Your weekly source for analysis and insight from experts at the Brennan Center for Justice
The Briefing
Today, for the fourth time, the Senate began an impeachment trial of a president.
Few who watched the video presented by the House managers can fail to be moved, and alarmed, all over again. The House made a compelling constitutional case that a president can be tried after leaving office. There is no “January exception,” as Rep. Jamie Raskin said. And as I explained on ABC News, a president cannot incite a violent mob with no consequences at any point in his term and avoid consequences afterwards as well. The Senate agreed, with six Republicans joining their Democratic colleagues in voting 56 to 44 for the impeachment trial to continue.
In past impeachment trials, lawmakers debated whether misconduct rose to the level of “high crimes and misdemeanors” — abuse of power deserving of the Constitution’s ultimate sanction. Few can make such arguments here. No other president attempted to overturn the results of a democratic election and send a violent mob to stop the counting of the electoral votes.
Trump is in an enviable position: he’s being tried by a jury of his accomplices.
Recall that Trump’s affront didn’t start at the Ellipse on January 6. The insurrection followed months of Trump’s Big Lie about the election being stolen.
The 2020 election was not stolen — the top federal agencies in charge of election security declared it “the most secure in American history.” Trump’s claims are false, and they have been repeatedly and definitively debunked by the nation’s leading election administrators, national security leaders, political leaders, election experts, and judges. Voter fraud is, and has always been, vanishingly rare.
Far too many members of Congress have retold the same lie about America’s elections. Trump’s claims are a cartoonish version of the fact-free argument his party colleagues have made for years. These lies draw on racist stereotypes about Black voters and undocumented immigrants committing fraud. They are made up.
The same Big Lie is the sole justification for the new wave of restrictive laws being readied in states across the country. Since January, state legislators have introduced 165 bills in 33 state legislatures making it harder for people, primarily people of color, to vote. That’s nearly five times as many restrictive bills as this time last year. Hard evidence that the Big Lie is having its intended, pernicious effect.
So this impeachment is about much more than even the conduct of one person. The fight over the Constitution and the fight to protect the right to vote go hand in hand.
The Framers held widely varying views about who should have the right of suffrage. But they all feared a future demagogue who would try to overturn the republic. They spoke of Cromwell and Caesar, and congratulated themselves that George Washington would never do such a thing. They saw impeachment as above all a punishment for political abuse.
“A good magistrate will not fear them,” Elbridge Gerry said at the Constitutional Convention. “A bad one ought to be kept in fear of them.” Alexander Hamilton, in Federalist No. 65, described impeachment as “a method of national inquest into the conduct of public men.” Because impeachment was inevitably political, he wrote, it made sense for other politicians to conduct the trial.
Will there be accountability for this attack on democracy? In this trial, maybe. (Don’t hold your breath.) The real answer will come when these same lawmakers are asked to strengthen our democracy by protecting voting rights and securing elections in months to come.

 
Democracy
How to Change Incentives for Both Politicians and Donors
The campaign finance reform provisions in the For the People Act, the major democracy reform package moving through Congress, would provide matching funds to multiply the value of small donations to candidates at a rate of six-to-one. It would amplify the voices of regular people and allow more diverse candidates to run competitive campaigns. Some are concerned that empowering small donors would fuel ideologically extreme candidates, but as Ian Vandewalker explains, evidence does not support this. In fact, large donors are the most polarizing force in our elections. // Read More
Annotated Guide to the For the People Act
The For the People Act would transform our democracy by making it fairer, stronger, and more inclusive. This explainer provides details about each of the bill’s provisions, as well as information about related legislation and Brennan Center research on the issues that the bill seeks to address. // Read More
Biden Must Act to Ensure Government Transparency
President Biden can start restoring the executive branch’s commitment to transparency and accountability by strengthening compliance with the Presidential Records Act. The law requires the president to document and preserve records related to an administration’s “activities, deliberations, decisions, and policies.” Trump flagrantly defied this law, but Biden can strengthen it with an executive order. As Maria Smith writes, “Biden must restore the norms, practices, and rules that ensure trust in government.” // Read More

 
Coming Up
  • Thursday, February 11 | 5:00 p.m.–6:00 p.m. ET
    FBI Joint Terrorism Task Forces (JTTFs) inflict harm on local communities through racial profiling, harassment, suspicionless surveillance and investigations, and exploitation of immigration enforcement, all of which are authorized under federal guidelines loosened after 9/11. The FBI relies on the labor of state and local law enforcement officers assigned to the JTTFs, who agree to follow federal guidelines even if they conflict with state and local law. Civil rights advocates and community groups have organized successful campaigns to demand that their city legislatures hold local police accountable to local laws and ultimately withdraw from the JTTFs. Advocates from these campaigns, including Zahra Billoo (executive director, CAIR-SFBA), Javeria Jamil (staff attorney, Asian Americans Advancing Justice/Asian Law Caucus), and Brandon Mayfield (Oregon lawyer and activist), will share their experience with Brennan Center Fellow Mike German. RSVP today.
    This event is produced in partnership with New York University’s John Brademas Center.
  • Thursday, February 18 | 1:00 p.m.–2:00 p.m. ET
    The attack on the Capitol, spurred by Trump’s big lie about the election, highlights the importance of holding those responsible to account, shoring up institutional guardrails, and taking action to revitalize democracy. Join co-chairs of the National Task Force on Rule of Law and Democracy Preet Bharara (NYU School of Law distinguished scholar in residence) and Christine Tood Whitman (former New Jersey governor), Michael Steele (former RNC chairman), Michael Waldman (Brennan Center president), and moderator Nia-Malika Henderson (CNN senior political reporter) for a conversation about the reforms needed to bolster American democracy. RSVP today.
    This event is produced in partnership with The New York Public Library.

 
News
  • Michael German on the FBI’s flawed Super Bowl threat assessment report // Yahoo News
  • Faiza Patel on law enforcement’s weak response to far-right violent extremists // New York Times
  • Eliza Sweren-Becker on state legislatures’ efforts to roll back voting rights // NBC News
  • Michael Waldman on Trump’s second impeachment // ABC News
  • Wendy Weiser on voting bills in Virginia // Washington Post
The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

 
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