This is the last in a series on show trials. It is the only one focused on the rare case of a show trial where the accused was virtually unequivocally guilty of the charge but acquitted nevertheless. More specifically, Donald Trump was charged with inciting an insurrection. Though he had been impeached in the House of Representatives, he was discharged completely from the accusation because two-thirds of the Senate of the United States failed to find him guilty.
It is one thing not to have found Donald Trump guilty in the Senate. However, in the court of public opinion, only 58% of Americans were convinced that he should have been found guilty according to an ABC/Ipsos poll. That was just a scratch more than the 56% of senators who found him guilty, 11% less than the two-thirds necessary to convict him. It was an improvement over his first impeachment trial the previous year when 49% of the public approved of the Senate vote and 47% disapproved. But by no stretch could the results be considered a victory in the court of public opinion. A majority may do for an election. However, one of the characteristics of a show trial is that the overwhelming majority of the public must be convinced. This did not happen in the second impeachment.
There is another way to look at the result. 75 million Americans voted for Donald Trump in the 2020 election, seven million more than supported him in the 2016 election. 82 million voted for Joe Biden. Donald Trump still enjoyed almost 48% support among American voters during the 2020 election. Between the election and the impeachment trial his support among his own voters slipped only 18% in spite of the overwhelming evidence that Donald Trump had indeed incited an insurrection. In an actual poll of Republican voters, Donald Trump lost only 14% support.
If this was a show trial, something went wrong. It is not as if the managers from the House of Representatives had not conducted an excellent prosecution on the charge. Their conduct was almost universally applauded as masterful. In contrast, the defence attorneys were considered a disaster. If Mitch McConnell, the Senate minority leader, was any indication, the vast majority of Republican senators were convinced of Donald Trump’s guilt.
After the trial, Mitch McConnell on 13 February, in a speech from the Senate floor, delivered an address that was universally considered a scalding indictment. He specifically stated that Donald Trump was morally and practically responsible for the 6 January riot against the Capitol. He excoriated Trump and called his actions on that day “a disgraceful, disgraceful dereliction of duty.” His tone was bitter as he castigated Trump for inciting the crowds, failing to offer Vice-President Pence protection when his life had been threatened and the mob was calling for his lynching, failed to call out the National Guard when the Capitol police and the Washington police forces were overwhelmed by the mob. And when he called off the insurrectionists finally, he did not chastise them, but expressed his love and admiration for them when he advised them to go home. “A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags and screaming their loyalty to him.” So pronounced Mitch McConnell.
Why did Mitch McConnell vote to acquit? It could have been because in the forthcoming battle for the soul of the Republican Party, McConnell did not want to put himself as being in league with the Democrats. Or perhaps he was genuinely convinced that its was illegitimate to impeach a president once he was no longer in office. There had been no time to conduct a formal investigation of the charge. Further, the FBI criminal investigation was ongoing and still in its infancy at the time of the impeachment trial. There had been nothing equivalent to the many committee hearings or the 600-page report on the articles of impeachment in Trump’s first trial.
The Senate was not in session when the articles of impeachment were passed and would not be in session until after the new president took office. There was the jockeying back and forth about when the House of Representatives would send the Senate the charge. Article II, Section 4, of the Constitution, read “The President . . shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.” Did not that imply that he had to be holding office when the trial took place?
In the Federalist Papers (30), James Madison had written that “the President of the United States is impeachable at any time during his continuance in office.” (my italics) Further, if the major penalty was removal, did this not mean that he had to be serving in office at the time of conviction? However, no matter what arguments of precedent were used, no matter whether the Senators who voted for acquittal were or were not sincerely convinced that the trial of a former president was illegitimate, these arguments were but parts of the show trial and, in themselves, proved nothing.
The real problem was that the prosecution failed to recognize that it was a show trial. In a trial to render justice in a court of law or even a political court, such as the Senate, the issue is whether there is sufficient evidence to justify a finding of guilt. Th real issue was justice. That is not the standard in a show trial. In such an effort, it is not the specific behaviour that is on trial but the man. It is his persona and all he stands for – whether it be Socrates, Dreyfus, Eichmann or Donald Trump. You cannot win an appropriate verdict in a show trial if the major focus is on proving the justice of the accusation.
Further, the problem was not proving that Donald Trump was an obnoxious boor. He had spent a career establishing his reputation on precisely such grounds. Why would the public, or at least a more significant portion of his Republican supporters, turn against him for what they already knew to be true?
We live in an attention society. We live at a time when celebrity is given an independent and high value. We live in an age when image matters, not words, when words can be mangled, misspelled and misused, but do not in the end count since what counts is the image that remains as the residue. In a justice trial, words do matter. In a show trial, less so. Much less so. This is particularly true in a society that bases its sense of truth on the imagery put before it rather than a close and critical assessment of whether words can be connected directly with deeds. In the Brave New World in which we find ourselves, appearances have the highest value, not substance. And proof of guilt over an action is a substantive rather than impressionistic issue.
Image not only lorded it over words on a page, but so did affect over rationality. In the past, it is true that we paid too little attention to the politics of affect. Even though David Hume and Adam Smith had stressed the importance of sentiment in a proto-democracy and a proto-consumer society, emotion was not put front and centre in Donald Trump’s trial, or, at least, not the right emotions.
Whoa! Surely this cannot be true. After all, the trial depended overwhelmingly on the presentation of visual images of rioters wielding sticks and poles at police officers, breaking windows, trashing the Speaker’s office and occupying the seat of the Chair of the Senate. The pictures of senators and congressmen and women in flight were perhaps the most critical parts of the presentation of evidence. That is indisputibly true. But what emotions were aroused? Fears on behalf of the politicians and their staffs. Panic at the situation in which some of the police officers found themselves. But was there any compassion aroused for them? Was there any visceral hatred aroused against the rioters? Most importantly, was hatred directed at Donald Trump in any different way than in the previous four years of his increasing obnoxious behaviour? And even if hatred was the primary emotion directed at Trump at even a qualitatively different level, did it matter in the court of public opinion?
After all, Trump had run as a despised individual. Love him or hate him. Nothing in between. He was not the Ronald Reagan of the Republican Party who soothed and simplified. He was a disrupter par excellence. He deliberately antagonized. He did not win office by practicing a Norman Vincent Peal strategy of how to win friends, but in a systematic and well-conceived effort to define enemies and to consolidate the hatred of others directed at those enemies.
In a world of fragmented rather than mass media, he needed only to unite people in their hatred as he divided then by allowing them to pick different sides of his ostensible character with which they could identify. He did not have to be all things to all men, just different things to different men:
- The womanizer
- The bully
- The serial liar who got away with those lies
- One able to win power to be able to appoint anti-abortion judges
- The purported billionaire
- The flashy stylist
- The smooth talker
- The man of plain speech.
In a niche society, he was himself a fragmented persona of many parts that never did cohere. He suited a society that had become united as it grew angrier and more discontented but was divided into different silos by their fractured cultures, their different tastes and their widely differentiated allegiances. Donald Trump was a great fit for an age of heightened melodrama and sensationalist sex. He epitomized, not the pornography of power, but the power of pornography extended even into the every part of the world, including the drab world of building construction. He had transformed himself into a brand to rent space in office towers, hotel suites, expensive condos and memberships in clubs, wines and times on golf courses. He had become the shyster of post-modernity.
In such a culture, did truth matter? Did justice? Notoriety and celebrity counted much more than any of the older virtues. This devotee of TV had become its most inflate emoji. If FDR had made himself the first radio president and Reagan the first very successful television president when TV enjoyed a mass and relatively monolithic audience, Trump, first using TV, became the president of the twitter universe as TV fragmented and split apart. He graduated from being a New York carnie to a TV “bad guy” to a bird tweeter now omnipresent in the universe.
The question then is how you try such a figure? And what do you try him for? Inciting a riot?? But incitement lay at the heart of modern society? Protesting, rioting – the American public was barely able to distinguish the two. Let’s cut to the chase. The problem was not to convict Donald Trump for that for which he was already famous – his ability to arouse an audience to believe irrational thoughts and engage in irrational action. The job was to indict him for being weak rather than strong, being a coward rather than one who flaunted the courage of his convictions, however, off-the-wall. It was his incompetence as a leader of even an insurrection that had to be uncovered.
He had to be revealed as a balloon buffoon incapable of pulling off a coup when everything to do so was at his disposal. Now it is understandable why the House managers did not want to unveil Trump’s incompetence when they were trying to connect him with an attempt to overthrow a duly elected president. Revealing the cowardice of a leader was a peculiar way of establishing his leadership of an insurrection. But that is exactly what the managers should have emphasized.
After all, Trump had said that “we” will march down Pennsylvania Avenue to the Capitol together, and then retreated into the White House to watch it all on television. Given his role as Commander-in-Chief, if he had studied any successful coup, he would have learned that he would have had to recruit a key part of the military to his cause and neutralized the rest, but he had over the years alienated the military with his erratic behaviour for which more tools of war and better salaries could not compensate. The rioting leadership would have had to undergo practice runs and establish divisions of responsibility as they headed towards capturing and destroying the ballots of the Electoral College.
America was far readier for a dictator to seize power than most people imagined. It was fragmented and incoherent. The opposition that won power misunderstood the threat that stood before them and wanted to try the leader according to older and firmer standards of justice. But those standards demanded that the opposite be put on display – facts and images that stood for facts rather than emotions that could dissolve Donald Trump’s support. Of course, if the managers emphasized his cowardice and his incompetence, how could he be held responsible for inciting a riot? But your utter incapacity offers no indication that prevents you from being stupid. You do not have to be astute and determined to mount a serious assault on a government.
Trump should have been revealed as a weakling hiding behind a bully’s pulpit. He should have been revealed as an utter incompetent, not simply in being president, but in retaining the presidency by fair means or foul, a rigged election or the use of force. He was a loser on both counts. Then it is possible that the managers could have penetrated public opinion and even aroused the bear to re-emerge from his lair and seal the proof of Trump’s ignorance, incompetence, weakness and cowardice.