The second impeachment trial of Donald Trump, much like the events of September 11, 2001, is shaping up to be one of the seminal moments in American history for two reasons.
First, it is creating a detailed and compelling factual record of Trump’s incitement of insurrection both before and after the 2020 Presidential election on November 3, 2020. That record, mostly a compilation of Trump’s own words and those of his supporters, reveals that the assault on the Capitol on January 6, 2021 was not the result of an unexpected and unpredictable welling-up of emotion and action. Those events were the result of a long and effective campaign by Trump and his enablers to falsely claim that the 2020 Presidential election of Joe Biden was the result of widespread voter fraud. When Trump’s legal efforts to overturn the election were denied by some 60 judges and his efforts to strong arm election officials also failed, Trump urged his supporters to join a rally in Washington DC on January 6, 2021. At that rally Trump called on the assembled multitude to march on the Capitol building and take matters into their own hands in order to “stop the steal” and take back the Capitol lest they be left without their country.
Second, this impeachment trial is forcing Republican Senators to publicly declare their fealty to or independence from Trump, in the face of some pretty damning evidence and logic. How these Republican Senators vote at the conclusion of the impeachment trial will reveal and expose each Senator’s true character, courage, integrity and values. Are they men and women of honor and oath who will vote to uphold and defend the Constitution and render “impartial justice” at this impeachment trial? Or are they mere political and partisan hacks and careerist opportunists who decided in advance to acquit Trump regardless of what arguments and evidence was presented?
Trump’s defense attorneys want the jurors to take a very narrow technical view of the charge of “inciting insurrection” and limit consideration to whether or not Trump explicitly told his supporters on January 6, 2021 to storm the Capitol, break into the building, overrun the Capitol police, kill police officers and hang Mike Pence and shoot Nancy Pelosi. More important, they are urging Trump be acquitted on a technicality, claiming that this trial is itself unconstitutional since Trump has already been expelled from office by the voters. While arguing that this trial is illegitimate as pure political theatre, they also seek an acquittal based on narrow, technical, legal arguments as if this were a trial in a court of law. Republicans can’t have it both ways.
The House impeachment managers want the jurors to take a broader and more complete view of Trump’s efforts over several months to spread false claims that the election was the result of widespread voter fraud, a claim rejected by some 60 judges and Trump’s own Attorney General William Barr. They have demonstrated that when Trump’s own efforts to overturn the election results through the courts and through strong-arming election officials failed, he then got his supporters riled up and angry enough to assault the Capitol and do what Mike Pence told the President he could not do – stop the Congressional certification of Biden’s victory.
These two starkly different approaches are taken in part because of the unique and highly non-specific nature of an impeachment of a President in a political court – the Senate of the United States. Among the things that make this political trial so unique – and unlike any civil or criminal trial court proceeding in the US are these:
In this impeachment trial the jurors – the Senators – were participants in the events at issue – the assault on the Capitol and how it came about. In a court of law, people cannot be jurors if they have personal knowledge of or participation in the events under consideration.
In this impeachment trial the jurors – the Senators – are allowed to prejudge the case before they hear any arguments or are presented with any factual evidence in the trial itself. In a court of law jurors are prohibited from prejudging a case. Should they indicate a likelihood to do so they are automatically disqualified from serving. Also in a court of law, jurors can only consider evidence presented in the courtroom, not information they hear on the news, read in the papers or which comes from any other source.
In this impeachment trial, the jurors – the Senators – take an oath to render impartial justice. However they are free to ignore that oath and suffer no consequences from being partisan and partial. For example, it was reported that several Republican Senators would meet with Trump’s defense team to help them craft his defense in ways that might encourage other Senators to vote to acquit the President. In a court of law all counsel, including defense counsel, are prohibited from meeting with and talking privately to the jurors to influence their assessment of the case while the case is still being presented.
In any impeachment trial the jurors – the Senators – are not given any instructions or guidelines from a presiding judge regarding the applicable law, how to listen to and evaluate evidence, and how to conduct themselves as jurors and reach a decision. The Senators are at liberty to accept or reject any bit of information they want regardless of whether their view or assessment has any basis in fact or law. They are free to decide the case any way they want, for any reason or no reason.
Although this impeachment trial is not at all like any civil or criminal courtroom trial and can correctly be described as “political theatre” it still has substantial value to our national politics and to history. It would have more value if the Senators were to ask themselves several more questions that could help focus them and us on the real issues at stake. Here are some of the questions I would ask myself if I were a Senate juror regardless of my party affiliation.
- Was Trump’s creating and spreading the lie that the 2020 election was stolen and that he won and deserved a second term the type of conduct that we want in our Presidents in the future?
- Do we as a nation – through our Senate representatives — want to condone and endorse conduct of a President which is not just “unconventional” but which is anathema to traditional democratic values, ideals and aspirations and which violates the oath of office each of us took to serve in the Federal government?
- Do the oaths that we took and that Trump took have any meaning at all?
- Do we want to tolerate in our President conduct and behavior which we would not tolerate in our children?
- Do we want to tolerate in our President conduct and behavior which we would not tolerate from our spouses or others who we love?
- Do we want to tolerate in our President conduct and behavior which we would not tolerate from our business partners?
Republican Senators who vote to acquit are likely to hide behind the fig-leaf that this trial is unconstitutional because Trump is not currently in office. They have the right to vote that way. But in doing so they will miss the great opportunity this impeachment trial offers all Republicans. This opportunity is not likely to come again soon.
To paraphrase a former White House Chief of Staff, this impeachment trial is a crisis for all Republicans and the Republican Party which they should not let go to waste.
Through this impeachment trial Republicans have the chance to repent for their departure from American values and norms that enabled Trump to be elected in 2016 and remain in office for four years. Before his nomination many Republicans criticized Trump for being unqualified, inexperienced and fundamentally incompetent to serve as President. His conduct in office proved them correct.
Through this trial Republicans have the chance to begin to redeem themselves and their party by severing all fealty and ties to Trump, and returning to placing the interests of the country far ahead of their personal careers. But reports are that Republicans are not inclined to show such spine. Failure to convict Trump will be damaging to our country. We have a host of serious and existential issues that need to be addressed, from Covid-19, to the related financial struggle of many Americans who have lost loved ones and their jobs, to climate change, the emerging power of China and a host of other threats.
Our nation can ill afford to be distracted from the tasks at hand by continuing Trump’s racial and class warfare, denial of facts and science and his assault on democratic institutions, norms and the rule of law that have endangered our country and emboldened our adversaries, foreign and domestic. However, if as expected, fewer than 17 of the 50 Republican Senators join Democrats in voting to convict Trump, the Republicans who vote to acquit will be endorsing and normalizing Trump’s subversion of the rule of law and the peaceful transfer of power that have been principal hallmarks of our democratic republic.
By failing to jettison Trump from the Republican Party, and by refusing to re-affirm and be guided by traditional American values and definitions of truth, integrity, facts, common sense, the rule of law instead of the rule of man, and their oaths to protect and defend the Constitution of the United States, Republicans will be endangering our nation as no other party or group of people has done in this century or the last one. By failing to convict Trump, Republicans will be signaling their intent to continue to wage a more insidious civil war than the one President Lincoln thought he won.
Whether or not Trump is convicted, and especially if he is not convicted, job number one for all Democrats and all voters in 2022 and beyond will be to ensure the defeat at the voting booth of each and every Senator who refused to vote to convict, and each of the Republican House members and others who supported and helped spread and expand Trump’s lie that he won the 2020 Presidential election and was entitled to attack our Capitol so he could cling to power.
The nation is watching. The world is watching. Will Republicans waste this golden opportunity to expel Trump from their party and begin to absolve themselves for their blind fealty to Trump? Will they continue to endorse the division, disinformation, and destruction of the Trump presidency, or will they change course and seek to again be useful and constructive participants in our democracy?
As Republicans consider whether to acquit or convict Donald Trump of the offense with which he has been charged, they should ask themselves a few more questions.
- Would you still refrain from voting to convict if Trump’s supporters had been more successful and had managed to hang Vice-President Mike Pence?
- Would you still refrain from voting to convict if Trump’s supporters had been successful in killing Speaker Nancy Pelosi?
- Would you still refrain from voting to convict if Trump’s supporters had managed to kill and injure several hundred Congressmen, staffers and police or had managed to set the Capitol building on fire?
- Would you – Senators McConnell, Cruz, Graham, Hawley, Rubio and Lee – still refrain from voting to convict if the Capitol police had been less successful in protecting each of you from the wrath of Trump’s rampaging mob on January 6?
As voters watching this political theatre come to an end, we should decide whether we will vote in the years ahead to elect or re-elect any candidate who believes that neither Trump nor his enablers should be held accountable for causing this crisis and failing to come to the aid of our country in these hours of extreme peril.