The Senate trial in the second impeachment of Donald J. Trump is unlike any other trial in American history. It is so unique, I wonder whether it should be a trial at all. There is nothing like it in our jurisprudence.
The former president has been accused by the House of Representatives of “high crimes and misdemeanors” for inciting an insurrection. The charges were brought when he was in office, but the trial did not begin until after he left office. If convicted by the Senate, he cannot be removed from office, obviously, but he can be barred for life for future service.
As I’ve said before, there is jurisdiction to hear the case. It is not unconstitutional to try Trump.
But this trial is mind-blowing.
In what other context do jurors serve as witnesses and judges, or chat with the press and give interviews during presentation of evidence? This doesn’t even give off the pretextual sense of justice attendant to a well-conducted show trial.
The answer is simple: None.
An impeachment trial is no ordinary proceeding. The claim is that the president posed a threat to the constitutional order. He is alleged to have incited rioters to storm the Capitol to prevent the counting of Electoral College votes. They are serious charges.
In fact, the peaceful transition of power from one administration to another did seem imperiled for a few hours on January 6, 2021. There are ugly videos to prove it. Folks stormed the Capitol and roamed the hall looking for Congressmen and Senators. Incendiary words were spoken.
Did Trump cause the rioters to engage in this mayhem?
That’s a debatable proposition. Clearly, the president’s remarks were lit matches at the gasoline pump. They may have been imprudent, even reckless. But were they, in fact, incitement?
Some of his listeners took Trump’s words as incitement enough to act. Press accounts reflect some folks having made statements that they acted because they thought that is what the president wanted. How to account for the gap between what the speaker said and how his listener understood it? There is no evidence that the president conspired with others to commit insurrection. At most there is a claim that he recklessly disregarded the risk that his words could be taken as incitement.
I wouldn’t convict on these grounds.
The shame of the Senate trial is the willful blindness of the Senate as it considers the case. Instead of partisan blustering, both parties ought to be asking themselves fundamental questions about the health and future of the republic: Why were people angry enough to storm the capitol? There’s a crisis of legitimacy afloat in the land: In the summer, our cities burned, and arson, looting and violence were called mostly peaceful. On January 6, 2012, the Capitol was stormed by people angry for different reasons. Where is all this anger coming from? What is it about, really?
Why this ridiculous pity party of a Senate trial, where Senators watch videos of themselves and their colleagues reacting in fear? It is a direct appeal to emotion, the cheapest trick in the personal injury lawyer’s briefcase – show the bloody photographs often enough, and you just might win a million dollars.l
The fact is that in an impeachment trial no body other than the Senate gets to make the decision on whether to convict. No fair and impartial jury will be selected to sit in judgment of an accused person when the witnesses against him, and his alleged victims, are the Senators themselves. The Senate should be asking themselves what made citizens angry enough to attack the Temple of American democracy, not whether this did so because Trump egged them on. The Capitol was not attacked by zombies, but by ordinary citizens. They are the same sort of folks who were sometimes violent this past summer.
Is the republic beyond the point of healing?
I hope not.
But it is clear that Senate is beyond the point of caring about healing. The tedious beltway blame game is the reason public confidence in Congress is at an all-time low.
There was no coup attempt on January 6, 2021. Claims that there were are histrionic noise. There was an uprising. Angry people spoke.
The Senate seems incapable of listening.
End this sham of a trial. Turn a new page.
Were I Senator, I’d vote to acquit Trump. If removal from office is the penalty to be paid by a leader grown callous and deaf to the constitution and the welfare of the people, who, then, will impeach the Senate?