 Here we are tonight at another Vicki event on this Wednesday evening and tonight we're going to be talking about the current crisis that we're having in our country along with many other crises. We have with us Jared Carter, Professor of Vermont Law School, to speak about impeachment. I think we've discussed that before, so I believe that tonight is a time when we should discuss whether or not it's constitutional to impeach a prior president. Just Jared, to speak about both sides, I think of the argument, right Jared? Yeah, thanks, I'm happy to talk about that. My plan is to spend 10, 15 minutes max sort of laying out the argument because at this point we've seen the opening briefs, if you will, by both the House prosecutors, for lack of a better word, and Trump's defense attorneys, and so we have a pretty good idea of what they are going to be arguing, at least in sort of their arguments. Okay, but Jared, can I interrupt you for a minute? Which includes the constitutional issue, yeah. Are the defense briefs out, really? Yeah, they're opening. I'm not sure if there's an opening sort of statement. Maybe it's a brief that I've seen. So yes, I believe so. And who are his attorneys, anybody that you know? Nobody I knew. So I know that there was some, as there always is, controversy over the weekend because the original five attorneys decided for some reason, and all we get is the rumor mill, but for some reason to leave. And so there's two new ones, and I forget their names. I think they're from South Carolina. But they'll be defending the president, won't be graced with Rudolph Giuliani's presence, but yes, he's got two defense lawyers. I think it's pretty funny. I enjoy him actually. Anyway, go ahead. Yeah, so yeah, I don't want to spend too much time talking about the process of impeachment generally, because we've kind of already done that, and really just sort of try to break down as best as I can, the two different arguments that are being made, and then happy to sort of have a discussion about it. So the main arguments and sort of where they match up, the president or former president Trump is arguing one key point that his speech, so maybe I'll back up actually. So the articles of impeachment that were delivered were essentially tracking the couple of months after the November 6 election, and they provide some quotes and some context of things that the president tweeted, phone calls that he had with the Secretary of State in Georgia, and then ultimately the big one, obviously, the January 6 speech and then subsequent pack on the Capitol by folks that were at that speech. And so those are essentially the underlying facts that the Senate's going to be looking at, and what the president appears to be arguing, and I think these are the two main issues that we're going to see crop up in the impeachment are number one, that his speech was protected by the First Amendment. And so you might recall, of course, that the First Amendment protects the freedom of speech. And under our constitutional regime, it protects even speech that is hateful. It protects so-called fighting words. It is very, very broad in its protections. And so the president is arguing that even his speech in on January 6, and the article's impeachment provides some quotes, I think the one that probably everybody has heard about, where the president says we need to or former president Trump says we need to fight like hell and I'll see you at the Capitol. So those are included in the articles of impeachment. And then obviously, well, some people fought like hell and enforcement officers were killed, others were injured in what was, to my mind, quite frankly, one of the most tragic, certainly, it's the most tragic thing I've seen in my lifetime in this country, 9-11 was horrible, of course, but I just, I never thought I would see that happen. But irregardless of that, the president's first assertion is that his speech was protected by the First Amendment. So here's the test that courts apply under the First Amendment. As I said, it's a very high bar to get over because we value freedom of speech in this country, even ugly, horrible speech. The test is this, and it comes from a case, Brandenburg versus the state of Ohio. And in that case, that case actually dealt with the KKK and things that they were saying and doing in Ohio at the time. And the court ultimately said that the KKK's speech was protected, and they came up with this test to determine whether or not speech is protected by the First Amendment. Here's the test. And I think this is at the heart of certainly one of the arguments that the president and the House prosecutors are going to be arguing over in front of the Senate. The test is that speech, even advocacy of force, is protected as long as the speech, and I'm quoting here. In fact, I can drop it in the chat box so people can see it. I think that works. Unless the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such lawless action. So that's the test that under the First Amendment is going to be looked at. And my reading of it and the case law is I think we can pretty quickly do away with the second part of that test, the second half of that sentence, because clearly the unlawful action occurred. So I don't think they're going to be debating much over whether or not the actions that occurred, the storming of the Capitol, the deaths, the injuries, that that was an unlawful action. I think where the rubber is going to meet the road and it's going to be up to the Senate to decide by vote is whether or not the president directed the speech or directed the advocacy at inciting that imminent lawless action. And as part of that, courts usually look at intent. And so you're trying to read often circumstantial evidence to determine what was the speaker's intent. And obviously on the Democrats side or the House manager side, they point to the lead up to that. Trump's claims about election fraud and I'll see it at the Capitol and we got to fight like hell. I think the president's lawyers on the other hand are arguing who doesn't say we got to fight like hell in a campaign speech or in a political speech and that the speech is there for protected. Intent is hard to prove. I mean, that's why you don't have many prosecutions for incitement. Intent is a hard element to prove in any crime because you kind of got to get inside someone's head. And so you're using circumstantial evidence, outside evidence to try to show what they were thinking when they said what they said. So, I mean, so this is the reason, for example, that Al Capone, he only got prosecuted for tax evasion because he was very careful in the way he, he wouldn't say, hey, go shoot that person. He'd say, I don't really want to see that person anymore. And so it was very hard thereby to prove his intent to imminent lawless action or his intent to encourage a crime of violence, which is the other statute that's in play here. So it's a very high bar. But I think that's where the argument's gonna be. Here's an important point. Normally, if it's a criminal trial, people would think of this and say, well, have they proved each element, so to speak, a piece of this beyond a reasonable doubt, right? So that it's almost a legal certainty. That's not the standard in the impeachment. So while the bar is very high, remember an impeachment, as the founders said, is a political process. If you want to call it this, it's a political trial. That's why the punishments are only political. So an impeachment, the punishment can't be jail. It can't be a fine. It's disqualification removal from office. And so they're political punishments. And so that's why I think really in the end, it's not gonna be a court deciding, did the president, was the president's speech protected by the First Amendment under this Brandenburg test, or was it actually a violation of incitement to commit violent crime statutes that exist at the federal level? The answer is, it's whatever 67 senators think it is. And so I think that's an important point to make, but that's the legal argument that I think we're likely to see play out under that First Amendment debate, right? Whether the president's speech was protected by the First Amendment. So that's number one. Can I interrupt you? But it probably as a citizen of the United States, it would be protected for you. But what you're saying, for instance, if it was a criminal trial with a jury, it would be protected speech. Well, you'd have the lawyers making the same arguments. And I think so, I can get a little bit more into the weeds if you want. The house managers, that point comes up, right? This idea that the president is a private citizen, it's his protected speech. The counter to that is, again, this idea that he's not being charged with any crime. Right, exactly. Whereas normally as private citizen would be charged with a crime of inciting violence, their defense would be First Amendment, my speech is protected. Here, the president isn't being charged with any crime in the impeachment. And the arguments that that's made, and you guys can decide whether you think it's a good argument or not, but the argument that's made is that in order to be impeached, you don't actually have to commit a crime. And so the president's speech, even if it maybe is protected by the First Amendment, still violates that oath of office. And that gets back to this idea of the impeachment being one of a political trial, not a criminal trial. Right. And so that's the argument that's made. So that's the First Amendment. The other one, and this one Sandy alluded to at the outset that I think we're gonna see probably, my sense is this is where it's really gonna come down to. Yeah, all right. Whether or not the Senate retains jurisdiction, in other words, the authority over the trial in light of the fact that obviously President Trump is former President Trump now. And the argument that's made by the defense team, by Trump's defense team, I think is we're starting to see it shape up is essentially that impeachment and the trial, the conviction by the language of the Constitution applies to president's vice president and other federal officials. And so since President Trump is no longer president, vice president or federal official, the Senate essentially has no jurisdiction over this. The president's now a private citizen. If he committed a crime, he could be prosecuted in a criminal court, but that the Senate has no jurisdiction over him for the purposes of impeachment. So that's the president's argument. The flip side and what the house managers are arguing is that they do have, it does have jurisdiction and they point to another section of the impeachment language that says the Senate shall have the sole power to try all impeachments. And their argument is that since the impeachment happened when he was president and since the Constitution says they have the sole authority to try all impeachments that they retain that jurisdiction. And they also point to the 1870s, which even this is a little bit of a, you know, again, we're in legally mucky muddy waters here, but they point to an example in the 1870s when a secretary of war, and maybe you've read or heard about this, a secretary of war, I think it's William Belcamp. Right. 1876, he realized he was about to be impeached in the house and he very quickly tendered his resignation before he was impeached. The house continued its impeachment even though he was technically no longer the secretary of war, the Senate tried him. The same arguments were made that he no longer had jurisdiction. He was ultimately acquitted in the Senate. So in some ways that provides a historical precedent. In some ways it doesn't. And so I think it's muddy waters, but here's what I'd say, and I'll sort of close here and let people time in with questions or comments or thoughts. It's muddy waters, but in the end, it's a political process and it is going to come down to what the Senate votes. And I think that's borne out by the fact that the US Supreme Court normally right when someone's rights are violated or they're prosecuted for something, right? You appeal and ultimately they could end up in the US Supreme Court and they would decide whether your rights were violated and either reverse your conviction or not. Interestingly, because of this history of impeachment as a political process, the US Supreme Court has there's very few instances where the US Supreme Court has gotten involved at all in reviewing an impeachment. The key one, in fact, I think it might even be the only one, is Nixon v. the United States and it's not Richard, it's Walker. No relation, but Walter Nixon was a federal judge and he was impeached for improprieties and he was convicted and he appealed on a bunch of different grounds. And the US Supreme Court said, we will not review this case under a doctrine called the non-justice ability doctrine. Essentially, the Supreme Court said, this is a political question and the constitution reserves impeachments exclusively to the Senate to decide what their trials look like. And therefore because it's explicitly given to the Senate, it's not the Supreme Court's role to get in and decide whether the trial was constitutional, whether the trial was properly carried out. So I think whatever happens, it's gonna come down to the politics of the Senate, the votes of the Senate and the Supreme Court isn't gonna touch it with a 10 foot pole. And I think that's further butchers by the fact that Chief Justice Roberts is not presiding. Primarily, I think because he doesn't have to and the Supreme Court would rather stay out of the politics but I think is a good thing. And that's why Senator Leahy, our senator, is the presiding officer here because under the constitution, the Chief Justice of the Supreme Court only presides if the president or vice president is being impeached. And since he is no longer the president, there's not a requirement that Chief Justice Roberts does it and my guess is he decided he doesn't wanna do it because he's I think rightfully so trying to maintain the courts as a nonpartisan as possible stature. So that's why Senator Leahy's involved. But in the end, President Trump will be, it will be constitutional if 67 senators say it is and vote to convict, it will be unconstitutional if, what's the, my math is bad, 34 senators because we've got a hundred say it's unconstitutional and we are not going to convict. But they're not gonna say that are they? They'll say whether he's convicted or not, correct? So the upshot of it is they'll make their arguments and if they're depending on who's convinced by which argument, I sort of laid out the summaries of both sides, the vote will happen. And depending which way it goes, I suppose there could be, there may very well be appeals to the federal courts and maybe the US Supreme Court, but based on that Nixon case, I think the Supreme Court's unlikely to get involved. And that may sound odd and weird, but it's consistent with the founders perspective on what they can, how an impeachment should play out. Right. Okay. Well, I have a question, if there, if Trump's team is kind of basing their whole thing on the fact that he's no longer president, so therefore he can't be impeached and that they, that... Just quickly, Lou, he has been impeached. Yeah, he has been impeached. What's happening now is a trial in the Senate. I think we do, we always, and I probably get it too, we blend them together. They're actually very different legal processes. Right. And that the question of his role is in inciting this whole thing. Does it matter? I mean, in my mind, his incitement happened while he was in president, as well as the statement that he made at that thing. Does that have any relevance in this sort of... So great question. Lawyers always want to rely on case law before they give an answer. And there just isn't case law on this point, but I think here's the argument on both sides. The house managers are gonna say, absolutely, that matters. He was impeached when he was a sitting president. And it's true, if you look at the language of the Constitution, it says, the Senate shall have sole authority to try all impeachments. There's no caveat to that. On the other hand, there's also language in the Constitution that says that the president, vice president, and other federal officials are those who may be impeached and convicted. So it's legally murky, but those are the arguments that are gonna be made. And the house managers have already made that argument. Because it happened when he was the president, because he was impeached while he was still the president, the Senate has the authority to hear this case. Look, I think the Senate's gonna hear the case. This isn't, there isn't like a mechanism the way there isn't a court where you can get them, you have a motion to dismiss. I thought that was one already. There was sort of, and Rand Paul made a motion to consider whether or not it was constitutional or not. That motion failed. So a lot of people say, well, that means 45 Republicans are, there's no way they're gonna get a conviction. I think that's an oversimplification because what was up for a vote with Rand Paul was not actually whether or not it was constitutional or not. His motion was whether we should even debate that topic. And so, I think, it's gonna be interesting to see, I think there's at least five senators on the Republican side that seem like they've already decided. I think the Democrats have, what? Which way, which, the 500- Longney, Sasse, Murkowski, Collins, and I'm missing one. Murkowski, Murkowski? Murkowski, I think they said her, but yeah, I think there's four or five. So if you do the math, you've got 50 Democrats assume they all go convict five Republicans right now. It's still, there have to be 12 others because it's gotta be 67. And I think at this point, it's unclear whether that those numbers are there or not. But I think it is interesting, and maybe I can just quickly touch on this. Having Senator Leahy at the table, there's another interesting aside. So obviously Senator Leahy being our senior senator. The Senate parliamentarian is a Vermont law school grad. And so she's the one that actually helps Senator Leahy because he doesn't really know about the Senate rules probably. The parliamentarian are sort of the pros. And so she's the Senate parliamentarian. So she'll be helping Senator Leahy decide in terms of ruling on motions or ruling on what evidence should be coming in or who could be subpoenaed. She'll be helping him in that process. I think Sally, you have a question, right Sally? You gotta unmute. You're muted. Sorry. It seems like one sticky wicked is that the Trump disagrees with his attorneys about what the argument should be. That would be true, yeah. And he wants it to be that he's the legitimately, the election was stolen and he's legitimately the president. And the attorneys are saying, we can't argue that cause it's not true. I know, I thought they'd given it up the new team. I think he agreed with the new team that he would not make that argument. That's what I saw today. Yeah, yeah. So Sally, you're right. I think, and that is my understanding as well as what Sandy said. So the five that left, again, I said it was sort of the rumor mill, but it's the sources that support the news media to write these articles, said that the reason they left was because the president was still pushing the argument should be election fraud. And they didn't think that they could make that in client with their ethical obligations as lawyers. And so they left. Now these two have come on and appeared not to be making that argument. Another reason they left is because Trump is so much of a tightwad. He didn't wanna pay the bills. They told him it was gonna be a million three or a million eight. And he said, no, that's too much. I won't do it. So really, I hadn't seen that. That's fascinating. So how much is he paying the new team? Nothing, probably. He never pays his bills. He still owes Brooklyn to maybe $500. If he paid it, he could probably offset that as a loss and never pay income taxes for the rest of his life. Exactly. I'm sure they're not doing it for free. I'm sure they're not doing it for free. Yeah. Joanne made the observation that if he claims he's president, well, then they can convict or have the trial because he thinks he's president. It becomes circular. I mean, not. It's a particular argument. Yeah, yeah. I think the house managers should say, well, this man thinks he's president. So of course he should be tried. Yeah. Committed to a mental institution. Well, I have something else interesting and maybe you've seen this as well, but some of the folks who are being charged with crimes from January 6th are using as their defense that they weren't trespassing because they were invitees that the president invited them to come into the Capitol, which I think is another sort of interesting legal twist. Because one defense to a charge of trespass is that you were actually invited. You were an invitee. But as an attorney, the counter argument to that would be that the president has no control over the Capitol building, right? That house is managed by Nancy Pelosi. Right. Yeah, and a set, right, right. Yeah, yeah, yeah, probably, yeah. You don't know that. But you know, I think one of the strategy could be, you know, you throw up as many roadblocks and hope for some sort of legal. Yeah, right. Like in any other case, that's when you do lawyers, you, right? Right. Yeah, other questions or comments, I'm trying to think of today sort of other interesting tidbits that I could share, but... Well, Jen, do you have any sense of how this might play out in fact? Like, do you think that they might successfully convict him or whatever the term is? Yeah, I mean, I don't have any inside line on it. I mean, I think getting 12 more Republicans to go along if you start sort of going through who are the possibilities, I think it's going to be pretty tough. And, you know, not that I don't... I mean, I'm not arguing you shouldn't be impeached, but I do think it's going to be tough to get 12 more. I don't know who else you flip. On the other hand, a lot of them are playing it pretty close to their chests. And while there was that motion and 45 Republicans said, they said we should at least debate the constitutionality, I think a lot of the news media is overplaying that and saying that means that 45 said we shouldn't convict when it really, that wasn't the vote. The vote was, should we debate whether or not it's constitutional, right? So these are those Senate rules where they vote about, you know, what are they? Robert's rules, right? Where you got to have a motion and then you vote about whether to debate the topic. And so that thing that the media is talking about is, well, hey, 45 Republicans said it's unconstitutional, that's not true. They said 45 Republicans said we should debate that. So I don't think you can sort of carry that over and say therefore there's 45 Republicans who are not going to support impeachment. And therefore there's no chance at conviction. But I do think it's going to be an uphill battle to flip 12 of them. It'll be, I mean, Mitch McConnell was vocal for a while. He seems to be a little quieter now. I'm not sure what to make of that because a lot of times you'll see, and this happened during the, you know, after the riots, the insurrection, whatever you want to call it, Mitch McConnell was quite vocal and that gave cover to other senators to sort of feel like they could speak more freely about, you know, what their concerns. But there's, I think there's a big, I think there's a big rift right now in the, I mean, probably in both parties, but I think it's more obvious right now in the Republican Party, you know, about how to proceed here. And there's a certainly a wing, and I don't know if it's 12 more of them that want to be done with Trump and move on. And, you know, I guess they call it, go back to being the old Republican Party or whatever. And there's a wing that, you know, still supports President Trump. I heard it was 80-20 for Trump. In the Republican Party, 80%. Not in the Republican caucus, you mean, within the Senate, you mean, 80-20? The party. Oh, 80%, 80%. I saw another poll today that said 31% of Republicans thought he should be convicted. So that means, you know, presumably a super majority or at least a large majority thinks he shouldn't be. So he said that translates into the Senate. But remember that the Senate is set up different than the House. So senators are six-year terms, and the theory there is that gives them a little bit more independence, you know, it's not necessarily having to follow the popular will, the way the House does, he's elected every year. I think Susan had a question, right? Susan, or not? Tim, it strikes me that none of it has, that it all has particular relevance, I suppose, for Trump himself. But as a society, the only piece that I'm interested in is whether they include a statement about not ever running again. It's like a sentence, but Tim had something to say. Yeah, I was gonna say that he can only be prohibited from ever holding office again if he is convicted. Right. That's true. Yeah, yeah, so- Is that a separate vote? Is that a- So there's debate about that too, Tim, good, good. And this gets to Susan's point as well, I think. So in the Articles of Impeachment, and this is a bit different, but the House can do whatever it wants, I suppose, with the Articles of Impeachment, they included reference to the 14th Amendment, which allows for disqualification of somebody who engages in rebellion or insurrection against the United States. That was passed, as we're gonna talk about, I guess, in a couple of weeks or months after the Civil War. And so the fact that the House included that draws into question whether or not it would actually take two votes. In other words, if the Senate voted to convict based on those Articles of Impeachment, some argue that that means, since it's included in the Article of Impeachment, it would automatically mean he's disqualified. Others say it would take a second vote to do that. But I think that's an unknown. Another interesting thing, and maybe this would make people not be able to sleep at night, or some people here not be able to sleep at night, the Constitution, the disqualification is only for holding federal office. So there's nothing they could do to stop President Trump from deciding, hey, I'm running again anyway. We could imagine a pretty big mess if he decided to run. I don't want to be still fun. For office, even though he couldn't actually hold it. And he has raised tens of millions of dollars with his Stop the Steel campaign over the past three months. Yeah, yeah. I mean, I still get the emails. You get emails from his campaign, Jared? Yeah, so do I. Yeah, yeah, no. I've had vicarious liability because sometimes his son sends them out. And I love, I'm sure nobody reads it, but I love hitting reply and saying, you know, go f yourself. Or, you know, they start the email saying, dear friend, please contribute. And I'll just reply back, I'm gonna say, we're not friends. They're lying to you, why don't you just leave? They're actually paying attention and getting these emails. Yeah, I get them too, actually. I just read them. I don't do anything. So that's an interesting, I mean, and then you could even go a step further. And this is really crazy. If you think about it, each state has the authority to manage its own elections. As we've seen in this election in previous, so they have their own election laws. And so to the extent that there's states in which Trump still is very popular within the Republican party, what would they, there could potentially be no prohibition about actually putting him on the ballot in those states. Because again, you can't hold office. So I don't wanna say these things too loud because I don't wanna give that guy any ideas. A plain reading of the constitution and the law seems to indicate that that could be a possibility. And we do know that Trump likes to do things to mix it up and put it. To go back to the Republican party, a third of the senators are up for reelection in 2022. And all of them are running scared because Trump still holds such sway among the base that they don't wanna be primaried. So they're not gonna have the courage even if they think that he should be convicted to convict him. And then we go out of it by saying, well, you know, he's out of office. So, and our question, when a Senator renders his or her vote, do they give an explanation or do they say either yes or no? They don't have to. They often do, but they don't have to. They're allowed to. Because then the talking point will be the reason I am voting not to convict is because this is just unconstitutional. We shouldn't be even doing this. You want to hear from not react to the evidence presented at trial. Well, I was gonna ask that question. Will there be evidence, Jared? So, so good question. That's a very important question. Yeah. So, so ceremonially, Senator Leahy gets to decide those questions, right? He's the presiding officer. So if, you know, they want a subpoena, Rudy, that would be up to Senator Leahy ceremonially. The reality is any decision about a procedure, evidence, what evidence should come in, who should be subpoenaed can be this, and generally will be decided by a simple majority vote in the Senate. So even if Senator Leahy said, yes, we should subpoena Rudolph, the Senate could vote that down with a simple majority or vice versa. But can I say just one thing about that? That's a key point. If they do a trial with no evidence, it is not gonna be believed by anybody. Unless there's evidence produced on both sides, people are gonna dismiss it as a star chamber, including me. There has to be evidence like in any other trial. But in the first impeachment, there were no witnesses called. I know. And they just voted, I believe, but I think they met, each side made its case. In other words, they presented their case. Right. Evidence. What you're talking about, Sandy, is calling witnesses. No, no, no, no, no, I'm not. I'm talking about evidence can also be documents. Evidence is documents, evidence is counts. I mean, in a normal trial, you get to introduce all kinds of evidence, not just witnesses, but I would hope there would be witnesses. Lindsey Graham has threatened that if they call witnesses, he's gonna make a mockery out of the trial by calling all kinds of FBI agents and so on, some vague threat that he's made. Well, if he's gonna do it, that would be interesting. This is the difference between, this is the key difference between a criminal trial and an impeachment. Lindsey Graham or whoever can say they're gonna do that, but my guess is, if Lindsey Graham starts doing that, who controls the Senate right now? The Democrats do and all they need is a simple majority vote and he can't do that. Right. So, I don't know whether they'll bring in evidence or not. Some people say, well, why do we need evidence? Most, half the senators witness this in person or all of them witness this in person in some possible capacity. Others say, yeah, we need evidence, we need to have testimony. So, but in the end, all of those decisions, even though Leahy has sort of the ceremonial authority, if they're controversial, you better believe it will be a fit, it'll be based on a vote in the Senate and it's just a simple majority. So they'll need 51 to go one way or the other. So the Senate could override a judgment from the presiding officer? Yes. Yep. Yeah, that's why it's sort of, I mean, it's not ceremonial, I don't want to belittle it because I mean, I think it's pretty interesting to have our little state, the Senate parliamentarian and the presiding officer coming from Vermont. But yeah, those decisions, if they're controversial, they'll vote on them. How does Leahy vote as a senator? He votes as a senator. So he has a constitutional right to vote, even though he is the presiding officer. Step down from presiding officer when he votes. I don't really actually even has to do that, like he may. I mean, basically, Tim, I don't think there are that many rules. That's what Jared's saying. This is really a political trial without real rules. The rules are set, as he said, by the majority, however they rule. I mean, in a criminal case, it would be unheard of. You would never have a decision in a criminal case to have no evidence, right? I can't imagine you, I don't know how you put your case. But this is a political case, right? Yeah, and then if you look back at history and the founders and the Federalist Papers and the history of where the impeachment process came from from England, that was the intent and has always been the intent because it's not viewed as a crime. It's viewed as a crime against the public good. Right. And so that's why it's very different. And really, it's going to come down to the political rules. Going back to the 14th Amendment, the Democrats apparently are abandoning their plan to get him precluded from holding office again through the 14th Amendment. It just hasn't flown because you have to prove that you rose against the government, that there was an insurrection. And so if he's not convicted in the Senate trial, then there's no way to enforce the 14th Amendment because in essence, he's been declared not guilty of correction. Right. Yeah. So I think in that case, I hadn't seen that. But if in that case, if they're not making that argument, it would seem they would need to have a second vote if they want to disqualify him. But the interesting thing I think about the 14th Amendment, it just takes a majority to declare that you have risen up. Right. So I mean, that's a whole, that's another, I mean, theoretically, that could be a whole nother process, even. I mean, that's a standalone provision. It doesn't have to be part of an impeachment, you know. And so it's an interesting piece. Anyone else have a question? Because I think what somebody said, maybe what Susan said, I think that this is really key. As if you recognize, as we all do, that this is a political trial. To me, it reveals more about the state of probably both parties. But I would like, Jared, to comment about what the impeachment says about both parties, basically. I mean, particularly, it shows to me that the Republican Party is deeply split. Number one. Yeah, I think it certainly shows that. I mean, yes. And I don't think there's any secret to that. And I mean, you see in the House, this sort of schism and who should be punished and who shouldn't be between this QAnon Marjorie Green representative and Liz Cheney, who's sort of the Dick Cheney Neocon, old school Republican in that sense, versus this woman, Marjorie Green, who says 9-11 was the hoax and that the Parkland shootings were false flags. And so President Trump seems to be more in that Marjorie Green camp. I don't think seems that he is. So I think that's the schism going on there. And I think that's what we'll see happen with the vote in the Senate. What happened in the vote in the House today? The House was going to adjudicate whether Green should be removed from her committee. Yeah, I did see that they were going to do that. I didn't see if there was a result yet. I don't think so. I just heard the news that there hadn't been a result yet. OK. I mean, I think this. So here's my sort of take. I think the right loves to talk about cancel culture. And I think both sides are guilty of this cancel culture. And here's why. So the Florida rep, Matt Getz, going to Wyoming where Liz Cheney is and saying she's not a Republican, that she should be kicked off her committees. I mean, that's just as much cancel culture in my mind as it is the dem saying Marjorie Green, who was elected by her constituents, shouldn't be on a committee because of these things she said. So I mean, you want me to comment, Sandy? I mean, I think you know. Right now, I'm very down on all political parties. And I teach First Amendment law, which is one of the rights of the First Amendment is the freedom of association, which is what protects the ability of parties to associate with each other. But I really do feel like things have become so tribal. And people automatically say, because you're in the other party, I must disagree with you. And it's sort of a shortcut for us all as opposed to really thinking and talking about the issues. We just say, well, I must not agree with that person. And we're sort of pre-programmed. So it's just very tribal. And I'm not sure in my mind that that helps society in any great way. So I'm sort of on a, if we could figure out a constitutional way to ban all parties, I might be into it. They tried to early on. That's what Washington wanted. They didn't want factions or parties. Good idea. Anyway, but I wanted to make another comment, though, on the state of the Republican Party. It does seem, though, that there's a huge split between the top of the Republican Party, the elites like Romney and that bunch, and sort of the grassroots Republican Party. And the grassroots Republican Party has a great deal of support among white working class and unemployed people. And I think that's what they're afraid of. And the Democrats don't want Trump to be able to hold office again, because they know that he would appeal to that class of people again. And then he very well might be elected again. So they, on the other hand, want him to be not only convicted, but sentenced in a way, never to run again, because they're afraid to death of him in a way. They're afraid that he'll win again. Yeah, I mean, it could be. I did see some, I think it was that same, I mean, in polling is what it is. I mean, I don't put too much faith in polling, but I did see a poll today that indicated that even in Republican, President Trump's approval has plummeted since he left office. So I'm not sure how, you know, successfully being, I think if you look sort of objectively, I think that both the Democrats certainly are fearful. I'm not sure if it's actually all that well grounded, because look where we, when President Trump came in, it was Republican president, Republican House, I believe, and Republican Senate. When he left, it's the complete opposite. So I'm not sure he actually has quite as much clout, but I do agree that there's an interesting shift going on, because traditionally you think of the Democrats as being the working class, Michigan car workers, that being their constituency, and I think, you know, Sandy, you're right, and I think the polling does play this out, but there seems to be a move away from them and Trump picked up a lot of those voters, both in 2016 and in 2020. So, you know, it's always interesting to me, not only do I hate parties at this point in my life, but I also, it's also always interesting to see how they, you know, change over time. I mean, right, Lincoln was a Republican, and that's a very good Republican party today. You got to remember that at that time, the Republicans were the radical party. They were anti-slave. Right, I know that's what I mean. It's just very interesting to see how they shift and sort of, you know, the Democrats were this party of slavery. Exactly. You know, and so, I don't know where I was going with that, but I wanted to just say one thing, oh, I'm sorry, Jane, go ahead, Jane. Yeah, yeah, I wanted to ask, so let's ask whether, so even, he can't, if he, even though he was impeached, he can't be tried as a public, he can't be tried as a private citizen if the Senate refuses to convict him, I mean, to impeach him. He can't be tried as a public citizen. If he committed a crime, he could. Yeah. Yeah, and now, and so could he, I mean, could he be prosecuted? Could someone prosecute him in court for inciting a riot as a crime? So there's two, good question. There's two federal laws. I mean, there's many federal laws, the two that sort of jumped out to me. There's one law that's this incitement to commit a crime of violence, and that's a federal criminal law that carries, you know, 10-year sentence. If you can prove that somebody incited someone else to commit a crime of violence, and then there's the incitement to commit insurrection as well, that I think is floating out there. I mean, all of these are hard crimes to convict under because of the nature of them. And I think from a First Amendment perspective, I think that's actually a good thing because it's a very slippery slope to go down of criminalizing speech. There is some speech that can be criminalized and this may very well be it, but it's always something that gives me pause even though as I said, I mean, I cried that day. Maybe others did too, watching that. I've just never felt that sort of emotion. Although I did shed a tear when Garth Brooks sang at the inauguration too, I'm a country music fan. There's also the idea that the federal prosecutor in Georgia might indict him for election fraud for voter tampering with his phone call to Raffensperger, the federal general. So that is floating out there as well. Yeah, I mean, I would not be surprised if we see some charges in these different places because it's been happening all over the place. But again, this I've mentioned Al Capone before, I mean, that's the difficulty with getting people on these sorts of things, right? Trump didn't say, let's go break into the Capitol. He implied it, I think pretty clearly that people should go do some damage, but he didn't say that. And so it becomes a, well, what's inside his head and that's always a hard hurdle to get over. He called his vice president a coward during the uprising. He said, Mike Pence did not have the courage to do what he could have done. And I think the Democrats will present that kind of evidence and they'll play it on the big screen, to the American public. Right, and to your point, Tim, he didn't, I mean, it took many hours for him to come out and record that ridiculous video. And he was unhappy that his people weren't more, they were dressed funny, he said, the people who were talking it, he wasn't very happy about that. They looked like the guy with the horns. He said. So funny because working class people, white people seem to, don't care about that stuff, they seem to really support him. That's what the Democrats are so worried about. That's what I think is going on. That's why I think they are going after him, actually, is so that he'll never be able to run again. That's the political aim of what they're doing. That's why- That's the only punishment they could meet out. What, what? What, Jared? That's the only punishment they could meet out at this point. Right. He obviously can't be removed. Right, exactly. If he had been convicted before he left office, he wouldn't have been able to collect his federal benefits. He wouldn't have had, four presidents get a million bucks a year for staff. Yay. Obviously, security, secret service, and a bunch of other stuff. But, but no, but he didn't- It's brave, you guys. It wouldn't apply because he wasn't convicted while he was in office, and the federal statute says you lose benefits if you are removed from office via impeachment. That didn't happen. So he's getting, no matter what happens, he's still getting his million bucks a year, I can't stand it. I hate it. Yeah, me too. Now, what about us? I mean, Tim, trying to intimidate the officials in Georgia, in Georgia to violate, to violate their, their oaths of office. I mean, in terms of trying to, and harassment, intimidation, other, there's, pushing, pushing someone, pushing, pushing someone to commit a crime. Yeah. Yeah, yeah, good. And that's, I think Tim was mentioning that, but yeah, and that's actually part of the article's impeachment. They do reference those calls to the Secretary of State in Georgia in the impeachment articles. But again, right. So yeah, the U.S. Attorney, or perhaps even the state's Attorney General in Georgia, they may very well be looking at criminal charges for that. And now that he's no longer the president, I mean, I'm sure they'd make arguments that he couldn't be tried for things that he did well in office, but I don't see any reason why if they decided to move forward, they couldn't and a jury would decide. But I think that there's really a difference, Jane, in trying somebody for a crime or trying somebody for impeachment. If you're gonna charge him with the crime of, I don't know what the crime would be with the Secretary of State of Georgia. I'm not certain what that crime would be, but if it's a crime, it would go to the state's attorney in that county, they would charge him, and then Trump would have the right to a jury trial with all sorts of protections as a criminal defendant. Right, none of which None of that occurs with an impeachment trial, none of it, because it's, as everybody has said, political. So, so pushing, so harassment, I mean, harassing, harassing speech is protected speech. So there's, yeah, there's a First Amendment doctrine on that. And so what the Supreme Court in a case called Elanus, it was a Facebook case where this guy, the former husband or ex-husband was posting really horrible things to his ex-wife on her Facebook page. And they said he was, they were called true threats. They said he violated a state law that said that you can't threaten somebody. And he was making these harassing threats on the Facebook page of hers. And he claimed that he was a burgeoning rapper. And that since other rappers talk about this, it was protected speech, even though it was on her Facebook page. Supreme Court ultimately said that even threatening speech is protected unless the prosecutor can show that the individual making the speech subjectively intended the person to feel in fear of bodily harm. Right. And they said in that case he didn't, they couldn't prove that he actually wanted her to be in fear of bodily harm. And so he wasn't, his conviction was overturned. Okay. You know, now we can certainly debate whether that's good or bad, but that is what the law says. That's the law with phone calls too, by the way. It's the same thing. What I tell clients that I threatened and abused verbally by their partners on the phone one, hang up. Yeah. You know, that's it. Right. And I think maybe folks, this came up in Burlington a few years ago where someone had put, I forget what little flyers saying, you know, come to a white supremacy meeting and they did it specifically and to I think African-American women's homes. A student of ours, Jared. Oh, was a student of ours that did it? No, a student of ours who got the flyer. Oh, a student of ours got one of the flyers. Yeah. Yeah. And for this issue, I mean, this crops up from time to time and they're difficult issues to deal with. Right. Including, I think, the Kaia Morris case, the Bennington black legislator who ultimately left the state house, I think, over it. She was harassed in that way, I think. Right. I can't remember the exact fact of that one, but yeah. Yeah, right. So what are, anyway, so as Jared said, this is a political trial, correct? So what do you think are gonna be the political ramifications? What if he gets off? John, do you- He gets off with the political ramifications of that. Yeah. I don't think they're, I just, I don't, I think, well, it'll certainly be used in the elections, the Democratic Party will use it in the elections to motivate their base. And I think the Republicans are gonna do the exact same thing. As well, in their campaigns, if he's convicted or not. So it becomes political fodder, I guess. Kim, you were gonna say something. Yeah, Sandy, I was gonna be very sad and say it's not a question of, if it's a question of when he is not convicted. Good thing. Good thing. He's not gonna be convicted. I'll bet you're 50 cents. Well, we can make a wager, but then I don't understand exactly if it's true and if you seem to know that, which you're a very well informed person and so forth. So I respect that. However, then why did the Democrats do it? Does this make- Wow, Tim, Sandy's never said that to me. I have to. Are you freaking serious? Look at, no, I mean that though, Tim, if he gets off, if everybody really thinks that, which I guess most people, I'm not certain of that, but say most people think that didn't, what does that make the Democrats look like then? If they're gonna go do this and he is acquitted. Well, but the Democrats is like damned if they do, damned if they don't. I don't know that. Well, I guess that's what you think. Okay, go ahead, tell me more. I think that they have to follow their conscience that here someone can not get away with this type of behavior, and so that's where they're stuck. Now, whether they could have found another way to do it than impeachment, it was so close to the end that it does make it, it seems kind of a waste of time. I think the point was made. Well, what do you think? Ruth Marcus in the times today had a good column saying the Senate trial is not a waste of time, even though she concedes that he will most likely not be convicted. Then why? Why is it not a waste of time? Well, because it presents to the historical record, the high crimes and misdemeanors that he did perpetrate. It's there in the historical record and it was important for it to be there. If there had been no impeachment, it would have been swept under the rug. Well, there was an impeachment. What I'm talking about is the trial itself. If there's no conviction in a way. And she's saying that the... She's saying still that it's worth it. Worth it to do it. Yeah. I mean, I think certainly for, and I would include myself in this, but certainly for folks that think the president committed impeachable offenses, the fact that he will go down in history as the only president thus far to be impeached twice. I mean, I do think to the extent he could study civics anymore, that will be something that people remember if nothing else about President Trump. So to that extent, I think you're right, there's very well could be value to it. Okay. What else? Anybody else have anything else to say? Closing remarks? Guess what's my case? Well, but you wanna hear that Jared, right? I did get an haircut. Yeah, I know it was time. I finally went into a barber, triple masked and wrapped in plastic wrap. No, it was quite a nice experience. It was nice to do. I just, I was secretly, I was secretly, I'm doing a lot of like media interviews about all this stuff over the past couple of weeks. And I secretly had a ponytail that none of them knew about because I could stand in Zoom and you couldn't see it. Or if it was like an in-person interview, you can't really hide a ponytail. It was long enough to pull it back so it just looked like normal hair, but it was really funny. In closing though, I might mention again, the distinction in my mind is really an important one to make that this is not a criminal trial. He doesn't, Trump does not have as many rights as he would have if this, if he had been charged with a crime. This is political and it's gonna just depend on the majority of votes in the Senate. And it doesn't, in my mind, it doesn't really mean a whole lot except politics, you know, and so I don't know. In my mind, I think it's gonna make him popular with his base. I guess it's true. And I don't know- That's the doubt. I'm not certain that the Democrats really should have, I don't, I guess I won't comment on what my opinion is about why they did it. They did it so that they could prevent him from ever running again. That is really, I think, why they did it. But why they'll do it. That's worthwhile though. Why? I didn't have it self. Well, if you think so, that's fine. If you think so, that's fine. Of course. But it's not everybody's thought, you know. Of course. It's not a universal opinion. Anyway, anybody else have anything? So next week, we are presenting what is next week? What they just said next week. Next week must be the 10th. That's where he's something or other. On the 10th. So we will have a session next week from the Sister City program of Burlington from the Burlington Bethlehem or Rod sister city program and our guest leader of that discussion will be Musa Isak, who is the president of the Burlington Bethlehem or Rod sister city program just to talk about what he thinks is gonna happen in Israel, Palestine with our new president, Joe Biden. And if there are gonna be changes, if they're gonna be, if things will stay the same, but that is always a hot button issue. And so it will be an interesting session from Musa. Okay, so maybe we'll see you next week. Certainly. Thank you Jared. Thank you all. Thanks everybody. Have a great day. Thank you so much. Bye bye. Thank you very much.