United States Law and Policy – Page 3 – The Law and Policy Blog

A postcard from the day after an election: capturing a further political-constitutional moment

6th November 2024

Yesterday things were unclear, and today things are all too clear.

Yesterday it looked as if Harris could win. On the evidence available to someone watching from England, there seemed no great enthusiasm for Trump either at his flagging under-attended rallies or elsewhere. There seemed no reason to believe he would do better than four years ago (or two years ago with his endorsed candidates).

But against that view was a sense of apprehension, if not doom. For, as this blog also averred, one could also too easily imagine Trump winning. Not because one could point to ‘factors’ (as a certain type of historian would put it), but just because he could – especially in this age of extreme political volatility.

And he has.

One trick of the human mind is to place shape and form onto events which at the time were uncertain, and so those who were themselves unclear as to what was about to happen tend to deftly switch to being very clear about what went wrong – and who was to blame.

From the perspective of this liberal constitutionalist blog the only points that seem worth making at this stage is about how the electoral system (at least in the United States but also elsewhere) is inefficient in certain respects.

Viz:

A candidate was a liar, known to be a liar and could easily be shown to be liar – but people voted for that candidate anyway.

A candidate was a convicted fraudster – but people voted for that candidate anyway.

A candidate was by any meaningful definition an insurrectionist – but people voted for that candidate anyway.

And a candidate was in the views of some serious people a fascist – but people voted for that candidate anyway.

This means that there is no point, in and of itself, showing a candidate to be a liar, fraudster, insurrectionist and/or a fascist if people do not actually care if that candidate is a liar, fraudster, insurrectionist and/or a fascist.

And so if the outputs of a media-political system of accountability – such as that offered by the lengthy US presidential campaign – do not gain purchase or traction, then the question is what is the purpose of a system of accountability.

The view that once a candidate is shown to be [X] then that would be enough for voters to not support that candidate falls apart when voters, knowing the candidate is [X], do not care.

What is the solution to this problem?

Perhaps there is no solution. As a Victorian politician once said to an earnest colleague: do you really believe there are solutions to political problems?

(One day I will track down that quotation.)

But a step towards a solution is to understand the nature of the problem.

The old media-political model of accountability – the Woodward and Bernstein model, if you will – is not working when you have a shameless candidate clapped and cheered by nod-along supporters.

And it is not a problem that is going to go away.

Yes, Trump is exceptionally charismatic – it is difficult to image a DeSantis or a Vance carrying a campaign like Trump. As such it is tempting to see him as a one-off and to just wait for him to go and for normality to return.

But there will be other Trumps, especially as the old gatekeepers in political parties and mainstream media fall away, and as illiberals become more adept at exploiting mass social media.

The one book which seems pertinent to all this originated in (of all years) 1984.

This was Neil Postman’s Amusing Ourselves to Death – a book which should be better known.

His son wrote this brilliant short essay about that book and Trump in 2017, a lot which still stands today.

His son said:

“I wish I could tell you that, for all his prescience, my father also supplied a solution. He did not. He saw his job as identifying a serious, under-addressed problem, then asking a set of important questions about the problem. He knew it would be hard to find an easy answer to the damages wrought by “technopoly”. It was a systemic problem, one baked as much into our individual psyches as into our culture.”

His son then put forward some possible solutions. You may think of others. I cannot think of any.

How do you have accountability when people care not for the accounts that they are given?

When people know they are being lied to, but do not care?

I have no idea.

The only conclusion I have is that it is time for a good cup of tea.

***

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A postcard from the day of an election – capturing a political-constitutional moment

5th November 2024

Today is the day of the American presidential election.

Sooner or later there should be a result – even if, like four years ago, there is drama (or worse) all the way into the new year. And when there is some sort of result then there will be those who will explain why that was always the most likely result. Such is the nature of punditry.

But today, all is uncertain.

On the face of it, it would seem that Harris should win. Trump does not seem stronger than he did four years ago – or two years ago when his endorsed candidates did badly. He is also a more divisive figure than he was when he won eight years ago, and he is against a less divisive candidate.

But, we are not in times where such a rational view has much purchase. We are in a period of populism and hyper-partisanship and disinformation, of joyful cruelty and illiberal frenzy. One can too easily imagine Trump winning. Less likely things have happened in the United States and around the world in recent years.

And if so, we will have an extraordinary situation of a president with criminal sanctions and facing criminal trials using the might of his office to reduce his exposure to any proceedings.

And we will have a president who boasts of wanting to also use the might of his office against political enemies, both personal and general.

The only liberal hope would be that, again, he is too lazy to follow-through on his threats, and that the swings he takes will be on the golf course, and not from the Oval Office.

In the days, weeks and months to come, things may be clearer – though even that cannot be said with absolute certainty – but as of today, things are unclear and they are worrying.

So it seemed to be a moment worth recording, using this blogpost as a postcard.

And to adapt the wording of a postcard: I wish we weren’t here.

***

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“…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore

Hallowe’en 2024

As words ‘law’ and ‘lore’ can sound pretty much alike. And as things they are also very similar: that is a theme of this blog.

But from time to time the courts are asked to deal with (what we can call) capital-l Lore – that is (what we can call) Folklore.

One of the greatest examples is the (ahem) hallowed 1991 New York case of Stambovsky v Ackley – the case that provides us with that priceless quote above.

Here is the quote in context (broken into one-sentence paragraphs):

“Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.

“Plaintiff promptly commenced this action seeking rescission of the contract of sale.

“Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.

“The unusual facts of this case, as disclosed by the record, clearly warrant a grant of equitable relief to the buyer who, as a resident of New York City, cannot be expected to have any familiarity with the folklore of the Village of Nyack.

“Not being a “local”, plaintiff could not readily learn that the home he had contracted to purchase is haunted.

“Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted.”

I am not an American lawyer, but on the basis of the fuller quote above, one gets the sense that the judge is being playful. The rest of the judgment affirms this view.

There are many ways the judge could have worded the point without saying that “as a matter of law, the house is haunted”.

(And as an English lawyer, the true Hallowe’en horror of the passage is that estoppel is a matter of equity and not a matter of law, but we shall let that pass.)

The judge could have simply said that the defendant was “estopped from going back on previous statements” or something similarly bland.

But the judge saw their chance to end their point with that wonderful wording, and the judge took it, much to the amusement or puzzlement of many American law students since.

For more on ghosts and the law, please see this absolutely superb paper by Canadian lawyer Michael Shortt – and a hat-tip to William Holmes at Legal Cheek for pointing to it.

(The Shortt paper is something I would love to have written, but I would not have done such a good job. It is brilliant.)

Happy Hallowe’en to all my readers.

How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy

11th September 2024

Taylor Swift has endorsed the Democratic nominees Kamala Harris and Tim Walz.

Politically and culturally the endorsement is significant, but this is not really a political or cultural blog.

This is, however, a blog that sometimes provides close readings of key documents, and there are things about the endorsement that are perhaps worth noticing and remarking upon.

In essence: this endorsement is a masterpiece of practical written advocacy, and many law schools would do well to put it before their students.

Look carefully at the first three paragraphs – especially the use of the first person “I” and “me/my” and the second person “you” (emphasis added):

“Like many of you, I watched the debate tonight. If you haven’t already, now is a great time to do your research on the issues at hand and the stances these candidates take on the topics that matter to you the most. As a voter, I make sure to watch and read everything I can about their proposed policies and plans for this country.

“Recently I was made aware that AI of ‘me’ falsely endorsing Donald Trump’s presidential run was posted to his site. It really conjured up my fears around AI, and the dangers of spreading misinformation. It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.

“I will be casting my vote for Kamala Harris and Tim Walz in the 2024 Presidential Election. I’m voting for @kamalaharris because she fights for the rights and causes I believe need a warrior to champion them. I think she is a steady-handed, gifted leader and I believe we can accomplish so much more in this country if we are led by calm and not chaos. I was so heartened and impressed by her selection of running mate @timwalz, who has been standing up for LGBTQ+ rights, IVF, and a woman’s right to her own body for decades.”

In the first paragraph, she ensures that she identifies with you the reader – “Like many of you [comma]” and “As a voter [comma]”.

There are four “yous” in that first paragraph: you, you, you, you.

You are already half-nodding along. You and Swift have common ground.

In the second paragraph, she then describes things of personal concern – but here she avoids putting “I” at the start of any sentence. This makes it look that she is describing the situation objectively.

She deftly – and convincingly – justifies making a political endorsement. The sentences “It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.” are perfectly reasonable.

Two premises leading to a “conclusion”, and in just one paragraph.

You will see that so far she has avoided starting any sentence with “I”.

And then, with the third paragraph, wham.

The first sentence beginning with “I” is the actual endorsement.

And then every sentence in the third paragraph begins with “I”: bam bam bam.

Also, like any good advocate, Swift is careful to make the listener or reader feel that it is their own decision to make, and again this is skilfully done:

“I’ve done my research, and I’ve made my choice. Your research is all yours to do, and the choice is yours to make.”

Note the rhythm: I, I, you, you, you.

The most effective persuasion is often to lead the listener or reader to making their own decision – and to make them feel they are making their own decision.

Finally, the pay-off: the thing that will linger.

The reader is already half-aware of what is coming, because of the photograph.

A good pay-off is often a call-back – and here, cleverly, the call-back is to the visual clue the reader would have registered before even reading.

“With love and hope,

Taylor Swift
Childless Cat Lady”

This is, of course, a swipe and a blow against J. D. Vance, the Republican vice presidential nominee.

And so Swift mocks the Lilliputian.

***

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Supporting Donald Trump is too much for Richard Cheney

7th September 2024

Back in the halcyon days of that golden age of when politics seemed kind of normal, there was no greater illiberal pantomime villain than Vice President Richard Cheney.

(Of course, halcyon days and golden ages never existed, for that is a trick of our memories and histories.)

Richard Cheney was – and perhaps still is – a believer in something that is called ‘unitary executive theory’. This is a bundle of ideas that even has its own Wikipedia page:

In effect: the doctrine is about there being few limits – or at least few meaningful limits – to the sheer executive power of the United States presidency – and vice presidency.

(Note the word ‘executive’ there – it does not necessarily mean trespassing on legislative and judicial powers, though it does mean limiting the scope of legislative and judicial powers.)

There are even academic articles about Richard Cheney and this approach:

Richard Cheney is about as far from being a liberal constitutionalist as one can imagine, at least in terms of theory and principle.

But.

Yesterday came the astonishing news, initially through his daughter (the brave and estimable) Elizabeth Cheney, that the former Vice President is not supporting the former President Donald Trump in the latter’s attempt at re-election and will instead be voting for Democtratic candidate (and current Vice President) Kamala Harris.

This has now been confirmed directly from Richard Cheney himself:

Of course: there is a distinction between what one does with power and how one gets that power.

One can believe in the widest executive powers for a President (and Vice President) once elected, but still (genuinely) believe in a democratic process so as to obtain those powers. Indeed, there is a conceptual connection in that the wide executive powers are (somehow) justified by the democratic mandate.

And if you look carefully at Richard Cheney’s reported remarks, his objection is primarily to Trump’s abuse of the election process, and not to the abuses of presidential power itself.

In effect: yes you can have those wide powers, but you need to obtain them properly.

Yet, this is still quite the turn-up.

Once upon a time, liberals worried about the wide powers of a Vice President Cheney – and of a President Bush.

And now, in turn, illiberals like Vice President Cheney are worried about the undemocratic pretensions of a President Trump.

This is an interesting and significant development.

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

1st June 2024

On balance, the prosecution of Donald Trump in New York did not look likely to succeed.

The prosecution had to show that certain business records were falsified at the direction of or on behalf of the defendant, and falsified for a further unlawful purpose.

That was a lot for a prosecution to prove – especially when there is no documentary admission that the defendant said “I direct that these records be falsified” and “I also direct that those records should be falsified for this ulterior wrongful purpose”.

What made such a prosecution even more difficult was that a key prosecution witness was a self-confessed liar with a self-confessed grudge.

And what made such a prosecution even more difficult than that is that the jury verdict had to be unanimous.

Regardless of the celebrity – or notoriety – of the the defendant in this particular case, these general features made this look like an ambitious prosecution.

But.

The prosecution pulled it off.

The prosecution were able to satisfy the unanimous jury that the records were falsified at the direction of or on behalf of Trump for the unlawful purpose of affecting an election. The prosecution was able to corroborate the evidence of its key witness.

Overall, and again regardless of the identity of the defendant, it was an impressive piece of lawyering.

And as Joel Taylor remarked on Twitter, it was also an impressive piece of jurying.

Yet it must be said that it was an unimpressive piece of defending.

Of course, Trump had the right – indeed, as an American, a constitutional right – not to give evidence.

And, of course, it was open to the defence to test the prosecution case without putting forward a positive account of the facts – especially in an elaborate and complicated case like this.

But one gained a sense in this case that a wiser defendant would have allowed the defence to adopt a different approach.

Yes: Michael Cohen, the self confessed liar and grudge holder, could be attacked in respect of his credibility.

But when the prosecution has been careful to corroborate almost all the material points in his evidence, then attacking Cohen’s credibility may not be sufficient.

The defence strategy here was not hopeless – it could have worked had the jury become preoccupied with Cohen – but it was a risky one to adopt.

The defence really had to put forward an overall positive explanation for the sequence of documented communications, authorisations and payments that the prosecution put before the jury – an explanation more plausible (and lawful) than the (unlawful) explanation advanced by the prosecution.

An explanation that would, in essence, raise reasonable doubts that that the prosecution version of events would be the true one.

And it appears that the defence did not do so, leaving the jury with only one explanation that covered the mass of documentation that fraudulent records were created to disguise unlawful payments: the prosecution’s explanation.

Trump and his lawyers wanted to tell the story of a corrupt prosecution and a dishonest witness, but the story they really needed instead to tell was that which explained the entirety of the evidence before the jury.

They ended up telling the wrong story.

Previously I have pointed out that a court hearing – a trial – is where Trump is a fish out of the water:

What works for Trump in one, well-versed context does not work for him in another.

One can see why, among other reasons, he wants to put off the other court cases as long as possible, even if he can weaponise them for fund-raising and campaigning. Trials are a thing he cannot dominate by his usual strength of will and cunning alone.

(This also may be related to his aversion, when in office, of committing troops to combat situations – another means by which he would lose control of events and narratives.)

Because Trump cannot win in court, he has to win outside of court.

Just like because he did not win the last presidential election, he has to win outside of the electoral college.

And he does this, of course, by discrediting the process – by attacking the very legitimacy of institutions.

This hyper-partisanship regarding “stolen” elections and “corrupt” courts is dangerous.

Legitimacy can be fragile, and if the legitimacy of democratic and judicial processes is undermined then a polity will quickly become unhappy and fractured.

For if people do not believe in the legitimacy of democratic and judicial processes then they will tend to find other, less peaceful ways of addressing their political concerns.

And this is where the political and judicial systems themselves need to mount a plausible defence.

Trump may not be the master inside a courtroom, but he is a formidable and politically lethal operator outside the courtroom.

As always, it is not enough for justice to be done, justice needs to be shown to be done.

Trump and his supporters are now mounting an outright attack on the legitimacy of political and judicial institutions.

It may not only be Trump that needs a good defence strategy.

Trump’s case – a view from an English legal perspective

24th April 2024

I am not an American lawyer, but here are some thoughts from an English litigation perspective.

Trump is adept at what he calls (or his ghost writer called) ‘the art of the deal’ – that is a transactional approach based on exploiting leverage.

Such an approach is not unhelpful in pre-trial shenanigans, where it is one party dealing with another party. Pre-trial litigation is often deal-making by another name. But when a dispute gets to court (and most Trump-related litigation does not get to a courtroom) then such bilateral game-playing becomes far less important. A third party – the judge (and sometimes jury) takes power. Trump’s blustering and bargaining is not well suited for this. Bullying will now not be enough.

And there will also be another thing he now cannot control: evidence. And this evidence will feed into the media mainstream, with the added credibility of being on oath. For somebody who is a deft manipulator of the media and his public image this los of information control will also be painful for him.

I have no idea if Trump will be convicted. I suspect it will be hard to get a conviction.

But he is now a fish out of water, at least for a while.

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The coming constitutional excitements in the United States

The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.

That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.

Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.

A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.

First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.

Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.

But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?

This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?

The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.

Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.

But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?

Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.

Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).

But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.

If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.

And if so, what happens?

Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.

This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.

Such an huge intervention would have implications.

The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.

But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?

It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.

And so the new year is going to be interesting.

2024 has the potential to be a very exciting year constitutionally.

And as we know, constitutional law should not be exciting, it should be dull.

Brace.

Best wishes for the new year, and thank you for your support and following.

Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism

24th August 2023

One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.

An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.

This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.

A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.

From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.

There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.

Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.

Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.

But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.

In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.

Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.

This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.

But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.

What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.

And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.

It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.

Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.

The battle is not about constitutionalism against anti-constitutionalism.

It is between two contrasting and irreconcilable views of constitutions and what can be done with them.

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Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process

15th August 2023

There is an old Hebrew proverb which can be roughly translated as:

What is the difference between a wise person and a clever person?

A clever person can get themselves out of situations a wise person would not have got into.

There are many points of similarity (as well as of contrast) between Boris Johnson and Donald Trump.

One common feature is their manoeuvrability.

They can perhaps be seen to get themselves out of situations which more prudent politicians would not have got into.

The impression conveyed is a constant short-term living-on-ones-wits, with a deft dodge here and will-to-power there, which would exhaust most other mortals.

But.

Each improvisation comes with a potential cost, for what deals well with one situation may not be helpful in another situation.

And this is the difference between tactics and strategy.

To put this in more concrete terms: Johnson and his lawyers appear to have hit on a good defence to possible criminal liability over the Downing Street parties.

A previous blogpost sets out how useful this line – about the need to show leadership in a work situation – was in dealing with the police and any potential fines or prosecution.

But that defence came with costs.

One cost was that it provided no defence to his own birthday party: and so that was the one for which he was fined.

And another cost was that it offered no relief in respect of the House of Commons investigation: what was a good defence in one context had no traction in another.

Johnson’s attempts to “lawyer-up” for the committee fell flat, his legalistic and supposedly “devastating” submissions got him nowhere – nowhere, that is, other than outside of the House of Commons.

His tactics worked regarding the potential criminal liability, but his strategic approach to holding power was so inept that he went from being an incoming Prime Minister with a sizeable majority to not even being a member of parliament in less than a single parliamentary term.

A similar thing can perhaps be seen now in the United States.

Trump somehow headed off not one but two impeachment exercises: he may have been impeached twice, but he was not convicted for either.

The latter impeachment was, of course, for the events of 6 January.

And so he avoided the punishment set out in the constitution for political misconduct.

But where the impeachments have failed, it appears that indictments have taken up the political slack.

It is maybe difficult to imagine that any of the current indictments against Trump – even the document retention ones – would now exist had Trump been convicted on impeachment.

(Logically, of course, the events of 6 January would have been different had the earlier impeachment ended with a conviction.)

Had Trump been convicted on impeachment – even if he had then received a Ford-Nixon type pardon – and thereby formally dismissed from office and unable to return, then it is possible that it would have seen that he had been punished enough.

An exercise of political misconduct – his role in the events of 6 January – would have then been dealt through the constitutional mechanism of impeachment – and so would have had a political solution.

Instead that political misconduct has been converted into criminal charges.

This is not to say that the criminal charges are not sound and evidenced – some of the cases look very strong and Trump’s position looks correspondingly very weak. Trump is in serious legal jeopardy.

The point is that these indictments (with the possible exception of the document retention charges) are really doing the job that should have been with the second impeachment, had Trump and his Senate allies not manoeuvred for an acquittal.

That tactical success, however, offers no defence to the criminal charges he now faces.

And instead of disgrace and permanent removal from office, he now faces criminal liability and even prison time.

The Georgia charges look especially bad for him, as there seems no pardon would be available – either from a president or the governor of the state.

In essence: it would seem that the impeachment process failed in the very circumstances such a political and constitutional remedy should have succeeded.

And, if you will pardon the pun, that is quite an indictment of the US constitution.

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