A few days before Election Day, I decided it would be beneficial to record some observations about the election in real-time, recognizing that 2020 was likely to be an election of unusual historical importance, and thinking that it would be helpful in future years to have a reminder of the winding path the nation went down on its way to achieving clarity about the results of that election.

I think we all got more than we bargained for: A closer-than-expected election that took several days for the major media organizations to call; an incumbent President who refused to accept the results of the election or concede to his opponent, despite lacking any tangible evidence that the election was not free and fair; a series of increasingly absurd and fundamentally anti-democracy legal arguments advanced by the President and his advocates in an attempt for him to retain power; Senate control, and with it any chance for Biden to have a meaningful chance of advancing an agenda, hinging on two Senate runoff elections in early January; and, just yesterday, the completely unprecedented impeachment of a President mere days before he is scheduled to leave office due to his conduct in refusing to accept the results of the election he lost, leading to an insurrection of sorts against Capitol Hill.

This seems like the right time to “break the wand,” as Bill James once put it, and stop this series of blog posts. Yes, there is still some election-related news ahead of us: Georgia has not yet certified the Senate runoff elections, so Schumer has not replaced McConnell as majority leader; one House race in New York remains undetermined, and there’s some possibility that the losing candidate in another House race in Iowa could successfully plead her case with the House Administration Committee; there’s an impeachment trial to occur; and of course there is the inauguration itself, and the non-trivial possibility of further political violence before or during the inauguration. But, for all intents and purposes, the election is behind us.

Behind us, but far from forgotten. The events of late 2020 will reverberate, I fear, for many years to come. On that theme I want to end this series of posts by talking about an opinion piece published yesterday in The Bulwark by its executive editor, Jonathan Last, a conservative writer.

Last starts by talking about what he calls “the big lie”:

Trump’s contention that the results of the 2020 election are fraudulent is a lie. Not a mistake, not a difference of opinion, not a misunderstanding. A lie. …

Nothing can get better in American politics until this lie is repudiated by the main body of the Republican party in the public square, with enough force and repetition that the majority of Republican voters cease to believe it.

Even if armed insurrection is not a weekly occurrence, a government cannot function when a third of the citizens believe it is literally, not rhetorically, illegitimate. It is not be possible to legislate or build consensus or even enforce the laws when you begin with a substantial minority who literally believe that the government is the product of a coup.

What the Republican party has done over the last two months is akin to having dropped polonium into America’s political groundwater.

And the radiation from their lie has poisoned everything.

Last also helps put in some perspective the behavior of the Capitol Hill insurrectionists and their sympathizers:

[I]f this lie remains in American politics, there will be no peace or comity.

Think about it from the perspective of the person who believes the lie: They have been told by the president of the United States that the election was fraudulent. The vast majority of the president’s party has testified to the truth of this story. The only reasonable conclusion of this tale is that America is currently undergoing a coup. That the incoming government is not only illegitimate, but is an occupying, authoritarian force.

If you believe that—if you really, truly believe it—then how could you acquiesce in anything that is happening? How could you pay taxes? Why would you obey laws? Why wouldn’t you storm the Capitol? Because if you believe this lie—really, truly believe it—then you are trying to save our democratic republic.

If you believe the lie that Democrats have ousted the duly-elected president of the United States in a bloodless junta, then what could President Joe Biden possibly do to bring about unity?

Nothing. Because he would be—literally—a tyrant.

This, tragically, is the world we now have to live in, thanks in fundamental part to Trump’s inability to accept that he lost the election.

As Last indicates, for our nation to truly heal we need the Republican leadership to refute the “big lie”. Senator Romney already took steps in that direction, in his remarks on the Senate floor the evening of the insurrection:

The best way we can show respect for the voters who are upset is by telling them the truth. That is the burden, and the duty, of leadership. The truth is that President-elect Biden won this election. President Trump lost. 

I wouldn’t say I’m optimistic that enough other Republicans will ever follow suit for it to change the hearts and minds of tens of millions of my fellow Americans. And that saddens, and frightens, me.

The House impeachment vote took place earlier in the day than was expected. After a single day of hearings and debate, the House voted 232-197 to impeach Trump for “incitement of insurrection,” with 10 Republicans joining with the Democrats.

McConnell, who remains Majority Leader at this time because the state of Georgia has not yet certified the results of this month’s Senate runoff elections, confirmed that he is not prepared to re-convene the Senate earlier than originally scheduled so that an impeachment trial could commence immediately. Part of his reasoning is that it even if he were to immediately re-convene the Senate, it would be impossible to conduct a fair impeachment trial on a fast enough timeframe to have the trial end before inauguration day. McConnell has also signalled that his mind is not made up on how he would vote in the Senate trial, which is a stark contrast to the first impeachment.

As such, the timing of Senate action on the impeachment remains unclear. President-elect Biden reiterated today his hope that “Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation.”

The focus of the political world today will be on the impeachment hearing in the House, which is expected to both start and commence today, and by every indication Pelosi has the votes to impeach Trump.

I noted last night that the vote to have the House urge Pence to invoke the 25th Amendment was a partisan one. It turns out that is not quite true, as one Republican congressman voted in favor of the motion: Kinzinger from IL-16, who as I noted previously has been openly critical of Trump in recent days. Many pundits feel like the timing of the release of Pence’s letter to Pelosi saying he wouldn’t invoke the 25th Amendment, coming as it did in advance of the vote, was designed to give Republicans cover to vote against the motion on the grounds that the motion was already known to be pointless given Pence’s stated position.

As I alluded to last night, I have sympathy here for Pence’s point of view. There are two constitutional mechanisms for having somebody else assume the powers of the Presidency in mid-term. One, the 25th Amendment, is designed for use by the Executive branch in situations where the President is incapable of performing the duties of the job. The other, impeachment, is designed for use by the Legislative branch in situations where the President has committed wrong-doing. From a precedential standpoint, impeachment clearly seems like the more appropriate of the two mechanisms to address Trump’s recent actions. It’s not like he’s incapable of performing the job – at least, not any more incapable than he ever was…

Having said that, the fundamental tension here is one of timing. If the House convicts today, it would be difficult under any circumstances to have a full-blown Senate impeachment trial before January 20th, and McConnell has already indicated that parliamentary considerations would prevent the trial from starting until the 20th. That has motivated the potential for using the 25th Amendment to resolve the timing problems associated with using impeachment, even though impeachment is the more appropriate mechanism absent practicality concerns.

To this point the general consensus has been that a post-inauguration Senate trial of an impeachment action that occurred in the House while Trump was in office is allowable, with the implication that a conviction could bar Trump from running for President in 2024. However this morning the Washington Post has an op-ed from Michael Luttig saying, no, that’s not the right way to read the Constitution.

Luttig, you might recall, was a serious candidate for the two Supreme Court seats that opened up in the summer of 2005, ultimately filled by Roberts and Alito. The next year, with his Supreme Court dreams apparently destined to go unfulfilled, he left the 4th Circuit to become chief legal counsel at Boeing, retiring from that post when he turned 65 in 2019. Luttig believes there is sufficient doubt about whether the Senate has the authority to convict someone who is no longer in office that, were Trump to be convicted by the Senate after January 20th, ultimately the Supreme Court would need to resolve the matter as a so-called case of first impression – a matter that has never before been litigated.

The House just passed the resolution urging Pence to invoke the 25th Amendment, on a the vote of 223-205 along partisan lines. The vote was essentially symbolic, as earlier in the evening Pence had released a letter to Pelosi saying he would not invoke the 25th Amendment. In his letter Pence makes the rather compelling argument that the 25th Amendment “is not a means of punishment or usurpation.”

And so we move tomorrow to the next stage, an impeachment vote. At this point at least 4 House Republicans have gone on record as saying they will vote for impeachment, and it seems likely there will be rather more than that.

Trump made his first public remarks in days today, and in characteristic fashion he asserted that his pre-riot rally speech on January 6th was “totally appropriate” and that this second impeachment, like the first one, was a “witch hunt” and “hoax.”

We’re still awaiting tonight’s House vote on the resolution asking Pence to immediately invoke the 25th Amendment, with the implied threat being that if Pence doesn’t do it then tomorrow the House will vote to impeach Trump. Remarkable, really, that on January 13th there could be an impeachment vote regarding conduct that happened on January 6th.

However there has been a lot of interesting reporting this afternoon:

• House Minority Leader McCarthy has supposedly indicated to his caucus that they GOP leadership will not “whip” tomorrow’s impeachment vote, allowing Republicans to vote their conscience.
• The #3 Republican in the House, Rep. Cheney, has just stated that she will vote in favor of impeachment.
• The current headline on the New York Times is “McConnell Said To Believe That Trump Committed Impeachable Offenses,” with reporting that McConnell “is pleased that Democrats are moving to impeach him, believing that it will make it easier to purge him from the party.”

Today, as the House reconvened, an attempt was made to use unanimous consent to pass a resolution calling upon Pence to immediately invoke the 25th Amendment. As expected, a Republican congressman intervened to withhold consent. The full House is expected to vote on the resolution tomorrow night, and it is expected to pass.

Assuming Trump remains in office the day after tomorrow, the House is expected to vote on an article of impeachment that evening, and once again it is expected to pass. As such, in about 48 hours’ time Trump will have become either the second President to resign from office, or (far more likely) the first President to become impeached by the House twice. There is a sense that some House Republicans are likely to support this impeachment, unlike the first impeachment for which the House vote attracted no Republican votes.

What happens after that remains unclear. Biden has reportedly asked Senate parliamentarians for clarity on whether the Senate might be able to pursue an impeachment trial in parallel with other business like confirming his Cabinet, instead of the trial necessarily crowding out all other Senate business.

Some have started to suggest that another potential course of action against Trump involves Section 3 of the 14th Amendment, a now-obscure clause originally intended to prevent Confederate rebels from serving in Congress after the end of the war. One legal scholar has suggested that an argument can be made that Trump has already ceased to be President under the terms of that amendment by virtue of the events of January 6th, which could serve as future legal grounds to disregard, say, any Presidential pardons issued after that date. A more mainstream view is that Congress could vote to indicate that it believes Trump’s actions violated this amendments, and then the issue would be thrown to the courts.

Today another Cabinet member resigned, namely acting DHS Secretary Wolf, although he did not cite the events of last week as an influence on his decision to resign several days early.

And Trump suffered two indignities in the past twenty-four hours that one imagines are close to his heart. First, the PGA of America announced that they were pulling the 2022 PGA Championship from the Trump-branded golf course in Bedminster, New Jersey. Second, today NFL coach Bill Belichick announced that he was turning down the opportunity to receive the Presidential Medal of Freedom from Trump, after the honor had already been publicized. Keep in mind that in 2015 Belichick was named “most hated coach in the NFL” by Sports Illustrated. When Bill Belichick thinks you’re bad for his brand…

A relatively quiet weekend. With Trump having been banned from Twitter and most other social media platforms, the nation hasn’t heard from him all weekend. That hasn’t happened in, well, what feels like forever.

It is expected that tomorrow the House will start the ball rolling on a 2nd impeachment of Trump, although the outcome remains murky. Given that Senate rules in all likelihood preclude an impeachment trial from commencing before the inauguration, there have been suggestions that even if the House votes to impeach Trump in the next 10 days, the House may intentionally delay the transmittal to the Senate of the articles of impeachment. That would allow Biden and Senator Schumer to focus the proverbial “first 100 days” of the new administration on substantive matters, and then later pivot to the more symbolic task of holding an impeachment trial.

A number of companies, including a former employer of mine, have announced that their PACs will no longer make campaign contributions to those officials who voted against certifying the election results. That’s a start at the long task of turning the “sedition caucus” into political pariahs.

Colin Powell, the former Republican Secretary of State who received three electoral college votes from faithless electors in 2016 (albeit all from electors pledged to Clinton rather than Trump, confusingly), announced that after last week he no longer considers himself a Republican.

One of my favorite albums as a teenager in the mid-80s was REO Speedwagon’s Wheels Are Turnin’. It’s best remembered today for the #1 hit “Can’t Fight This Feeling,” although personally I preferred the lesser hit singles “One Lonely Night” and “I Do’Wanna Know”. The album ends with the title track, whose opening stanza goes:

I’ve been sittin’ back quietly

Watchin’ as my spirit fades

As all of my attempts to do rightly

Get treated like some kind of terrorist raids

And then later the bridge, going into the chorus, goes:

When you’re cut down to the bone

You bleed but it heels

You’re hurt but still you must carry on

‘Cuz the wheels are turnin’…

I feel like that’s where we are right now.

My wife commented to me tonight that she actually felt more traumatic about events yesterday, the day after the insurrection, than she did the day of — because yesterday it seemed like all of these terrible things had happened and yet nothing was happening swiftly in reaction to it. But today, it seems like the wheels are turnin’ again.

Late yesterday Education Secretary DeVos announced that she would resign, effective today. There was criticism of her from the left today, to the effect that resigning from the Cabinet was an act of cowardice, relative to the alternative of remaining on the Cabinet and fighting to invoke the 25th Amendment. In response, there is reporting today that DeVos resigned after concluding that Pence was unwilling to pursue action under the 25th Amendment. Pence himself is maintaining radio silence on the subject.

Instead, momentum is building towards impeachment. Pelosi said in a letter today that if Trump does not resign immediately, the House will commence impeachment proceedings, reportedly on Monday. A draft article of impeachment has been released, where the sole article is “incitement of insurrection,” focusing on the events of January 6th but also bringing up the January 2nd call between Trump and Raffensperger (which in and of itself arguably represents grounds for impeachment) as relevant context.

Tonight the Washington Post has a story about a McConnell memo regarding how the Senate might respond to a new House impeachment action, and it’s fascinating. Apparently under Senate rules, it would require unanimous consent in order for the Senate to take up any “new business” next week, and one imagines there is at least one Republican Senator who could be convinced to object to starting an impeachment trial next week. As such, McConnell envisions that the earliest an impeachment trial could commence is an hour after Biden’s inauguration.

On the one hand, that means that the impeachment path would not lead to the eviction of a sitting President, which would mean Trump would remain in office for another 12 days, could still exercise his pardon power during that time, etc. Which could suggest impeachment is pointless.

Except, on some level the more important reasons to impeach Trump are: first, setting the precedent that this type of behavior is unacceptable; and second, making Trump ineligible to run for President in the future. And this is where delaying the trial until Trump is out of office might actually increase the likelihood that the necessary two-thirds majority of the Senate to convict could be obtained. One imagines there is a subset of Republican Senators who are concerned about the optics among their constituents of forcibly removing Trump from office, but might be willing to take symbolic action against Trump after his term was completed, particularly if doing so helped clear the Republican primary field for 2024…

Earlier today Senator Murkowski became the first Republican Senator to say that Trump should resign. Her interview also suggested that she is less than fully committed to remaining part of the Republican party.

Another productive piece of news today is that Twitter finally gave a permanent ban to Trump’s account. Also, Perdue finally conceded to Ossoff, about two days after media organizations had called the election.

Loeffler finally conceded to Warnock a couple of hours ago. At this point Warnock’s margin is over 79K votes, or 50.9-49.1%. Ossoff’s margin is now over 41K votes, or 50.5-49.5%. Assuming both races remain outside the recount threshold, Georgia is supposed to certify the special election results no later than January 22nd, or two days after the inauguration. As such, Biden may face a Republican-controlled Senate for the first day or two of his administration, not that that should matter much.

There has been lots of continued talk this afternoon about 25th Amendment action and/or impeachment, with Speaker Pelosi echoing Senator Schumer’s views from this morning. There is some reporting to the effect that Pence is not inclined to pursue a 25th Amendment course of action. Very recently the Wall Street Journal’s op-ed board published a surprisingly rational editorial, “Donald Trump’s Final Days,” calling on Trump to resign. The editorial also posits that “this week has probably finished [Trump] as a serious political figure” and “it is best for everyone, himself included, if he goes away quietly.”

Trump did release a video statement this afternoon, which included him acknowledging that “a new administration will be inaugurated on January 20th.” So, that’s something, I suppose.

Transportation Secretary Chao, who is of course Majority Leader McConnell’s wife, has announced that she will resign from the Cabinet on Monday in light of yesterday’s events.

My initial reaction was that her resignation was bad news, as it seemed to reduce the likelihood of successful 25th Amendment action by the Cabinet; but now that I see she isn’t actually resigning until Monday, it still leaves time for her to participate in a putsch. Right now there are only 12 confirmed Cabinet members (including Chao) and 3 acting Cabinet members, and there is some controversy over whether acting Cabinet members would get to vote.

Speaking of acting Cabinet members: After Acting DHS Secretary Wolf (who is abroad right now) called for Trump to condemn yesterday’s violence, Trump responded by announcing that he has withdrawn Wolf’s nomination to become permanent DHS Secretary. Which is purely symbolic, since the Senate had no intention of acting on that nomination before Biden takes over, but certainly is spiteful. The official White House position is that the withdrawal of the nomination is unrelated to Wolf’s comments; but, as the 46th (or will it be 47th?) President would say, “C’mon man!”