At his impeachment trial for inciting insurrection, Donald Trump’s lawyers claimed that Trump’s exhortations to his followers before the attack on the Capitol were protected free speech under the First Amendment. But as 143 other constitutional law scholars from across the political spectrum and I collectively noted, that claim was “legally frivolous.” Moreover, the First Amendment will not protect Trump if he is charged with committing criminal offenses.
The First Amendment does not apply in an impeachment trial because a president (or former president) can be impeached even for lawful conduct if he abused his official power while in office. Impeachment is a political, not a legal, proceeding. As Alexander Hamilton wrote in Federalist No. 65, high crimes and misdemeanors “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
George Floyd, who was publicly tortured and lynched by Minneapolis police officers on May 25, 2020, narrated his own death, legendary civil rights lawyer Benjamin Crump told the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States at its January 25 hearing. “He narrated his death, like a cinema movie at the time.”
The unarmed Floyd was accused of using a counterfeit $20 bill. As Floyd lay face down on the ground with his arms handcuffed behind him, Officer Derek Chauvin kept his knee firmly planted on Floyd’s neck for 8 minutes and 46 seconds, squeezing the life out of him. Floyd pleaded, “I can’t breathe” 28 times. “I can’t feel my insides,” he uttered. “I can’t feel my legs.” He called out for his mama, who had predeceased him by two years. Floyd said, “Tell my children I love them.” Two other officers kneeled on Floyd’s back and legs as a fourth officer stood guard to keep horrified citizens from intervening to save Floyd’s life, threatening them with mace.
The mother of Eric Garner, who was brutally murdered by New York City police officers applying a chokehold as he pleaded “I can’t breathe,” testified this week before the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States.
“They killed him. It is no justice for him. But we must still stand for justice,” Garner’s mother, Gwen Carr, said during the commission’s opening hearing on January 18, Martin Luther King Jr. Day. “We must get justice for those who come behind him.”
Another mother to testify before the commission was Dominic Archibald, the mother of Nathaniel Pickett II, who was murdered by a San Bernardino County, California, deputy sheriff who saw him lawfully walking in a crosswalk. “In the final moments of the only life he had, my only child was stopped, beaten, and terrorized like a dog,” she testified. “My son had a civil right to social freedom and a human right to life.”
Now that the House of Representatives has impeached Donald Trump for Incitement of Insurrection, he will stand trial in the Senate. In light of Majority Leader Mitch McConnell’s refusal to hold the trial before January 20, the question arises whether Trump can be tried after he leaves office. The answer is yes. Expect Trump’s legal team to argue that he cannot.
“The Constitution does not require that an impeachment trial be held while a person is in office,” Berkeley Law School Dean Erwin Chemerinsky told Truthout. “Indeed, William Belknap, secretary of war to President [Ulysses S.] Grant, was impeached and tried after resigning from the position.”
The legal evidence is damning: Donald Trump should be held criminally liable for “seditious conspiracy” and “inciting insurrection” for his role in stoking the events of January 6, when an angry mob of Trump loyalists, incited by the president himself, stormed the Capitol building to stop the congressional counting of votes for Joe Biden in the Electoral College.
The mob easily breached the Capitol building, rampaged through the halls of Congress — some waving Confederate flags — terrorizing senators and congress members. In stark contrast to the overwhelming and violent police force used against the largely peaceful Black Lives Matter protesters, there was little resistance offered by law enforcement against Trump’s mostly white minions as they entered the building where Congress was meeting and tore it apart. Trump’s violent backers did temporarily halt the count of votes for Biden. Five people died, and the mob of Trump supporters sprayed chemicals, threw lead pipes and injured more than 50 officers.
Hours later, Trump released a videotaped message praising them: “We love you. You’re very special.” He gave them permission to go home.
Julian Assange’s legal victory this week was bittersweet. In a stunning decision, British judge Vanessa Baraitser denied Donald Trump’s request for extradition of Assange to the United States, ruling that he was at high risk of suicide if he were extradited because the U.S. prison system could not protect him.
But at the same time, Baraitser spent most of her 132-page decision supporting the Trump administration’s case against Assange, which amounts to the criminalization of national security journalism.
The importance of the January 5 Senate runoff elections in Georgia cannot be overestimated. They will determine which party controls the Senate, with vast ramifications for economic policy, climate change, workers’ rights, immigrants’ rights, judicial nominees, and much more. The purging of nearly 200,000 registered voters from the voting rolls in Georgia could spell the difference between a Republican or a Democratic majority in the Senate.
In October 2019, Georgia Secretary of State Brad Raffensperger purged 313,243 people from the voter rolls, claiming they had moved from their registration residence, which is a ground for removal under the National Voter Registration Act (NVRA). But five top expert firms hired by the Palast Investigative Fund (PIF) determined that 198,351 of those Georgia voters had not moved at all and were therefore illegally purged from the rolls.
Shortly after the public lynching of George Floyd, the U.S. Human Rights Network and the ACLU organized an international coalition of more than 600 organizations and individuals to urge the United Nations Human Rights Council to convene a commission of inquiry to investigate systemic racism and police brutality in the United States. George Floyd’s brother, Philonise Floyd, addressed the Council by video, stating, “You in the United Nations are your brothers’ and sisters’ keepers in America.” He implored the UN, “I’m asking you to help us — Black people in America.”
However, the Trump administration lobbied heavily against this investigation, objecting to limiting the inquiry to the U.S. The Council subsequently declined a request by a group of African countries within the Council to establish the inquiry commission. “The outcome is a result of the pressure, the bullying that the United States did, assisted by many of its allies,” said Jamil Dakwar, the ACLU’s human rights program director.
In the weeks remaining before Joe Biden’s inauguration, Donald Trump is taking actions — including aiding and abetting murder — to prevent his successor from pursuing diplomacy with Iran.
On November 27, Israel assassinated Mohsen Fakhrizadeh, Iran’s top nuclear scientist. International law expert Richard Falk called it “an outrageous act of state terrorism.” Although the Israeli government has not claimed credit for the illegal killing, there is little doubt of its culpability. Trump implicitly praised the assassination, retweeting a comment by Israeli journalist and intelligence expert Yossi Melman that the killing was a “major psychological and professional blow” to Iran. This was an “implicit approval if there ever was one,” according to Sina Toossi, a senior research analyst at the National Iranian American Council.
Joe Biden’s victory over Donald Trump is monumental. After four years of nonstop cruelty against workers, the poor, people of color, women, LBGTQ folks, immigrants, Muslims, the environment, the climate, and the foreign victims of Trump’s bombs, we can breathe a sigh of relief.
But no sooner did Biden win the election, then centrists in the Democratic Party began blaming the left for the loss of seats in the House of Representatives and the failure to decisively regain control of the Senate.
In fact, progressives played a pivotal role in delivering the presidency to Biden and several congressional races to Democrats as well as turning Georgia and Arizona blue. Now progressives must hold Biden’s feet to the fire and demand that he govern for the 99 percent and not the 1 percent.