The simple question posed by Donald Trump’s second impeachment trial that begins Tuesday is whether a president who loses reelection can get away with a violent coup attempt in a desperate bid to stay in power.
The answer contained in the former commander-in-chief’s likely acquittal for inciting a deadly mob assault on the Capitol will echo through generations and may influence the outcome of some unknowable future test of US democracy.
But more contemporary concerns that do not depend on the verdict of the Senate trial — like the consistent cowardice of Republicans who refuse to hold Trump to account and the effect of the evidence on the American public — are also hugely consequential since they will shape the modern political age.
Events of the next week or so will inform the country’s capacity to move on from a traumatic presidency that left it as divided as at any time since the Civil War. And the unpredictable partisan fallout unleashed by a trial unfolding inside an eight-foot high fence around the Capitol amid fears of more violence will have a direct effect on President Joe Biden’s hopes of mustering the national will needed to conquer multiple crises.
The trial will begin just a month after a now infamous day, when Trump greeted a huge crowd in Washington already primed for revolt by his weeks of false claims of election fraud. The subsequent invasion of the US Capitol during a joint session of Congress to certify Biden’s election victory led to five deaths and saw Trump fans parading unimpeded through the halls of the iconic building as lawmakers fled to safety.
By arguing that the trial is unconstitutional, politically motivated and an infringement of his free speech rights, Trump’s defense will resurface a core theme of his tenure that a president is all-powerful and immune from censure for anti-democratic behavior rooted in a volcanic, autocratic temperament.
A majority of Senate Republicans have indicated that they will not wrestle with Trump’s behavior but will take refuge in a questionable argument that a President who was impeached while in office for seditious behavior cannot be tried after returning to private life.
That means there is a little chance of a two-thirds majority to convict Trump among 100 senators who will serve as jurors in the chamber that became a crime scene to which many of them were witnesses.
But Democratic House impeachment managers will argue that if whipping up a rebellion against the peaceful transfer of US power is not an impeachable offense, nothing is. The prosecution case will unveil evidence of the horror unfolding in the Capitol that will make clear that the US political system was forced right to the brink.
While the managers will likely fail to secure a prohibition on Trump serving in federal office in future, they hope to so damn him in public perception that a political comeback in 2024 will be impossible.
Video of Trump declaring to an angry crowd he had called to Washington on January 6 “if you don’t fight like hell, we are not going to have a country anymore,” followed by clips of rioters shouting “fight for Trump” as they smashed their way into the Capitol will have a powerful effect. They will also make uncomfortable viewing for GOP senators who spent four years ignoring Trump’s lawless conduct for their own political preservation.
The price to be paid for deserting an ex-president who still dominates his party is being demonstrated by the backlash directed at 10 Republicans who voted to impeach in the House.
A window into America’s political soul
The trial, however it ends, will mark an extraordinary and appropriate capstone to the most divisive presidency in American history that tore at the basic political guarantees laid down by the founders nearly 250 years ago.
At a moment of acute national crisis, amid a pandemic and economic disaster exacerbated by Trump’s neglect in office, the trial will open a window into America’s bitterly fractured unity.
Even after his presidency ended, Washington is under siege from extremism, Trump’s trashing of truth with false claims of election fraud and unhinged conspiracies that show the fight to save US democracy did not end on Inauguration Day.
It’s possible a handful of Senate Republicans will emulate Utah’s Sen. Mitt Romney, the only member of his party to vote to convict Trump in his first trial. And Republican Rep. Adam Kinzinger of Illinois, who voted to impeach Trump, wrote an op-ed in The Washington Post Monday encouraging Senate Republicans to vote to convict Trump, saying it “is necessary to save America from going further down a sad, dangerous road.”
But Trump is convinced he will be acquitted. His own concerns about accountability are confined to Republicans such as Rep. Liz Cheney who ignored his personality cult and voted to impeach, sources told CNN’s Jim Acosta.
From the balmy luxury in his Florida resort, the ex-President turned down a Democratic request to testify in his own defense, a factor that House impeachment managers will use to bolster legal arguments condemning him.
The trial will consume hours a day over the next few weeks, but it will be only one half of a compelling political story that is unfolding in Washington.
Biden, three weeks into his term, is intensifying his efforts to stand up his administration and to rescue the country with vaccines before new variants of Covid-19 trigger another deadly wave of infections.
The new commander-in-chief has steered clear of impeachment drama, leaving it to the new Democratic leadership on Capitol Hill to plow ahead. But Biden, who is pushing $1.9 trillion dollar pandemic relief plan, has a vested interest in the Senate wrapping up the process as quickly as possible.
“The Senate has to work it out,” the President told reporters at the White House on Monday when asked if his predecessor should be deprived of his future political rights and the privileges granted to a former president.
A familiar line of defense
Trump’s hurriedly overhauled impeachment defense team on Monday laid out their strategy in pre-trial briefs. They will first argue that the process is unconstitutional and motivated by a political vendetta.
“This was only ever a selfish attempt by Democratic leadership in the House to prey upon the feelings of horror and confusion that fell upon all Americans across the entire political spectrum upon seeing the destruction at the Capitol on January 6 by a few hundred people,” the lawyers wrote.
The Trump defense will also revive one of the long-held tropes of the ex-President’s apologists — that his aggressive rhetoric should be taken figuratively not literally, with a claim that his call for the mob to “fight like hell” was metaphorical. The lawyers have also previously made clear that they will claim that impeaching Trump for his wild lies about election fraud deprives him of his First Amendment right to free speech. His team has also posited, despite multiple lawsuits and certifications of votes by states and Congress, that there is no evidence to disprove his false claims of voter fraud — so prolonging the Big Lie that the election was stolen from the former President.
In a counter filling on the eve of the trial on Monday, Democratic House impeachment managers accused Trump’s defense of indulging in “contortions” to support his discredited claims of a “rigged” and “stolen” election.
And they argue that the evidence of Trump’s basic crime against the Constitution is overwhelming.
“President Trump violated his Oath of Office and betrayed the American people,” the brief said. “His incitement of insurrection against the United States government — which disrupted the peaceful transfer of power — is the most grievous constitutional crime ever committed by a president.”
House prosecutors may also seize on filings by some of the many pro-Trump protestors arrested over the Capitol incursion. One defendant, Matthew Miller, argues that he was “following the directions” of Trump to march on Congress. Another alleged rioter — the so-called Qanon Shaman, Jacob Chansley — told CNN on Monday, “I am deeply disappointed in former President Trump. He was not honorable,” and his lawyer said he had “heeded the words of the former President.”
The relatively uncomplicated nature of the charge against Trump and the more compressed nature of the trial contrasts with his first impeachment that resulted in his acquittal last year, over claims he abused his power to get Ukraine to intervene in the election to damage Biden. Trump now accounts for two of the four presidential impeachments in US history.
‘A flat-out violation’
The claim that a former president cannot be tried after being impeached relies on a hyper-literal reading of the Constitution. Trump’s supporters argue the trial is moot since impeachment is about removing a President from office and Trump has already left power. But some legal analysts counter that the trial is supported by precedent following the impeachment of several former officials or judges in US history and is also validated by the provision in the Constitution for officials to be barred from future federal office.
Conservative legal scholar and frequent Trump critic George Conway told CNN’s Jake Tapper on Monday that the former President was also rightly impeached because when the violence was raging on January 6 — during the congressional process designed to certify the election of a new president — he failed in his obligation to defend the Constitution and the American people.
“He wanted something to disrupt the electoral vote count that would mean he would no longer be President of the United States,” Conway said.
“None of that is protected by the First Amendment. It’s a flat out violation of his oath of office and it’s impeachable and he should be punished by being barred from ever holding future federal office.”