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Conservative Lawyer Bruce Fein: Trump’s Acquittal Gives Future Presidents License to Break the Law

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As the Senate votes to acquit former President Donald Trump for inciting the January 6 insurrection at the U.S. Capitol, we speak with constitutional lawyer and former Reagan administration official Bruce Fein, who says the insurrection was not just an attack on the U.S. Capitol, but “an effort, basically, to destroy the rule of law and the Constitution itself.” Fein says failure to convict Trump will give license to future presidents to break the law. “It really is quite frightening that now we have a precedent that says a president has the right to do anything he wants, that he wishes to, without sanction,” he tells Democracy Now! “That is no longer the rule of law.”

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StoryFeb 15, 2021Trump Acquitted in Senate Impeachment Trial After Lawmakers Refuse to Call Witnesses
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We are joined now by Bruce Fein. He was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan. He previously served as counsel to Republicans on the Joint Congressional Committee on Covert Arms Sales to Iran. He’s a constitutional lawyer who’s testified on countless occasions before Congress and author of the book American Empire Before the Fall.

Welcome to Democracy Now!, Bruce Fein. It’s great to have you with us. Can you start off by responding to the acquittal of Donald J. Trump on Saturday?

BRUCE FEIN: First, I think I would recharacterize the nature of the charge. It wasn’t insurrection against the Capitol alone. It was a stab in the back of the United States Constitution and 230 years of unbroken peaceful transitions of presidential power, because the purpose of the storming wasn’t just to defile the Capitol or even threaten lives. It was to prevent Mike Pence, the vice president, from executing his constitutional duty under the 12th Amendment and the Electoral Count Act to count state-certified electoral votes that would pronounce Joe Biden the winner by having captured a majority. It was an effort, basically, to destroy the rule of law and the Constitution itself. It would put us in the same situation that Russians find with Mr. Putin and his elections or President Xi in China. That was what this was about. It wasn’t some kind of garden-variety just riot. It was an effort to undo 230 years of heroic sacrifices of our Founding Fathers, of those who fought at Cemetery Ridge, Omaha Beach and otherwise. That was what was at stake here. And to characterize it as an insurrection is, I think — vastly downplays the importance of the issue.

The second thing that I want to underscore is that it’s conceptually wrong to think of impeachment as an after-the-fact sanction for misconduct. Impeachment was designed as a prophylactic, something that would prevent someone from remaining in office if they created a clear and present danger to our constitutional dispensation. And whatever else you can say about Mr. Trump’s speeches and exhortations, incendiary words, whether or not they in fact caused the insurrection, because there’s certainly evidence of some planning by some in advance, it clearly shows a huge danger to our constitutional system, especially when you think about the background of this president saying on July 23rd, 2019, in the manner of a monarch, “Then, I have Article II, where I have the right to do anything I want as president.” And he was as good as his word. He flouted the Constitution virtually daily. He turned the White House into a crime scene by Hatch Act violations and using government property and employees to promote his 2020 campaign. He flouted hundreds of congressional subpoenas for testimony and information. He issued executive orders in view of legislation. He continued unconstitutional wars. On and on and on. That is not a clear and present danger to our constitutional system, I don’t know what is. And it really is quite frightening that now we have a precedent that says a president has the right to do anything he wants, that he wishes to, without sanction. That is no longer the rule of law.

AMY GOODMAN: So I want to go to this issue of the witnesses. Let’s go to the lead House impeachment manager, Congressman Jamie Raskin of Maryland, speaking on Meet the Press Sunday, defending the decision not to call witnesses during the trial.

REP. JAMIE RASKIN: We have no regrets at all. We left it totally out there on the floor of the U.S. Senate, and every senator knew exactly what happened. And just go back and listen to McConnell’s speech. Everybody was convinced of the case we put forward. But, you know, as the defense lawyers said, just pick any one of these phony constitutional defenses, and then you can justify it. It could be First Amendment. It could be bill of attainder. It could be due process. All of them are nonsense. I thought that I successfully demolished them at the trial. But, you know, there’s no reasoning with people who basically are, you know, acting like members of a religious cult and, when they leave office, should be selling flowers at Dulles Airport.

AMY GOODMAN: So, that’s lead House impeachment manager Jamie Raskin. Bruce Fein, your response?

BRUCE FEIN: I think Jamie — and he’s a professional and at least a semi-personal friend. I think he misconceived the nature of the audience of an impeachment trial. It’s not just the senators. It’s all the American people, everyone who voted. The president is a nationwide election. And he needs to convince not only the senators. If this is going to work and have lasting effect, he needed to have a case that convinced the American people. They don’t live inside the Beltway — most of them don’t — and aren’t immersed of this every day, like he is and perhaps the senators.

And that was the need for the witnesses. Now, also, he overlooks the fact that the defense raised the issue that Congresswoman Beutler’s exchange with Kevin McCarthy made relevant. They argued that Mr. Trump was calling for peace during the storming, during the insurrection, that he wanted them to stop. It’s obviously not true, if Mr. McCarthy is correct and Ms. Beutler is. And there’s other evidence, as well, that he spoke to Senator —

AMY GOODMAN: So, I want to go to Jamie Raskin on this issue of Beutler. This was Saturday, before the impeachment trial concluded, senators voting in favor of allowing witnesses, which threatened to extend the proceedings. The development came after a Republican congressmember came forward — we’re talking about Jaime Herrera Beutler — about comments Trump made during his assault to Kevin McCarthy.

REP. JAMIE RASKIN: But last night, Congresswoman Jaime Herrera Beutler of Washington state issued a statement confirming that in the middle of the insurrection, when House Minority Leader Kevin McCarthy called the president to beg for help, President Trump responded — and I quote — “Well, Kevin, I guess these people are more upset about the election then you are.” Needless to say, this is an additional critical piece of corroborating evidence. … For that reason and because this is the proper time to do so under the resolution that the Senate adopted to set the rules for the trial, we would like the opportunity to subpoena Congresswoman Herrera.

AMY GOODMAN: So, the request by the House impeachment managers to introduce new witnesses prompted this tense debate between the lead House impeachment manager, Jamie Raskin, and Trump defense attorney Michael van der Veen.

MICHAEL VAN DER VEEN: The only thing that I ask, if you vote for witnesses, do not handcuff me by limiting the number of witnesses that I can have.

REP. JAMIE RASKIN: There’s only one person the president’s counsel really needs to interview, and that’s their own client. And bring him forward, as we suggested last week, because a lot of this is matters that are in his head. Why did he not act to defend the country after he learned of the attack? Why was he continuing to press the political case? But this piece of evidence is relevant to that.

MICHAEL VAN DER VEEN: For the House managers to say we need depositions about things that happened after, it’s not — just not true. But — but if he does, there are a lot of depositions that need to be happened. … And not by Zoom. None of these depositions should be done by Zoom. We didn’t do this hearing by Zoom. These depositions should be done in person, in my office, in Philadelphia. That’s where they should be done.

AMY GOODMAN: Yes, Michael van der Veen is a personal injury lawyer in Philadelphia, who actually sued Donald Trump last year. He filed a lawsuit against Trump accusing him of making repeated claims that mail voting is “ripe with fraud,” despite having “no evidence in support of these claims.” That’s just a side note. But if you can talk about this interaction, and then the attorney — the House impeachment manager getting the right to have witnesses and then going back on it, not wanting to extend the trial?

BRUCE FEIN: Well, this is my deduction, having spent most of my life here in Washington, D.C., approaching 50 years. It may sound cynical, but I think the Democrats, in some sense, did not want a conviction, which would relieve Mr. McConnell and his cohorts who were opposed to Mr. Trump of the headache for four years trying to confront a very divided and splintered Republican Party, because the conviction clearly would have been followed by a vote to disqualify Mr. Trump from the 2024 presidential elections, and that would mean he would be out of the Republican Party and politics probably. And now the Republicans are the ones that are facing the headache. As your show already indicated, those who voted in favor of conviction are already confronting censure votes back home. Clear, clear divisions in the party.

Because, otherwise, I think what happened is that even though Mr. Raskin and the other House managers wanted witnesses, I think the leadership, Chuck Schumer and Nancy Pelosi, made a different political calculation and said, “Why should we do that? We probably won’t get a conviction anyway. Let’s just leave Mitch McConnell and Liz Cheney to fight their own battle, internecine warfare, and we’ll move forward and have better prospects for reelection in 2024.” Because, otherwise, it makes no sense for Jamie Raskin, on the one hand, to ask for witnesses, after he had earlier asked that Mr. Trump be a witness, and then turn around and accept something that’s no witnesses at all, after he had only engaged with the defense counsel — nothing more. And his argument, I say, that, well, he already had the evidence — if that were true, then why did he even ask for adding the statement of Congresswoman Beutler? So I think this was a deal that was cut at the top levels between the Democratic leadership, believing let the Republicans be at each other’s throats for the next four years.

AMY GOODMAN: And there was a lot of talk about, for example, Chris Coons, who is considered one of the Biden whisperers, the senator from his home state of Delaware, walking in on the House managers and saying, “The jury is ready to vote,” which was sort of sending the message that Biden wanted to move on, wanted to deal with COVID relief and other things, the concern that Mitch McConnell could somehow say that if this trial is going to continue, he wouldn’t allow any other Senate work to happen, which would prevent essential bills like that from moving forward.

But I wanted to ask you about what’s next for Trump. You have a number of possible criminal investigations — the Manhattan DA probe of Trump’s finances; the Atlanta DA probe of Trump election schemes, like interfering with the secretary of state, demanding to find more than 11,000 votes; the Georgia secretary of state’s probe of Trump’s calls. And then you have, in D.C., both the attorney general and the D.C. U.S. attorney possible incitement of violence charge around that very January 6 insurrection. Civilly, you’ve got the New York attorney general investigating the Trump Organization. You’ve got the two defamation suits against Trump for abusing and, in one case, raping women: Jean Carroll’s defamation lawsuit and Summer Zervos’s defamation lawsuit.

BRUCE FEIN: Well, the most, I believe, important is the potential for federal criminal prosecution. Under the incitement of insurrection prohibition — for those who are interested, it’s in Title 18 U.S. Code 2843 — it provides as a punishment for having incited an insurrection to prevent the execution of the laws of the United States, including properly counting electoral votes, a disqualification from holding future office in the United States. And that would be the equivalent of the same punishment that would have ensued if he was convicted of an impeachable offense.

Now, the big issue is going to be the resolution of Joe Biden, his new attorney general, Merrick Garland, to pursue that. This issue of moving forward on Mr. Trump is not going to be made by low-level civil servants in the Department of Justice. It’s going to be made at the highest levels. And I’m worried, because if I think back about President Obama coming in on the heels of Mr. Bush and stating, and his attorney general stating, “Oh, yes, the enhanced interrogation program was torture,” which is an international law crime, as well as a crime under U.S. law, and they did absolutely nothing to pursue those who openly and notoriously conceded they were doing waterboarding hundreds of times, that was defined by Mr. Obama and Attorney General Eric Holder as torture.

And the politics is going to — at least it threatens to interfere with the obligation to do justice, which I think would be a tragedy, because, after all, the law lives by precedence. And if we don’t have accountability for this terrible, terrible gentleman, Mr. Trump, who basically wanted to turn the country back to a monarchy, then that precedent will lie around like a loaded weapon ready to be used by any other successor in the White House to destroy the country completely and say, “Well, I’m just doing what Mr. Trump did. He got away with it. No double standards for me.” They have to look beyond the politics of the moment to our posterity, so they can inherit freedom, liberty, government by the consent of the governed, as we did because our forefathers also made sacrifices for the long term, rather than their immediate self-interest.

AMY GOODMAN: Finally, Bruce Fein, the AP reports bipartisan support appears to be growing for an independent, September 11-style commission into the deadly insurrection that took place at the U.S. Capitol. And let’s just say, seven people died. Not only the police officer, the Capitol Police officer, Sicknick, but two officers also took their own lives afterwards. That’s the total seven. But what about this independent commission and what that would mean?

BRUCE FEIN: Well, there’s nothing in concept that I would oppose about an independent commission. But I think it’s too slow. And moreover, the Constitution creates the independent commissions. It’s called the Congress of the United States, where every member is sworn to uphold and defend the Constitution. We didn’t need an independent commission to investigate Watergate. It was able to be done fairly. The American people saw it. We saw the witnesses. They have the subpoena power. They have more authority than an independent commission, because Congress, unknown to most members and the American people, has the authority to detain people if they don’t appear in response to subpoenas. They can find people. They don’t need to go to court and wait hour after year, day after day, year after year, in litigation. And the Watergate is the model.

We need to have the Congress — they need to be accountable for the decisions, the witnesses. We’ve gone too long where Congress runs, flees away from any decision that requires them to be accountable for their actions, just as we witnessed on the impeachment vote, where we had some members, like Senator Thom Tillis, saying, “Well, he should be convicted because he committed a crime, but I didn’t want to vote, because I don’t want to have to confront the voters.” That’s not acceptable. If you don’t want to comply with your oath to uphold and defend the Constitution, don’t serve in Congress.

AMY GOODMAN: Though I said “finally,” one more: Is it possible that still the Congress could vote to prevent Donald Trump from running for federal office? It was always said, after the Senate trial, if he were convicted by two-thirds vote, which he wasn’t — he was short by — they were short 10 votes — then a majority could vote to strip him of the right to run. But is there still a chance they could invoke the 14th Amendment and do that?

BRUCE FEIN: No. You’re referencing Section 3 of the 14th Amendment. That clearly would be a bill of attainder. The precise issue that you’ve described, Amy, was raised right after the Civil War, and it’s a case in the U.S. Supreme Court called Ex parte Garland, where the Congress sought to prevent anyone who had engaged in the Confederate States against the Union from practicing law. And the Supreme Court said, “You’re clearly trying to impose punishment. That can be only done with the trappings of due process in a court of law. It can’t be done by legislative decree.” The Constitution’s prohibition of bill of attainder would prohibit going down that path.

AMY GOODMAN: Well, I want to thank you for being with us, Bruce Fein, associate deputy attorney general at the FCC under President Reagan. He previously served as counsel to Republicans on the Joint Congressional Committee on Covert Arms Sales to Iran, constitutional lawyer, has testified on countless occasions before Congress, author of American Empire Before the Fall.

Next up, as the U.S. death toll from COVID-19 approaches half a million, a new report says nearly 40% of those who died, those deaths were avoidable. Stay with us.


AMY GOODMAN: “My Spanish Heart” by the legendary jazz pianist and composer Chick Corea. Chick Corea died on February 9th at the age of 79.

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