On the Senate's Second Acquittal of Former President Donald Trump

 

On the Senate’s Second Acquittal of Former President Donald Trump

February 13, 2021

 

On February 13, 2021, by a vote of 57 to 43 for conviction, the United States Senate acquitted former president Donald Trump of the charge of inciting the riot at the United States Capitol on January 6, 2021, pursuant to the Article of Impeachment that the House of Representatives sent to the Senate. It was the second time the Senate had acquitted Trump in an impeachment trial, and the second time that that result was a travesty. All Democratic senators were joined by 7 Republican Senators who voted for conviction, but the Constitution requires a two-thirds majority for an impeachment conviction. The result of the impeachment trial was therefore acquittal. In their presentations of February 10 and 11 the House impeachment managers proved beyond a shadow of a doubt that Trump incited that riot. It is not a defense to that claim that the evidence does not rise to the level of the requirements of the criminal laws for a charge of incitement, although it very probably does. This is an impeachment trial not a criminal trial in court. What matters is that the insurrection of January 6, 2021, which led to this impeachment, would not have happened but for Trump’s words over the preceding many months. Before the November 3, 2020, presidential election Trump said over and over again that the election would be rigged, and that was the only way he could lose. After he lost the election he said hundreds of times that he had actually won that election by a landslide. He said over and over that the results showing that former Vice President Biden had beaten him handily were only the result of election fraud. He practiced Goebbels’ tactic of the big lie, and it worked. There wasn’t a shred of evidence to support Trump’s claims. Yet he repeated those claims so often that a substantial majority of Republicans and a few other people came to believe that they were true. Trump told his supporters over and over again that they had to “fight like hell” or else they would have an illegitimate president and no country left.

All of Trump’s efforts to incite the fanatics in his base to violence culminated on January 6, 2021, when he gave a speech to a huge crowd at the Ellipse, which is down Pennsylvania Avenue from the Capitol. Trump organized the rally to which that crowd came. He invited everyone he called “patriots” to come to Washington, D.C., on January 6. He told them that things would be “wild” that day. He chose January 6 as the date for his rally for only one reason. That would be the day when Congress would meet to carry out its constitutional duty of confirming the vote of the electoral college. At that rally, as the crowd chanted “stop the steal,” he said that the people there had to “fight like hell” to overturn the results of the presidential election, that is, to stop Congress from performing its constitutional duty, or they wouldn’t have a country anymore. Vice President Pence would preside at that meeting of Congress. Trump maintained that Pence had the authority under the Constitution to send the election results back to the states for a do-over. Trump claimed that if that were done he would surely win. Pence did not have that authority, and he told Trump that he did not when Trump asked him to send the election back to the states. Nonetheless, Trump blamed Pence for not doing the thing Trump had asked him to that Pence had no power to do. Trump nonetheless got the crowd worked up against Pence for not doing what Pence couldn’t do. Trump may have used the word “fraud” as many as 100 times in his speech. The crowd chanted “Stop the Steal!,” a slogan that didn’t originated with Trump himself but that he happily adopted. Once again he told them that they had to “fight like hell” to overturn the election, so they chanted “Fight for Trump!” After a while some of them chanted “Hang Mike Pence!” It had to be obvious to Trump that the crowd was agitated and that some of them were intent on violence. Nonetheless he told them that “we” were going to walk down to the Capitol although the permit the organizers had for the rally limited it to the Eclipse. He said they would go to demonstrate peacefully, but in the whole speech he said that only once. He told the crowd that he would go with them, which of course he did not. The thrust of his speech was that the crowd had to go to the Capitol to stop Congress from certifying the election results. Clearly a significant number of people in the crowd Trump had asked to come to Washington were whipped into a frenzy and were more than willing to go to the Capitol to do what Trump told them to do, to “fight like hell.”

Some in the crowd did precisely that. They marched to the Capitol, built a gallows in front of it, broke into the building and marauded through it looking for Pence, Speaker Pelosi, or probably any other member of Congress they could get their hands on. Many members of Congress took off their pins that identified them as such hoping the mob would not recognize them. Some of rioters were carrying the plastic hand restraints the police use when they arrest someone. Some of them were still chanting “Hang Mike Pence.” They came within a few yards of finding him. They came very close to some of the legislators too including at least Mitt Romney. Many of the members of Congress were essentially barricaded in their chambers. They were told to put on the gas masks that were under their chairs. (Who knew that there were gas masks under the chairs in the Congressional chambers?) Some of them had been in the Senate gallery for purposes of social isolation. They crouched in fear not knowing what would happen to them. The Capitol police were largely overwhelmed, but they did manage to evacuate Mike Pence and the members of Congress to relative safety. Many members, staff, and other people in the Capitol that day called loved ones to say goodbye and I love you and the kids thinking they were going to be killed. A few rioters broke into Speaker Pelosi’s office, sat at her desk, and stole items from the office. Five people died in the melee. One rioter was shot by Capitol police. Three others apparently died from medical issues they had. The other death was that of a Capitol police officer, the circumstances of whose death are not yet clear. (During the impeachment trial the Senate unanimously voted to award the Congressional Gold Medal to one of the Capitol police officers who had shown exceptional courage and helped save Pence, Romney, and others. In the days that followed the insurrection two Capitol police officers took their own lives. That Donald Trump is responsible for those deaths is beyond question.

Evidence that came out in the course of the impeachment trial is, if anything, more appalling than what we knew before. As the Secret Service was taking Vice President Pence out of the Senate chamber, Trump called Senator Lee trying to reach Senator Tuberville. Lee handed the phone to Tuberville. Trump wanted him somehow to delay the certification of the election. Tuberville said the vice president has just been taken out of the chamber, and I have to go. Trump expressed not one whit of concern about his vice president’s safety. Instead, shortly thereafter, he sent out a new tweet attacking Pence, thereby whipping up even more anger against Pence in the riotous mob. Also during the attack on the Capitol Representative Kevin McCarthy, the minority leader in the House, called Trump begging him to send help to the Capitol, telling him that there was a mob inside the building threatening the safety of everyone there. Trump said, “Well, I guess those people care more about the election than you do.” At no time did Trump ever inquire or express concern about what was happening. He cared only about overturning the results of the election. Eventually Vice President Pence not President Trump authorized the National Guard to come to the Capitol. Trump’s actions before the insurrection were despicable. His actions and failures to act during the insurrection are if anything worse.

In its very brief presentation to the Senate Trump’s defense team focused on several points including that that his trial in the Senate is not constitutionally permissible, that Trump did not receive due process in the House, that everything he said is protected by the First Amendment, that he did not incite the crowd to violence on January 6, and that everything he ever said about the 2020 presidential election was simply ordinary political speech. None of these defenses holds up to even superficial scrutiny. Trump’s lawyers also repeated the rightwing lie that it was something called “antifa” that actually had stormed the Capitol. That one isn’t even worth refuting it is so blatantly and obviously false. Trump’s lawyers also claimed that this impeachment was due to something they called “cancel culture.” This argument too is hardly worth responding to. They contended that somehow the left wants to cancel the constitution. That contention is ridiculous, since it was Trump who was trying to cancel the constitution by subverting the electoral process under that constitution. To discuss their other baseless allegations I’ll start with the constitutionality issue.

Trump’s lawyer argued that no impeachment or impeachment trial of a federal officer who is not in office is constitutionally permissible. This is the only argument they have that has even a patina of viability. At least in common usage and understanding the purpose and function of impeachment is to remove an officeholder from office. Obviously the Senate couldn’t remove Trump from office because he wasn’t in office at the time of the trial. This argument fails absolutely for Trump’s trial and would probably fail in a court of law. At the beginning of the trial the Senate voted that it has constitutional authority to try Trump’s impeachment even though he was not in office at the time. That vote established what in a court would be called the law of the case. That vote decided the constitutionality issue for purposes of the trial. Trump could have moved for reconsideration of that issue. He didn’t. Because the earlier vote was still in effect at the time the Senate voted on the impeachment it was illegitimate for any senator to vote to acquit Trump because the trial was unconstitutional, yet this is reason most of those who voted to acquit gave for their vote.

This argument would probably fail in a court of law too. Some argue that the trial is constitutionally permissible though the person being impeached was not in office at the time of the trial because the Senate has done it before. Prior Senate practice, however, is irrelevant to the question of the constitutionality of the trial. The earlier examples of the Senate trying people who were not in office could as easily have been unconstitutional as constitutional. There are no court decisions that decide the matter. Court precedent might matter. Prior Senate practice does not. More importantly, it seems that the drafters of the Constitution intended impeachment to include impeachment of a former office holder. It had been done in Great Britain before the US Constitution was drawn up, and the drafters of the Constitution apparently knew that it had been. That the concept of impeachment includes former office holders makes constitutional sense. If a former office holder could not be impeached, a president could do whatever he or she wanted very late in their presidential term with no consequences in Congress because there wouldn’t be enough time for the House to impeach the president and the Senate to try the impeachment before the president was out of office. Any federal office holder could avoid an impeachment trial by resigning before the Senate could hold that trial. A court would very probably hold that Congress has the constitutional authority to impeach and try a former federal office holder.

Also, there are a couple of provisions in the Constitution’s impeachment clauses themselves that at least suggest that the Senate may hold an impeachment trial against a former federal office holder both generally and in this case in particular. The Constitution says that the Senate is to try “all” impeachments. There is a valid impeachment here at least because Trump was still in office when the House impeached him. Therefore the Senate may try this impeachment. The Constitution also provides that there is a possible consequence of impeachment and conviction other than removal from office. Once it has convicted an officeholder in an impeachment trial, and only in that circumstance, the Senate may (though it need not) bar the convicted person from ever holding federal office again. If the Senate could not try an impeachment of someone no longer in office and find the person impeached guilty of the impeachment charges it could not reach the second question of whether or not to bar that person from holding federal office in the future. Therefore it is very probably permissible for the Senate to hold an impeachment trial of a person no longer in office.

Trump’s lawyers also argued that his trial in the Senate was illegitimate because Trump did not receive due process of law in the House impeachment proceedings. This argument is frivolous. It is true that the House voted to impeach Trump very quickly without the committee hearings that are typically part of a House impeachment process. Impeachment however is not a criminal proceeding. No one faces loss of life, liberty, or property (in the sense of a fine or confiscation of property) in an impeachment. The Constitution says that the House has the “sole” power of impeachment. The House may therefore make its own rules for cases of impeachment. There is no law whatsoever that specifies that the House (or the Senate for that matter) must give the subject of an impeachment due process. Yes, it would have more of an appearance of fairness if the House allowed the subject of an impeachment the right to counsel, to present witnesses, and to invoke the Fifth Amendment’s protection against self-incrimination, all of which are elements of due process. No law requires the House to do so. Trump’s rights were not violated in the House impeachment process.

Trump’s lawyers raised one other constitutional defense against the charge that he incited violence. They argued that anything Trump said cannot amount to an impeachable offense because everything he said is protected by the First Amendment’s guarantee of freedom of speech. This argument too is frivolous. No constitutional right is absolute. I have freedom of religion. That doesn’t mean I can perform human sacrifice, claim that it is a religious ritual, and not be prosecuted for murder. It’s a cliché, but you can’t yell fire in a crowded theater when there is no fire. Different kinds of speech receive different levels of protection. A manufacturer may advertise a prescription drug. The government may prohibit it from saying that the drug does something it doesn’t do, and that prohibition is not a violation of the manufacturer’s right of free speech. Political speech receives the highest level of protection, but neither is the right to freedom of political speech absolute and unlimited. The public speech of governmental officials is protected, but that doesn’t mean they can say anything they want without consequences. The current case against Donald Trump is practically a textbook example of that legal truth. The First Amendment never protects incitement to violence. The state’s interest in the physical safety of its citizens outweighs anyone’s right of free speech. Words by a person in a position of power and authority may even receive less protection in an incitement case than does the speech of ordinary citizens because that person’s words have a greater ability and tendency to provoke violence than do the words of an ordinary citizen. The First Amendment simply does not allow any person, let alone the President of the United States, to incite others to acts of illegal violence. That’s precisely what Trump’s words did. They are not protected by the First Amendment, and it is irresponsible for Trump’s lawyers to argue that they are.

Finally, Trump’s lawyers argued that Trump’s actions and words before and on January 6 do not rise to the level of incitement and therefore do not establish an impeachable offense. This argument too is frivolous. An impeached person’s actions need not amount to a crime in order to be impeachable. Incitement to violence can be difficult to prove in a criminal case (although the evidence in this impeachment trial may well prove it). Impeachment however is not a criminal proceeding. The House impeachment managers need not prove all of the elements of the crime of incitement to violence in order to establish an impeachable offense. That Trump incited some of his followers to violence is obvious to any impartial observer. For months both before and after the election, over and over again he fed them lie that the election had been fraudulent and that his landslide victory had been stolen from him. He told them to go to the Capitol and “fight like hell.” Trump incited violence, and the claim that he did not is frivolous.

Yet despite all the undeniable truths of Trump’s words and actions, too few Republican senators voted to convict to reach the required two-thirds supermajority. ___ Republican senators put party ahead of the truth, reelection ahead of justice, fear ahead of courage, and Donald Trump ahead of the country. Their vote to acquit Donald Trump of the impeachment charge against him is shameful. It is unpatriotic. It is un-American. It is cowardly. Those ___ Republican senators told the world that it’s acceptable for the US president to incite violent insurrection against the government the president heads. There simply is no defensible reason for those votes.

Trump’s lawyers tried to make out that what Trump said on and before January 6 was just normal political rhetoric indistinguishable from the political rhetoric that many other politicians, including some Democrats, had used on many occasions before. They said that many Democrats had urged their supporters to “fight” too. What those lawyers said about this point is of course patent nonsense. Yes, Democratic politicians sometimes urge people to fight for a cause or for the rights of marginalized people. No Democrat has ever done what Trump did. Never before has a US president summoned supporters, some of whom he knew were prone to violence, to Washington, D.C., precisely on the day when Congress would certify conclusively that Trump had lost the presidential election to former vice president, now president, Joe Biden. Never before had an American president spent months telling the world that the only way he could lose an election was through fraud, that there would be such fraud in the 2020 election, that he had in fact won an election by a landslide that he had clearly lost, and that his election victory had been stolen from him. Never before had an American president urged his worked up and agitated followers to “fight like hell” to stop the certification of his opponent’s victory and that they wouldn’t have a country anymore if they didn’t “stop the steal.” Never before had an American president so openly asked his vice president to do something that would have been unconstitutional and therefore illegal had he done it because the vice president doesn’t have the power to do it. Never before had an American president sent out an attack on his vice president when he knew that the mob he had incited was threatening the life of the vice president.

No, there was nothing ordinary about Trump’s rhetoric on January 6 or for months before he gave his incendiary speech on that date. In that speech he said once be peaceful. He said many times that there had been massive election fraud. He used the word “fraud” dozens of times in that speech at least. He repeatedly told the crowd that they had to fight like hell to overturn the results of the presidential election or they wouldn’t have a country anymore. Never before had an American president given a speech of any kind in Trump’s context on January 6. No other American president had ever spent months claiming that he could only or did only lose an election because of election fraud. Never before had an American president asked his supporters to believe that there had been a massive conspiracy against him by state election officials at least in the swing states, many of them Republicans, and by multiple state and federal judges, many of them either Republicans themselves or having been appoint by Republican presidents. Never before had an American president so attacked the most basic foundation of American democracy—free and fair elections. Never before had an American president fed a mob lie after lie about voting irregularities in state after state as Trump did on January 6. This country had never before seen anything like what Trump did in trying to overturn the results of a free and fair election. No, there was nothing ordinary about what Trump said before and on January 6. It is absurd for Trump’s lawyers to say that there was.

The full range of the consequences of the Senate’s unjustifiable acquittal of Donald Trump remains to be seen. It is clear that that acquittal in effect makes the impeachment clauses of the US Constitution very nearly null and void as they apply to the president. If inciting a violent mob to attack the US government in an attempt to prevent the performance of a constitutional duty is not enough for the Senate to convict a president in an impeachment trial, what is? Perhaps betrayal of the country to a foreign power with disastrous consequences for the country. Or clear outright bribery. It seems that anything less will lead to an acquittal at least unless a political party that is not the president’s has a two-thirds majority in the Senate on its own, something that is very unlikely ever to happen. The Senate’s acquittal of Donald Trump discredits the US Senate, the US Congress, the US Constitution, and the oath Senators take when they come into office. If the Senate will not convict Donald Trump on the current facts, the president is in effect immune from impeachment. That’s not what the Constitution intends. It is what the Republicans have wrought.

The acquittal of Donald Trump demonstrates once again how partisan our politics have come. It certainly sees that in both impeachments of Donald Trump, and very probably in the impeachment of Bill Clinton, party affiliation was more important to most Senators than were the facts and law of the case. Pursuant to a Senate rule, in an impeachment trial the Senators take an oath that they will do “impartial justice according to the Constitution and the laws.” The second impeachment trial of Donald Trump, and Trump’s acquittal in that case, prove beyond a shadow of a doubt that this oath means nothing to most Senators other perhaps than forcing them to cover their partisan decision with at least a thin covering of factual and legal justification. The case against Donald Trump was overwhelming. Conviction was the only reasonable and respectable outcome. Yet ___ Republican Senators voted to acquit and thereby prevented the majority of Senators from obtaining the conviction for which they had voted.

This acquittal of Donald Trump demonstrates the power of the extremists in what the media always call “Trump’s base.” The 43 Republican senators who voted to acquit Trump almost certainly did so out of fear that if they voted to convict they would lose their next Republican primary election to a candidate from or at least pandering to that base. That Trump has any base at all is a great puzzlement. The man is morally despicable and politically about as corrupt as politicians get. In his four years in office he used his office primarily to enrich himself and his family. He did great harm to this country and to the world. Nonetheless a majority of people who call themselves Republicans still support him. Sociologists political scientists, and historians will probably spend years trying to explain the origins Trump’s base and his seemingly inexplicable appeal to that base. American politics will never be healthy again (or as healthy as they ever were) until that base fades into history and ceases to be a political force among us.

After this vote the Republican Party, the party that calls itself the Grand Old Party, the party of Abraham Lincoln, is no longer a legitimate American political party. It has been taken over by people more loyal to Donald Trump than to the United States of America, people who do not believe in American democracy and who prefer an authoritarian leader responsible to no one to the American constitutional system of a limited executive and a balance of power between three branches of government. No one who believes in the American system of government can vote for any Republican anymore. No one who is a true American patriot can vote for any Republican anymore. If we are to maintain a two party system in this country somehow some other party must arise to play the role the Republican Party used to play. I have actually considered the Republican Party to be illegitimate for a long time because it advocates policies that benefit only the wealthy. Now there is no doubt that it is illegitimate but for a different reason. Now the Republican Party as it is represented in the US Senate does not support the US Constitution. That may or may not be a tragedy, but the votes of 43 Republican senators to acquit Donald Trump leaves us no other conclusion.

So the Senate’s acquittal of Donald Trump on the impeachment charge of inciting sedition is a very bad thing for our country. It cannot be justified under either the law or the facts. Impeachment is a political process, but in theory at least it need not be partisan. Entirely partisan it has become. For partisan reasons 43 Republican senators let former president Donald Trump in effect get away with murder. After all, five people died at the Capitol that day including a Capitol police officer who was bravely doing his duty in fighting back against the mob. During his 2016 presidential campaign Trump said he could shoot someone on Fifth Avenue, and it wouldn’t cost him any votes. On January 6, 2021, he shot a mob hellbent on violence at the US Capitol, and five people died. The Senate’s acquittal of Donald Trump in his second impeachment trial will go down in history as one of the biggest blunders the United States Senate has ever made. That acquittal is a shame. It is an American tragedy. It will live in history as a stain on our political culture.