February 9, 2021
Today began the second impeachment trial for former president Donald J. Trump, this time for incitement of insurrection against the American government.
Still, the people who are really on trial are the 50 Republican senators judging Trump’s guilt.
The impeachment trial today covered whether it is constitutional to try a former official. This angle was designed to get Republican senators off the hook: if not, they could avoid voting on the article of impeachment.
The proceedings went badly for the defense. Lead House impeachment manager Jamie Raskin (D-MD) began the session by pointing out that Trump’s lawyers were arguing for a brand new “January exception to the Constitution of the United States of America.” Constitutional lawyers from across the political spectrum, he pointed out, agree that former officials must be held accountable for their actions after they leave office. Otherwise, officeholders could commit high crimes and misdemeanors and then promptly resign, putting themselves beyond reach of impeachment.
“It’s an invitation to the president to take his best shot at anything he may want to do on his way out the door, including using violent means to lock that door to hang on the Oval Office at all costs and to block the peaceful transfer of power,” Raskin said. “In other words, the January exception is an invitation to our Founders’ worst nightmare. And if we buy this radical argument… we risk allowing January 6 to become our future.”
What would that look like? Raskin answered his own question with a thirteen-minute video that revisited exactly what happened on January 6. Using footage and tweets from the attack on the Capitol, the video laid out the direct relationship between Trump’s speech at his rally that day and his supporters’ attack on Congress. It was devastating. Seeing the events of the day laid out in chronological order, with Trump’s words echoing from the mouths of furious insurrectionists attacking the Capitol, was even worse than seeing it happen in real time on January 6.
After the video, Raskin and the impeachment manager who followed him, Representative Joseph Neguse (D-CO) laid out, in historical detail, that the Framers certainly intended for impeachment to include officials who had already left office. They pointed both to a case that was underway in Britain when the Framers were including impeachment in the Constitution and to the case of Secretary of War William Belknap, who was impeached in 1876 after he resigned from office in the midst of a scandal.
The goal behind impeachment, Neguse said, is to guarantee accountability and stop corruption. There is, he said, no merit to Trump’s claim that he can incite an insurrection and then insist weeks later that the Senate lacks power to hold a trial.
Like Raskin and Neguse, Representative David Cicilline (D-RI) emphasized that there is no “January exception” to the Constitution. He pointed out that Trump committed a terrible constitutional offense when he incited an armed angry mob to riot in the Capitol.
Cicilline also pointed out that Trump did not back down. At the end of that fateful day, he tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” It is no wonder Trump’s lawyers want to talk about jurisdiction rather than facts, he said.
After their presentations, Raskin gave an emotional plea to senators to defend American democracy.
After a recess, it was Trump’s lawyers’ turn. It didn’t go well.
The two men, Bruce Castor and David Schoen, only joined the defense team a little over a week ago, after Trump’s original team leaders all quit, and so have had little time to prepare. They were also apparently surprised by the quality of the prosecution’s presentation today, and so tried to change their own presentations on the fly.
Castor spoke first, coming across as condescending and meandering—Schoen later defended him by saying Castor had not known he would be speaking today. Even Trump supporter Alan Dershowitz, who defended Trump in his first impeachment trial, seemed put off. “I have no idea what he’s doing,” Dershowitz told Newsmax.
Next up was Schoen, who insisted that the Trump voters whose candidate lost the election must be heard. He appeared to threaten the senators with civil war. “This trial will tear the country apart, perhaps like we’ve only ever seen once in history.”
The two men seemed badly outmatched, rambling and unprepared. While the Democrats’ presentations were clear, organized, and illustrated with slick videos and graphics, the defense had none of that. Watching from Florida, the former president was allegedly irate. The goal for the defense today was simply to give cover to Republicans who wanted to avoid voting on the merits of the case by giving them room to dismiss the case on the grounds it was unconstitutional. Castor and Schoen did not give them that cover.
At the end of the presentations, the Senate voted that it was constitutional to proceed with the trial by a vote of 56 to 44. Six Republicans, one more than had voted yes on a similar vote in Congress, joined the Democratic majority. Senator Bill Cassidy (R-LA) said the defense lawyers had not provided a convincing argument that such a trial was unconstitutional. When pressed by reporters about why he thought the defense was poor, he said: “Did you listen to it? It was disorganized, random—they talked about many things, but they didn’t talk about the issue at hand.”
The defense lawyers’ problem, of course, is that they are being asked to defend the indefensible. They know it; we know it; Republican senators who have been defended Trump know it. During the video of the insurrection, Trump supporters Senators Marco Rubio (R-FL) and Tom Cotton (R-AR) looked at papers on their desks, Rick Scott (R-FL) looked at papers on his lap, and Rand Paul (R-KY) doodled.
Republican Senators willing to excuse Trump for his incitement of an insurrection that attacked our peaceful transfer of power are tying the Republican party to the former president and to an ideology that would end our democracy.
What led the rioters on January 6, 2021, to try to hurt our elected officials and overturn the legal results of the 2020 election was Trump’s long-time assertion that he won in a landslide and the presidency had been stolen from him. This big lie, as observers are calling it, is not one of Trump’s many and random lies, it is the rallying cry for a movement to destroy American democracy. He is building a movement based on the idea that his supporters are the only ones truly defending the nation, because they—not the people who certified the 2020 election—are the ones who know the true outcome of the election. He is creating a narrative in which he is the only legitimate leader of the nation and anyone who disagrees is a traitor to the Constitution.
As Cicilline noted, even after the riot Trump refused to repudiate that big lie. And now, even in the face of impeachment he has not repudiated it. Indeed, he has doubled down on it, refusing to admit he is a “former” president. His supporters haven’t admitted it, either, including his supporters who sit in Congress. None of those who challenged the counting of the electoral votes on January 6 and 7 has admitted it was a political stunt. Now, they are arguing that impeachment is a partisan attack on the part of Democrats.
If Republican senators permit Trump to get away with the big lie, it must, logically, take over the Republican Party. It’s no wonder that he lost his first defense team because he insisted they use their media time to argue that he had won the election in a landslide. Trump is not trying to win just this trial: he is trying to win control of the Republican Party and, through it, the country.
Tomorrow, the Senate impeachment managers will begin to argue their case.
——
Notes:
https://www.politico.com/news/2021/02/09/schoen-defends-meandering-defense-performance-468226
https://www.nytimes.com/2021/01/30/us/politics/trump-butch-bowers-impeachment.html
https://www.nytimes.com/2021/02/09/us/politics/trump-bruce-castor-david-schoen.html
https://www.washingtonpost.com/opinions/2021/02/10/jamie-raskin-won-trial-before-it-began/
https://www.politico.com/news/2021/02/09/trump-impeachment-team-468112
https://talkingpointsmemo.com/news/trump-impeachment-trial-accountability-house-republicans-vote
My closing arguement on Thursday:
246 years ago, a people risked and lost life and fortune to free themselves from the tyranny of a despotic ruler. Against all odds, they succeeded in liberating themselves from that ruler and created a representative democracy in which their leaders derived authority from the will of the citizens through periodic elections. Since George Washington took the oath of office on April 30th, 1789. There have since been 45 peaceful transfers of Presidential power. Not once has a President attempted to overturn an election illegally through deceit to retain power for himself. Until now. This has been done publicly, out in the open for all to see. The facts are clear, they are recorded in the phone call to Georgia and the multitude of videos of the President himself as well as all his enablers spreading his big lie. The insurrection itself played out on live TV for the whole country to see and was personally witnessed by every member in this chamber.
So, the question is not “did he do it?” The question is “what are we going to do about it?” A year ago, we asked the same question and the answer we gave was “yeah, he did it. But there is an election coming up, let the people decide” How did that work out? The American people know, the world knows, all of us in this room, we all know what Donald Trump did. He tried to end 234 years of our representative democracy. A democracy that many hundreds of thousands of Americans have died to defend over that 234 years. Today it is our turn to defend it. What will we risk? Will we risk our lives? No, not our lives. We will risk our jobs. Conventional wisdom has it that Republicans will vote to acquit Donald Trump not because he is innocent, but because to vote to convict him will be political suicide. You might lose your job. When the moment comes, and your name is called and you must choose between defending our republic or saving your job, the world will be watching. And History will remember.
“the only thing necessary for the triumph of evil, is for good men to do nothing.” – Edmund Burke
The House prosecutors did a superb job yesterday. Trump’s team failed.
Yet only six Republicans voted to allow the trial to proceed. Their complicity is maddening, but it is also deeply saddening. The Republican party has lost whatever semblance of a soul it might have had prior to Trump. Its soul is now dead – and this trial needs to be the nail that seals the coffin.
If I were giving the summation in the Senate trial:
In 2019, this body had the opportunity to put an end to one of the most corrupt and divisive chapters in American Presidential history and instead, voted to allow it to continue.
And a result of that choice, we find ourselves here today, one month after an attempted Coup that cost the lives of seven Americans and will forever haunt this this nation, this city, and the very room in which we are assembled today.
Donald J. Trump must not be allowed to hold elective office ever again. The Senate will be held accountable if it fails to hold accountable, the person most responsible for the events of January 6, 2021.
We may be forgiven by history for failing to act in 2019, but neither history, nor the America people, will forgive us if we do it twice.