As I’ve written before I oppose, on the grounds of political strategy and focus, the current effort to impeach the former President. In short, there are other, far more important, things for the country to concentrate on right now. The correct move would have been to seek censure and avoid what I feel will be the almost certain failure to convict in the Senate. When that happens there will be some who will inevitably spin it as a “victory” for Trump.
That said – the Trump “defense team” (and I use those quotes for a reason) managed to do something yesterday that is quite extraordinary. They presented such a weak case that they actually managed to LOSE ground when the matters on which they had just set out their position were presented to the Senate.
Think about that. Before the former President gave any defense at all he managed to get 45 Republicans to vote that the actions to be taken in respect of impeachment were unconstitutional. After making his case – he got less. You would normally expect that there would be a tendency to have Republicans vote cautiously in the initial vote, and then, after hearing the President’s team provide them some degree of cover change their vote and say “Well, now that the defense has presented their side I am convinced that this is an unconstitutional action”. You certainly would never expect that after making a detailed case the defense would LOSE votes.
But that is exactly what happened. The vote on the question of constitutionality went from 55-45 in favor to 56 – 44. The gap actually got wider. In truth this means the Trump side lost “votes”, (not just “a vote”) because, despite mounting a defense they were unable to add any Republican support during this second bite at the apple. To lose ground in this way is a sign of real trouble and incompetence. (It’s also a sign that the arguments made are fundamentally wrong, but that’s for another analysis).
Make no mistake, the defense lost those votes for no other reason than that they performed horribly when given the chance to present their argument. We know this because the guy who changed his vote, Bill Cassidy of Louisiana, told us so:
Is there any chance that the lawyers for Trump will get better? Probably not. Honestly – at this point the ex-President is probably better off turning to Shaggy to mount his “it wasn’t me” defense. It also likely doesn’t matter in terms of conviction – the chances are that there will not be a further 11 Republicans who defect from the party line. The defense of unconstitutionality is but one of the reasons Republicans will give for failing to convict.
Nonetheless there is (or should be) great legal significance in the vote sustaining the constitutionality of the impeachment effort. The trial procedures used in the Senate sometimes mimic the courtroom and other times do not. Impeachment proceedings are rare enough for much of the process to be that of “first impression” each time a question arises. The vote to uphold the constitutionality of this proceeding gives rise to just such an interesting point.
In a typical trial a judge will rule on points of law and evidence throughout the proceeding. He will then, at the conclusion of the trial” “summarize” those findings, along with the parameters of the law, in a “charge” to the jury before turning the decision over to them. So, for instance, if the judge determines that certain spoken testimony should be deemed “inadmissible” during trial – he can (and will) instruct the jury to “disregard anything that you may have heard” that related to that particular bit of testimony. If a jury were to be polled later on and said “Oh yeah, sorry Judge – I know you said not to consider that bit of testimony but we pulled the transcript and discussed that section for an hour before deciding the case” – that judge would likely declare a mistrial.
Now consider yesterday’s vote. It would not be unreasonable to say that the Senate, by majority vote, has ruled that the jury (the Senate as a whole) may no longer consider “unconstitutionality” as a valid reason for acquittal. That issue is settled – the proceeding IS constitutional. The Senate has collectively performed the equivalent of a judge saying “you must disregard any argument concerning unconstitutionality when rendering your decision”. That means that should any Senator allude to a constitutional argument during the debate following presentation of the evidence they should be ruled “out of order” and have their argument shut off.
This would require active participation of the presiding officer – Patrick Leahy of Vermont. Leahy should make clear his intention to silence anyone raising the argument during debate. The issue has been decided and should not be revisited.
But there is potentially more that can be done with this vote. Senators should now also be prohibited from citing “unconstitutionality of the proceeding” as a rationale for voting to acquit Trump as a defendant. Just as a juror who answers that they considered evidence improperly is subject to dismissal or creating a mistrial Senators who claim to have based their votes on the “unconstitutionality” of the proceeding should give rise to similar responses.
Putting aside whether a Senator who votes for acquittal based upon these grounds would simply lie about their motivation (because, as we all know, no Senator would EVER do that) let’s suppose that the presiding officer simply asks any Senators at the time of voting on conviction or acquittal whether they consider the actions being taken as unconstitutional and therefore are basing their vote on that premise. If that Senator answers “yes” then Leahy could take a few different actions:
1. He could seek to disqualify the Senator (just as a judge might disqualify a juror) and deny them the status of a “body” present for the purpose of the upcoming vote. The constitution only allows Senators “present” the ability to vote on conviction – so removing that status from a Senator who declares themselves out of step with the Senate’s rules would reduce the number of Senators who are validly “present” and would likewise reduce the 2/3rds number required for conviction. This would create a constitutional shitstorm, but would at least give some teeth to the Senate rules. Think about it – any Senator who continues to claim this trial is unconstitutional would be ignoring not one but two votes of the body in which he or she serves. This might be the most radical of all the suggestions – but it is also the most justifiable from a simple procedural standpoint.
2. He could, following the ultimate vote, state that due to the fact that certain members had continued to defy the rulings of the body there was no way to certify the result in good faith and therefore he must declare a mistrial. This ruling would be subject to an up or down majority vote which would presumably pass. There would be a similar constitutional blowout but the matter could be referred to the Supreme Court and any further trial put off until a ruling was secured, which might mean that the Congress could get back to something of greater importance.
3. He could do nothing, let the Senator vote and it could later be pointed out that essentially that vote was tainted – was the equivalent of “jury nullification”. This would not impact the verdict but might result in negative publicity for the Senators who ignored the rules of their own body.
I have listed these options in reverse order of likelihood – but really the most likely thing is that the Senate will vote without the question of whether the “jurors” are taking the constitutional status of the trial into consideration coming up AT ALL. That is an outrage – imagine if a judge in a case of statutory rape had the following exchange:
“Ladies and gentlemen of the jury, you may only consider the age of the alleged victim and whether the defendant had sex with a minor when rendering your verdict. You MUST NOT consider what the alleged victim wore or past sexual behavior. That is irrelevant to your decision. Juror one, do you understand?”
“Yes, Your Honor”.
“Juror Two – do you understand?”
“Sure, but I think she dressed like a slut, so I’m going to acquit”.
“Ummm – excuse me Number 2, but you can’t do that”.
“Gonna do it anyway”.
“Hold on – we’ll get back to you. Juror Number 3 – do you understand the instructions?”
“Yes, Your Honor”.
“Juror Number 4 – do you understand?”
“Yes – but I heard from someone that they got all the way to third base with her on the first date, so I’m voting to acquit as well”.
“Ummmmm. – I’ll get back to you as well – Juror Number 5…”.
Let’s say this went on through the entire jury – and about half of them took it on themselves to ignore the rules and judgements of the court. Should the judge simply shrug his shoulders and let them vote – or should he dismiss them? Would he not be expected to at least declare a mistrial? If certain Senators continue to claim that the impeachment action is unconstitutional they are no better than the wayward jurors cited in the above example. So, personally, I would have no problem with Leahy ruling them out of order and taking either of the actions set out in options 1 or 2, above.
In any event – the vote to convict or acquit Donald Trump of the offenses set out will not be decided on constitutional grounds. Realistically we all know what the lawyers will actually attempt to claim as a defense, even if they don’t do so openly. Just as legitimate “self-defense” will defeat a claim of murder, battery or assault, or “truth” will defeat a claim of libel – “prevention of a felony” would be a defense against the claim of “incitement to riot”. Trump has sought to invoke this claim – and his first team of lawyers resigned because they felt it was unsustainable. This second team (which, as Senator Cassidy succinctly pointed out is very much a SECOND team) will attempt, directly or indirectly, to invoke the same theory of defense. They will claim that the words used by the President were not unduly inciteful because they were true – the Congress was getting ready to fraudulently certify the election, Mike Pence was getting ready to commit knowing treason, all those court rulings over the past months were wrong. Trump, they will say or imply, properly believed that the election was stolen and so was acting as a legitimate purveyor of free speech when he whipped up the crowd.
The problem is – and this is where the House delegation will need to be as skilled as they were yesterday – all of that is a lie. Donald Trump wasn’t invoking the truth – because he knew – and has known for months – that he lost the election legitimately. The evidence can now be presented that Donald Trump was using these claims as a strategy, as a tactic, and not as a realistic claim. Testimony of how he was told, by his own staff, of the legitimacy of the result can be presented. Evidence of Trump fudging his words, publicly, while conceding defeat privately can be revealed under oath. Rudy Guiliani’s tactic of never bringing an actual fraud claim to court cannot be relied on any longer and the house of cards that Trump used to mislead the American public can be revealed and brought down.
The saddest part of this is that it probably won’t make a bit of difference. Senators will still vote according to the party line and not the facts. MAGA fanatics will still put a stupid red hat ahead of their country. Don’t be discouraged – the real opportunity for the country does not lie in convicting or acquitting Donald Trump – it lies in forgetting him. That’s not an up or down vote – that’s a process, and the sooner this whole damn trial is over, the sooner that can begin.
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