WHY BOTHER WITH A SENATE TRIAL FOR TRUMP?: LET US COUNT THE WAYS

 

As expected, the United States Senate acquitted former President Donald Trump on impeachment charges last Saturday. Seven Republicans joined 48 Democrats and two independents in support of convicting Trump, making it 57-43, ten votes shy of the 67 needed. Trump was charged with inciting the January 6 insurrection at the U.S. Capitol, and not trying to stop the carnage.

The seven Republican votes made it the most bipartisan impeachment trial in U.S. history.

Though House impeachment managers put on a brilliant case, Republicans fearful of a back-lash from the Trump base, ignored the evidence and acquitted him, leaving Trump still eligible for public office.

Many GOP senators hid behind the discredited jurisdiction rationale – the idea the Senate couldn’t convict a former president since he’d already left office. Senate Republican Leader Mitch McConnell relied on

that rationale in justifying his own acquittal vote, despite admitting the House managers proved their case. The no jurisdiction theory flew in the face of established precedent and the plain text of the constitution. The idea, however, provided enough of a fig leaf that Republicans exonerated Trump with the semblance of a straight face.

Even some progressives, knowing the likely outcome, asked why the senate

bothered with the trial. They said it distracted from President Joe Biden’s agenda (time will tell about that) and put Trump in the spotlight when the country should move on to other things. With all due respect to such views, we saw at least five reasons the senate proceeded as it should have:

        (1) Democracy Matters

The riveting presentations by the House managers – tightly scripted, efficient, and brimming with new video evidence – showed the United States values democracy and the rule of law. An effort at holding Trump accountable for the January 6 insurrection mattered more in terms of preserving basic principles of our system than outcome. Besides, the chance of bringing Trump to justice hasn’t passed. He still faces criminal investigations, including a new one by a prosecutor in Georgia over his attempts at reversing the election outcome in that state. Trump’s impeachment lawyers seemingly invited criminal prosecution as an alternative to conviction in the senate, as did

McConnell. We’re not reticent about seeing a former president found guilty of criminal charges thrown in jail. If the Secret Service must learn how it guards a protectee in prison, so be it.  

 

      (2)  A Nation Watching

We won’t know the full impact of the trial on public opinion for a little while. As it began, most polls showed a narrow majority in favor of conviction, 52-48 in several surveys. Those polls didn’t fully reflect the effect of the

prosecution’s case. We can’t imagine the horrendous scenes of assaults on police officers and lawmakers and Vice President Mike Pence running for their lives didn’t change some minds. Republicans who 

voted ‘no’ presumably are betting whatever negative effects the trial had on their party will fade.  Maybe, but we can already envision Democratic consultants screening the video for use in television and internet ads against Republicans in future campaigns. Is this really what Americans want from their leaders? Republicans who decided they couldn’t cross Trump and his supporters may find themselves in disfavor with other voters in coming elections, even if they survive dreaded primary challenges.

 

(3)  A World Watching   

Whatever the public reaction in this country, the fact the trial happened should have helped

America’s tattered reputation around the globe. The United States is making an international comeback, having rejoined the Paris Climate Accord and the World Health Organization. The new president’s effort at controlling the virus should help show the U.S. as a responsible world citizen again. Holding the trial demonstrated to countries around the world we will at least try drawing lines at abhorrent behavior by our presidents. We will use our institutions in service of protecting our values, even if we fail.

 

(4) We Care

Going forward with the trial demonstrated a level of concern about doing the

right thing, even if we didn’t get the right outcome. The trial was as much for the history books as for today. No one 100 years from now can say we just didn’t care when a lawless president incited an armed insurrection aimed at overturning the outcome of a free and fair election and preventing a peaceful transition of power. No, it didn’t turn out right, but we tried, and posterity will take note of that.

 

      (5) Trials and Truth

Trials are not perfect vehicles for arriving at truth, but they’re better than most anything else this society or any other has for achieving that goal. As a result of hearing and seeing the difference between the exquisite presentations

by the House managers and the disjointed, angry, sometimes unintelligible offerings by Trump’s overmatched lawyers, Americans got a clear picture of what’s true and what’s not. Anyone who watched any significant part of the proceedings understands exactly what happened on January 6 and the implications of that tragic event.

All three of us tried lawsuits during our legal careers and one of us presided over hundreds of them as a judge. We know firsthand how the presentation of conflicting

stories helps clarify an event and reveals the truth as best we can ascertain it. The second impeachment trial of Donald J. Trump served that function for the American people, an exercise they very  much needed.    

CONGRESSIONAL BAD ACTORS: CAN THE LEGISLATIVE BRANCH POLICE ITSELF?

As President Biden pursues his agenda, Congress finds itself distracted by the behavior of

some of its Republican members. Democrats fear some Republicans may incite violence or even threaten their personal safety. Resolutions that would expel or censure Republican members have been introduced in both houses. A bipartisan vote stripped one GOP representative of her committee assignments because of her outrageous statements. The situation grows tenser by the day. 

Speaker Nancy Pelosi declared that threats “from within” exist in the House of Representative. 

Some Republicans want to take guns onto the floor and have refused to go through metal detectors installed outside the House chamber.     Danger from outside forces remains. Capitol police propose making permanent the fencing installed around the Capitol grounds for

the presidential inauguration. Meantime, the investigation into the January 6 insurrection seemingly turns up new and disturbing evidence every day.

The Greene Case

Freshman Representative Marjorie Taylor Greene of Georgia got elected after suggesting the

execution of Pelosi, making threats against other Democrats, claiming that September 11 never happened, and denying the truth of school shootings, including the Parkland, Florida carnage in which 17 people died and 17 others were injured. Greene, an adherent of the QAnon

conspiracy movement, made other outlandish statements, including that lasers controlled by a Jewish-run company started wild fires in California.

Democrats urged that House Republican leader Kevin McCarthy strip Greene of her education and budget committee assignments, but he declined. Despite saying she regretted some of her statements, Greene lost her committee assignments on a vote of 230-199, with all Democrats and 11 Republicans voting in the affirmative.

“Disorderly Behaviour”

Article 1, section 5 of the United States 

Constitution gives each house of Congress power to regulate the conduct of its members. Both the House and the Senate can discipline members who engage in “disorderly Behaviour.” Punishment can include expulsion from Congress, though more often both houses have “censured” members for bad conduct. Expulsion requires a two-thirds vote, while a censure resolution needs only majority approval.

Fifteen senators have been expelled, the last in 

1862. Six were thrown out in 1797 for treason in connection with inciting participation of Native-American tribes in a British invasion of Florida. The other nine, kicked out in 1861 and 1862, supported the Confederacy in the Civil War.

Nine senators, most notably Joseph McCarthy in the 1950s, have been censured

for conduct that brought the Senate into dishonor and disrepute. Expulsion and censure cases have been prosecuted for abuse of office, fighting in the senate chamber, financial irregularities, sexual misconduct, and other bad acts. Very often, especially in recent times, senators brought up for expulsion or censure have resigned before senate action. Three members facing such sanctions since 1980 all resigned first.

In the House, 23 members have been censured, five since 1966. The House has expelled five members, two in the modern era. Michael Meyers was kicked out in 1980 on a 376-30 vote after a bribery conviction. James Traficant got his walking papers in 2002 by a vote of 420-1 following

convictions for conspiracy to commit bribery, defrauding the United States, obstruction of justice, and filing false tax returns. Three previous expulsions from the House, all in 1861, involved disloyalty by fighting for the Confederacy.

What’s Enough?

While it’s clear Congress can regulate its membership, the history of expulsion and censure raises the question of whether Congress needs criminal convictions before taking action against misbehaving members. In the House, that appears to have been the case, at least recently. Both expulsions in the 20^th and 21^st centuries came after convictions for real law breaking. The constitution doesn’t say criminal convictions must precede expulsion or censure, but Congress, especially the House, seems to have needed that in recent years before acting.

The Senate history presents a different picture, but one relevant to today. The 15 senators thrown out participated in inciting violence against the United States or its interests.  Given the events of January 6, Congress now may have to decide if threatening a member rises to the necessary level for action. 

How Did We Get Here?

Former President Donald Trump and compliant,

cowering Republican leaders justifiably get much of the blame. While we’d guess the impeachment trial won’t result in a conviction, we also believe the likely surge of civil and criminal cases against Trump will reveal the depth of his seditious behavior. Those cases, probably not tried until 2022 and 2023, should reveal just how far he stooped and how close the United States came to becoming a dictatorship, not a democracy.

But blaming Trump and his enablers isn’t enough. His rise to the presidency indicates a fundamental sickness in our society it may take years to eradicate. Because much of his appeal rests on anger and white supremacy, which have been with us since the beginning of the republic, it’s possible we won’t rid ourselves of this problem in the lifetime of anyone alive today. 

The congressional response to the threat of violence from both inside and outside the Capitol could say a good deal about the resolve of the nation to eliminate the abhorrent behavior that plagues so much of our politics. Things we could have never imagined now seem normal. Congress

can throw out members who make violence and the threat of violence part of their portfolios. History, however, shows senators and representatives have only reluctantly used that power. Now, it appears, we live in different times – times that call for a more aggressive use of that authority.