Yesterday, I missed the first several hours of the Senate trial of Donald J. Trump for “incitement to insurrection.” I was in surgery in the afternoon. The dentist extracted a tooth and built up the bone in my jaw so that, in three months, I could have a tooth implant. I could not have chosen a better time. For when the freezing was starting to recede and I could feel the pain of the operation, when I got home and could eventually taste the foul remnants of bleeding and stitching (five in total), what better distraction than the most important show trial of the twenty-first century thus far, including Trump’s first impeachment trial.
I call it a show trial, not simply because the outcome has almost certainly been predetermined – he is unlikely to be convicted in spite of the powerful case being made to support the change, but because the intent is not to find Trump guilty or innocent as charged, but to present and argue for the truth of the accusation rather than finding Trump guilty and punishing him. I will defend my position that this is a show trial in a subsequent blog. But first I need to recapitulate the evidence and strategy of the prosecution focused on exposing to the public what took place and how what took case proved that Trump incited insurrection.
I had witnessed the first stage of the trial on Tuesday that hinged on whether Donald Trump could be tried by the Senate at all since he no longer held the position of president. The core issue in debate was not in contention, though more clarification might have helped. The U.S. penal code (§ 2383) provides that, “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
I assume that the House of Representatives did not charge Trump with setting foot on the path of insurrection because, though he promised to walk down Pennsylvania Avenue with his followers, he did no such thing. They could have explored his cowardice, or his lack of integrity in his lying directly to his followers, or his fall-back prudence and self-protection, but the prosecutors chose not to. They were very matter-of-fact. very pointed and very succinct in making their case and did not want to deflect from their main argument.
This is not a criminal trial. It is a political trial carried out by a political body against an individual with respect to that individual’s duties as a government official. The law is relevant in describing the offence, but not with respect to the penalty. There is no danger that Trump will serve time in jail, at least not as a result of the trial in the Senate. The absence of such an outcome, presumably, might have made it easier to get a conviction, but all the evidence heard thus far of responses by Republicans to the powerful case being made is that, for the vast majority of Republicans, they will not change their prior intent of acquitting Donald Trump, thereby depriving the Senate of the two-thirds majority needed to arrive at a conviction.
Trump is not being charged with assisting or engaging in rebellion or insurrection, but for inciting such activity against the authority of the United States, in particular, against the authority of the legislative branch of government to authorize the Electoral College vote for the President of the United States, a position he still held at the time of the insurrection. The climax of that incitement took place on 6 January 2021, the day on which the vote was being formally counted to designate his opponent as the next president and to finalize the conclusion that Trump had clearly and unequivocally lost that election.
The one article of impeachment read: “In his [Donald John Trump] conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States, in that: on January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice-President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that ‘we won this election, and we won it by a landslide.’ He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘if you don’t fight like hell, you’re not going to have a country anymore.’ Thus, incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed 20 law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to ‘find’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so. In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States. Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United 23 States.”
One has to read the full article of impeachment to understand why the managers of the prosecution appointed by the House of Representatives repeated and repeated the following:
· Trump violated his oath of office to protect the Constitution.
· He incited violence against the government.
· In doing so, he disrupted and endangered the ability of Congress to fulfill its duties under the Constitution.
· The incitement did not just take place after the election, but before and during the election in promoting the lie that the election would be and was fraudulent.
· The incitement included efforts to get officials to change the voting results.
· The incitement climaxed with his speech to a rally that he called where he urged his supporters to march down Pennsylvania Avenue on Congress.
· That march and the invasion of Congress deliberately interfered with and disrupted the ability of Congress to fulfill its sworn duty.
· The Capitol was breached and vandalized.
· Law officers were injured and three died.
· Congressmen and women were menaced.
To repeat, Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.
None of the above was in contention except whether Trump incited the events that took place. The overwhelming case tried to establish that, as these events unfolded, Donald Trump encouraged them, never tried to instruct his followers to desist, never acted to call out the National Guard to protect Congress, and, when all the destruction and intimidation had taken place, never reprimanded his followers for their actions nor repudiated those actions. Further, he failed to do so contrary to the urging of his staff and advisers, representatives in his party and even family members. He reiterated that the “protesters” had behaved peacefully, contrary to what we and the members of Congress had witnessed, and members of Congress had also experienced. He praised his followers and finally instructed them to go home “in peace.”
In re-reading the indictment, the surprise is that, in the first part of the trial when the question was whether the trial itself was constitutional since President Trump was no longer in office and observers declared unanimously, including Trump, that has attorneys totally botched the job in providing a defence against the prosecution’s claims, that those attorneys had not tried to argue that the whole point of the trial, according to the actual words of the impeachment, demonstrated that, “Donald John Trump “will remain a threat to national security, democracy, and the Constitution if allowed to remain in office.” The defence, one might surmise, should not have been that the Senate could not have tried an official who had left office when the overwhelming preponderance of legal and political precedent and scholarship clearly stated that he could be tried, but that Trump was being tried for continuing to be a threat as long as he “remained in office.” However, since he was no longer in office, he could not remain a threat. Thus, the whole point of the indictment seemed moot.
Perhaps, Trump’s legal defence team will mount such an argument today or tomorrow. But given the briefs filed in defence and the arguments put forth thus far, there is no indication at the present time that they will argue that since Trump had not remained in office, he cannot be a threat, and, if the point of the trial is to remove the threat, it is pointless since one cannot remove what is no longer there. The whole point is moot, except to deny Trump the opportunity to present himself to the people for election at another time. And if that is the point, then the whole trial has nothing to do with whether Trump did or did not incite insurrection, but is simply an attempt by his opponents, both in the opposition Democrats and, for the few, in his own party (the RINOs), to deny the right of American voters to determine who should lead them.
If the official original intention was removal, the whole point of the trial is absurd. If the point is to establish that Trump remains a threat, as long as he remains in office, the voters have already made their judgment and determined that he cannot remain in office. In other words, even if the defence manages to prove that Trump’s words and actions and inactions may have amounted to incitement, at the very least as interpreted by the mob, it would not matter given the intent of the indictment.
To Be Continued: I: Reflections on Donald Trump’s Trial as a Show