Washington Whispers: Diary of an Impeachment Trial
Updated: Feb 17, 2021
By Jessie Seigel / Washington, D.C.
Maybe it was the sight of Republican Senator Josh Hawley of Missouri ostentatiously putting his feet up on his desk in the gallery of the Senate, in an immature display of “you can’t make me take this crap seriously.” Or maybe it was hearing one too many disingenuous legal arguments that really suggested the Founding Fathers wouldn’t have minded if Donald Trump had invited the Proud Boys and their friends to come to Washington, D.C. on January 6 to tear up the Capitol and kill a police officer. But for whatever reason, by Friday, day four of the impeachment trial, Lead Democratic House Manager Jamie Raskin had clearly had enough. Raskin, never at a loss for an elegant turn of phrase, instead delivered some blunt talk to his recalcitrant GOP counterparts. “Come on, get real,” he demanded from the podium. “We know that this is what happened,”
And he was right. Everyone knows that Donald Trump summoned a mob and sicced them on the Congress to block the counting of electoral votes so that he could remain in office despite losing the election. And if Trump’s mob murdered his Vice President and the entire legislative branch of our government, so much the better. It was the incitement of a coup in plain view. The entire Congress lived it, and anyone with a television was able to see it as it happened. If it had succeeded, democracy in this country would now be dead as well.
But heaven forfend that the Republicans as a party show one ounce of honesty, integrity, or honor. On Saturday, with 67 votes (two-thirds of the Senate) needed to convict Trump of high crimes and misdemeanors based on his incitement of insurrection, only seven Republicans found the conscience and courage to vote with the Democrats for conviction. Forty-three Republican senators looked the other way and voted to acquit, leaving the final tally at 57 to 43. A clear majority, but that vote and 10 cents won’t buy you a cup of coffee in the Congressional cafeteria.
Never before have I seen such a parcel of rogues in our nation. (And I’ve seen the Nixon, Reagan, and the Bush-Cheney-Rumsfeld Administrations in action.)
Chief among rogues: Mitch McConnell, the Senate’s Machiavelli supreme, the master of bait and switch. As Senate Majority Leader during the Trump Administration, McConnell single-handedly prevented the Senate from conducting a trial while Trump was still in office, and then had the chutzpah to vote that trying Trump after he left office was unconstitutional—a state of affairs McConnell deliberately created.
That same Senate vote—which went against McConnell—determined that this impeachment trial was constitutional, a final decision that the senatorial jury was bound to accept. Nevertheless, McConnell used his stance that it was not constitutional as his excuse to vote for acquittal, placing his own “judgment” above the law—his personal form of jury nullification.
Some might say McConnell’s was only one vote, but as the leader of his party, he holds tremendous sway over his members; wherever he leads, most will follow. Pretending to be undecided on the facts, McConnell told his members they were free to vote their conscience. But 42 of them preferred following McConnell’s lead, as opposed to investigating whether they themselves actually have a conscience. And McConnell’s hanging his vote on an alleged legal technicality gave his members an out to do the same.
After the vote falling short of conviction was completed, McConnell added insult to injury, giving an extensive speech on the Senate floor in which he agreed that the House Managers had proved their case that Trump incited the insurrection, enumerated some of the horrors perpetrated in the Capitol attack, and suggested Trump could still be charged with a crime. McConnell stated that Trump was practically and morally responsible for provoking the invasion of the Capitol and called his actions a disgrace.
If hypocrisy were a liquid, McConnell and his Republican cohorts would be drowning in it.
As Ralph Ellison famously wrote in Invisible Man, “The end was in the beginning.” The Republican senators, led by the Hypocrite-in-Chief, dropped worrisome signs like breadcrumbs from the very beginning of the trial, leaving hints that their unquestioning fealty to the President was going to be an insurmountable obstacle for the House Democrats, no matter their legal skills, their rhetorical gifts or video dexterity. But the trial week, as recounted in this daily diary, was an up-close-and-personal history lesson for the American people, who can be forgiven for wondering if they are in any shape, after the pandemic, brutal economic times, and having to put up with Donald Trump for the past four years, to weather any more red-letter dates.
One would expect universal agreement that attempting a coup—as in instigating a mob attack on Congress while they are in the middle of counting electoral votes, in order to stop their count and keep your legitimately elected opponent from taking office—qualifies as a “high crime” in a democracy. So it was hardly a surprise that on January 13, the House of Representatives impeached then-President Donald Trump—who had done just that—for inciting violence against the government of the United States.
But now, enter from stage right: politics. It has been commonly assumed that the Democrats won’t be able to wring from their Republican colleagues the two-thirds Senate majority needed to convict Trump. Based on this widespread assumption and the notion that the trial therefore has only symbolic value, some reporters pressed House Speaker Nancy Pelosi last week: why bother to go through the exercise?
The Speaker’s indignant answer: “Why bother? Ask our founders why bother. Ask those who wrote the Constitution…ask anyone who cares about our democracy why we are bothering…Our founders were fearful of a demagogue—a demagogue and a mob.”
Pelosi added that it can’t be known what the Senate will do when they have not yet heard the case, and that the House impeachment managers, acting as the prosecution, will present their case in both the court of the Senate and the court of public opinion. Then, said Pelosi, “We’ll see if it is going to be a Senate of courage or of cowardice.”
I’m with Nancy.
I am a lawyer. I became a lawyer because of a love for our democracy, and a belief in the pursuit of justice regardless of any and all odds against it. I believe that win or lose, Donald Trump’s impeachment trial will be pivotal in determining whether, a few years hence, we will still have a democracy. But more than that, even if Republican craven cynicism wins out and prevents a conviction—maybe even because of that possible result—it is necessary that we stand up as a nation for what is true and what is right.
Tomorrow, Trump’s trial in the Senate begins, and we will see what the senators are made of.
TUESDAY—From the Sublime to the Ridiculous
Today was supposed to be spent in dry legal argument on the constitutionality of the impeachment and the Senate trial. Instead, we were treated to a beautifully cogent and moving presentation by the House Managers, and utter buffoonery by Trump’s defense team.
Lead House Manager Jamie Raskin, and fellow House Managers Joe Neguse, and David Cicilline, presented facts, law, and a 13-minute video of the attack on the Capitol more chilling than any I had seen on the news. The video not only showed more of the attack, but showed it close up, making us feel like we were in the middle of that claustrophobic mass of bodies pressing together and pressing forward against a pitiful number of Capitol police. We could also hear oh-so-distinctly the bloodcurdling chants of the marauders as they hunted down representatives and senators, as well as the screams of a policeman trapped and crushed in a doorway.
Citing numerous precedents and analyses by conservative constitutional scholars, the House Managers argued persuasively that an impeached official can be tried after he or she has left office. They argued that refusing to try Trump for his actions would create a brand new “January exception” to the Constitution, inviting a president to do anything he wants on the way out the door, including “lock that door” to keep power.
In his closing argument, Raskin quoted a speech in which Abraham Lincoln said, “If division and destruction ever come to America, it won’t come from abroad. It will come from within.” Raskin added that in that same speech, Lincoln passionately deplored mob violence and mob rule, saying that it would lead to tyranny and despotism in America.
Jamie Raskin also spoke poignantly of his personal experience during the attack, of his youngest daughter and his older daughter’s husband, who came to the Capitol to keep him company after the burial of his son the day before, and to watch him give a speech. She asked first, will it be safe, in view of the expected protesters? Raskin told them that of course it would be safe. They’d be inside the Capitol.
Raskin spoke of how they had been separated, his daughter and son-in-law forced to shelter in House Majority Leader Steny Hoyer’s office while he was in the House chamber, unable to get to them. Later, when reunited, Raskin said, he told his daughter how sorry he was and promised that “it would not be like this again, the next time she came back to the Capitol with me.” He said she replied, “Dad, I don’t want to come back to the Capitol.” Raskin began to break into tears as he stated his daughter’s response, but regathered himself quickly. It was clear that the tears were not only in memory of that immediate situation and his daughter’s feeling, but what her response signified about the stain on our democracy.
On the other side, Trump’s two attorneys, Bruce Castor and David Schoen, acted out an inept imitation of the “good cop-bad cop” scenario. Speaking first, Castor tried to be ‘folksy,” at best a poor man’s version of Andy Griffith’s Matlock. Castor spent most of his allotted time in idiotically transparent flattery of the senators, and puerile meanderings about passion not overtaking reason and that impeachment, trial and conviction may result in political pressure to respond in kind.
Schoen, the “bad cop,” presented his defense with a fury. He tried to blur the distinction between impeachment and trial, arguing that because Trump is out of office, impeachment occurred too late. However, impeachment, as opposed to the trial, occurred while Trump was still in office.
Then, contrariwise—as Tweedledum might say, or was it Tweedledee?—Schoen also argued that the House rushed to impeach too soon, without investigation and hearings, thus denying Trump due process of law. However, impeachment is akin to indictment. You get your due process—your chance to launch your defense—not before indictment but at trial.
The Trump defenders also deliberately misrepresented the position of legal scholar Brian Kalt, making it seem as though Kalt’s writings supported their position that you can’t try a president pursuant to impeachment after he’s left office. But Kalt actually had set out that position in order to argue against it.
As if to copy Raskin, Schoen ended his presentation quoting Lincoln and sniffing back tears. But the quote Schoen chose was a banal truism, and his tears were over Longfellow’s overly sentimental poem, “The Building of the Ship.”
Meanwhile, it was reported that throughout the House Managers’ presentation, certain Republican senators were deliberately refusing to pay attention. Apparently, during the video presentation, Ted Cruz, Rand Paul, and some others studiously shuffled through notes, stared at their shoes, or otherwise deliberately avoided looking at the screen. This made today’s presentation by the House Managers rather like the proverbial throwing of pearls before swine.
Nevertheless, constitutionality of the trial on its merits was upheld by a vote of 56 to 44. Only six Republicans voted with the Democrats, but that was one more—Bill Cassidy of Louisiana—added to a small group that might judge the merits of the case with open minds. Cassidy said he had been convinced by the relative quality of the legal arguments.
WEDNESDAY—The Case Against Donald J. Trump: The Facts
Today, the House Managers set out a chronology of Trump’s perfidy that is overwhelming. It spans months, with words and deeds calculated to keep him in power whether he won or lost the 2020 election. The recitation of his manipulations is so complex and runs so deep that it is almost impossible to encompass it all. But here goes:
The Set Up:
As early as the summer of 2020, Trump began selling his supporters the lie that he could only lose if the coming election was rigged. This became louder and more strident as the election season progressed.
In July, when the President had fallen 15 points behind in the polls, he not only refused to commit to a peaceful transfer of power if he lost to Joe Biden, he claimed “the ballots are a disaster” and said, “…there won’t be a transfer, frankly. There’ll be a continuation.”
By Any Means Necessary:
On election night, when the vote tally began turning against him, Trump directed his supporters to “stop the count.” They followed his direction, menacing election vote counters in several states.
Trump tried to pressure state legislatures and election officials in swing states such as Michigan, Pennsylvania and Georgia, to change the vote count or how they chose their electors, in order to ensure he received their Electoral College votes. He even applied pressure as low as local election boards.
An avalanche of lawsuits were filed on Trump’s behalf to challenge the election results. Of 61 suits, all but one were thrown out of court as frivolous and/or without merit. Even in that one, the court found that any change in the votes resulting from it would not change the election result.
Trump moved on, threatening various state and election officials with criminal prosecution if they did not “find” him votes and trying to intimidate Vice President Mike Pence into decertifying votes and sending the process back to the states. Because Pence had no legal power to do so, he refused.
When Trump ran out of nonviolent legal and illegal avenues, he activated his violent followers. He had already primed the pump. In the September 29 presidential debate, Trump told the Proud Boys, a militant white supremacist organization, to “stand back and stand by.” They stood by all right; one Proud Boys group went into action for him on January 6, leading the attack on the Capitol.
Between December 14, when the Electoral College counted votes, and January 6, when Congress assembled to certify those votes, Trump spent $50 million from his defense fund for ads to “Stop the Steal,” which ran up to the day before Congress met. Trump persistently tweeted messages like “Big protest in D.C. January 6. Will be wild.”
The original organizers of the January 6 rally at the Ellipse had no permit to march to the Capitol. It was only when Trump got involved in planning the rally, that the plan to march on the Capitol (minus any permit) was developed.
The House Managers pointed out that the White House was actively monitoring the exact websites where insurrectionists placed their posts. Thus, Trump and his operation were aware of who was coming to his rally and with what intention.
The night before the attack, Trump tweeted: “I hope the Democrats and even more importantly, the weak and ineffective RINO [Republicans in Name Only] section of the Republican party are looking at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen.” This was a threatening warning.
House Manager Stacey Plaskett presented a blow-by-blow, minute-by-minute account of the attack on the Capitol, both inside and outside the building. Her presentation showed how it progressed in real time: frantic audio of Capitol police communications as they were being overrun and they called—fruitlessly—for aid; video of the vast horde the Capitol police faced, as well as the beating of a Capitol officer as viewed from his body-cam.
The actions of the Capitol Police during this onslaught give true meaning to the words “stand your ground.” Facing overwhelming odds, the officers endured horrific violence but continued to protect the Capitol and the members of Congress against the insurgents for hours.
Plaskett presented video showing how close in time (minutes) and geography (some 100 feet) a lynch mob came to where Pence—a particular target—was hiding with his family. Likewise, House and Senate members escaped only moments before their chambers were overrun.
Affidavits later produced by law enforcement revealed that the marauders acknowledged they were looking for Pence to execute him and for Pelosi to put a bullet in her head. But they also would have killed anyone they found.
Trump’s Response During the Attack and After:
Trump watched it all on TV. But for those needing help at the Capitol, Trump had no response and nothing to say.
He never said, “Stop the attack.”
He refused to call in the National Guard.
Trump turned a deaf ear to calls from besieged senators and congressmen trying to contact him for help, as well as members of his own staff begging him to call off his mob.
But to Trump’s supporters—his white supremacists, Proud Boys, Oath Keepers, and other domestic terrorists who were attacking the Capitol? To them, he tweeted more attacks on Pence, who his acolytes were, even then, hunting down to murder.
He retweeted his instigating rally speech.
He tweeted more incendiary messages, disingenuously ending them with “stay peaceful” or “remain peaceful.”
Trump made calls to newly installed Alabama Senator Tommy Tuberville, whom the President had supported in his contentious campaign, asking him to make additional objections to certification even while the Senate was being evacuated.
Finally, Trump tweeted to his followers a message really meant, in Capone-style fashion, as an I-told-you-what-I’d-do message to his opponents: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Go home with love and Peace. Remember this day forever.”
Trump’s every action demonstrated that he deliberately planned his incitement as a last stopgap effort to keep power.
It is clear that, in inciting this insurrection and certainly in refusing to defend Congress, Trump violated his oath under Article II of the Constitution “to protect, preserve, and defend the Constitution of the United States of America.”
And how did the 44 Republicans who voted not to have a trial react to the House Managers’ presentation?
Josh Hawley sat in the gallery throughout, putting his feet up on the chair in front of his desk and ostentatiously going through paperwork to make a show of his determination not to listen to any of it.
Lindsey Graham tweeted that “most Republicans found the presentation by the House Managers offensive and absurd.” Offensive? I guess in Graham’s mind, committing offensive action is fine, inciting murder is fine, attempting a coup is fine—it is only the exposure of any of that which is “offensive.”
I will grant it unlikely that any amount of evidence will be accepted by senators who appear to have decided how they will vote before the trial even began—Lindsey Graham, Ron Johnson, Marco Rubio, Ted Cruz, or Josh Hawley, and maybe Tommy Tuberville, or Rand Paul. But that leaves 37. Will there be not even 17 among the 37 left who have some honesty and integrity in them? Who will care more for saving democracy than for their own petty power?
THURSDAY—The Case Against Donald Trump: The Law
Today, in a preemptive move, necessary because they will not have an opportunity for rebuttal apart from closing statements, the House Managers laid out a legal analysis of the arguments Trump’s defense team, based on their brief, will likely make.
Lead House Manager Jamie Raskin reminded the Senate jurors that the issue of whether the trial is constitutional had been decided finally and without appeal by the Senate’s Tuesday vote; any return to it would not only be frivolous and wrong, but irrelevant to the jury’s consideration of the case.
In three cogent arguments, Raskin and House Manager Joe Neguse easily refuted the defense team’s anticipated First Amendment argument that Trump’s speech at his June 6 rally was political speech and that, like any ordinary citizen, he has a right to say whatever he wants.
First, they pointed out that the First Amendment right to free speech is not an issue in this case. At issue is whether Trump’s speech violated the oath he took—written into Article II of the Constitution—to faithfully execute his office and “preserve, protect, and defend the Constitution of the United States.”
They argued that Trump’s months spent using his presidency to spread his Big Lie, his incitement of insurrection, and his refusal to protect Congress, a coequal branch of government from the onslaught he had caused, broke that oath.
Raskin stressed that public servants are not the masters of the people. The people are their masters. But that means little if a president, attempting to stay in power, can “ignore the courts and run over the legislative branch with a mob.” As Raskin said, quoting Supreme Court Justice Antonin Scalia, “You don’t get to ride with the cops and root for the robbers.”
Second, nobody has a First Amendment right to incite a riot.
And finally, the House Managers noted that Trump’s incitement was aimed to interfere with their free speech rights. They were sent to Congress to represent the views of the people, and Trump forced them to stop debating, stop speaking, and run for their lives.
The House Managers also made short shrift of the likely defense that Trump was denied due process. Impeachment is akin to indictment. While opportunity for an accused to speak may be provided, that is a privilege, not a right. They stated that Trump is receiving all the process he is due in the Senate trial.
The House Managers pointed out that the House did not, as the defense team’s brief suggested, delay in delivering the impeachment document to the Senate. Rather, Mitch McConnell recessed the Senate, refused to bring that body back into session to receive the impeachment document and proceed to trial, and had the Senate inform the House that if a clerk of the House tried to deliver that document, he or she would be turned away at the door. If it weren't for McConnell, the trial could have been conducted and likely concluded while Trump was still in office.
The House Managers pointed out that Trump’s willful encouragement of violence was part of an established pattern: (1) Trump saw that the groups he was mobilizing had committed violence before; (2) at his many rallies from 2015 on, he urged his supporters to be violent, saw how his incitement electrified them, and explicitly sanctioned rally violence after it occurred; (3) Trump encouraged violence against other public officials, specifically attacking Michigan Governor Gretchen Whitmer and increasing his vitriolic barrage even after the plot to kidnap and kill her became public. Noting the similarities, the House Managers suggested that the siege of Michigan’s state Capitol was a road test for storming the nation’s Capitol.
In addition, Trump never once condemned the attack, showed any remorse, or took any responsibility for it. He repeatedly referred to his various actions, including those on January 6, as totally “appropriate.” Trump ended a long tweet posted the day after the attack with: “And to all of my wonderful supporters. I know you are disappointed, but I also want you to know that our incredible journey is only just beginning.”
If Trump considers his attempted coup appropriate, and this is only the beginning of his journey, he will have no qualms about trying it again. As House Manager Ted Lieu said, “I’m not afraid Donald Trump is going to run again. I’m afraid he’s going to run again and lose. Because he’s going to do this again.”
The House Managers enumerated future dangers created by the attack. The various extremist groups—many of whom are on the terrorist watch list—may be forming alliances through their coordination of this siege. Materials were stolen—laptops and documents that could endanger national security. Intelligence agencies will have to investigate what was taken and what might have been done with it. Foreign adversaries were able to see a trial run of how easily they could attack the Capitol. And our adversaries, like Russia and China, are already using the event for anti-democratic propaganda purposes.
But what one would expect to be of most intimate concern for the Senate jurors is their own near deaths by mob. If the attackers had succeeded, not only would they have murdered the three people directly in line to succeed to the presidency (Pence, Pelosi, and Leahy), they could have murdered the entire Congress. Well, except maybe for Hawley, Cruz, Marjory Taylor Greene, Lauren Boebert, Jim Jordan, and a few others—assuming, despite the heat of the moment, they recognized them.
The insurgents would have physically destroyed our democracy. The House Managers have raised this concern in indirect language, and I can understand that no one wants to say the extreme unthinkable out loud. But there is a part of me that wishes they would turn to the Republican senators, look them straight in the face, and say: “The mob was not just coming for us. The mob was going to kill you. Are you going to give Trump a chance to do that again?”
Raskin closed the day, stating that in the history of humanity, democracy is rare and fragile. That for most of history, the norm has been dictators, autocrats, bullies, and tyrants that take over the world. With joy in his face and his voice, Raskin said that the very first Article created by the Constitutional Convention—Article I—states that the sovereign power of the people is deposited in the Congress. Not the presidency. The Congress. The president’s core job is to faithfully execute the laws the Congress passes. He added that our Founding Fathers were so fearful of presidents becoming dictators that they put the oath to protect, preserve, and defend the Constitution in the Constitution itself. The interests of the people are what count.
Raskin left the senators with the words from Tom Paine’s “American Crisis” (updating the quote slightly at Speaker Pelosi’s suggestion):
“These are the times that try men’s and women’s souls. The summer soldier and the sunshine patriot will shrink at this moment from the service of their cause and their country; but everyone who stands with us now, will win the love and the favor and affection of every man and every woman for all time. Tyranny, like hell, is not easily conquered; but we have this saving consolation: the more difficult the struggle the more glorious in the end will be our victory.”
Raskin then wished the senators good luck in their deliberations. Let us hope they take Thomas Paine’s words to heart while they do.
FRIDAY—The Defense of a Demagogue
The trampling of the rule of law by the Trump legal team and Trump supporters in the Senate should not, I suppose, surprise or shock me. But the fact that last night, three senatorial jurors met with the defense team, most likely on strategy, is so totally outrageous that it makes me sick. Even though no better than that could be expected from the likes of Lindsey Graham, Ted Cruz, and Mike Lee.
And where did their Senate leader, Mitch McConnell stand on this? McConnell, who prevented a trial from taking place while Trump was in office, but voted on Tuesday that this trial is unconstitutional because Trump has left office—and then seemed to turn around, telling his caucus to vote their conscience on the facts. Except for that statement, McConnell has remained almost as silent as the Sphinx throughout the trial, and certainly as inscrutable. One must wonder what he might be up to behind the scenes. Were Graham, Cruz, and Lee given the nod to step in and instruct the totally-out-of-their-depth defense counsel in Republican attack techniques?
In any event, the tutorial from the Graham-Cruz-Lee school of lawyering must have worked. Today, rather than defend their client, the defense team went on the offensive, using the usual Trumpian tactic of projecting one’s actions and motives onto one’s opponents. So they repeatedly claimed that the impeachment has been political revenge by House Managers and Democrats who hate Trump; used a look-over-there-what-about-them strategy, showing video of violence at civil rights demonstrations over the summer juxtaposed with Democratic politicians’ statements in support of demonstrators; and again and again played an overly long video showing Democratic politicians speaking the word “fight”—some at rallies, some apparently in their own living rooms—often taking them out of context in order to make it appear that they were advocating violence. Their point: they were only arguing that Trump, like these officials, has a right to free speech.
But context is everything. Proximity in time and location are essential to incitement. Those Democrats in the defense’s video were not addressing audiences armed with guns and bats and other weapons, and they did not point to a government building where the business of the people was taking place and send those armed people to that building with their weapons. Not to mention that none of the Democrats in the video did more than speak—let alone spend $50 million to bring rioters to the Capitol. And none of the statements in the video resulted in a riot.
The defense team used another Trumpian tactic: the lying and twisting of facts. Trump attorney Michael van der Veen made the absurd claim that the first rioter arrested was a member of Antifa, but was released. Trump attorney David Schoen claimed that the House Managers kept the new, previously unseen videos secret until they presented them to the Senate, and so deprived the defense of an opportunity to review the videos for defense preparation. But under the rules set up for the trial, the defense did receive them prior to trial and had opportunity to review them.
The defense also questioned how the House Managers got copies of the previously unseen videos when allegedly no one else did. They asked, why weren’t they released publicly? One might ask, why didn’t Trump release them? He was still president when rioters’ actions were caught on those videos. Could it be because he knew it would make him look bad?
As for their actual legal arguments, the defense maintained that nothing in the plain text of Trump’s January 6 speech explicitly encouraged his audience to do anything but assert their rights peacefully and patriotically.
Sticking with the Trumpian tradition—and frankly, the frequent Republican tradition—of accusing your opponent of what you yourself are doing, the defense said repeatedly, “We have reason to believe” the House managers manipulated evidence and their videos; “we have reason to believe” they presented manipulated tweets. Their evidence amounted to two possible small errors related to tweets, at least one of which the House Managers corrected before submission.
They also played Trump’s blame game, arguing that the media’s negative coverage of security actions at the Lafayette Park demonstration last summer might have been responsible for there being less of a security presence at the Capitol in January. They tried to blame Washington, D.C. Mayor Muriel Bowser for not requesting the National Guard despite advance concern about trouble. But Mayor Bowser had no jurisdiction or power to request National Guard to protect federal property like the Capitol. When help was requested from D.C., it sent the District’s police to the Capitol’s aid. Indeed, at least 65 District police officers were injured protecting the Capitol.
The defense claimed Trump is the most law-and-order president ever and played video of him repeatedly saying the words “law and order” to prove it. But if Trump was such a strong supporter of law and order and the men in blue, why didn’t he come to their aid? Why was it Mike Pence and not Trump who had to call in the National Guard to help them?
The defense team argued that Trump was immediate in his call for calm, urging the rioters to stay peaceful and support the capitol police.
But Trump was doing what he always does at his rallies. He stokes anger, rouses his audience to violent action (in prior rallies, it was against individuals in the crowd), and then adds some ameliorating phrases to provide himself with plausible deniability. The bottom line is, as the House Managers noted, when Trump wants something done, he states it clearly and loudly. He knows how to shout “Stop the count,” and “Stop the steal.” But rather than say “Stop the attack,” he expressed his vitriolic complaints and then ended, with the mild and inaccurate “stay peaceful.” (Inaccurate because you can’t “stay” peaceful, if you were never peaceful in the first place.) This was weak tea.
Post Presentation Questioning by the Senators:
Senators from each party alternated in asking questions. Republicans asked questions of the defense team and Democrats posed questions to the House Managers. For the most part, the questions appeared to be leading questions gauged to give the recipient an opportunity to remind the senators of the arguments they previously made or further hit home their points.
The exception was a question posed by Republican Senators Susan Collins and Lisa Murkowski to the defense team. They asked, exactly when did Trump learn of the breach of the Capitol, what specific actions did he take to bring the rioting to an end, and when did he take them. They asked that the defense team please be as detailed as possible.
Attorney Castor for the defense answered that he had no information to speak of, and tried to blame the House’s alleged rush to impeachment with no investigation into that matter. But this is information Trump would have had. The House Managers are not supposed to do the defense team’s work for them. Nor are they supposed to make Trump’s case for him. That is the job of his defense team. One hopes that Republican senators in addition to Collins and Murkowski take note of Castor’s disingenuous evasion of the fact that he has no answer.
SATURDAY—The Verdict on Trump and the Verdict for the Nation
Today, 57 senators voted to convict Donald Trump. Although this fell 10 votes short of the 67 (two-thirds) needed to convict Trump, seven Republicans—Richard Burr, Susan Collins, Bill Cassidy, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey—joined the Democrats, making up a bipartisan majority for conviction.
Mitch McConnell voted against conviction. Then he stood on the Senate floor and presented his own very lengthy recitation whose contents would make you think he was giving the House Managers’ closing argument for them. Delivering his pronouncements in the tone of an indignant mortician, McConnell restated their facts and interpretations as if they were his own.
He hit all their highlights from the various horrors perpetrated, to the attackers foreseeable belief that they were acting on Trump’s instructions to Trump’s guilty knowledge and intent, refusal to act, and endangerment of Mike Pence and the police.
McConnell called Trump’s actions related to the riot a “disgraceful dereliction of duty.” And he said, definitively: “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day. No question about it.”
But be sure to note McConnell’s hedge: “practically and morally responsible.” No mention of legal responsibility.
After reciting all the horrors Trump set loose, McConnell pretended he was a judicious statesman preserving the proper constitutional role of the Senate. He said oh-so-sincerely, “If President Trump were still in office, I would have carefully considered whether the House managers proved their specific charge.”
McConnell then sententiously claimed the factual question of incitement was moot because: “Trump was the president when the House voted. Though not when the House chose to deliver the paper.” Of course, the House never “chose” when to deliver the paper. McConnell chose when they would be allowed to deliver it.
To me, most insulting of all was McConnell saying “I believe the Senate was right not to grab power the Constitution doesn’t give us.” The Senate didn’t interpret its power in that way or make that decision. The Senate voted that the trial was constitutional. It was Mitch McConnell and his Republican minority that thwarted the constitutional power of the Senate.
Later, the House Managers gave a press conference, stating that although the Senate did not convict, this had been the most bipartisan impeachment and trial in the our country’s history, and that a clear majority voted that Trump was guilty of incitement. Raskin noted that even Mitch McConnell had acknowledged that they made their case on the facts. They felt they had won in the court of public opinion and the court of history.
In the midst of this muted victory lap, the House Managers were joined at the podium by House Speaker Nancy Pelosi. She would not ordinarily intrude on their press conference, she said, but she had to set the record straight. Clearly and rightly outraged by McConnell’s prevarication about the cause of the trial’s timing, Pelosi said of the impeachment document, “We’re told it could not be received because Mitch McConnell had shut down the Senate…For him to get up there and make this indictment against the president and say ‘I can’t vote for it because it’s after the fact’…the fact [is] that he established that it could not be delivered before the inauguration.”
Both as a lawyer and as a layperson, I have been so impressed with the superb work done by all the House Managers. The outcome of the trial makes me think of Steven Vincent Benét’s “The Devil and Daniel Webster,” in which Webster, the world’s most eloquent lawyer, beats the devil by managing to find the remnant of decency in a jury of the damned. In this impeachment trial, the House Managers were far more eloquent than Webster ever could have been. But here, the damned stuck with the Devil.
Jessie Seigel is a fiction writer, an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. She has twice received an Artist’s Fellowship from the DC Commission on the Arts and Humanities for her work. But, Seigel also had a long career as a government attorney, in which she honed her analytic skills. Of this double career, Seigel would say, “I guess my right and left brains are well balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.