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January 17, 2021


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I didn't see what Rove said, but, I suspect that his reasons for throwing Guiliani under the bus have nothing to do with what Lubet implies (T is "guilty" and Guiliani won't be able to get him off).

The actual reason Rove so opined is likely this: Guiliani intends to defend on the basis that there was actual voter irregularities. This is an assertion that the Dems, after spending four years arguing election irregularities in 2016, have made equivalent to sedition with respect to the 2020 election.

Apparently, from press reports (which are inherently unreliable), Guiliani may be planning to defend that T had a good faith basis for asserting election irregularities, and therefore cannot be faulted for so asserting to his supporters on 1/6.

This argument, if Guiliani plans to make it, is not a good one for the simple reason that it doesn't go to the charge: that T got up in front of a mob and incited an insurrection on 1/6.

The charge itself is so ludicrous and unsupported by facts that in this case, any first year PD could beat the charge. A judge would throw it out in a quick minute.

In this case, I theefore would have to agree with Lubet about one thing: to not take on the charge on the merits would in fact concede its validity and be a very poor strategy.

In addition to a defense on the facts, there are some quite obvious defenses, on the law. The impeachment clause applies to federal officers, and isn't an open-ended basis to go back, in perpetuity according to the Dems, to impeach out of office, past officers. (Whose next: GWB? Can the Dems impeach him to make sure he doesn't run again?). It's no answer to say that the House got the process started while T was still in office. The impeachment process is one of charge in the House and conviction in the Senate. One cannot "impeach" a President who isn't the president.

And, one would hope that the SCOTUS would throw out an 14th amendment (sec. 3) claim as frivolous, on these facts.

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