This week marks the precedent-setting second impeachment trial of former President Donald Trump. On Feb. 9, Democratic impeachment managers from the House of Representatives presented an airtight, cogent, convincing argument regarding the constitutionality of the trial. (Most Republicans question the legitimacy of the trial given that Trump has left office.)
The Democrats also began to make a clear and compelling case as to why the Senate should convict Trump of “Incitement of Insurrection.” Six Republicans joined all 48 Democrats and two Independents in affirming that the trial could proceed.
The plain fact is that Donald Trump is the de facto leader of a mob that nearly toppled the United States government on Jan. 6. Indeed, there is a clear line between his behavior and the actions of the insurrectionists. (Several of those who rioted at the Capitol have stated that they were acting on what they sincerely believed to have been orders from Trump.) Long before the insurrection, Trump became the only U.S. president to state that he might not leave office if he lost an election. Further, he repeatedly promoted the lie that the election was “stolen” from him. The “success” of that lie is evident in the fact that most Republicans believe it.
Trump built the bomb, set the timer and waited for it to explode. He then claimed, incredulously, to be shocked by the aftermath. If his incendiary words and actions as president don’t constitute impeachable offenses, literally nothing else would. (One wonders whether it would have taken the actual murder of members of Congress — or then-Vice President Pence — to convince Republicans that Trump needs to be severely punished.)
Not surprisingly, the fact that Trump was so close to leaving office when the insurrection occurred has come up several times. In response, lead impeachment manager, Congressman Jamie Raskin, argued that there should be no “January exception” to a president’s bad behavior. In other words, if a president engages in behavior that is impeachable in his first three years, or even most of his fourth year, such behavior should be impeachable in his final days as president. If that were not the case, presidents could brazenly commit crimes conceivably mere hours before leaving office — and do so without fear of serious reprisals. (Interestingly, Trump’s former national security advisor, John Bolton, has stated that his acquittal in the first impeachment trial emboldened him to continue his reckless behavior.)
For their part, Trump’s supporters argue that he has a right to “free speech.” To be clear, he does. But that right is a shield of liberty, not a sword of sedition. In law, there is something known as the Brandenburg Test. The two-part test concerns whether speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Several lawyers agree that Trump’s actions meet that test. However, impeachment trials are not normal court trials. Thus, certain rules don’t apply. Indeed, several facts are not even relevant.
The first irrelevant fact is that Trump’s lawyers have lost the legal argument. The Constitution does not prohibit a former elected official from being impeached. (Of course, Trump was impeached while he was still president.) This leaves the question of whether he can be tried after leaving office. The answer is yes — which leads to the next irrelevant fact.
Trump’s lawyers have lost the historical argument. As legal scholars have pointed out, Secretary of War William Belknap was tried after he resigned from office a mere two minutes before the House was to vote on his impeachment.
The third irrelevant fact is that Trump’s attorneys lose the moral argument. What Donald Trump did was wrong. Colossally wrong. This is so self-evident that even his own attorney, Bruce Castor, suggested that he could be arrested at some future point.
Fourth, Trump’s attorneys are losing, well, the argument itself. Their opening statements were rambling, incoherent and amateurish. (Trump himself reportedly fumed while listening to them.)
But Trump will be acquitted because he will win the only argument that matters — the political one. Politically speaking, the numbers are in his favor. Ostensibly, this trial is about justice and accountability. It should be about preserving and protecting the world’s longest standing democracy. Every senator who votes to acquit Donald Trump will fail in his or her duty to perpetuate the American experiment.
Larry Smith is a community leader. Contact him at firstname.lastname@example.org.