Parsing Senatorial Bloviation:Rebuffing A Politician’s Explanatory Rhetoric Word by Word
by Pem Schaeffer
February 2, 2021
Introduction to What Follows:
On Tuesday, January 26th, Senator Rand Paul made a motion on the Senate Floor to effectively end Senate plans to conduct an Impeachment Trial of former President Donald Trump. His effort was defeated by a vote of 55-45, with 5 Republicans voting with the opposition to follow through with the trial.
One of the dissenting Republicans was my Republican Senator; my other Senator is a so-called Independent who caucuses with the Democrats. Irritated by her vote, I contacted state Staff whom I know and asked that the Senator provide an explicit explanation of why she opposed the move, and to please omit the usual “happy talk” common to letters of response.
I received a response the next day, and after reading it, I began to analyze more carefully each point in the justification. I concluded that virtually none were worthy or convincing and that they amounted to nothing more than the evasive language for which career politicians and their staffs are so well qualified. Making either side of an issue sound like the obvious choice without exposing the deep political calculations behind the decision.I set about responding in detail. Below is the combination of the Senator’s words, unindented, with selected highlighting by me. My personal response is indented and italicized, and inserted following the original text to which it responds.
Herewith the net result:========================================================Response to Senator Susan Collins Memo Explaining Vote Against Senator Rand Paul Motion on Senate Taking Up Impeachment Trial of Trump on 26 January 2021Opening Comment: I find Senator Collins’ explanation unsatisfactory, astonishing, and a fine example of the “my hands are clean” political rhetoric typical of high-level staffers in Congress. It smacks of after the fact rationalization; I find it hard to accept there was time to prepare such a “well-researched” analysis between the time Senator Paul made the motion and when Senator Collins had to make her vote after reviewing the memo. On the other hand, maybe the Senator had decided where she would come down on the subject before hearing any comments on the floor from her colleagues, and the backup white-paper was “a memo to file” for constituent and memoir purposes.
As I read the material, images came to mind of Rep. Adam Schiff repeatedly standing before cameras assuring us that “the evidence of Trump’s collusion with Russia is right there in plain view,” without ever revealing what the evidence “in plain view” is. And his words of insinuation: “it may very well be that” …… which infers that “it may very well not be that.” In other words, pure stagecraft without a shred of evidentiary value.And the utter lack of credible evidence that Trump fomented “insurrection.” In fact, reports are surfacing that the FBI has uncovered plans that predate the President’s speech.
Hypotheticals like “could” and “would” are routinely sustained as “drawing conclusions” in a court setting when objected to.
Pem and Bob,Here is a reply from Senator Collins-
Thank you for contacting me about the Senate impeachment trial of Donald Trump and my decision to support allowing the trial to begin. While the Constitution does not explicitly express Congress’ jurisdiction when the subject of impeachment is a former president, or any former officer, its text and purpose, as well as Senate precedent, support the conclusion that the trial should proceed.
“Not explicitly,” but you read it into it anyway. You are engaging in legal distraction, finding words not there, as in “penumbras.” The Constitution is what it says it is, not what you want to find hidden between the lines. Either it explicitly says something, or it doesn’t. Stating that impeachment relates to Presidents and other officers is pretty explicit to those of us who don’t look for ways to imagine hidden meanings or ways to stretch it to support situational interests. Washington is rife with those who will swear a meaning not self-evident is there anyway, in keeping with the attached cornucopia. And “Senate precedent” is a self-rationalizing phrase, which carries no Constitutional weight. “Supporting a conclusion” is a subjective term, to say the least.
I begin my analysis with the text of the Constitution itself. The Constitution provides two possible penalties for conviction. The first is removal, a consequence that flows directly from conviction by the Senate. The second penalty – which requires a separate consideration after conviction – is disqualification from holding office again. If the Senate were unable to consider disqualification after a president’s term had expired, the second penalty could lose its meaning. If the Senate dismissed this action based on a lack of jurisdiction, it would create a precedent under which a future president could avoid disqualification simply by waiting for the closing days of his term to engage in misconduct.
“Could lose its meaning?” Its meaning is its meaning, Senator! Applying the Constitution is your sworn duty, not twisting it to avoid some imagined loss of meaning! If and would are irrelevant to the situation at hand. What about you violating your promise to the Maine electorate? The second penalty consideration is dependent on qualification to consider the first, which is limited to the President, which he is not. Your own words say separate consideration AFTER conviction on the first, which clearly cannot happen because the “Defendant” is not President, and therefore not subject to impeachment.
In fact, Senate precedent already supports the notion that a trial can continue after someone has left office. Most notably, in 1876, the Senate tried William Belknap, a corrupt Secretary of War who had quickly resigned in a failed effort to escape impeachment. During the trial, former Secretary Belknap asserted that the Senate lacked jurisdiction over his case because he was a private citizen. A majority of Senators voted to reject his argument, concluding that Belknap was subject “to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.”
What does “Senate precedent” have to do with anything? Your responsibility is to honor the Constitution, not to look for various and sundry ways to escape its clear meaning. Harking back to 1876 to make a point is a bit of a stretch, one would think. Do you take an oath to honor Senate precedent or the Constitution? Senate precedents include some shameful past history; Senator Robert Byrd and Ted Kennedy come to mind, along with many others less notable. Regardless, a senate vote does not define Constitutionality. I have no doubt a search by the CRS could dig up scores of Senate votes that violated the Constitution.
The majority of scholars who have looked at this question agree that the Senate has jurisdiction over former officers. According to the nonpartisan Congressional Research Service, “most scholars who have closely examined [this] question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” A recent letter signed by more than 150 constitutional scholars across the ideological spectrum concludes: “the Constitution’s text and structure, history, and precedent make clear that Congress’s impeachment power permits it to impeach, try, convict, and disqualify former officers, including former presidents.”
“Majority of scholars” and “most scholars” and “more than 150 constitutional scholars” are rhetorical gambits to provide air cover for the desired outcome. If I had your resources, I could find scholars, whose qualifications are as open to interpretation as your unnamed ones, who could take the opposite view and overwhelm yours. These are silly proclamations with no substance; such fluff is unworthy of you.
A final point that leads me to believe the Senate has no choice but to accept jurisdiction in this matter is that the House impeached President Trump before his term expired, for acts committed while in office. Richard Fallon, a Constitutional Law professor at Harvard Law School, explained, “What the House did was indisputably within its jurisdiction when the House did it. Since the Senate has the authority to disqualify President Trump from future office-holding if it convicts, then going ahead with the trial would also be within its jurisdiction.”
What “acts while committed in office?” That is a claim not in evidence. No evidence was presented! What testimony was taken? Are you so gullible as to act on what others with a clear and present political agenda have claimed, but with no substantiation? Does due process mean nothing? And are you in the habit of abiding by anything a Harvard Law Professor says, or only those things that confirm a decision you had already made? I imagine Congress has perfected the fine art of Professor shopping by subject area and ideology, along with thousands of others who stand ready to famously give their learned opinion. Saying something is “indisputable” is hogwash. That’s what courts are for: to settle disputes.
While some claim that a Senate trial, in this case, would open the door to impeachments of any former officeholder, the question before the Senate was only about whether the Senate has jurisdiction over officials who have been impeached before leaving office. Because that was the case here, I believed that the Senate must accept jurisdiction over this impeachment trial and therefore I voted to allow the trial to move forward.
In summary, your argument is based entirely on rhetorical gambits of “could” and “would” and unidentified “scholars” of unknown origins in this question, whose reasoning cannot be challenged. Could and would speculate on future possibilities that are not in evidence.
In summary, I find your response specious, lacking in rigor, and constructed as typical after the fact rationale with the help of paid staff who specialize in such discourse.I believe that the Senate must not accept jurisdiction, but the vote is yours, and I shall always remember that you poll scholars to guide you in your votes.
In closing, I’m left to wonder what scholars those who voted for Senator Rand’s motion used in their deliberations. Since there were 45 of them, I’m assuming that their vast army of scholars outnumbered yours by a large measure. Wouldn’t it make a fine exhibition to have a “March of the Scholarly Debate Society” take place in the Senate Chamber before each vote? I might suggest you include some engineering scholars in the mix; they tend to be more logical and fact-based than Academics in the field of Law. Sincerely,Susan M. CollinsUnited States Senator
The following items are provided for reader edification by Pem Schaeffer……Law of the Infinite Cornucopia From WikipediaJump to: navigation, searchThe Law of the Infinite Cornucopia, put forth by Polish philosopher Leszek Kołakowski suggests that for any given doctrine one wants to believe, there is never a shortage of arguments by which one can support it.
A historian‘s application of this law might be that a plausible cause can be found for any given historical development. A biblical theologian‘s application of this law might be that for any doctrine one wants to believe, there is never a shortage of biblical evidence to support it. Scalia on Moderate Justices:Biden’s remark reminds me not only of the stakes in tomorrow’s election but also reminds me of what Justice Scalia said in 2019 about so-called “moderate” judges:You hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one.