump wanted the DOJ to file, but former attorney general William Barr, Rosen, and former solicitor general Jeffrey Wall all resisted. According to the Wall Street Journal, an unspecified “group of Republican state attorneys general” spoke to Barr about getting the DOJ to back Texas’ lawsuit contesting the election results. Barr refused.
Reminder of the other times Trump interfered with the democratic election in Georgia:
The weekend prior to the Capitol riot, Trump told Georgia Secretary of State Brad Raffensperger that he needed to “find” enough votes to overturn Biden’s victory. “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state,” Trump said.
On December 23, Trump interfered in a probe being conducted by Georgia’s lead elections investigator, urging him to “find the fraud.” Nick Akerman, a former federal prosecutor in New York, said of Trump’s call: “Oh my god, of course that’s obstruction — any way you cut it.”
In early December, Trump made his first call to Georgia officials – this one to Gov. Brian Kemp. He urged Kemp to call a special session of the state legislature for lawmakers to override the election results and appoint electors who would back him at the electoral college.
Following the November election, numerous Republicans – including Senator Lindsey Graham and Rep. Doug Collins – also pressured Raffensperger to support Trump’s baseless voter fraud conspiracies. According to Raffensperger, Graham even suggested that he invalidate thousands of legally cast mail-in ballots. “It was an implication: look hard and see how many ballots you could throw out,” the Secretary told CNN.
And finally, a reminder that – in addition to the Justice Department – Trump tried to turn the Defense Department and CIA into his puppets. Beginning just days after the election, Trump fired Defense Secretary Mark Esper and installed Chris Miller, who Trump hoped would be more loyal to his cause. Miller came through for Trump by working with Kash Patel to obstruct the Biden transition team and, in the final days of the administration, ordering the NSA to appoint Michael Ellis as general counsel. Similar pressure was exerted on the CIA when Trump tried to install Patel as Director Haspel’s deputy; Haspel’s threat to resign combined with her strong Republican support persuaded Trump to abandon that plan.
Trump regarded Patel as somebody who he could trust to do whatever he asked, without challenging, slow-walking, questioning his judgment or asking too many annoying questions.
The Senate has reached an agreement to begin the impeachment trial of Donald Trump on February 9, giving the former president time to organize a legal team and current president Biden’s nominees a chance to reach confirmation. The length of the trial is not set in stone, but some have estimated that deliberations on the single article of impeachment – for inciting insurrection – will only take about two weeks. The first filings in the trial are expected by February 2.
USA Today lays out the following timeline: Monday the House transmits the article of impeachment to the Senate. On Tuesday, senators will be sworn in to the “Court of Impeachment.” A week later, Trump must respond to the summons and the House must submit a pretrial brief. By Monday, February 8, Trump’s pretrial brief is due. Finally, on the 9th the House impeachment lawyers submit their pretrial rebuttal brief and the trial begins.
So far, Trump has hired just one lawyer for his defense: South Carolina ethics lawyer Karl “Butch” Bowers. Former SC governor Mark Sanford was represented by Bowers in 2009 when the state legislature weighed impeaching him for lying about an extramarital affair. “He is the first call that every Republican campaign makes for a legal team,” SC political consultant Tim Pearson told WaPo (non-paywalled).
As more Republicans speak out on impeachment, it seems less and less likely that there will be 67 votes to convict the former president. The most vociferous among them point to the fact that Trump is no longer president and question the constitutionality of convicting a former president.
For example, Sen. John Cornyn (R-TX) told a Houston news station:
“Never before has there been a trial of a person who used to be president but is no longer president. And it just strikes me as a vindictive move, you know, say what you will about the president’s role in a speech he gave. He’s no longer president. He lost the election. That used to be punishment enough in our politics.”
Sen. Mike Braun (R-IN) said:
“From listening to the dynamic — and everything to this point — it’s going to be tough to get even a handful…I think so many are getting confused by the fact that we’re doing this – and everybody has views that it’s kind of a constitutional concern.”
While McConnell has condemned Trump for his role in the Capitol riots, he has made it clear that he is undecided on whether to vote to convict the former president. During his final day as majority leader last week, McConnell rebuked Trump, saying “the mob was fed lies” and “were provoked by the president and other powerful people.” It is important to note, though, that McConnell’s apparent change of heart didn’t come until after he lost the Senate and after polling major donors on their feelings towards Trump.
On the question of constitutionality, a bipartisan group of scholars wrote a public letter on Thursday that “the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.” The 150+ signatories include the co-founder and other members of the conservative Federalist Society, an adjunct scholar at the libertarian Cato Institute, and numerous Ivy League professors.
“Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires,” they wrote. “But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction.”
“If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote,” they noted. “The Framers did not design the Constitution’s checks and balances to be so easily undermined.”
- Further reading: “Is it constitutional to hold an impeachment trial for a former president?” Vox
- Keep in mind, that disqualifying a president from holding office in the future can only occur after at least 67 senators vote to convict.
Despite technically having control over the Senate with a tie-breaking majority, Democrats have not been in control of many aspects of the Senate – and McConnell is obstructing attempts to move forward. At the start of each Congress, the Senate reaches an agreement – called an organizing resolution – about how the parties will share power. This includes committee ratios and membership. Without an organizing resolution, the terms of the previous Congress remain in place.
Negotiating an organizing resolution can be difficult in a closely divided Senate. Sen. Chuck Schumer has said he’d like to model the agreement on the one made between the Democratic and Republican leaders during the last 50-50 Senate in 2001. However, McConnell wants to add a provision: He’d like the Democrats to commit to not weakening or removing the legislative filibuster.
- Background: The 2001 agreement gave the party with the tie-breaking VP control over all committees but split the membership evenly. So, in this case, Democrats would chair committees with half Republican and half Democratic members.
- Definition: The filibuster in this context is the ability to obstruct legislation that doesn’t have at least 60 votes to end debate. For Democrats, this means that legislation requires at least 10 Republican supporters to proceed to an actual vote on the bill itself. In 2013, the Democratic majority changed the rules so federal judges – minus Supreme Court nominees – could not be filibustered. Then, in 2017, the Republican majority removed the exception for the Supreme Court, thus allowing a simple majority to confirm all judges.
Even the organizing resolution can be filibustered; in fact, that is exactly what McConnell intends to do unless the Democrats agree to his terms.
Can the Democrats kill the filibuster once and for all? Yes, if they are all united. That does not seem to be the case, however, as moderates like Sen. Joe Manchin and Sen. Kyrsten Sinema have come out against the idea.
“I thought we should be working together. It should take a minimum of 60,” Manchin told Fox News. “And that means you’re going to have to have a few Democrats or Republicans, depending on who’s in the majority, to work together. That’s what we’re all about. Why would you break that down, and there’s no need to have the Senate?”
The counterpoint to that is that the Senate is already unequal in its basic design. The Democratic half of the Senate represents 41,549,808 more people than their Republican counterparts, for example.
So far, Democrats have stood firm that McConnell’s filibuster-preserving proposal is, in Sen. Dick Durbin’s words, a “nonstarter.” Montana Sen. Jon Tester concurred: “Chuck Schumer is the majority leader and he should be treated like majority leader. We can get shit done around here and we ought to be focused on getting stuff done.”
- There are also ways the filibuster can be modified to limit its power without completely eliminating the tool. The Senate could require that lawmakers stay on the floor and speak uninterrupted to delay a vote, making the option less likely to be used. The threshold could be lowered from 60 votes to something like 52 or 53. Or, the threshold could be changed from a required number to pass to a required number to block. Finally, the Senate could carve out more exceptions like the ones used to confirm judges with a simple majority.