Impeachment Shifts to Defense

Representative Jamie Raskin (D-MD) in a screenshot of C-SPAN coverage of the impeachment trial.

 

The prosecution rested today, in the impeachment trial of President Donald Trump, five to six hours ahead of schedule. The Senate is adjourned until noon Eastern, Friday, when Trump’s lawyers will mount a defense, on the fourth day of the trial.

Over the three days so far, nine House Democrats chosen by Speaker Pelosi have made the case for the prosecution. Led by Lead Manager Jamie Raskin, of Maryland, they have been calm, succinct, detailed, and hyper-organized.

With the exception of a few minutes of newly-released footage, such as one scene of Capitol Police Officer Eugene Goodman running past Mitt Romney and apparently saving him from the mob, most of the evidence comes from news reports, social media posts, and other public platforms that many have already seen.

But the way the prosecution put events into master chronologies—showing what Trump did or did not say, before, during, and after the attack on the Capitol—was clarifying and convincing. They continually reinforced certain topics: for example, that Trump lived on “the Big Lie” that he did not lose the election, that he instructed his base to “Stop the Steal,” and that he has never shown remorse or even regret for anything that has happened.

Democratic Managers assured Republican colleagues this was not a criminal case, so “not a minute” of jail time could result; they reminded them that Republican Mike Pence, Trump’s loyal Vice-President, became a specific target, as did the next two people in the Presidential succession, and that Trump seemed to have no regard for any of their safety; and they warned that a failure to convict (with its blocking from future office) would only invite more violence and autocratic grabs.

The argument was tightly constructed, and since the trial is about the former President, the House managers stuck to what is known about the event, as well as Trump’s actions and words. They never showed, for instance, Donald Trump, Jr., exulting and dancing as his father watched news reports from the Capitol that day, presumably because Don Junior’s social media post did not show President Trump dancing and exulting.

There was a clip of Trump’s lawyer, Rudy Giuliani, speaking at the pre-riot rally, but it was chosen, presumably, because Trump praised Giuliani’s speech, which denied Trump’s loss and included the words, “Let’s have trial by combat.”

Prosecutors also never got very deep into the delayed response by the National Guard, perhaps because they cannot verify rumors that the delay was purposeful.

They did address and refute objections the defense or sympathetic senators might have, such as Trump already being out of office during his trial, or that he has First Amendment rights that might allow him to say things that are “unpopular.”

Advocates of Trump have been saying there is no evidence he directly ordered the mob to break into the Capitol, fight police, damage government facilities, or ransack chambers and offices. The prosecutors dealt with all these possible objections. (Inciting an insurrection or other mob action is not covered by free speech, for example.)

Representative Jamie Raskin, a Constitutional law professor at American University for 25 years, also brought the power of a good teacher into this other sphere. Near the end of his closing, he invoked Voltaire and Thomas Paine, and explained the two meanings of Paine’s “common sense”—the kind that does not require specialized education, and the kind we share, which is the basis for having a community at all. He asked the Senate convict on the basis of the evidence and the latter kind of common sense.

During the first Trump impeachment, there was some argument over whether the standard of conviction in an impeachment was “beyond a reasonable doubt” (as in a criminal trial), or just a “preponderance of evidence” (as in many civil cases).

Article II (the one about the Executive Branch), Section 4, of the Constitution says nothing about standards for impeachment, and the Congressional website admits that “impeachment is at bottom a unique political [my emphasis] process,” based in large part on precedent and separate from the judiciary.

“The type of behavior that qualifies as impeachable conduct,” the site explains, “and the circumstances in which impeachment is an appropriate remedy for such actions, are thus determined by, among other things, competing political interests, changing institutional relationships among the three branches of government, and legislators’ interaction with and accountability to the public.” Oh dear.

Many have taken to social media as the trial continues to express further outrage at the Capitol insurrection and to claim there is no choice but conviction.

“It is impossible to watch today’s impeachment trial and not be repelled, sickened and moved,” tweeted Jeff Flake, a former Republican Representative and Senator, and critic of Donald Trump. “There is no defense for former President Trump’s actions on January 6th. None.”

Still, a recent poll showed that “61% of Republicans still believed Trump lost [the 2020 election] because of election-rigging and illegal voting,” and another that 39% of Republicans agreed that “if elected leaders will not protect America, the people must do it themselves, even if it requires violent actions.” Yet half of Republicans also think Antifa “was mostly responsible for the violence that happened in the riots at the US Capitol.”

The House Managers referred several times to the defense’s “alternative facts,” a swipe at Trump Counselor Kellyanne Conway, as well as the now decades-long conservative disdain for what a senior official in the George W. Bush administration called the “reality-based community.” The swipe will change no minds.

Fifteen Republican senators did not attend the trial today. Imagine: a President of the United States has been accused of committing high crimes against the nation, and the Senators responsible for judging the case chose not even to hear the evidence. It is no wonder that people I know in everyday life vehemently defend Trump and claim Biden is illegitimate as the leader of the free world, a phrase we all, whatever our political beliefs, stopped saying during the Trump era.

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