On Jamie Raskin's Book, January 6, and Donald Trump

 

On Jamie Raskin’s Book Unthinkable, January 6, and Donald Trump

February 25, 2022

 

Yesterday I finished reading Jamie Raskin’s book Unthinkable: Trauma, Truth and the Trials of American Democracy (Harper, 2022). I highly recommend it. The author, Jamie Raskin, is a United States Representative from the Eighth District of Maryland. He is a proud progressive politician. He was educated at Harvard College and Harvard Law School, where he was editor of the Harvard Law Review. Before going into politics he taught constitutional law at American University’s Washington College of Law for twenty-five years. He was the lead impeachment manager for the second impeachment of Donald Trump. The word “trauma” in the book’s title has a double meaning. It refers to the seditious riot at the US Capitol on January 6, 2021. Sadly, it also refers to the fact that Raskin’s son, who he always calls Tommy, took his own life a short time before that infamous date and a short time before Speaker of the House Nancy Pelosi asked Raskin to be the lead impeachment manager for the second impeachment trial of Donald Trump. In the book Raskin does a brilliant job of weaving together the stories of his family losing their son to depression, the horror of January 6, and the impeachment that followed. Many people wondered how Raskin could undertake such an enormous responsibility as lead impeachment manager while still in shock and profound grief over his son’s suicide. Raskin says that Pelosi threw him a lifeline when she asked him to take on that role.

Much of Raskin’s writing about his son is so poignant that it brings the reader to tears, or at least it brought this reader to tears. As Raskin tells it, Tommy, who was a student at Harvard Law School when his depression overtook him and he ended his life, was intellectually brilliant while also making a real effort to respect and get along with everyone he met, even people with whom he strongly disagreed about foundational issues. Raskin frequently mentions Tommy’s wonderful sense of humor. Tommy and his family knew for some time that he was struggling with depression. They got him professional help of course, but in the end it wasn’t enough. As the loved ones of a person who takes their own life so often do, after his son’s death Raskin tormented himself with questions about what more he could and should have done with and for Tommy that might have made a difference. He writes about how he felt Tommy’s presence with him all the way through the ordeal of the second Trump impeachment. He says it was his sense of Tommy’s presence with him that got him through his challenging role in that impeachment. It is fairly obvious that writing this book was part of Raskin’s own grief work.

Raskin weaves together the tragic story of his son’s death and the tragic story of Donald Trump’s assault on the United States Constitution in his desperate attempt to remain in power after he lost the 2020 presidential election. He characterizes Trump’s attempt at overturning the results of that election as a three-step process. It moved from legal (though frivolous) acts to the first acts of dereliction of duty and violation of his oath of office to the final resort to violence on January 6. Raskin says that Trump’s plan through all of these actions was to deny Joe Biden the majority of electoral college votes he needed officially to win the election. The 12^th Amendment to the United States Constitution provides that if no person receives a majority of the electoral college votes, the selection of the president passes immediately to the House of Representatives. The Amendment provides that the votes for president in the House is not by each representative having one vote as in everything else the House does. Instead, each state has one vote determined by the state’s congressional delegation. Trump knew that slightly more than one half of the state delegations in the House had Republican majorities. If the 2020 presidential election went to the House Trump would win even though he lost the popular vote.

As Raskin tells it, Trump’s first gambit in his effort to overturn the 2020 presidential election was to file something like sixty lawsuits in state and federal courts in swing states that Biden had won. In those suits Trump’s lawyers contended that the election had been tainted by voter fraud, that the court should invalidate the election in the state and have the state’s legislature determine which set of electors the state would send to the federal government. Trump’s problem in this effort to void the will of the people was that there is no evidence whatsoever to support Trump’s claim of voter fraud. He lost every one of the suits his lawyers had filed advancing the claim of fraud. Though I’m not quite sure why Trump’s lawyers weren’t penalized for filing a frivolous lawsuit under Rule of Civil Procedure 11, Trump had the legal right to file those suits. Mercifully, Trump’s efforts in the courts did not get him what he wanted.

So he resorted to something that clearly violated his oath of office to “preserve, protect, and defend the Constitution of the United States.” The Constitution provides that Congress shall meet in joint session to receive and count the electoral college votes from each of the states. The vice president is to preside over the joint session in his or her capacity as president of the Senate. Trump pressured Vice President Pence to assume a power in that joint session that the vice president clearly does not have. Trump told Pence that the Constitution and federal law give him the authority to reject the electoral votes of a state and send the issue of the state’s electoral college votes back to the state’s legislature. If Pence did that with enough of the right states, Biden would not have the electoral college votes he needed to be elected, and the election would pass to the House of Representatives under the procedure I described above.

The problem for Trump was that the Constitution gives the vice president no such unilateral power. The vice president’s role in the Congressional session to receive and count the electoral votes of the states is purely administrative. Any senator or representative may object to the reception of the electors of any state. If a member of Congress objects to a state’s electors, the House and the Senate meet in separate sessions to vote on the objection. Unless both houses of Congress vote to affirm the objection the objection is defeated, the electors the state has submitted are affirmed, and their votes are counted. The vice president however does not even have the right to make an objection to a state’s electors much less the right to rule on that objection unilaterally. To his great credit Vice President Pence understood that he would not have the legal authority to do what Trump wanted him to do, and told Trump he wouldn’t do it.

So Trump played his last card. He violated his oath of office, was derelict in his duty as president and probably committed at least one criminal offense when he played that card. He put out an invitation to his supporters, including white terrorist groups like the Proud Boys and the Oath Keepers, to come to Washington, D.C., on January 6, the day Congress would meet to carry out its constitutional duty to receive and count the electoral votes of the states. He said that it would be “wild” in DC that day. On January 6 Trump held an outdoor rally not far down Pennsylvania Avenue from the US Capitol for the people who responded to that invitation. First some of Trump’s minions, including the thoroughly disgraced Rudy Giuliani, whipped the crowd into a frenzy. Then Trump addressed the crowd. He repeated his Big Lie, the one he started saying even before the election, about how he had won the election in a landslide but his victory had been stolen from him and from them. As the mob chanted “Stop the Steal! Stop the Steal!” and “Hang Mike Pence! Hang Mike Pence!” Trump told them that they had to march down Pennsylvania Avenue to the Capitol and “fight like hell” or, he said, they would not have a country anymore. He told them he would be there with them though he didn’t go with them and apparently never had any intention of going with them. Telling the truth was never Trump’s long suit.

So off they went. Raskin gives a powerful description of what it was like for the members of Congress, their staffs, some of Raskin’s family who had come with him to the Capitol that day, and everyone else lawfully in the building when the mob overwhelmed the grossly outnumbered Capitol police and stormed into the United States Capitol. Raskin’s family members hid under a table and barricaded the door in the office of House Majority Leader Steny Hoyer. After the insurrection was over Raskin told his daughter that it wouldn’t be like that the next time she came to the Capitol with him. She said Dad, I don’t want to come to the Capitol again, something Raskin found particularly moving and disturbing. I won’t go into all the gory details here of what happened. We’ve all seen the videos. We’ve all heard of the brutal injuries the mob inflicted on the police who tried to vain to stop the riotous mob. We’ve seen an utter fool decked out like a moron carrying the Confederate battle flag through the rotunda of the Capitol, something that didn’t happen even during the Civil War. We know how the Capitol police got Vice President Pence, Speaker Pelosi, and other members of Congress out of the Senate chamber where they had gathered to count the electoral college votes of the states. Trump’s mob damaged and desecrated the Capitol in a way it hadn’t been damaged or desecrated since 1812, and that occupation of the Capitol was by a foreign army not American citizens. President Donald Trump had incited a seditious riot and had them invade the Capitol in a final effort to stop his vice president and Congress from carrying out their constitutional duty that day. For doing that the House of Representatives promptly adopted one article of impeachment against him, making him the only president in US history to be impeached twice.

Raskin then takes up the story of his involvement in that impeachment. He relates fascinating behind the scene details of how the House drafted and adopted the article of impeachment. He recounts the massive amount of work the impeachment managers and their staff did in preparation for the Senate trial of Trump under that article. Raskin is effusive in his praise of his team of impeachment managers. He happily lampoons the pathetic performance of Trump’s lawyers in the trial. Raskin says he actually had some hope that the Senate would convict Trump this time. He sounds quite naïve to me when he writes about that hope, though perhaps he had to have that hope if he was going to do what he was charged to do in the Senate trial. As we know, the Senate voted 57-43 to convict Trump. Unfortunately, the US Constitution requires a two-thirds vote to convict anyone under an article of impeachment. Raskin believes that he and his team put on a totally convincing case against Trump. From watching much of the trial on television I agree. The case Raskin and his managers put on was truly compelling and conclusive about Trump’s guilt.

The only conceivable reason for the Senate’s failure to convince Trump in this trial is partisan politics. Seven Republican senators joined all of the Senate Democrats in voting to convict, but forty-three of them did not. Senate Minority Leader McConnell knew Trump was guilty. We know that because after the trial he delivered remarks for the record in which he said as much. He said that Trump really was responsible for the January 6 insurrection. Had he voted guilty it is highly likely that enough Republican senators would have voted guilty with him to convict the president. Sadly, he voted not guilty. Most of the Republican senators, terrified of crossing Trump and being primaried by someone Trump had endorsed, did too. As Raskin says, if inciting a violent insurrection in an attempt to overturn the US Constitution and the will of the people isn’t an impeachable offense, what is?

Raskin’s book has an epilogue. In that conclusion to the book Raskin again brilliantly weaves together the story of his reaction to his son’s death with some quite frightening comments about the very real danger to our democracy that we still face. He lays out ways Trump could perhaps succeed in 2024 in what he failed at in 2020 and 2021. Trump told his rabid followers they had to fight like hell or they wouldn’t have a country anymore. As tyrants and would-be tyrants so often do, in that remark Trump turned a truth on its head. It is we who believe in our country’s constitutional democracy who must fight like hell to preserve our country. Trump’s mob took “fight like hell” to mean get violent, as Trump surely knew they would. Most of us defenders of the US Constitution will never resort to violence. We must fight like hell within our legal and political systems. You don’t defend the Constitution by using force. In his wonderful book full of pathos and political insight Raskin is absolutely correct. Our democracy is under lethal threat from Trump and his fascistic followers. We must fight like hell—nonviolently—to protect it. Raskin’s book Unthinkable is an inspiring piece of writing and a good resource for all of us as we seek to understand how big a threat Donald Trump still is and figure out what to do about it.