Senate Television via AP
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The inevitable conclusion was briefly suspended on Saturday, then affirmed.
Neither the cavalry nor the calvary rode to justice’s rescue at the Senate today.
If that previous sentence is mysterious, it refers to the kind of defense that Donald Trump’s attorneys mounted this week. At one point, the House managers prosecuting the impeachment case displayed numerous tweets from Trump’s supporters saying that the cavalry—that is, Trump’s legions—were coming to stop the alleged-without-a-shred-of-evidence steal. This prompted David Schoen, one of Trump’s lawyers, to rise in indignation and point out that one of the tweets had said the “calvary,” not the “cavalry,” was coming. Rather than note that this was surely a typo, Schoen attacked the House managers for willful misrepresentation, and for making light of Christians’ belief in Jesus’ ordeals.
I’m not making this up, I swear.
This display typified the defense that Trump’s lawyers mounted on his behalf. They didn’t seriously challenge the facts in the case. Rather, as Michael van der Veen argued yesterday and repeated in his summation today, there were four reasons that sufficed to acquit his client, and any one of them would do. First, he told the senators, you can’t impeach a former official for crimes committed while in office. Second, more charges were encompassed in the article in the House’s bill of impeachment than Senate Rule 23 permitted. (In effect, he was arguing that the charges needed to be separated by periods, not by semi-colons.) Third, because the defense team didn’t get the House’s evidence until earlier this week, the proceedings violated due process. (Of course, Trump didn’t hire his attorneys until a few days before the trial commenced.) And fourth, Trump’s speech was protected by the First Amendment, an argument that noted conservative legal scholars had debunked. Calling for an insurrection, and then refusing to stop it, they wrote, was not protected speech and, in fact, was plainly a violation of his oath of office.
You’ll note that nowhere on that list did Trump’s attorneys say that you could acquit him because he didn’t summon the insurrectionists who stormed the Capitol on January 6, or then cheered them on. The prosecution, of course, made a convincing case that Trump did just that.
Don’t take my word for it, take Mitch McConnell’s. In what may be the weirdest coda to a trial in recorded history, McConnell spoke from the Senate floor after he joined 42 other senators, all Republicans, to acquit Trump. In his talk, McConnell affirmed virtually every particular of the prosecution’s case. Trump, he said, was “practically and morally responsible” for the violence at the Capitol, guilty for incessantly peddling the Big Lie that the election had been stolen, guilty for inciting his supporters to try to stop the vote certification, guilty for refusing to call a halt to the violence as members of Congress scurried for their lives. Trump’s conduct, he said, was “disgraceful.” Up to that point, his speech could have been written by Jamie Raskin. Only after that preamble did McConnell say that he had voted to acquit because he didn’t believe a former president could be convicted. He then went on to note, as if expressing a hope, that Trump could still be tried and convicted in criminal court for what he’d done.
A little backstory would be useful. The House impeached Trump on January 13, when he was still president. McConnell, then in charge of the Senate only because the Georgia elections hadn’t been certified yet, refused to reopen the chamber from recess to begin the trial. Once the trial got started, McConnell decided it could no longer be held. McConnell’s entire rationale for acquittal is predicated on his personal delay tactics.
As the ultimate political cynic, there was really nothing surprising about McConnell’s stance. He’d made sure there was something in his performance today for both Trump-loving Republicans (who applauded his vote) and the relative handful of Trump-critics in Republican ranks (who applauded his moral condemnation) to like. Democratic House Manager Joe Neguse had sought earlier in the day to prick McConnell’s conscience by name-checking in his summation a brief list of past senators who’d cast heroic votes, noting in particular Kentucky’s John Sherman Cooper, a liberal Republican after whom the young Mitch McConnell once modeled himself. But to prick McConnell’s conscience, you first have to establish it exists.
Over in the House, Mitch’s fellow Republican leader, Kevin McCarthy, also survived the day, though for a time he appeared to have abruptly been plunged into near-mortal peril. At the start of the day’s session, the House managers startled everyone by saying that they wished to call one witness: Rep. Jaime Herrera Beutler (R-WA), who’d been taking notes throughout the mad scrambles of January 6, and whose notes recounted what McCarthy had told her Donald Trump had said when McCarthy had called him begging him to tell the insurrectionists to stop. Trump, her notes reflected, had told McCarthy that the mob apparently cared more about fixing the election than he did.
For two hours, the trial was suspended while Democrats and Republicans sought ways to slam shut the Pandora’s Box that calling witnesses would entail. The Republicans feared that they couldn’t handle the truth and would have to dismiss it more clumsily than if they didn’t have to face damning testimony from one of their own. The Democrats feared that the trial’s slowdown and the retaliatory Republican rage (Trump’s lawyers threatened to call over 300 witnesses) would delay President Biden’s relief package and derail many of his other early initiatives.
The two parties settled simply on entering Herrera Butler’s account into the record, thus sparing McCarthy from having to either affirm her notes and damage Trump’s case or accuse a member of his own caucus of lying. House Republicans, he knew, would be after him either way, most particularly if he said that Herrera Butler was right. If he did, Jim Jordan, the House’s foremost Trump zealot, would probably challenge his position as leader within the hour.
It was an awkward day for Republicans nonetheless. Their case was made no easier by Trump attorney van der Veer’s summation, navigated despite the handicap imposed by the moving, measured and personal House manager summations that preceded his. In his presentations on previous days, van der Veen had roared, sneered and shaken his fist at the House managers, in the best Trumpian tradition of putting his accusers on trial, surely in the hopes that his belligerence would lead to a regular slot on Fox News or one of its further-right upstart competitors. Plainly, that wouldn’t work following the appeals to common humanity and the judgment of history that the House managers had made. Reduced instead to a dry recitation of the four technical escape hatches listed above, and, by his standards, all but mumbled assaults on the prosecutors, he turned in a soporific performance, much as Trump himself, in the rare instances when he has to read a speech without interpolations, subsides to a somnolent sing-song.
Whether it was the eloquence today of Raskin, Neguse and David Cicilline when contrasted with van der Veen’s snore, or simply the overall power of the case against Trump and the feebleness of his defense, more Republicans voted to convict than had been expected. Susan Collins, Lisa Murkowski, Mitt Romney and Ben Sasse had been counted upon, but they were joined by Pennsylvania’s Patrick Toomey and two Southerners: North Carolina’s Richard Burr and Louisiana’s Bill Cassidy. Toomey and Burr, it should be noted, have already announced that they wouldn’t seek re-election. In total, these Republicans swelled the total of guilty votes to 57, but under the two-thirds requirement for guilt, they fell ten votes short.
The House managers noted, quite rightly, that this really was a vote and a verdict that historians and scholars would be writing about 100 years from now. I don’t know if legal scholars will want to revisit this travesty. I’m sure though, that scholars of epistemic closure will put today’s vote on every course list they hand to their students. It’ll be listed among those cases where blind ideology or loyalty or timidity triumphed over observable and observed fact. Just as Galileo had to recant his belief in a heliocentric system, but muttered, “And yet it moves,” so the fact of Trump’s culpability will outlast the acquittal gifted him today by an invertebrate Republican Senate afraid of its delusional base.
