Political Courage v. United States Senate

Moderate Party
Moderate Party
Political Courage v. United States Senate

In this week’s episode, Hillari Lombard breaks down the impeachment trial and the partisan maneuvering the resulted in Trump’s acquittal. Hillari talks through the Democrat’s fumble on witnesses, the GOP’s refusal to take the impeachment process seriously, the arguments for and against Trump’s impeachment, and what this means for the state of the US Senate.

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Hillari Lombard: [00:00:00] Hello and welcome to Moderate Party; a political podcast for Moderates, Centrist, and Independents. I’m your host, Hillari Lombard. Today, I’m going to be talking about what in the hell happened last week with impeachment and what this means for the US Senate. Let’s get started.

The Impeachment Proceedings

The House of Representatives passed a bipartisan Article of Impeachment charging President Trump with “high crimes and misdemeanors” for inciting the mob that assaulted the Capitol on January 6th. At which point, the Senate was charged with overseeing the hearing and determining guilt. Now, impeachment is a political case, not a judicial one, which means there’s no standard for the burden of proof, trial rules are flexible, and you can be impeached without committing something that is legally a crime.

Think of it like this – when someone is charged with a crime the prosecution has to prove that they are guilty beyond a reasonable doubt; meaning you can get away with a crime on a technicality, but that doesn’t mean that you’re fit to be president of the United States. You follow me? Nobody’s trying to elect OJ Simpson.

So, the House of Representatives, led by Jamie Raskin, presented the case against Donald Trump: they laid out the timeline of events, they showed how a Trump tweet disparaging Mike Pence led to calls to hang Mike Pence from the writers they showed never before seen security footage showing just how close the writers got to Mike Pence and Mitt Romney. And they used footage of the president saying things like:

Donald Trump Audio Recording: [00:01:29]

  • ” If you don’t fight to save your country with everything you have, you’re not going to have a country left. If you don’t find like, hell, you’re not going to have a country anymore.
  • Our election was over at 10 o’clock in the evening, and then late in the evening or early in the morning, boom. These explosions of bullshit because if Mike Pence does the right thing, We win the election.
  • All vice-president Pence has to do is send it back to the States to recertify.
  • We will never give up. We will never concede it doesn’t happen. You don’t concede
  • We’re going to the Capitol because you’ll never take back a country with weakness. You have to show strength and you have to be strong.

Hillari Lombard: [00:02:22]  Donald Trump’s defense team originally led by Bruce Castor Jr. Rested on two main points.

  1. They argued it was unconstitutional to impeach someone no longer in office.
  2. Trump’s speech was protected political speech.

Here’s a clip of Bruce Castor. Jr’s opening remarks to lay it out for you.

[Audio Recording of Fog Horn Leg Horn]

Hillari Lombard:

Okay. That’s obviously Foghorn Leghorn, but the similarities are pretty astounding.

Trump’s defense team was literally made up of a guy that chose not to charge Bill Cosby with sex crimes, a guy that chose to defend Jeffrey Epstein before he died, and a personal injury attorney that said things like.

Michael T. van der Veen audio: “Jimminy crickets!”

Hillari Lombard: and

Michael T. van der Veen audio: These depositions should be done in person in my office, in Philadelphia

Hillari Lombard: For the record, those are actual clips, not like the Foghorn Leghorn situation, his defense team’s first point – the one about constitutionality – it’s a tricky one. If you’ve read The Constitution, you know that it’s pretty short. If you’re a nerd like me, you own your own copy. If not, you could print it out on 10 pages of printer paper. Literally. We’ve governed this country for over 200 years using 10 pages of guidance; to put that into perspective, 50 Shades of Gray was over 500 pages long.

It has 134 words on impeachment. However, in those 134 words, it does state plainly that the Senate has the right to oversee impeachment. So, I believe the question should go to the Senate, which it did. They debated for over four hours about whether or not they could move forward with the case. Since Trump was no longer in office and they proceeded to vote 56 to 44 to move forward with the trial, meaning that it was constitutional to try him.

For their free speech defense, they fell back on the Supreme Court case, Brandenburg V Ohio. In that case, a KKK leader gave a speech at a rally to his fellow clansman and after listing a number of derogatory racial slurs. He said it’s possible that there might have to be some vengeance taken. He was uncharged and found guilty of inciting violence. He appealed this and took it to the Supreme Court on constitutional grounds and ultimately won his appeal. Thus establishing the Brandenburg test for incitement. This test basically determines that the government may prohibit speech advocating for the use of force or crime if the speech satisfies both elements of the two-part test:

  1. Number one, the speech is directed to inciting or producing imminent lawless action AND
  2. The speeches likely to incite or produce such action.

Now, this case sets a high bar for incitement, but I fail to understand why they would use it in Trump’s defense because he did do both of those things. He passed the Brandenburg test for incitement. Just one more thing, now this is just me, but if I was ever in a situation where I had to rely on the same defense as the Klu Klux Klan, I think that I’d have to really pull back and take a deep reflective look at my life choices.

Anyway, Trump’s defense team does a pretty bad job. If you think my bias is showing, let me remind you that Laura Ingram on Fox News, described Castor’s opening statements as terrible to which Sean Hannity said she was being too charitable. Regardless of what you think about Trump, I firmly believe a former president of the United States deserved a more capable legal team. They routinely did not use all of their allotted time, their arguments were meandering and combative, they even got into a fight with the senators serving as members of the jury! Not a great look. Now, that last part is actually pretty important.

One of the fundamental questions to determine if Trump incited the insurrection revolves around a tweet that he sent out during the insurrection, in which he disparaged Mike Pence. As a result, the rioters started chanting “hang Mike Pence” or “Pence is a traitor” and trying to seek him out within the US Capitol. Republican Senator Tommy Tuberville said on multiple occasions that he personally told the President that the Vice-President was being evacuated before Trump sent out the tweet on a phone call that they had this account basically confirms that Trump knew of the danger and didn’t care.

So, Republican Senator Cassidy asks Trump lawyers about this call during the question and answer portion. And in response Trump’s lawyer, Michael Van der Veen (that’s the guy that said Jimmy crickets earlier) called Tuberville’s account hearsay, comparing it to something someone had heard the night before at a bar somewhere, which is weird since he was one of the two parties involved in that conversation.

This is where things really started to fall apart.

First, and foremost, Tuberville’s account was not hearsay. It was more like a smoking gun on the incitement charge. His account put increased pressure on house managers to call witnesses, something that they originally did not intend to do. Friday night news breaks that House Republican Congresswoman Jamie Herrera Butler issued a statement detailing a conversation that she had with House Majority Leader, Kevin McCarthy.

The statement is as follows:

“In my January 12 statement in support of the article of impeachment, I referenced a conversation House Minority Leader Kevin McCarthy relayed to me that he’d had with President Trump while the January 6 attack was ongoing. Here are the details:

“When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol. McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said: ‘Well, Kevin, I guess these people are more upset about the election than you are.’

“Since I publicly announced my decision to vote for impeachment, I have shared these details in countless conversations with constituents and colleagues, and multiple times through the media and other public forums.

“I told it to the Daily News of Longview on January 17. I’ve shared it with local county Republican executive board members, as well as other constituents who ask me to explain my vote. I shared it with thousands of residents on my telephone town hall on February 8.

“To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time.”

So, her statement not only confirms incitement, it also confirms the dereliction of duty. It is outrageous and reprehensible. The next day, the House impeachment managers call for a vote on witnesses and they win it with bipartisan support! It’s actually, it’s like such a plot twist if you will, that the Senate has to take a timeout for like an hour or so during that time. House managers reverse that and they actually decide that they won’t be calling witnesses. They cave plain and simple. They go to a vote and Donald Trump is acquitted, meaning that the United States has now held an actress on the Mandalorian and an NFL quarterback that took a knee to a higher standard than the President of the United States.

The failure to convict Donald Trump sets an incredibly dangerous precedent. There is only one impeachment power and only one standard for impeachment. It applies equally to all government officials that are subject to it. So the precedent that we have set says if a Federal Judge went on TV and he said that the Republican party and all those within it are traders to America and all members should be jailed or shot. We obviously could no longer trust that judge to faithfully and fairly perform their duties. So, they would be impeached, but the standard that we just set would say that that is protected speech because that’s the precedent that Donald Trump has now set. We couldn’t impeach that Judge.

If you want to take it even further, let’s think about a future President. Let’s say that that president stated that it was his intention to turn the US into a communist dictatorship, or maybe he says, I love Canada. I’d like to give the United States to Canada. I invite Canada to round up its army and come take the United States. The gate is open if he said all of that, the precedent that we have just said would say that we can not remove him. That’s protected political speech — not great. We agree.

The decision not to call witnesses hit me harder than I’d expected, especially since the result of the trial often felt preordained, but this decision. It hit differently when the house first passed articles of impeachment, many Trump supporters accused him of playing politics.

And I pushed back against that hard, even against my close friends, impeaching Trump was the right thing to do morally to me. It should have been nonpartisan. Part of being a leader is taking responsibility for the actions that you inspire in others. The writers at the Capitol used an American flag to assault a police officer.

They beat him with it. They desecrated what we stand for as a nation. They threw down the American flag in favor of a flag with Trump’s name on it. They carried the Confederate flag into the US Capitol – that should offend everyone that considers themselves an American or a Patriot. They murdered a police officer and they wounded 140 more.

We should pursue every writer and the people that aided them to the harshest extent of the law. So, I defended Democrats and the articles of impeachment. I didn’t think that it was a political maneuver, but Senate Democrats proved me wrong. When House Managers said that they wanted to call witnesses, Trump’s defense team threatened to call hundreds of witnesses of their own and tie up the Senate for months! They threatened to call Nancy Pelosi, Kamala Harris, and make everyone look bad. Lindsey Graham said calling witnesses is like opening Pandora’s box. First, consider why Trump’s defense team would fight so hard to suppress witnesses. The only reason that you don’t want to witness is that they make you look guilty and they know that if the witnesses would vindicate Trump, of course, they would fight to call them. the only reason that they would call hundreds of extra witnesses because they want to distract and dilute it seemed like Trump is no worse than any other politician. But the thing is, is that he is worse. They’re 535 members of Congress. And there is one president. If you add all of those people up, they’re equal to the executive branch, but on their own. They literally have 0.0, zero 1% of the power that the president has.

So if you want to call it Maxine waters to the stand and have her answer for some of the bad things that she said in the past, do it. If you want Nancy Pelosi to talk about whether the Capitol was or was not secure enough before the insurrection do it because none of this makes Trump less guilty. None of it.

He was the president of the United States. Arguably the most powerful leader in the world, his power and influence are unmatched by any soul, individual. And no witness can undo the omission of his own words. He convicts himself. And if there was a witness guilty of equal incitement, they should be removed to call them in, but they didn’t. They just didn’t. Reporting suggests that house managers were pressured out of it by democratic senators. At the time that I’m recording this, we can’t be sure who specifically prompted the cave. Democratic senators claimed that after they voted to move forward, house managers had no real plan for what to do next.

According to a Democrat, familiar with the negotiations quote, Senate Democrats gave them the votes, but the managers didn’t know what their next steps would be and quote. But according to Politico, multiple sources close to the impeachment managers disputed that claim saying instead it was significant pressure from Senate Democrats that resulted in their decision to change course, my take, I think Senate Democrats caved because they didn’t want Biden’s agenda to get held up by Trump’s impeachment trial, meaning that they made the political play.

I truly believe that they thought impeachment was the right thing to do. But it turns out it was only the right thing to do if they could do it quickly. And that infuriates me a cop-out impeachment when you only believe in so long as it’s convenient is a waste of America’s time. You’ve proved all of the Republicans that said that, right?

If Senate Democrats believed in impeachment, as much as they claim to, they would have pursued it with every available resource and as much time as it took. Especially because this isn’t a criminal trial, the senators set the rules. They could have voted to limit the number of witnesses called, but they didn’t, they wanted it to be done with because as Senator Coons said, senators want to get home for Valentine’s day.

A police officer is dead. Okay. And they want to get home for Valentine’s day. Talk about dereliction of duty. I will grant them this hard to see the impeachment trial as a good use of time when Republican senators have already said they won’t convict, which brings me to the other bag of garbage in the US Senate, the GOP Senate Republicans have refused to take this hearing seriously from the very beginning two weeks before the trial began, Marco Rubio said he thought the trial was stupid and that he would vote to end it as soon as he could.

Yet, He was still allowed to sit as a juror. Ted Cruz, openly consulted with Trump’s defense team during the trial. Yet he was still allowed to serve as a juror. Josh Holly made a point to sit with his feet up on a chair and read unrelated legal briefs during the hearing, instead of paying attention, Senator Rick Scott was filling in a blank map of Asia instead of listening to arguments.

And while that is hilarious and super random, It does not. It does not offer the seriousness that a matter, like this deserves somebody elected him to be their voice. And he’s sitting there like filling in a geography map from the eighth grade, Tommy Tuberville, who literally told president the president that Mike Pence is being evacuated.

Didn’t vote to convict, even though he is honestly one of the prosecution’s star witnesses, Republicans went on the defense using what about isms to defend Trump? Basically arguing that he can’t be guilty because Democrats use fiery rhetoric to the same leaders that how old, about Kaepernick taking a knee, downplayed an attack on the US Capitol and failed to hold its leader accountable.

Immediately after the vote, Mitch McConnell the OG enemy of modpod grabbed a mic and said,

Mitch McConnell Audio: [00:18:19]

“There’s no question- none there. President Trump is practically and morally. Responsible for provoking the events of the day. No question about it. The people who stormed this building believed they were acting on the wishes and instructions of their president. But in this case, the question is moot because former president Trump, Trump is constitutionally not eligible for conviction.”

Hillari Lombard: [00:18:55] He makes it clear. He thinks Trump is guilty, but he didn’t vote to convict him because if he did, he would have voted against the majority of Senate Republicans. And he would’ve lost his leadership position, which is ironic since in doing so.

He showed no leadership once-over but ultimately his vote was a vote for his own power. And that’s the thing. They all voted for their own power. They feared that going against Trump would anger their base, get them primaried and take away their seat for Democrats. They feared that if they stall on Biden’s agenda, they’re not going to have any accomplishments to run on in the midterms.

Both parties made the call that they thought would get them reelected. Okay. Maybe not every member, but the majority at the end of the day, they voted for themselves and against their country. And I’m ashamed. Just honestly ashamed.

I do want to note, however, over the course of the impeachment proceedings, we have seen genuine acts of political courage from a number of house and Senate Republicans, 10 house Republicans broke with their party to vote for the article of impeachment and seven Senate Republicans went against their party and voted to convict.

Since then we have seen state Republican parties push to center them. We’ve seen videos of them being harassed at the airport. They’ve received death threats. It’s been terrible. What they did was really brave. And even if you disagree with what they voted for, we should support having principled leaders with high integrity in office, as opposed to weak spineless ideologues.

I want to give particular acknowledgment to a few of them. First Senator Mitt Romney. It is no contest. He has the best head of hair in the United States, Senate and a jaw like an anvil.

It’s like, I mean that, but like, obviously I’m joking. It’s just, it’s never easy to be the first in 2019 Mitt Romney became the first person to vote, to impeach a member of their own party. The first person in history. He showed incredible personal integrity and strength of character. And by doing so, he provided cover for other Republicans to follow him.

It’s just like a middle school dance. Nobody wants to be the first person to get out on the dance floor, but everybody wants to dance. Once that first guy gets out there and he’s really confident, then everybody follows. Or ,in Mitt Romney’s case, six people follow in the lead up to January 6th. We saw videos of Romney being harassed at the airport and on his flight to DC to certify the election results, a plane full of Trump supporters, chanted trader the whole flight, and talk about an anxiety-inducing place to be with a bunch of your enemies is a pressurized container, a mile into the sky, but still, he voted for the truth.

He voted to certify anyway. Romney is a good man and a great legislator in Utah should be proud. He has shown incredible courage. And I thank him for his service, the next person that I want to draw attention to a Senator, Lisa Murkowski from Alaska. She’s the only Senator that voted to convict that is up for reelection in 2022, she has a seat to lose, but she still stood up and did the right thing.

And, you know, once her campaign gets going modpod, we’re going to be talking about what we can do to get Lisa Murkowski reelected. Because the thing is, is that we need to protect moderates and we need to protect independent-minded legislators, because if they get primaried every time that they have an opinion, nobody is going to take an opinion.

Finally, I want to thank Jamie Herrera Butler. She spoke out against the president of the United States and went on record when people with much more power than her would not. She put her career, her personal ambition. She put all of that aside and did the right thing to do because it was the right thing to do for her country.

She’s a Patriot. They all are to all 17 Republicans that moved against their party in service of their country. Thank you for your service because what you’re doing is a service. You are brave and you’re patriotic. And I wish to God that we had more in a lot of ways, this trial has felt like the Senate broke the fourth wall.

They said the quiet part out loud, both parties, regardless of evidence, acted in a partisan and feckless manner. Feckless is a wonderful word. It means lacking initiative or strength of character. It is especially wonderful because it sounds like another four-letter word that I’m trying to say less on the show.

As I close out this episode, I want to remind you that you can send any thoughts you have on the episode to talk@moderatepartypodcast.com. I would love to hear from you also, if you like what you’ve heard, please subscribe and give us a rating. Let us know what you think. And with that, I’m going to turn it over to Jamie Raskin.

He deserves the last word,

Jamie Raskin: [00:24:11] Mr. President. That’s right. Good senators. My daughter, Hannah said something to me last night that stopped me cold and brought me up short. Our kids have been very. Moved by all the victims of the violence, the officers and their families. But Hannah told me last night, she felt really sorry for the kid of a man who said goodbye to his children before he left home to come and join Trump’s actions.

Their father had told them that their dad might not be coming home again. And they might never see him again. In other words, he was expecting violence. He might die as insurrectionists did. And that shook me. I said, how can the president put children and people’s families in that situation? And then just run away from the whole, okay.

That shook me. And I was filled with self reproach because when I first saw the line about, you know, your father going to Washington and you might not see him again, I just thought about it. Well, like a prosecutor, like a manager. I thought what damning evidence that is, that people are expecting lethal violence at a protest called by the president of the United States and saying their final goodbyes to their kids.

But Hannah,

my dear Hannah thought of it like a human being. She thought of it. If you’ll forgive me like a Patriot.

Someone who just lost her brother and doesn’t want to see any other kids in America go through that kind of agony and grief

centers. When I say all three of my kids are better than me, you know that I am not engaged in idle flattery. Maybe some of you feel the same way about your kids. They’re literally better people than me. They’ve got a lot of their mom, Sarah bloom, Raskin, and then they’re better than me and Hannah saw through the legality of the situation she saw through the politics of the situation, all the way to the humanity of the situation, the morality of the situation.

That was one of the most patriotic things I ever heard anybody say. The children of the insurrectionists, even the violent and dangerous ones. They’re our children, too. They are Americans and we must take care of them and their future. We must recognize and exercise these crimes against our nation. And then we must take care of our people in our children, their hearts in their minds.

As Tommy Raskin used to say, it’s hard to be human. Many of the Capitol and metropolitan police officers and guardsmen and women who were beaten up by the mob. Also have kids. You remember officer  who had a heart attack after being tased and roughed up for hours by the mob, and then begged for his life telling the insurrectionists that he had four daughters and not just about broke my heart all over again.

We talked about this for a long time. Last night, my kids felt terrible. That other kids’ fathers and mothers were pulled into this nightmare by a president of the United States. Okay. Senators, we proved he betrayed his country. We proved he betrayed his constitution. We proved he portrayed his oath of office.

The startling thing to recognize now is that he is even portraying the mob. He told them he would March with them. And he didn’t, they believe the president was right there with them somewhere in the crowd, fighting the fantasy conspiracy to steal the election and steal their country away from them.

They thought they were one big team working together. He told them their great journey together. It was just beginning. And now there are hundreds of criminal prosecutions getting going all over the country, people getting set to say goodbye. To members of their family and the president who contacted them, solicited them, Lord them, invited them and cited them.

That president has suddenly gone quiet and dark, nowhere to be found. He cannot be troubled to come here to tell us what happened and tell us why this was the patriotic and the constitutional thing to do. Senators this trial in the final analysis is not about Donald Trump. The country in the world know who Donald Trump is.

This trial is about who we are, who we are.

my friend, Dora Williams says that sometimes the truth is like a second chance. We’ve got a chance here with the truth. We still believe in the separation of powers. President Trump tried to sideline or run over every other branch of government thwart the will of the people at the state level. You SERP the people’s choice for president.

This case is about whether our country demands a peaceful non-violent transfer of power to guarantee the sovereignty of the people. Are we going to defend the people who defend us, not just honor them with metals as you rightfully did yesterday, but actually back them up against Savage, barbaric, insurrectionary violence.

Well, we restore the honor of our capital and the people who work here. What would be a democratic nation that the world looks to for understanding democratic values and practices and constitutional government and the rights of women and men,

the Senate condone the president of the United States, inciting a violent attack on our chambers, our offices, our staff, and the officers who protect us. When you see the footage of officer Hodges stuck in the doorway, literally being tortured by the mob government did that too. That would be torture. And when you see that footage and he’s shouting in agony for his dear life, it’s almost unwatchable.

When the vice president, the United States escapes a violent mob, that’s entered this Capitol building. Seeking the hang him and calling out traitor, traitor, traitor. And when they shut down the counting of the electoral college votes, is this the future you imagined for our kids? Is it totally appropriate?

As we’ve been told, whereas representative Cheney said, is it the greatest portrayal of the presidential oath of office in the history of our country? And if we can’t handle this together, as a people, all of us forgetting the lines of party and ideology and geography and all of those things, if we can’t handle this, how are we ever going to the other crises of our day is this America, is this what we want to bequeath to our children and our grandchildren?

I was never a great Sunday school student. Actually. I was pretty truant most of the time, but one line always stuck with me from the book of Exodus as both beautiful and haunting. Even as a kid, after I asked what the words meant, thou shall not follow a multitude to do evil thou shall not follow a multitude to do evil.

The officer who got called the N word 15 times and spent hours with his colleagues, battling insurrectionists who had metal poles and baseball bats and hockey sticks, bear spray, and Confederate battle flags posed the right question to the Senate and to all of us is this America.

your senators. That’s going to be up to you now in whatever committees and subcommittees you’re on whatever you came to Washington to do to work on from defense to agriculture, to energy, to aerospace, to healthcare. This is almost certainly how you will be remembered by history. That might not be fair.

It really might not be fair, but none of us can escape the demands of history and destiny right now, our reputations and our legacy will be inextricably intertwined with what we do here and with how you exercise your oath to do impartial justice. Impartial justice. I know. And I trust you will do impartial justice driven by your meticulous attention to the overwhelming facts of the case and your love for our constitution, which I know twelves in your heart.

The times of found us, said, Tom Payne, the namesake of my son, the times of found us is this America? What kind of America will we be? It’s now literally in your hands, Godspeed to the Senate of the United States. We reserve any remaining time. .


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