John Davis Consulting

The US Constitution Giveth and the US Constitution Taketh Away; Blessed Be the US Constitution

February 2, 2021         Vol. XIV, No. 1       11:13 am

US Constitution requires 67 votes for conviction. Period. End of story.

Next Monday, February 8, 2021, former president Donald Trump will try to win an acquittal in the court of public opinion by arguing during his second impeachment trial that he was unfairly cheated out of a second term in the Oval Office. That the January 6 storming of the US Capitol was spontaneous, not orchestrated. That lawlessness was due to a few bad actors, unwittingly abetted by poor security planning.

If Trump succeeds in the court of public opinion, Democrats will have no chance of persuading the 17 Republican Senators needed for 67 votes required to convict him of the charge that he “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.”

And no matter what any of us think about the legitimacy of Trump’s defense strategy, the US Constitution says that without 67 votes to convict, he will be acquitted. Period. End of story.

In my judgment, the Trump legal team is likely to succeed in winning the argument in the court of public opinion that Trump and his supporters genuinely believed that he was cheated out of a second term; that an otherwise peaceful and officially permitted “Save America” rally and march to the US Capitol became violent only because radical, right-wing thugs assaulted and overran cops; a security breach that led to lives being lost and government leaders and staff threatened in great part because of a failure of federal and DC bureaucrats to plan for the angry crowd cautioned days earlier by the FBI.

If Trump succeeds next week, he will live to reign supreme for another day with his “Save America” PAC and a $31 million year-end 2020 cash balance reported Sunday. If Trump succeeds, Mar-a-Lago will become the center of the Republican universe and Speaker Pelosi will go down in history as the only speaker who exploited the US Constitutional impeachment authority twice … and lost both times.

But even if Pelosi and her prosecution team fail to win the Constitutionally required 67 votes to convict Trump of High Crimes and Misdemeanors, Joe Biden will still be President of the United States.

Constitution requires 270 electors for president. Period. End of story.

During the past four years, we have heard Democrats claim time and again that President Trump’s presidency was somehow illegitimate because Hillary Clinton won 2.87 million more votes in 2016. Unfortunately for the Clinton camp, the US Constitution does not account for the national popular vote.

Donald John Trump was declared winner because he won the 270 electors required by the US Constitution for a term as president of the United States (Trump 304; Clinton 227). Period. End of story.

But it was not the end of the story for many Democrats who believe to this day that the Trump Administration was illegitimately won. Democrats, like the late Rep. John Lewis from Georgia, who  refused to attend Trump’s inauguration, saying in an interview with Chuck Todd on NBC News’ “Meet the Press,” “I don’t see this president-elect as a legitimate president.”

Not only did Rep. John Lewis and many like-minded House members not attend President-elect Trump’s inauguration, many also never attended a Trump State of the Union Address.

Democrats spent four years denying the legitimacy of Trump’s 2016 win. Hillary Clinton told the Washington Post on September 26, 2019, that Trump was an “illegitimate president” who “knows he stole the 2016 election.”

Exploiting a pandemic for political gain is not unconstitutional

Sound familiar? Stole the election? Cheated? Unfair? Misrepresented the truth?

How about Trump’s claim: They exploited a coronavirus pandemic to send tens of millions of absentee ballots to their voters and then used unprecedented emergency state authority to reduce validation requirements and extend the time allowed for counting ballots to gain a political advantage.

Or how about Trump’s claim: the news media withheld a scandalous story about my opponent.

In the matter of the election of a US president, the US Constitution has no interest in whether the news media tried to influence the race unfairly by withholding potentially damning stories such as the one about Joe Biden being complicit in family business deals with China while he was Vice President.

In fact, the US Constitution allows the news media to be recklessly unprofessional; allows reporters to destroy the trust of Americans by choosing sides in a presidential race and faking their objectivity. There is nothing unconstitutional about media bias in story selection or the use of loaded words intended to politically influence readers and listeners. Recklessly unprofessional? Yes, but not unconstitutional.

Likewise, the US Constitution is not interested in whether House Speaker Nancy Pelosi, D-CA, purposely stalled the negotiations on the second coronavirus stimulus package to keep President Trump from a politically valuable legislative accomplishment. Nor does the US Constitution care if Pfizer and Moderna intentionally waited for political reasons, as some have suggested, until after election day to announce the availability of their COVID vaccines (Pfizer announced Nov 9; Moderna Nov 16).

Reprehensible? If true, yes. Seeking to gain a political advantage in a presidential race by delaying desperately needed stimulus money and vaccines is reprehensible, but not unconstitutional.

The bottom line is this: exploiting a national crisis by driving up the number of absentee ballots distributed and certified is not unconstitutional. Neither is exaggerating the truth nor withholding a story.

The US Constitution asks but one question after a presidential race

You can stand before the US Constitution all day arguing that President Trump’s election was stolen because of absentee ballots, biased news sources or ruthlessly partisan opposition leaders, but the US Constitution, after listening patiently, will ask you but one question: Did one of the contenders for president win a minimum majority of 270 certified Electoral College votes?

At 1:00 pm, Wednesday, January 6, 2021, the 117^th US Congress met in joint session, then-Vice President Mike Pence presiding, to count certified ballots from each state for US President and Vice President. Shortly thereafter, tens of thousands of marchers arrived at the Capitol from a Trump-led “Save America” rally to protest the count, believing, as President Trump had argued, that the election had been stolen, even though no state or federal court had ruled in their favor on allegations of fraudulent balloting.

Per a USA TODAY timeline, at a little after 1:00 pm, violent protesters in the crowd began grappling with Capitol Police in what became an hour-long struggle to breach the security barriers. By 2:00 pm, rioters had breached the severely outnumbered security officers and the perimeter fencing on the west (Mall) side of the Capitol. Thousands of marchers, most unaware of the violence, followed each other up the Capitol steps and proudly stood waving their pro-Trump banners.

At about 2:20 pm, as violence escalated inside the Capitol, Vice President Pence and Speaker Pelosi were escorted from the Senate and House chambers, abruptly ending a two-hour debate over an objection to counting Arizona’s votes, required if both a House and Senate member sign an objection.

During the next three and a half hours, we watched in shock as many “Save America” marchers morphed into violent insurrectionists. They occupied the Senate and House chambers. They destroyed property. One hit Capitol Police Officer Brian Sicknick on the head with a fire extinguisher so violently that Officer Brian Sicknick died the next day.

Next week, we will see the video footage of the rioting as House Democratic Impeachment Managers make their case that former president Donald Trump should be found guilty of intentionally inciting the insurrection of January 6, 2021. That he should never be allowed to hold office again.

But this week, I want to emphasize what happened after the Capitol was finally secure at 5:49 pm.

At 8:06 pm, the Senate reconvened to continue the debate over an objection to counting Arizona’s electoral votes. Following the two-hour debate, the objection failed by a vote of 93-6.

At 9:00 pm, the House reconvened to continue the debate over an objection to counting Arizona’s electoral votes. Following the two-hour debate, the objection failed by a vote of 303-121.

At 12:15 am, another objection was raised by a House and Senate Republican to the counting of the Pennsylvania votes, leading to two more hours of debate. The objection was rejected at 3:10 am.

At 3:41 am, Vice President Mike Pence affirmed that Congress had completed the counting of the electoral votes and that former Vice President Joe Biden had won the presidency, 306-232.

Four years earlier, on January 6, 2017, it was then-Vice President Joe Biden who presided over the certification of Donald Trump as the winner of the Electoral College votes. There were many objections initiated by angry Democratic House members over claims like Russian collusion, voting machine malfunctions and voter suppression. But Biden refused to grant House Democrats two hours to debate because they failed to qualify their objections with a cosigning Senator as required by law.

Then, as in the wee hours of the morning on January 7, 2021, and in every presidential election since General George Washington was elected by a unanimous vote of electors on February 4, 1789, the US Constitution decides who would receive the keys to the Oval Office.

The US Constitution giveth and the US Constitution taketh away; blessed be the US Constitution.

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John N. Davis