I haven't written very much about the second impeachment trial of former President Donald J Trump because it very much feels like a fool's errand. Right from the get go there was a vote taken on the floor of the Senate about the Constitutionality of whether or not he could be impeached after leaving office, which is such a stupid assertion that had it actually passed, it would have permanently damaged an already idiotic system of government.
An impeachment is merely the formulation of a set of charges to deal with the removal of office of someone, or the disqualification of someone. Had the Senate decided that it didn't have the jurisdiction to deal with an impeachment after someone had left or been removed from office, then it would have voluntarily destroyed one of its powers; and over that?
Setting that aside, I haven't written very much about this because there is a much larger question that has been raised here and that has to do with what actually is impeachable and what is actually convictable.
It has been said (and I first heard this from PBS Newshour Correspondent Mark Shields) that when it comes to the Presidential candidate, the Democrats fall in love and the Republicans fall in line. We've now seen the limits of this aphorism break as sections of Republican supporters not only fell in line but also tell in love with Donald Trump. Remember he actually said that he could stand in the middle of 5th Avenue in New York City and shoot someone and still not lose any votes. Not only does it appear that some supporters fell in line with that rhetoric but they also fell in love with it and were prepared to destroy democracy to carry out the orders of their true love.
Evidence has been presented in the Senate, which includes the Tweets and the speech to a rally on the morning of January 6th by none other than Donald Trump that he would walk with his supporters as they marched on the Capitol Building to fight. Evidence has also been presented front various pieces of video footage that his supporters intended to "hang Mike Pence", "put a ****ing bullet through Nancy Pelosi's brain", and that in addition to malicious damage throughout the Capitol Building they actually got to the other side of a locked door from actually carrying that out; all "on the orders of the President".
Considering that the House has the power of Impeachment as laid out in the US Constitution and the Senate has both the power to try Impeachments and the power to remove someone from office and to disqualify someone from future office; I really do not understand why the people who were within the same building which was being attacked and in which people were being injured and killed and where the mob intended to kill various members of the body voting within that building, should want to voluntarily give up the power to disqualify someone from future office.
I will admit that I do not live in the United States and so all of this is only just an appalling academic exercise as far as I am directly concerned (albeit one with the possible consequences of sending my country to war yet again) but as I live in a country that has what is known as a Westminster tradition, there are many standard legal tests for things which are accepted as normal legal precedent which simply do not apply in the United States; and one of those is testing the opinion of 'The Man On The Clapham Omnibus'.
The Man On The Clapham Omnibus (sometimes called 'The Man On The Bondi Tram' in Sydney) is a theoretical ordinary person. The Man On The Clapham Omnibus is reasonably educated and is supposed to represent the opinion at law of whether a thing is reasonably likely to have happened, or whether a reasonable person is reasonably likely to conclude something.
This test doesn't exist in the United States as far as I can tell but if you apply the test of the opinion of The Man On The Clapham Omnibus as to whether or not they would conclude that Donald Trump was reasonably likely to have incited violence (which is in fact the only charge being made by the second impeachment), then I do not know how The Man On The Clapham Omnibus would reasonably conclude that he didn't.
Given that the mechanism for impeachment, conviction, removal, and disqualification for government offices in the United States is purely a political one (let's not pretend that it's anything but), then the basic legal test which exists in Westminster traditions would never be applied even if it could have been. Immediately it highlights the internal stupidity of the governmental system because from the outset, the system itself destroys any notion that there even can be a test for reasonableness and it answers the question of what actually is impeachable and what is actually convictable by assignor it to nothing more than the mob.
When Senator Ted Cruz stood up and said that this is "nothing more than a show trial", he may actually be speaking more truth than he thinks he is. If this really isn't either an impeachable or convictable offence because a reasonableness test is refused to be applied, then you have to conclude that the supporters of Donald Trump are not reasonable and will allow an incitement to violence as acceptable.
If I was Grand Poohbah and Lord High Everything Else then I would take Senator Ted Cruz's statement that this is "nothing more than a show trial" at face value and proceed on that basis. It seems to me that if a purely political process refuses to make a conviction then the appropriate place for this is a criminal court. In a criminal court you would take the basic question of whether or not statements were likely to have been reasonably concluded to be an incitement to violence by simply presenting as evidence, the testimonies of the people who actually concluded Donald Trump's statements as an incitement to violence and then acted because that's insanely easy to prove under DC law:
https://code.dccouncil.us/dc/council/code/sections/22-1322.html
§ 22–1322. Rioting or inciting to riot.
(c) Whoever willfully incites or urges other persons to engage in a riot shall be punished by imprisonment for not more than 180 days or a fine of not more than the amount set forth in § 22-3571.01, or both.
(d) If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than the amount set forth in § 22-3571.01, or both.
Was it a riot? If a 'riot' is a violent disturbance of the peace by a crowd, then not only can The Man On The Clapham Omnibus conclude that it was but even Blind Freddy can see that.
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