The Real Grounds for Trump’s Impeachment

The chances of two-thirds of the Senate backing the impeachment of Donald Trump are slim to none, so what’s going on in the Senate must have other purposes: to consolidate the record of what happened on January 6, to publicize it in a way that can make an impact on the voting populace, and in doing so to permanently brand Trump as a dangerous demagogue undeserving of the stubborn support that his “base” – that amorphous assemblage of right-wing zealots and free-riding old school conservatives — still accords him.

But if the real goal of the proceeding is to get the Senate to first vote to confirm Trump’s impeachment, and then vote to prevent him from holding federal office ever again, the House managers should be making a different and more compelling argument.

The apparent thrust of the House managers’ case is to focus on the disgusting, horrific events of January 6 and to portray Trump as the “inciter in chief” of those events. Hence the managers’ hours of factual exposition and security camera footage that portray more clearly than ever that the riot at the Capitol was indeed violent, that many of the participants intended to do bodily harm to Nancy Pelosi, Mike Pence, or virtually anyone they came across who looked like a politician, and that members of Congress only narrowly escaped the dangerous rampage.

The managers’ calculation must be that this visceral portrayal of unconfined chaos in the halls of the Capitol would so revolt a few Republican senators that they might be tempted to break with the prevailing party schema of minimization and dismissal in response to Trump’s egregious post-election behavior. But even if you assume a few open minds in the Republican ranks, there are at least two weaknesses to this line of argument.

The first is that it requires that a causal link be established between Trump’s words at and before the rally that preceded the riot, and the riot itself. (One wishes the managers would avoid the politically-charged word “insurrection” when describing the attack on the Capitol; it’s too open to legalistic quibbling and presumes a conclusion about motivations that were likely just as chaotic as the behavior of the participants. But by any measure, it was certainly a riot.)

Trump used incendiary words at the rally — “fight like hell,” “gotta be strong” and the like — and he explicitly directed the crowd to march to the Capitol (lying like hell when he said he would be with them). But all these phrases can be spun as the sort of wildly, often recklessly figurative speech in which Trump often indulged over his career, rather than directives to actually break windows, pummel police officers, or ransack Nancy Pelosi’s office, much less hang Mike Pence. Could Trump have reasonably foreseen (that phrase beloved of lawyers) that some of the thugs in the crowd before him were primed and eager for violence that day? Of course. Did he direct them to engage in it? Not really. And as his defense counsel will be quick to point out, he once used the word “peacefully” in suggesting what would come next.

One of the greatest fool’s errands of modern times is to attempt to divine the inner workings of Trump’s mind, but it’s nonetheless tempting to try to fathom what he thought would actually happen when his mob reached the Capitol. Perhaps they’d line up and sing “God Bless America”? Perhaps they’d kneel and raise clenched fists in ironic mockery of a Black Lives Matter protest? Or just stand around waving flags and chanting “Stop the Steal”? Certainly he must have known that none of this, nor any other “peaceful” demonstration, would halt the counting of electoral votes that was proceeding inside. His only slim hope of that was if Mike Pence went rogue, and in his comfy chair atop the chamber dais, Mike was in no position to be influenced by a bunch of camo-clad protesters out on the street somewhere. It’s hard to imagine that even Trump could convince himself that the ragtag band of whack-jobs, cosplay aficionados, and apocalypse preppers arrayed before him could halt the process of confirming the outcome of a national election that had been known and vetted for two months. Maybe, to Trump, it was all just another photo op in his endless campaign for re-election, and whatever happened afterwards was entirely beside the point, and beneath his consideration.

Whatever he may have thought, what he actually said at the January 6 rally probably failed to meet the legal criterion for incitement to violence. He’d long since become adept at muddying that line. And while it’s true that there are crimes and misdemeanors far short of criminal incitement that warrant removing a president from office, much of the House managers’ impeachment case is cast in those terms, and seeks to draw a straight, heavy line between Trump’s pronouncements leading up to (“it’ll be wild!”) and during (“fight like hell”) the rally, and the mayhem that ensued at the Capitol.

However emotionally engaging this approach may be, it seems misplaced. The riot was rife with crimes, and many of them will be prosecuted. But it was, in the end, a riot by a gang of opportunistic and/or deluded thugs, and not the direct act, nor at the explicit direction, of Donald Trump.

The second weakness of the “inciter in chief” argument is that it de-emphasizes the greater wrong of Trump’s post-election behavior. What he indisputably did do is far worse than orchestrating a riot, and should be the unremitting focus of the impeachment proceedings. He actively opposed, by legal but also extra-legal means, the transfer of the office of the presidency from himself to his legitimate successor. He repeatedly solicited the overturning of a national election. He openly suborned the fraudulent manufacture of votes in the swing state of Georgia, for which he may face criminal prosecution there regardless of the outcome of the impeachment trial. In calling on Mike Pence to void the electoral vote count, he sought to defeat the constitutional process he had sworn and was bound to defend regardless of how much he, and the many defeated incumbents before him, didn’t like the result. Those other presidents — actual leaders — honored their oaths when the chips were down and upheld the Constitution. Trump did the opposite. He attacked it.

But worst of all, he willfully and repeatedly committed the cardinal crime of any holder of public office — he actively and selfishly undermined public faith in the very process of democracy, without which there can be no public office, no representative government, and no republic to defend.

It wasn’t just a “Big Lie,” as the House managers would have it. Trump is a casual and inveterate liar, and another blatant falsehood in his long litany of them wouldn’t have mattered. It was what he lied about, his active antagonism to democratic principles, that should be grounds for his impeachment. He proclaimed, publicly and repeatedly, that we weren’t really citizens, weren’t really voters, were just pawns of an intricate conspiracy, that in our states and districts and local precincts, we hadn’t done the grubby work of democracy that we knew full well we’d done. And even worse, it worked. The vast majority of Republicans apparently believe the election was illegitimate, though let’s hope this is just something they tell pollsters and not something they believe in their hearts.

But surely there can be no more damning an admission of unfitness for any public office than Trump’s relentless undermining of the very means by which we choose who will hold it. The Senate should vote with that overwhelming evidence in mind.

4 thoughts on “The Real Grounds for Trump’s Impeachment

  1. I agree. Try him on what you can definitely convict him of. Though even then enough Republicans might find excuses for him.

  2. Keith, every time the Mortal Coil appears in my inbox, I drop whatever I am doing and read your post. The enjoyment of reading wonderful, thoughtful and insightful writing is not a gratification I can possibly delay. Thank you for that.

    But today I have to take issue with the idea that the impeachment trial—as a practical matter—should have been focused on the great harm the President did to undermine public faith in our democracy. There is no denying the importance of your point and the accuracy of your description of how he did so, but in my view, he had many aiders and abettors in the very chamber of the Senate in which the impeachment trial is being conducted (not to mention the accomplices in other federal and state offices). There are just too many enablers who understand that a vote to convict Trump on the basis of the lies about the election is simply an indictment of themselves. This is why—as a matter of strategy—the impeachment managers are better off focusing on his conduct and his speech (much too sophisticated a word to apply to how Trump verbally expresses himself) both before and during the attack on the Capitol. This approach leaves a safe space for republican senators to convict without having to implicate themselves or their colleagues. It likely will not work in all events, but seems to me the better approach and strategy.

    While I agree that causation is problematic, we must remember that this is not a criminal trial. And we dare not forget that Trump was no ordinary citizen or “inciter” at the time. He had access to security briefings that we know would have alerted him to the fact that this was a crowd of thugs, many of whom were armed and violent. He had the power of the military and national guard at his disposal. Trump knew that the people in this crowd were his political foot soldiers—each animated by the President’s lies, blindly loyal and predisposed to riotous acts. It does not take much to light a fire with kindling that is already very dry. Even if his mental state at the rally that immediately preceded the attack do not rise to the level of criminal “intent” or “knowledge,” the facts demonstrate in my view that Trump was at a minimum “reckless” in encouraging this unruly and violent crowd to attack the capitol and disrupt the constitutional proceedings. We routinely impose fines, monetary judgments and even prison sentences to people who act recklessly with respect to matters that pale in significance to a President encouraging a mob he knew or should have known to be dangerous and primed for action to march on and attack the capitol and our democracy.

    Trump’s conduct after the rally and once the attack started is even more damning. He watched it on live TV, tweeting about Mike Pence’s lack of courage and spreading further lies and misinformation about the election. While the mob committed unlawful, violent acts in plain view, Trump sat and watched it live on TV. His aides now say that Trump failed to appreciate the gravity of the situation, even as he witnessed his own vice-president being whisked away by security and capitol police officers being attacked violently. I say, BS. He knew he had the power and authority to call off his foot-soldiers at any time before they engaged in the reasonably foreseeable acts of violence and criminality that resulted in the loss of life at our Capitol.

    If there is any hope of persuading a sufficient number of republican senators to vote to convict (i know, unlikely), then I believe a focus on the foregoing facts, rather than a spotlight on the lies Trump told and various Senators repeated about the election, is the best trial strategy for the impeachment proceedings.

    • Ken, don’t know if you’re watching today’s (2/12/21) defense of Trump, but it shows the vulnerability of the “incitement” case, as his team strings together 20+ minutes of Democrats using similarly pugnacious language. Context of course matters, but the apparent double standard is viscerally damaging to the argument.

  3. Hi Keith, I watched some of it, and thought it was a sophomoric exercise—context does matter, as you point out, and I hate to think that the context here was lost on anyone in the room. I don’t think it did any damage at all. My view continues to be that the incitement case was the most effective strategy that could be deployed, and I think the fact that an additional Republican who previously voted, as i recall, that the proceeding was unconstitutional, ultimately voted guilty supports that claim (as do McConnell’s pathetic post-trial comments). Seven votes from Republicans does not seem much like much support, but given that many partisans in the Republican party were not going to be moved by any evidence whatsoever, I think it is significant. I think I read somewhere that this was the most bi-partisan impeachment vote in history. So, we will have to agree to disagree on the strategy issue.

    What comes next will be interesting. A post on how Section 3 of the Fourteenth Amendment might be employed to bar Trump from office would be interesting. Or, whether it should be used at all at this point. Questions about who adjudicates or decides a finding of “insurrection” or “rebellion”, how it should be adjudicated, whether the president is covered under this section (as opposed to electors) and whether such a finding is reviewable all come to mind.

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