The trial of Trump: A question of conscience

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By Brian Browne

The Senate trial of former President Trump has will likely have ended by the time you read this. The trial of America will not have. It shall continue because the nation’s two major political parties have failed their calling. The Democrats are ineffective, lacking the drive to achieve what is important. The Republicans currently struggle with group insanity. This gives them the madman strength to undo what is important. Democrats manage to face the right direction only to bedevil their cause by walking backwards. Reveling in facing the wrong direction, Republicans dash thereto with all the velocity their contumacious limbs can muster.

In their different ways, both go the same direction. The Republicans just get there faster and with greater faith in their incorrectness than the Democrats have in their ineptitude. Sadly, the current American style of politics is for those long in ambition and baseness but short of vision and heart. If American democracy were a stock, the prudent investor would sell it.

Although his acquittal was a foregone conclusion, Democrats correctly impeached Trump. Before the election, Trump declared himself a “terrible loser.” He uttered this rare accuracy not as a factual assertion but as an implicit yet dark threat. He was warning the nation he would not accept electoral defeat. Worse, he was prepared to go to uncharted depths to flip the election result to his favor.

For months before the election, he trafficked the notion that the election was being fraudulently precooked against him. What he never explained was how the powerful personage of the Commander-in-Chief would be so keenly aware of such a massive fraud yet take not a single step beforehand to prevent it. Would not it have been easier to prevent the alleged fraud then to contest it after the fact? It makes no sense that this raging bull of a man would exercise such restraint when such a large crimson flag was placed closely before his eyes and right under his nose.

At his disposal, he had the power of the entire national justice and law enforcement apparatus. Yet, Trump could not even muster one strand of credible evidence of the alleged fraud.  Either he was a uniquely weak, effete leader who could not get this massive bureaucracy to halt the unprecedented fraud or he was propagating a demagogue’s fairy tale. Though the logic of his position was specious, his followers blinded themselves to this flaw because they cared not about logic or fact, for neither did their leader.

On Election Day and immediately afterwards, Trump demanded that votes be left uncounted. He made this improper demand because he knew the outcome would be against him. In a fair election, his was a lost cause. He had botched everything related to the COVID crisis. The economy was in free-fall. His bigoted remarks had alienated, if not infuriated, most black and brown people. Trump’s approval rating was the lowest of any sitting president since the advent of opinion polling. His loss was but the most plausible outcome, a solid bet. Had he won, talk of a perverse miracle would have been justified.

Yet, as the nation buckled under a public health crisis and economic downturn, Trump could think of nothing except overturning the election.  The method of overturn was inconsequential. If ever the ends justified the means, it would be in this instance for the disgraced, angry man. He continued to lie that he handily won what had been so obviously lost. He told his bigoted, hate-filled supporters that their votes had been stolen by minorities and others who were not true Americans. His rhetoric turned them febrile.

After the election result became known, he summoned officials from key states to the White House. There, he pressured them to thwart Biden’s victory by overturning the popular vote in their respective states. That failed. He instituted 60 lawsuits. They failed. Last December, he encouraged members of the Electoral College to break the law by casting their votes for him when state law demanded that they cast their votes for Biden just like the people of their states had during the November popular vote. Fortunately, none of the electors turned unfaithful to their constitutional duty.

Having lost in every forum from the election itself onward, his desperate focus fell on the January 6 Congressional certification of the Electoral College result. This would be the last step in America’s arcane process of certifying a presidential election. Until that day, all previous Congressional certifications of presidential elections had been largely ceremonial affairs.  Trump would bash that tradition. Advancing his malignant hope of overturning the election, Trump turned the nation’s Capitol into a battleground, labelled Congress his enemy, and slandered his Vice president as a traitor. He would turn the plain language of the constitution into authoritarian whimsy.  Then, he lathered a crowd of violent miscreants by exhorting them to take strong action to save the nation from those who sought to make it a more just, democratic one.

The events of January 6 are notorious and in no need of full restatement here. The Trump crowd needed little instigation. They were ready to tear things down. They felt cheated. Those unduly advantaged by injustice always feel shortchanged upon the advent of greater justice. Trump falsely told them Vice President Pence, as presiding officer in the Congressional certification, could unilaterally overturn the election. They believed him not because it was true but because they wanted to believe. It fit the outcome they wanted. Democracy be damned at that point.

To believe one man, especially the Vice President, can overturn the verdict of the over 81 million people who voted for Biden is a ludicrous notion. If this were true, then the party in power could easily and always perpetuate itself. Pence soberly decided that he better follow constitutional law than Trumpian whim.  Pence suddenly became the most marked of men, hunted by the mob Trump had directed toward the Capitol building. Had they laid their hands on him, Pence would not have survived the day. Tellingly, Trump refused to act once the building was under violent attack. He did not care if the Vice President and all of Congress were in harm’s way if that was the only way to retain his hold on office.

Five people died. The fragility of democracy was put on full display as a mob groped and grabbed to scuttle the certification of a free election.

Trump may not have planned the violent siege. However, it is clear he wanted the certification stopped by any available method. When the tumult began, Trump saw the insurrection as his last best hope. Thus, the Commander-in-Chief did nothing to protect Congress from the ugly ructions.

Given this background, the Democrats in the House were right to initiate proceedings against Trump. In the impeachment and subsequent Senate trial, you witnessed American democracy in action. You also witnessed it in decline. Both Democratic and Republicans leaders lack something vital although the something the Democrats lack differs significantly from the Republicans’ deficiency. Democrat’s seem well intentioned but absent keen political judgment and verve. Republicans mindlessly disregard logic but are single-minded in pursuing the schemes hatched of their collective madness.

Because of the Democrat’s lack of sharpness, they made two glaring, almost inexcusable errors in preparing their case. Perhaps their perspective was too clouded because they had been direct victims of the onslaught. Nevertheless, they fumbled what should have been a more damning exposition against Trump.

First, they placed their weaker argument as the cornerstone of their impeachment quest. Democrats emphasized that Trump incited the insurrection with his speech that day. Their secondary argument was that he was guilty of a dereliction of duty because he failed to act against the insurrection once it started. They placed the arguments in the wrong order.

Their primary argument, the incitement claim, was fraught with constitutional ambiguities, thus vulnerable to attack. Trump’s defenders could and did raise plausible free speech arguments, labelling the president’s January 6 address constitutionally protected speech. This allowed the Republicans to paint the Democrats as seeking to abridge the constitution instead of trying to protect it.

Had the Democrats emphasized presidential inaction in the face of the violent attack on the legislative branch while it was perfecting a peaceful transfer of power, Republicans would have lost their constitutional façade. There was absolutely no constitutional or factual defense for Trump’s willful inaction. The Democrats should have hammered this point repeatedly.  Trump was clearly guilty of standing by, hoping the mob would halt the Congressional certification. This dereliction means Trump abetted the assault after the fact. This, by itself, would have sufficed to convict Trump. Moreover, the Democrats could have publicly depicted him as joining that short list of notorious, reviled traitors who used their public office to try to undo America’s democratic republic. This would have been the greatest sting to both Trump and his partisan supporters.

Because of the Democrat’s mistake, Republicans eagerly rallied to Trump, painting him as the guardian of free speech. They would have been a tad less eager to defend the President’s breach of his duties as the nation’s chief law enforcement officer. Against this argument, there was no constitutional pretense behind which they could have hidden. The only thing they could have done was to hide in shame for trying to defend the indefensible.

Related to this, the House Democrats erred in drafting a single article of impeachment that held incitement as its anchor. They should have drafted two distinct articles. The lead should have been that Trump wantonly abandoned in his duties as Commander in Chief by not moving to stop the insurrection. The second, less important article would have been that Trump’s January 6 address incited the melee. Also, this arrangement of legal arguments would have been more profitable because the first article helps prove the second by revealing Trump’s craven state of mind.

The second grave flaw in the Democratic efforts was their failure to call witnesses. The trial would not have been terribly elongated by this vital inclusion. For example, both sides could have been limited to five witnesses with the examination of each witness lasting no more than 30 minutes. The Democrats could have called witnesses to testify and bring records that revealed Trump’s conduct while the insurrection was occurring. In failing to permit witnesses, Democrats open the door to Republican claims that too many questions remained unanswered.

The Senate trial lasted several days. The Democratic managers of the impeachment did much better than Trump’s lawyers. However, the Democrats failed to have the maximum impact because they initially emphasized the wrong legal argument at the expense of their better one. Only toward the end of the trial did they pivot to highlighting the dereliction argument. Then it was too late to reshape the case from a constitutional battle over the limits of free speech. Still, Democratic lawyers overall performed quite well once the actual trial began.

On the other hand, Trump’s lawyers were a bumptious lot. What they lacked in legal knowledge and finesse, they compensated with angry bluster and flared nostrils. Their tactics were akin to the murderer vociferously complaining that the police had handcuffed him too tightly. They feigned indignation much like the irate husband who, upon being found in a compromising position with his mistress, upbraids his wife for failing to knock before entering the marital chamber. However, for Trump and his faithful, these coarse antics are the stuff of white conservative heroism. Their undignified performance provided enough excuses for Republicans to stand behind Trump and disregard the preponderant evidence against him.

In the end, it was not surprising that Trump would be acquitted in the Senate trial. Conviction required 67 senators, meaning 17 Republicans would have to vote against Trump. Given his continued stronghold on the party, this was but a wish. Yet, in throwing themselves to Trump, Republicans likely make a cardinal mistake in electoral mathematics. Upon thinking of the 74 million people who voted for Trump, they cower. They forget he lost the election by over 7 million votes.

While Trump may call 74 million voters to his side, he also rallies 81 million and more against him. In politics, such a numerical difference is generally a losing proposition. Republicans see Trump as a prolific vote magnet but he is an even stronger voter repellent.

Republican senators know Trump incited the insurrection and, more importantly, was guilty of dereliction of his law enforcement duties. However, they dared not make Trump walk the plank. Many Congressional Republicans well know the unsavory details of the wrongs Trump did and the right he did not do that fateful day. In exchange for their silence during this impeachment process, he has signaled his support for their reelections in 2022 and beyond. To retain office, these Republicans have unhitched their consciences that they can tether themselves to Trump’s coattail. A Faustian bargain has been made. Having been consummated, it cannot be repudiated. At its core is a slick form of villainy that has managed to change its name to something that sounds respectable. This might seem like good short-term strategy; in the longer-term, it is not a winner’s formula.

These people have marred their legacy. By covering Trump’s transgressions, they stand for the strange proposition that an outgoing president, after being rejected by the people in an election, can exercise greater power without fear of impeachment than can a reelected president who must fear impeachment. They adhere to the belief that an outgoing president, at least a Republican one, can attack valid electoral results with impunity. They hold that democracy does not necessarily hold. As such, they have married a demagogue. They shall reap the reward of those who consort with such danger.

Only a handful of Republicans, such as Senator Romney and Representative Liz Cheney, exhibited the fortitude to go against the partisan grain and vote their conscience. I have never been a fan of either of them but their conduct speaks of political bravery; it is upon such bravery that democracy is maintained provided enough people have such courage.

While the Democrats lost the constitutional trial, they may have unwittingly won on the political front. Trump is injured but still politically strong. He remains eligible to run for future office. The Democrats wanted to disqualify Trump from future office. They may be better off in not getting what they wanted. Turning this criminal president into a political martyr would have been a political mistake. Better to leave Trump in the arena for he is as capable of eating his own people as he is attacking Democrats. Trump’s grating presence will continue to fracture the Republican Party. People of conscience and regard for the constitution will not vote for him. This will make it harder for Republicans to constitute the united front needed to regain the presidency. It will also make it difficult to win in heretofore politically competitive swing states and districts where the numbers of Democrats and Republicans are at near parity.

Trump may be the Democrats’ best fundraiser and campaign asset. Fearing what might happen if Trump regained the White House, decent people will vote against him. Even in these tumultuous times, there are more decent people than not in America. Upon this tender supposition rests the fate of the most powerful nation on earth.

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