Senate Television via AP
Bruce Castor, an attorney for former President Donald Trump, speaks on the first day of the second impeachment trial of Trump in the Senate, February 9, 2021, in Washington.
The second impeachment trial of Donald Trump for high crimes and misdemeanors began with a bang (the prosecution’s case), subsided to a whimper (the first half of the defense’s case), and ended in partisan pettifoggery (the second half of the defense’s case).
The bang was provided by the presentations of the three Democratic House managers who spoke today (Maryland’s Jamie Raskin, Colorado’s Joe Neguse, and Rhode Island’s David Cicilline), and by a video they presented that was chilling beyond even their very well-chosen words. The video captured far more of the January 6 mob’s violence than we’d seen before, and also more of Trump’s speech that day than most of us have seen before, too. It showed, among other things, Trump telling his followers that when fraud of the kind he alleged occurs, “you’re allowed to go by very different rules.”
Thus allowed, his followers did just that: smashing windows, breaking doors, beating cops, calling for blood and sometimes getting it.
The emotional impact of videos showing incitement and mayhem made as powerful a case as could be presented. Raskin and his associates had clearly decided to eschew a dry legal argument at the outset and lead with evidence so immersive and upsetting that it would dominate the proceedings. I was reminded of Fritz Lang’s Fury, his first American film after he’d fled Nazi Germany, in which a trial is held for the mob members who’d attempted to lynch the film’s protagonist, played by Spencer Tracy. The defendants believe there’s no way the prosecution could document their individual culpability, but they’d overlooked the rise of Lang’s own medium—film. Their participation was recorded by newsreel photographers, and the prosecution screens a film put together from newsreel footage that makes clear their individual guilt and captures the horror of the overall event.
In much the same way, the January 6 insurrectionists overlooked the recording capacities of iPhones, and Trump failed to care that he’d been televised inciting insurrection.
“If that’s not an impeachable offense,” Raskin said at the conclusion of the video, “there’s no such thing.”
The core of Raskin’s case for the constitutionality of trying a former president—which the Senate had to affirm for the trial to proceed—was that if senators voted against holding the trial, they’d create a “January exception” to the rule of law, under which outgoing presidents could effectively run amok in their last weeks in office without fear of consequences. Raskin, Neguse, and Cicilline then went through the Constitution’s several passages on impeachment and conviction, the discussions the Constitution’s authors had about those provisions, and the previous trials that the Senate held for former federal officials. The most telling of these citations, I thought, was that of framer George Mason (long a hero, however misunderstood, of American conservatives), who said that he and his fellow drafters of the Constitution should look to the British Parliament’s impeachment and conviction of Warren Hastings as a model for their own impeachment clauses. Hastings, as Mason pointed out and his co-authors knew very well, had been impeached two years after he’d stepped down from his post as a leading British official in colonial India.
The initial strategy that Donald Trump’s legal team appeared to embrace, by contrast, was to put both the senators and the viewing public into a sound sleep. Former suburban Philadelphia prosecutor Bruce Castor led off with a presentation so meandering that it appeared to have little to do with the constitutionality of the proceedings or, indeed, with the proceedings at all. He devoted the first half to extolling the senators as “gallant men,” so cool-headed they could withstand the public’s reaction to “the problems of the day.” (As if the problems of January 6 were those of any other day.) Castor’s “defense” was so halting and off-topic that no one listening to him would seek his services for anything more serious than an overdue library-book fine.
The individual surely most upset by Castor’s 40 Minutes in Search of a Topic was his co-counsel, David Schoen, who, when finally allowed to speak, was fairly bursting with right-wing rage, textual misreadings, and a self-contradictory argument. Schoen lit into House Democrats for impeaching Trump for solely partisan reasons, branding them, in the approved argot of the Trumpian right, as “elitists” and their grievances as “cultural.”
He then proceeded to make the case against impeaching a former president by so reducing constitutional textualism that it seemed a parody of the doctrine. While the House managers had carefully gone through the sentences and paragraphs in which the Constitution makes clear that both presidents and former presidents can be tried by the Senate, Schoen focused solely on the word “president,” insisting that because in one sentence it referred just to a sitting president, it had to have that meaning in other sentences as well, even though those sentences made clear that former presidents could be tried, too.
The emotional impact of videos showing incitement and mayhem made as powerful a case as could be presented.
But merely asserting that the Senate couldn’t try a former president was only half of Schoen’s argument. The other half was that the House impeachment proceedings hadn’t afforded Trump due process because they were so hurried. In other words, the House should have taken more time in its deliberations, but since taking more time would have ensured that Trump would be out of office, those deliberations, in Schoen’s view, would have been unconstitutional. Heads, Trump wins; tails, Trump wins.
In a sense, Schoen merely affirmed that Raskin’s “January exception” posed a clear and present danger to the republic, and a future danger, too.
In a pretrial vote held last week, just five of the 50 Republican senators voted with all the Senate Democrats to move ahead to trial. After today’s arguments, their ranks increased by all of one. Louisiana Republican Bill Cassidy was the additional vote in favor of the trial proceeding, a gutsy one considering the general condition of Louisiana Republicans. Still, that means that the number of Republicans who consider a guilty verdict even constitutional likely maxes out at six, short of the 17 needed for conviction. Tellingly, those ranks did not include Mitch McConnell, who earlier had created a national production of Hamlet in the media with hints that he could vote to convict Trump.
At the outset of today’s proceedings, the really true-blue Trumpians and 2024 Republican presidential hopefuls clearly felt the need to differentiate themselves from their GOP peers, who’d join them in voting not guilty but nonetheless lacked the proper level of insane Trumpian zeal. Eleven Republicans voted against the rule, agreed upon by Majority Leader Chuck Schumer and Minority Leader McConnell, under which the day’s presentations would proceed. Ted Cruz, Josh Hawley, Marco Rubio, and Rand Paul all staked out their turf, right of which and more Trumpian than which it’s impossible to get.
I wonder, though, if they’ve really done enough to demonstrate the last full measure of their devotion. I think of the Vietnamese Buddhist monks who immolated themselves 60 years ago to protest the outrages they and their faith had endured, and how a crackling fire of the True Trump Eleven would warm a cold Washington winter.
